Where there is a will, there is a way

Sunday September 8 2019

Rehema Athuman (right) thinks only men should

Rehema Athuman (right) thinks only men should write wills and therefore has no plan to write one herself. PHOTOSI COURTESY. 

By Salome Gregory

Over the years families have been subjected to unending conflicts due to deceased estates. It is because the majority of us shun away from writing a will for different reasons.

A random survey by Life&Style reveals that, many people are not comfortable with writing a will as there is a misconception this will bring death and bad luck.

The chilling imagination of whether your body will be buried or cremated and how your property will be divided soon after your death brings fear to many. Disturbing statistics reveal that out of ten people randomly asked if they have written a will only one confirmed to.

Experts and ordinary people interviewed on the importance of will writing say, the major hindrance to will writing is that most live for the moment forgetting that death is an inevitable event.

Legal Officer at the Ministry of Home Affairs, Daudi Magacha, defines a will as a legal document written by a person that shows their wishes on how their property shall be divided after death, how their bodies should be interred and who will manage the property until its final distribution.

He says, it is of paramount importance for people to write their wills and last testaments before death so as to maintain family peace even when after they are gone. Failure to do so has seen an upsurge of family conflicts, where the weak- women and children suffer from loss of inheritance and property.

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Magacha says, those who have not written wills should consider doing so immediately to avoid conflict among family members in future.

There is a procedure to be followed when writing a will which include, writing an introduction, clearly labelling the document “Last will”. The name of the executor should be stated in the will as well as your inheritors. For the will to be valid and recognised it has to be signed by the person drawing the will and witnesses.

Incase one dies without leaving a will and the family happens to have a conflict, they will be forced to file a petition to the court for it to rule the distribution peacefully.

“The family has to find a trusted person who will represent them at the court during the entire period of the court ruling until the estate is divided. The appointment of the trusted person will need to get approval from a clan meeting, preferably someone who is neutral and honest, says Magacha.

Mohammed Kajembe, 45, is a father of two sons. He says, he wrote his will five years ago but the decision was not an easy one for him to make. Like most people he had the fear that he would be inviting bad luck. An unfortunate incident where he witnessed his neighbour’s wife being stripped of everything she and her husband had worked for spurred him into action- by writing his own will.

“It was not just the house. Her husband’s relatives barred her from the shops they had with her husband in Kariakoo. These are the people I have known for a very long time and I saw them grow their business together. It was a surprise to everyone who knew the family.” The woman, according to Kajembe decided to give up on all her rights to the property she had accumulated with her late husband.

Kajembe could not stomach the idea of his wife losing all that they had worked for over the years upon his death. Moved by the misfortune of his late neighbour’s wife, Kajembe had to approach his friend who is a lawyer on the right process to follow in writing a will.

Martin Ambrose a lawyer based in Morogoro says, in writing a will one should be clear and label the document as last will. This will give a clear picture on what the document is all about. The will should indicate who the executor is. An executor is a person named in a will or appointed by court and being given legal responsibilities to take care of the deceased’s property until distribution.

He says a will should state your heirs, how the property will be shared and witnesses also have to sign both copies of the will. The will writer has also to appendix their signature on the will to make it a valid and legally binding document. Ideally the will has to be updated every year and one witness can be present.

Kajembe updates his will every year. He gives his lawyer the updated will after every correction. This helps him to add any assets he and his wife would have acquired.

Local government chairman in Kinyerezi Bonyokwa, Jeremiah Chahali says, his office has been receiving complaints from women soon after the husband’s death. With most societies still living under patriarchy, the man’s relatives come to grab all property from the woman.

Chahali who himself is yet to write a will is advising people to write a will to avoid conflict.

For the past three years, any man who goes in his office to seek for original ownership of land has to be accompanied by his wife so that both their names appear on the official land ownership title document. He says, he realised a majority of men would only write their names on the land title documents despite having acquired the land together with their spouses.

As a way of reducing family conflicts soon after death, the local leader decided not to issue ownership documents without the presence of a woman.

Rehema Athuman,37, a primary school teacher at Kimanga has not yet written a will and does not plan to do so. She simply believes all of her properties will remain in the hands of her husband and child.

She says, writing a will is something new and strange in most of African societies as the majority believe estates should always be owned by men.

In some areas children born out of wedlock and girls are also not considered as heirs. It is therefore important for the community to understand the importance of including all groups of people in a will. According to www.learnreligions.com writing a will is recommended in Islam as prophet Muhammad said Muslims should not let two nights pass without writing a will.

The website shows that, the Quran clearly states that: “Men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind” (Quran 4:7). Thus, both men and women may inherit.

Dar es Salaam-based Sheikh Fadhili Mahimbo says, Moslems are also advised to write wills to avoid conflicts that might arise after death.

Setting aside portions of inheritance for women was a revolutionary idea at its time. In ancient Arabia, like in many other lands, women were considered part of the property and were themselves to be shared among purely male heirs. In fact, only the eldest son used to inherit everything, depriving all other family members of any share. The Quran abolished these unjust practices and included women as inheritors in their own right.

This paper recently quoted Isidora & Company Advocates as saying that a will can be written or oral. An oral will is made in the presence of not less than four witnesses, two of whom must be relatives of the testator.

A written will is made by a literate testator in the presence of two witnesses, one of whom must be a relative. Although writing and registering a will may be simple and straightforward, it is recommended to engage a practicing advocate to provide the best option in the circumstances. The issue of writing, registering and enforcing a will is a pressing one, but which few people have a good understanding of.

sgregory@tz.nationmedia.com

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