A will does not provide a complete solution to property inheritance as contingencies can arise
which negate its objective.
AT some time or other, someone will advise you to make a will. Such is the situation faced by a
reader who was told to consult a lawyer for this purpose.
However, a representative from a will-writing agency told him that a lawyer is not the correct
person to go to because lawyers are not specialists in preparing wills.
I can understand the situation faced by the reader. We have lawyers who have traditionally been
viewed as the people to go to, to prepare a will. However, of late various organisations which
provide will-writing services have come into the picture. In their enthusiasm to secure business,
some of their representatives may go as far as to say that a lawyer is not the right person to go to for
making a will. This is a sweeping statement which is perhaps motivated by the enthusiasm of such a
representative to provide service. On the contrary, a lawyer is certainly equipped to provide such
When a person wants to offer a service, the proper thing to do would be to make known to the client
what service he can offer as well as his ability to do so. Making adverse statements about another
person or an entire profession is no indicator of a person’s capabilities and competence.
Whilst those representating will-writing agencies may be trained to write wills, the fact remains that
a lawyer, by reason of his qualification and knowledge, is certainly in a position to prepare the
In this article, it is not my intention to discuss which is the better option: to see a lawyer or a
representative from a will-writing agency. Instead what is relevant is for the reader to know what is
involved in making a will and the factors that need to be looked into.
The purpose of making a will is to direct how the property of the deceased is to be distributed upon
his or her death. There are certain formalities that need to be complied with. The will must be in
writing and there must be two witnesses to its execution who must be present at the same time.
A person who is a beneficiary under a will ought not to be a witness. It is not that this will render
the will invalid. Rather, the witness who is a beneficiary will lose his entitlement to inheritance
under the will.
Of course, this discussion is in the context of a non-Muslim, though the considerations that need to
be taken into account in making a will would be equally applicable in the case of Muslims.
Irrespective of who prepares the will, various aspects which lead to different consequences need to
Nor should a will be made by just copying someone else’s will or taking a template and changing
the name of the testator, the name of the beneficiaries and description of the assets, whether in
money or property.
The person preparing the will ought to find out from the testator whether he wants to give away his
property in certain proportions, or whether he is bothered by certain possible contingencies.
The situation changes when the testator has serious concerns about providing for different members
of his family. In this connection, there is a need to probe further in order to be able to give proper
advice and guidance.
Sometimes the person who comes forward to make a will may think that the person who is drafting
the will, will advise him. On the other hand, the person drafting the will may think the testator
knows what he wants. As a result, a simple straightforward document may be prepared and the
testator goes back believing that all is well.
The person preparing the will must enquire about the testator’s family circumstances in some detail.
He must ask about the testator’s intentions and whether there are any concerns as to what may
happen after his demise.
It is not a question of intruding into his privacy. Such inquiries are necessary in order to address
problems which may arise in the future. In fact, knowledge of problems which have arisen in the
past are matters that ought to be kept in mind and brought to the attention of the testator.
These eventualities and possibilities must be discussed and the testator should weigh the
alternatives and consequences, and consider his options.
A situation could arise in which a person makes a will giving all his property to his only son whom
he is very proud of. The son gets married and he in turn wills all his property to his wife.
On paper this looks fine. However, three months later the father dies, leaving the inheritance to his
son. The son may have had the intention of looking after his mother but four months after his
father’s death, he is killed in an accident.
At this point in time, based on the provisions of the will – and unless certain exceptions apply – the
son’s wife may walk away with all the property and take the view that she no longer has any
obligations or ties with the family to which her husband belonged.