Series | Week 23
Title: How to Prevent Family Members from Contesting Your Will
A will is one of the most important documents you will ever prepare. It allows you to decide how your estate should be distributed after your death and ensures that your loved ones are taken care of according to your wishes. Yet, even the best intentions can be derailed if your will is later contested by family members. In Botswana, such disputes often delay estate administration, strain relationships, and result in costly litigation.
The good news is that you can take proactive steps to reduce the chances of your will being challenged. Below are key guidelines drawn from Botswana’s Wills Act (Cap 31:04) and the Administration of Estates Act (Cap 31:01) to help you safeguard your final wishes.
Ensure Your Will Is Valid Under the Law
The first line of defence against any contest is a will that fully complies with the Wills Act. According to the Act, a valid will must:
Be in writing;
Be signed by the testator at the end of the document; and
Be witnessed by two competent witnesses (each at least 14 years of age) who are present at the same time.
A witness cannot be a beneficiary under the same will, otherwise their benefit may be void. These formalities may seem simple, but they are crucial. Any mistake — such as missing signatures, unqualified witnesses, or an improperly dated document — may render your will invalid and open the door to disputes.
Confirm You Have Mental Capacity
Another common ground for contesting a will is an allegation that the testator lacked “testamentary capacity.” This means a person did not understand what they were doing or the nature of their property when signing the will.
To avoid this, it is best to make your will while you are in good health. If you are elderly or ill, obtain a dated letter from your doctor confirming that you were of sound mind at the time you signed the will. Keep this letter with your original will — it can serve as crucial evidence if anyone later alleges otherwise.
Avoid Undue Influence
A will can also be contested if it is believed to have been made under pressure, coercion, or manipulation by a family member or caregiver. To protect yourself:
Draft and sign your will in the presence of an independent lawyer;
Ensure beneficiaries are not present when you sign; and
Keep a brief note or letter explaining why you made certain decisions, especially if you are excluding or favouring certain relatives.
Such evidence demonstrates that your choices were freely made and deliberate, reducing any suspicion of undue influence.
Use Clear and Precise Language
Ambiguity invites conflict. Be specific when identifying your beneficiaries and assets. Use full names, identity numbers, and describe properties by their plot numbers or title deed references.
Include a clause that revokes all previous wills and a “residuary clause” explaining what should happen to any property not specifically mentioned. A clearly written will leaves no room for misinterpretation.
Choose the Right Executor
Your executor will carry out your wishes, so choose wisely. Appoint a person who is trustworthy, competent, and neutral — not someone likely to be drawn into family disputes.
If your estate is complex or your family relations are strained, consider appointing a professional executor, such as a law firm or trust company. The Administration of Estates Act gives the Master of the High Court authority to supervise executors and oversee estate distribution. Having a professional executor helps ensure the process runs smoothly and fairly.
Register or Deposit Your Will
Under the Administration of Estates Act, a will may be deposited with the Master of the High Court for safekeeping. This prevents tampering, loss, or destruction. When lodged, the Master records it in the register of wills, ensuring it can easily be traced after your death.
Some people prefer to keep their wills privately with a lawyer or in a secure place. Discuss both options with your attorney to decide what best suits your needs.
Keep Records That Support Your Decisions
If you make unconventional choices in your will — such as leaving out a close relative — keep written notes or a letter explaining why. Also maintain a list of your assets and where they are held. These records can help your executor and serve as supporting evidence of your intentions.
Review and Update Regularly
Life changes — marriages, divorces, births, and property acquisitions — can affect your will. Always review your will after major life events to ensure it still reflects your wishes. When you make a new will, revoke the previous one in writing and destroy the old copies to prevent confusion.
Consider Including a “No-Contest” Clause
Although not expressly regulated under Botswana law, some wills include a clause stating that any beneficiary who contests the will forfeits their inheritance. Known as an “in-terrorem” or no-contest clause, it can discourage frivolous disputes. However, it must be carefully drafted, as it cannot override genuine legal challenges, such as fraud or lack of capacity. Always seek legal advice before including such a clause.
Communicate Your Wishes
Finally, consider explaining your estate plan to your family while you are still alive. This transparency helps manage expectations and reduce shock or resentment after your passing.
Final word
A properly drafted will gives peace of mind, but safe storage gives security. The most reliable way to protect your final wishes is to lodge your original will with the Master of the High Court or your trusted lawyer. In next week’s article, we will dive into Can you disinherit your family? What does the law say.
