I want to update my will, which will affect wealth distribution for certain family members. Am I obligated to tell them about it? A recent discovery prompted this need to change it. I just found out that I sired a child during my college years. He is 22, and I want him to be included in my will.
As the owner, decider, and allocator, besides the posthumous distributor of wealth, you must remember that every child in your biological heritage has a right to access your inheritance.
This thinking, which must lead your actions, is premised on Article 27 of the Constitution, in which several clauses equalise people of different identities. Clause 1 confirms that every person is equal before the law. The equality referred to is significantly the ability, capacity, and liberty to fully enjoy all fundamental rights and freedoms. This full enjoyment includes the right to protection and benefits of the law in equal, deliberate, and systemic chances.
The fundamental principle that should guide wealth distribution within or outside a will is the preference of the distributor or allocator. The preference should, however, not come through as a point of discrimination. Discrimination as a denominator of relationships is despised by the Constitution by a provision that denies every person, organ, or agency the right to treat others differently or indifferently, especially where equality and equity are stations of accountability, besides representing the serenity of humanity.
Clause 5 of Article 27 prohibits everyone from discriminating directly or indirectly against another. No ground is justifiable, and it does not matter whether such persons are deemed unappreciated. Their colour, race, sex, pregnancy, marital status, health status, ethnic or social origin, age, disability, religion, conscience, belief, culture, dress, language, or birth does not count.
Every person and child are supposed to experience similar rewards before the law, if institutions and those who run them were faithful to it. Article 53 Clause 1 Paragraph (e) places every adult in a child's frame, giving them a right to parental care and protection, which should be shared equally between mother and father. In this case, the parent's marital status and station cannot outdo biological or legal ties between them. This legal and likely social parent-child connection triggers the application of the Law of Succession Act, which is the cardinal statutory law governing the estates of deceased persons.
Testate succession refers to the management of inheritance where an oral or written will is the reference document.
Section 3 of the Law of Succession Act defines a will as the legal declaration by a person of their wishes or intentions regarding the disposition of their property after their death, duly made and executed according to the provisions of Part II, and includes a codicil.
Such a person, known as the testator, has an unlimited right to bequeath part or whole of their estate to anyone of their choice through a will. However, a will only becomes a reliable legal instrument if the person who created it could do so. Section 5, of the Law of Succession Act provides for what constitutes the capacity of a testator.
A testator can be anyone. Their race, nationality, gender, sex, marital status, or any other identity associated with them does not count, save where ill physical or mental health blurs their ability to reason and act objectively.
This state is sometimes referred to as insanity. So, the law demands that a testator must have been of sound mind at the point at which they created the will. The testator must be an adult since children or minors cannot make a will. Being of sound mind means that the person is aware of their estate distribution decisions, can reasonably foretell the impact, and is comfortable with it. However, allegations of incapacity can only be challenged in court, with a claim of invalidity.
A person who challenges a will in court must remember that sub-section 4 of Section 5 of this law gives the burden to prove their allegations. This is further strengthened by the provisions in Sub-section (1) of Section 107 of the Evidence Act, which places the burden of proof on the person who makes an allegation about fact to be relied upon by a court of law in making a decision.
The practice of reading wills suggests that most beneficiaries need not to be made aware of what the testator bequeaths them. This exercise is often entrusted to and led by the testator's trusted people. Reading a will is always done on a scheduled time, with all family and likely beneficiaries invited to attend and listen. Whether or not you owe any potential beneficiaries and family an obligation to tell them of the changes you seek to do on your will regarding your son is irrelevant.
