WHAT IS A WILL?
The law governing wills in Botswana is the Wills Act. A will can be defined as a declaration in a document executed in the manner required by law (i.e. it meets the formal requirements) by the person making it, being the testator in regard to the devolution of the testator’s property after his/her death. A will expresses the testator’s directions regarding the distribution of his/her property after their death. For the will to be valid, it must comply with the formalities under the Wills Act.
IMPORTANCE OF A WILL DURING THE COVID-19 PANDEMIC
The Covid-19 pandemic has made having a will more important than ever. This is because once one is diagnosed with Covid-19, the focus is on recovery. Therefore, having a will gives them a peace of mind knowing that their affairs are in order and their loved ones will be taken care of in the event that they die. “A will is important because it determines how one wishes their estate to devolve after their death. It also determines the executor of the estate and it can be used to give clear instructions regarding the testator’s funeral.”
WHO CAN MAKE A WILL
In terms of Section 5 of the Wills Act, anyone aged 16 years or more may make a will unless at the time of making the will he/she is mentally incapable of appreciating the nature and effect of his/her act.
A will can be drafted by the testator alone or drafted with the assistance of an attorney. The will may be in the possession of the testator or left in possession of the attorney. After the testator’s death, anyone with a copy of the will must submit it to the Master’s office. If the will is declared invalid, then the estate will devolve in terms of the rules of intestate succession.
REQUIREMENTS FOR A VALID WILL
For a will to be considered valid, it must fulfil 4 requirements. Firstly, the testator must have a serious and free intention to execute a will (animus testatandi). Secondly, the testation must be voluntary (i.e. there must be no undue influence from other parties). Thirdly, the testator must have the testamentary capacity to execute a will (i.e. he/she must be aged 16 years or older). Lastly, the will must comply with the formalities of the Wills Act.
AMENDMENT OF A WILL
Formalities for amending a will are provided for in Section 3(1)(b) of the Wills Act. In terms of the provision, any amendment to a will must be signed by the testator or if anyone signs the will on behalf of the testator, such person must also sign any amendment to the will. In addition, such signatures must be made in the presence of two witnesses who should also sign and be present at the same time. There is also a need for certification of any amendment of the will.