Make the Will compulsory

Kgosietsile Ngakaagae | Friday June 15, 2018 12:36

In these disputes, you have a ringside seat in the theatre of love, prejudice, hatred and greed. It is unsightly. On one end, a grief-stricken family would be fighting for nothing but a chance to give their loved one a dignified burial.

They would have been with her through hell and back and half of Gaborone, and would have stood by her bedside in her final moments waiting upon and fulfilling every wish mumbled through her dying lips. These are often, the true bereaved. On the other, a family would be actuated by a tomb raiding motive.

I do not mean to stereotype the disputes. I simply mean to give you a general understanding drawn from personal experience at the bar. Reasons vary.  The patriarchy upon which our society is built plays a huge role.

Often, a woman lives in a state of separation, sometimes resultant from domestic abuse and violence at the hands of a man. The woman dies, and the man’s family comes to claim her corpse citing a marriage their son had discarded. In many cases, the woman would have gone back home to receive the care she could not find in him and in her in-laws. It happens mostly, where the woman made a life for herself during the period of separation and where there is a benefit to be derived. It hardly ever happens where all she leaves are liabilities.

The man usually blames the family of the woman for all that happened with their marriage and claims that he wants to give her a fitting burial with all the fictitious love he had for her. He feigns grief and throws a performance fit for an Oscar. He sits teary and pale-faced in a court gallery, his lawyer lying about his inexistent virtues as a husband.

All for a serial abuser, alcoholic, financial delinquent and an estate swindler. These kind of incidents can be fixed, if only we would accept death as an inevitable reality and would care to leave our worldly affairs in an orderly state.

It is important that we get in the habit of writing wills. In fact, I would venture to say that the will must, by law, be made compulsory for every Motswana. Society is torn apart by succession strife. Feuds over corpses and property occupy a significant chunk of judicial attention best spared for other judicial functions. Our customary court system, and in fact the common law courts, only play a reactive, remedial role.

They are of no preventative significance.  Apart from directing the devolution of our worldly possessions, we must, as a people, get in the habit of directing, through wills, where our remains should be interred and the key decision makers in that regard. By instrument of that right, you must be able to tell the world that your spouse, whose abuse you have fled, must have no decision making role in your interment, or the extent of his participation. 

A simple grave is of great significance in Tswana culture. It is a monument for future generations speaking to lineage and identity. For some, it is of religious ancestral significance and is invariably of emotional relevance. To a Motswana, a loved one’s grave is their home. Those close to me already know where I will be buried. If you find yourself attending my funeral in Block 5, or Phomolong or anywhere in Gaborone, just know I have been disobeyed. Boycott the food in protest. I am in Gaborone for business and national service.

My home is elsewhere. Besides, I have an objection to being buried in a shapeless grave dug with a JCB. The hill billy weed smoking guys in the village do it better. They care about dimensions. They even prepare a pillow.

They do it for love and nothing else. I have no burial party to throw for my debt ridden petty bourgeoisie Gaborone friends. I say this to demonstrate the significance of burial to a Motswana. I do not suggest that there is anything wrong with any petty bourgeois being buried upmarket. 

The courts have said it time and time again that winning burial rights does not give one a right of inheritance. Burial rights and inheritance rights are totally unrelated. The enquiry as to who is entitled to inherit has nothing to do with who had the final say in the burial of the deceased. The laws of succession apply. Of course, some of the tomb raiders are not ignorant of that legal reality.

Often, it is all about posturing and creating a case for a seat at the table when the estate is parceled off.  I maintain that every Motswana must be obligated to write a will covering all aspects of their property and interment. There is too much grief caused by burial and succession disputes. Genuinely bereaved people must be freed from the boundless appetites of shameless tomb-raiders.