The importance of having a will has been stated and re-emphasised over time, still, a large number of people have still failed to make a will. Most see it as a harbinger of death and a bad omen and have therefore refused to make one. Some others have made wills, but in the making of their wills failed to comply with the conditions which a valid will must fulfil under the law. An invalid or defective will is equal to having no will at all.
We currently have a matter in court where a faction of the deceased’s family is alleging that the Will purported to have been made by their deceased father was not actually made by him, while the other faction is alleging that the Will in question is their father’s Will and that those disputing its authenticity are doing so because they are not content with gifts given them under the Will.
We also have another matter in court where the deceased died without a Will and his family members have been engaged in a long legal tussle on how to share the property of the deceased.
A Will no matter how well made may still be contested in court, however, if that Will was made in compliance with the law, then the court would always declare the Will to be valid.
There is however, an alternative under the law for persons who would prefer not to make a Will because of their perception or personal belief that a Will is a harbinger of death. That alternative is a Deed of Gift.
A Deed of Gift is a document through which a person gives out his property as a gift to another in his lifetime. The ownership of the property is transferred to the beneficiary immediately it is accepted by him.
In using a Deed of Gift as an alternative to a Will, the person giving out the gift (the donor) may insert a clause in the Deed of Gift which is to the effect that the gift would only take effect after his death. The import of that clause is that the beneficiary would not be able to deal with the property given to him under the Deed of Gift, ownership of the property which is the subject of the gift remains with the donor until the happening of the condition stated in the Deed; in this case, death of the donor. So until the donor dies, the beneficiary cannot deal with the gift or assert ownership of the gift.
A donor can also attach some conditions to the gift, in which case the gift will be revoked and revert to the donor if the conditions attached to the gift are not satisfied.
A Deed of Gift and a Will both have their advantages; they are both good, it all depends on a person’s choice. However, the advantage which a Deed of Gift has over a Will is that since it is a gift which is given in the life time of the donor, it is less subject to contention and controversy over its authenticity. The beneficiary would not need to show Letters of Administration or grant of probate to be able to enjoy the gift given him by the donor.
However, one of the drawbacks of a Deed of Gift is that once it is made and executed in favour of a beneficiary, it cannot be revoked; the gift passes upon the fulfilment of the conditions stated (if any) to the beneficiary. This is contrasted with a Will which can be revoked and amended as many times as the testator pleases before his death.