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The process of writing a will, which is a person’s testament of how they intend to have their assets distributed at death has a bearing on those who are left behind, particularly the spouse and the children.
The person who writes this testament has the freedom to distribute such assets in whatever way they please subject to the provisions of the Wills Act (Chapter 6:06).
There is a link between the laws of succession and marriage laws stemming from the many duties and obligations that accrue on both spouses during the subsistence of the marriage. There is a comprehensive intestate succession law framework which deals with distribution of the deceased’s estate where a spouse dies without drafting a will and it prioritises the surviving spouse and the children. The same conclusion cannot be made for testate succession because a person is free to prioritise whomsoever they wish to inherit from their estate.
The Wills Act in Section 5(3) (a) has attempted to offer a lifeline for spouses by stating that the contents of the will drafted by a married person should not prejudice the right of the surviving spouse to benefit from the deceased estate. This provision may be interpreted to mean that a spouse by virtue of marriage is entitled to inherit from the deceased’s estate regardless of whether or not a will exists (my emphasis). The problem which has plagued the courts for many years is in the interpretation of this same provision because on one end is the equality perspective which argues that one should not disinherit a spouse in the will because of the contributions made in the acquisition and maintenance of the assets during the subsistence of the marriage.
Contrary to that interpretation is the understanding that a person who writes the will has “freedom of testation” which gives them the independence to choose who inherits from their estate and who does not. In some court judgments, some judges have argued that if a spouse who is registered as the owner of any property can, during their lifetime dispose of property and deal with it any way they want then the same liberty must be extended to that spouse at death.