Burkina Faso / Will: “People are beginning to understand that it is important to deal with issues related to their inheritance during their lifetime”, Me Yacouba Dembélé

Lefaso.net: Who can make a will?

Me Yacouba Dembélé: In Burkina Faso, any adult who is 20 years old or older can make a will. It is received by a notary or a specific jurisdiction. There are three types of wills. There is a so-called true will, which is drawn up by the notary himself or by a judge. In this case, the testator comes to the notary or the judge, expresses his wishes, and then the notary or the judge transcribes them. There is also a holographic will, which is written entirely in the handwriting of the testator and signed by the testator, and finally written and stamped by the testator, and its content is revealed only when the testator dies. It should be noted that a will has no value during the lifetime of its author. A will only has value and enforceability from the date of death. Many times, we tend to think that it is literate people or wealthy people who use wills. But in many cases, there are some middle-class people, even illiterate people, who come to the notary to draw up a will. There are also some people who come from polygamous families or have some difficult children who do this. In Burkina Faso, wills mainly concern real estate assets, but are not limited to them.

How long after death can a person make a will?

In principle, the will must be opened on the day of death. If the death has occurred and the circumstances are known, the will must be read even before the burial. Sometimes, the will contains provisions regarding the burial rites, the preparation of the body, the place of burial. So if we bury before the will is read, it is of no use. That is why when the will is drawn up before a notary (which is also recommended), the notary issues a certificate of deposit of the will to the interested person, who can sort it among his documents or give it to his heirs and they tell him which notary to deposit it. So on the day of death, the children call the notary and ask him to come and read the will in front of everyone.

Is it necessary to have witnesses present when drafting a will?

Not necessarily, but only in certain circumstances. For example, if the person is illiterate, then there needs to be a witness present to prove that the person is indeed who he is and that the statements are indeed his.

Didn’t the deceased’s family know that he left a will?

This happens a lot because unfortunately in Africa, especially in Burkina Faso, people are afraid of death. Therefore, they avoid actions related to death, because talking about a will already means that we are preparing for death. People don’t even like to hear about death. There are also some people who, according to the provisions of the will, are afraid that their beneficiaries may harm their lives. Therefore, some people make a will and hide it. In this case, if the family does not know that there is a will, the notary usually learns about the death by chance and gives the family information and reads the deposited will with him. Otherwise, things will remain the same. In addition, regarding the will deposited in the notary, for example, a person is 80 years old, if after 20 years the person has not returned, we assume that the person is 100 years old. On this basis, the notary can try to contact their family members to see if they are still alive. If this is not the case, go ahead and read the will. Otherwise, many times, people make a will, but hide the deposit slip, and after their death things remain the same.

Are more and more Burkina Faso people insisting on making a will to record their final wishes?

More and more people are beginning to realise that it is very important to manage issues relating to their estate during their lifetime, rather than waiting for things to work themselves out. It should be noted that even without a will, the law provides mechanisms for managing inheritance issues and the extent to which people can and cannot inherit. So this does not prevent inheritance rights from being transferred with or without a will. But people are increasingly using notaries to draw up wills, protect their estate and set out how it is to be shared.

So can we say that a will avoids problems related to inheritance?

In principle, this is what a will should do. But in some cases, a will creates more problems than it solves. Some people, on a whim or because of a grudge they had during their lifetime, make provisions in their wills that disinherit certain children for the benefit of others, or even distribute their property disproportionately. Needless to say, these wills will be challenged.

So is it possible to challenge a will?

Yes! If some children who feel aggrieved do not agree with the deceased parent’s statement, they will contact the judge, who will also review whether the will should be applied or revoked according to the law. Heirs can challenge the will. Certain heirs can challenge the terms of the will. For example, if it turns out that the will gives all the property to a certain person, to the detriment of others, and exceeds the so-called hereditary reserve, the heirs can ask the judge to annul the will. In this case, the will will not be applied. The testator has the right to dispose of his will as he sees fit, but it must not exceed certain limits prescribed by law. In addition, if the testator bequeaths all his property to a charity, such as a bequest to a charity, and leaves nothing to the heirs, they can challenge the will because it affects the hereditary reserve. There is a limit for the transfer of property, which cannot be exceeded.

Are there circumstances in which an heir can be excluded from a will?

The law states that if a person attempts to change a will, he or she may be disinherited from the will. Also, if a person inflicts a fatal blow on the testator in order to hasten his or her death and quickly obtain his or her share of the estate, he or she may be disinherited.

The last sentence?

It would be interesting if people increasingly used notaries who offer expert advice when drafting a will. Because in the case of a testator writing a will himself, he can insert clauses that do not apply from a legal point of view. Therefore, you must seek sound advice from a notary and make sure that your will is preserved and will not be challenged. A will drawn up before a notary has authentic value. This means that the will will benefit from the double presumption of legality and accuracy of its content. But when a will is written by the testator himself, you will find that after the testator’s death, there is no shortage of disputes if there are clauses that displease some people. We are working at the level of the Society of Notaries to create a central register of wills and last wishes. In the event of a death, anyone can contact the order to find out whether the deceased left a will.

Reviews collected by Armelle Ouédraogo

Lefaso.net