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Why writing a will is very important

By Sarah Kinya | July 5th 2016

Death is brutal; it comes when we least expect it. Not even years of failing health or old age would prepare us for the pain that ensues. Condolence messages or money are never enough to take away the pain. It hits at the very core of the family.

It brings warring family members together, unites them in grief and ironically, it also been known to tear families apart.

Despite common knowledge that death is inevitable, we do very little or nothing at all to prepare our loved ones for a life without us after we’re gone.

In the wake of the death of a parent, spouse or guardian, families are left penniless, children orphaned and widows and widowers lose identity, their standing in society and are forgotten as soon as the burial ceremony is over.

The lonely journey begins, in many instances followed by a fierce battle for control of property.

Many of these cases end up in court, dragging on for years and in the process rendering children, spouses and other bona fide beneficiaries destitute.

While the practice of writing wills remains a fairly common occurrence in the west and other parts of the world, in Africa it is discussed in hushed tones. Even when family members are known to have battled chronic illnesses for years and death appears to have been inevitable, and in other cases it is obvious that in the event of death succession will be contested, many people still choose to ignore the issue of a will in the hope that somehow things will sort themselves out.

So what makes Africans and wills strange bedfellows? According to Nelson Ashitiva, Partner and Head of Strategy Ashitiva & Co. Advocates, there are a number of factors that make will writing very unpopular in this part of the world, with culture sitting at the very core of it.

He notes, “Wills are an expression of an orderly worldview, a kind of paradigm that is deficient among a majority of African families.” The reality among many African homes today is that there is a total lack of order, trust, cohesion and perhaps long-term perspective.

This is also manifest in our political, social and corporate life, where in most cases none of our leaders think 50-100 years beyond their lives. Typical African patriarchs hoard all information and control of assets and resources to a point where upon their demise, they leave a mess.

Assets cannot be accounted for by the family and the next of kin has no idea how the machinery works, leading to imminent collapse of the estate.

It is also important to note that we are only a third generation from the native cultural order where succession was passed down through unwritten customs which worked fine because our value systems at the time were communal and there was a just system of ensuring equity and passing down of information to the next generation.

There is also the fallacy that writing a will is a bad omen and a way of inviting death with the assumption that the family has gotten on well and the belief that they will amicably manage and distribute my assets fairly when I am gone.

There are also those who believe that will writing is a preserve of the remarkably wealthy with many people thinking they are too poor to write a will.

Nelson argues that one need not be rich to write a will stating that will writing is simply outlining an orderly manner in which life should continue in one’s absence.

He compares the example of west where will writing is not geared at material wealth alone but also targets items of sentimental value such as cats, wedding gowns, engagement rings among others. In the famous Mbiyu Koinange succession case, which was finally concluded after 35 years and 25 judges, it is said that the lawyers who handled the case were paid more than the beneficiaries combined.

Will writing is a question of foresight, where individuals and societies are urged to have a vision and think beyond their lifetime.

Families and individuals need to appreciate certain basic principles of succession laws in Kenya, such as the fact that the law does not discriminate between males and females, the married and single, children born in lawful marriages or outside and that dependents are not necessarily children, but anyone who depended on the deceased including former spouses.

It is only with this knowledge that we can start contemplating the issue of writing a will with the seriousness it deserves.

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