WRITING A WILL

The making of wills in Malawi is regulated by the 2011 Deceased Estate (Wills, Inheritance and Protection) Act, and it defines “will” as a legal declaration by a person of his or her wishes or intentions regarding the disposition of his or her property after his or her death. The Minister may, for the guidance of the general public, prescribe a form in which a will may be made. A person who is of sound mind may dispose of all or any of his or her property after his or her death by will. A will may appoint persons who are not minors to administer the estate of the testator or any property which is disposed of by will.

?Disposal of property by will may be made to any person and subject to any condition. A parent may by will appoint a guardian of a minor child for the administration of the benefits of the child under the will. Where a person appointed as a guardian dies or otherwise desists from taking up the appointment, the court shall appoint another person as a guardian in the absence of the initial appointee. A will may nominate a subordinate court to which applications relating to the administration of the testator’s estate. ?????????? ???????????

Every will shall be made in writing, signed by the testator in the presence of at least two competent witnesses who shall also sign the will in the presence of the testator and in the presence of each other as witnesses to the signature of the testator. Any person who is of sound mind and is not a minor shall be a competent witness. A person who witnesses the testator’s signature of a will and a spouse of such witness shall not be entitled to take any benefit under the will but shall be entitled to act as executor of the will. However, a beneficiary under a will shall not be disentitled to a benefit under the will by reason that he or she or his or her spouse has attested a codicil confirming the will. ?A benefit under a will to a witness who is a member of the immediate family of the testator shall be valid if a court is satisfied, upon the application of or on behalf of the witness, that; there was no other competent person who could have been witness to the will, the benefit is fair in all the circumstances or the benefit consists of property that would have devolved to the witness upon intestacy; and there is no evidence of fraud, coercion, undue influence or other? impropriety or suspicious circumstances surrounding the making of the will. ?

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A will may be made outside Malawi in respect of any property in Malawi shall be valid if made in accordance with the provisions of the Act or of the law of the place where it was made, or the law of the place where the testator had his or her domicile when the will was made. A member of the defence forces of Malawi, on actual service, may make a will which shall be valid notwithstanding that he or she is a minor or that any of the formalities required by the law have not been complied with. ?A person may deposit a will for safe custody with the Registrar or the District Commissioner or a resident or first grade magistrate in compliance of Probate Rules on deposit and withdrawal of wills. A person can also opt to deposit their will with any person; such as a bank, an insurer, a law firm, an administrator of a provident fund or an employer.

A will can be revoked by destroying the will or by making in a subsequent will or some document executed like a will a statement of the intention to revoke. Where there are more than one will, the latest in time shall prevail to the extent of any revocation or variation. No obliteration or other alteration made in a will after its execution has any effect unless such alteration is signed and attested as a will or is referred to in a memorandum written at the end or some other part of the will. ?

A will shall be revoked by the marriage after the making of the will by the testator unless the will was made in contemplation of marriage with the person who becomes the spouse of the testator as the case may be.? Upon the end of a marriage of a testator by reason of divorce, unless the will provides otherwise, any gift made in a will in existence at the time the marriage ends by the testator to the spouse; or any appointment of the spouse as an executor, trustee, advisory trustee or guardian made by the will, shall be revoked.

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