Majority of people die without having made a will for various reasons:
- Reluctance to contemplate their own death i.e. superstition that it is inviting death
- Belief that a will is pointless in their case perhaps because of little property
- Ignorance as to the possibilities open to them
1). Making a will avoids squabbles between dependants over the estate.
2). It avoids misuse or wastage of the property. This has two elements:-
a. There is usually some delay where a person dies intestate between the date of death and date of grant of letters of administration. In this interim, no one is taking care of the estate and there is possibility of wastage. Administrators of estates derive their authority to administer the estate from the grant of letters of administration (and cannot act before they are issued i.e. about two months before they are granted because of requirement of notice of thirty days calling for objections before the documents can be granted) while the executors derive their authority from the will. As they derive their authority from the will executors can begin to administer the estate from the date of the deceased’s death. The grant of probate merely confirms their authority. Thus through a will a testator ensures that their estate may be dealt with immediately upon his death. A further aspect of administrative convenience in executing a will is that it is possible to give many useful and desirable powers of administration to the executors under the will. The powers of the administrator of an intestate’s estate are limited by LSA.
b. The testator may give his property to persons he has confidence in to take good care of the property. If you die intestate, there is no guarantee that irresponsible children will not get property and waste it.
3). A will enables a testator to benefit persons outside the family circle because the rules of intestacy only make provision for the deceased’s next of kin. It is only by making a will that a testator can benefit others e.g. friends and relatives.
4). The making of a will enables the testator to maintain control over property. This is especially important for a person with a spouse and children e.g. if a wife fails to make a will, she loses control over the ultimate destination of the property on the death of her husband if she dies first. She simply has to hope that he will dispose of what was originally her estate to the children of the marriage rather than marrying someone else after her death and leaving the combined estate to his second wife. She could achieve control by giving her husband simply a life interest in her estate with the remainder passing on his death to the children. A life interest only entitles the husband the income for the estate.
5). The making of a will entitles the testator to appoint personal representatives of his own choice to administer his estate. If a person dies intestate the persons who administer the estate (personal representatives) are appointed by the court and the deceased will have no choice in the matter.
6). A will enables a parent who has minor children, if they so wish, to appoint a guardian or guardians to take parental responsibility for the children should he or she die while the children are minors.
7). A will may also be used to give directions regarding the disposal of the dead person’s body. This could be in terms of the precise method by which their body is to be disposed of. Such provisions or directions have no binding legal effect as the law recognizes no property in the dead body of a human being. This would mean that the testator cannot by will dispose of his dead body. Such provisions amount to a mere request to executors to comply with the testator’s wishes. Kwach J stated in Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi Nairobi CACA No. 66 of 1984, there is no property in a corpse which a testator can validly dispose of by his will, the executor’s obligation is to give effect to the deceased’s wishes in relation to the disposition of his corpse as far as practicable. The executor is not bound to give effect to those wishes if they are either impracticable or in conflict with the personal law of the deceased. Similar remarks were made by Law JA in James Apeli and another vs. Prisca Buluku (Mrs) Kisumu CACA No. 12 of 1979.
8). The making of a will enables the testator to make a full disclosure of all the property they own or die possessed of, which is not possible in case of intestacy where a lot of the undisclosed property or assets may be lost.