The Subject of Intestacy in Wills

The Subject of Intestacy in Wills - VineLegal

Intestacy simply means a situation whereby a person dies without making a will to share his property and estate. It refers to the condition of an estate of a person who dies without a will, and owns property that is worth more than their outstanding debts. A person who dies without leaving a will is called an intestate person.

A will is a legal document voluntarily made, executed and witnessed according to law by a testator with sound disposing mind. Consequently, a person cannot claim any benefit under a will until the maker of the will dies. 

When a person who was married with children dies intestate (without a will) then difficult questions such as who the beneficiaries entitled to the deceased’s property are. This often leads members of the family to engage in bitter dispute which may result in litigation.  

Section 49 of the Administration of Estates Law deals with succession to real and personal estate on intestacy. The above narrative is but one of the instances which can result from the failure of a person to prepare a will. In order to prevent such happening, it is important to explore the nature of a will in order to provide insight as to how it works in the hopes that many more persons would embrace the culture of making wills and forestall the many inconveniences, problems and expenses arising from the absence of a will upon death.

Making a will entails accepting one’s mortality. As a result, the inner turmoil occasioned by planning for one’s death is something most people would rather avoid. Moreover, it is superstitiously believed in some parts of Africa that making a will brings one closer to his demise.

However, the benefits of making a will far outweigh the fears and discomfort which accompany the disposition, especially when compared with the negative consequences imminent when upon one’s demise there is no will. 

Where a person dies without making a will, two streams of law may govern the administration and devolution of his estate (property) – Administration of Estate Law and Customary Law. The determinant of the applicable option largely depends on whether the deceased contracted a Marriage under the Act (Christian Marriage) or Customary Law Marriage.

Considering the hardship, uncertainties, risks and expenses associated with the absence of a will, it is better advised that a will should be made well ahead of one's death without having negative thoughts on it.

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