A will is a legal declaration by a person, of his wishes or intentions regarding the disposition of his property after his death, duly made and signed in accordance with the law. A will includes any attachments to the will, explaining or altering any part of the will. Such attachments are known as codicils and have to be signed. A will can either be oral or written. An oral will is only valid if it is made before two witnesses and if it is made three months prior to the testator’s death.
Why write a will ?
A will provides certainty to the surviving members of the deceased’s family, by distributing the property of the deceased according to his wishes. It prevents or minimizes family disputes that are likely to arise during division of property. it can be used to distribute real property including land as well as movable property such as money, shares in a company, intellectual property and personal effects
Who can write a will ?
Any person, male or female, writing a will has to have testamentary capacity. A person who has attained the age of 18 and who is of sound mind can write it. A will written under coercion or a threat of violence is void since a person writing it ought to exercise free will
Contents of a written will
1. The testators name and declaration
A testator is the person making the will. A testator has to make an unequivocal declaration that that is his last will and testament. This is owing to the fact that the latest valid will often invalidates the previous one. This is to say that if X wrote one valid will yesterday and another valid will tomorrow, the new valid will overwrites the previous one. However, an oral will does not cancel a written will.
2. Gifts/ bequests
Any property disposed of in a will is known as a gift. A will has to name a gift and the recipient of the gift. This section of the will could also include any conditions that are to be met by the person receiving the gift. A testator can only gift away property that belongs to him.
3. Name of an executor
An executor is the person named by the will, who takes charge of the distribution of the assets of the deceased. This is not a mandatory provision . Where an executor is not named, any persons wishing to administer the estate of the deceased have to apply to court to be named as administrators.
A will has to be signed by the testator or by some other person in the presence and by the direction of the testator. The signature or mark of the testator or the signature of the person signing for him TO LAW
In the case of an oral will, according to S 9, it must be made in the presence of two or more competent witnesses and it cannot be valid unless the testator dies within three months after it is made. The rationale behind the provision in S 9(b), the time stipulation, is that being oral there is a danger that some details may be forgotten or misreported where a longer period is allowed. The other reason is that such wills are usually made in a state of panic, fear, or anxiety. The three-month period is intended to allow them time to reconsider the terms and, if possible, reduce the same to writing.
WHAT MAKES WILL VALID ACCORDING
S 11 provides that no written will shall be valid unless: -it is signed by the testator or he affixes his mark to it or it has been signed by some other person in the presence of and by the direction of the testator; -it appears that the testator intended by his signature or mark or signature of the person signing for him to give effect to the will; -the signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time; -each witness must attest and sign the will in the presence of the testator but not necessarily in the presence of the other witnesses
While children, regardless of age and gender, have a right to inherit, the law does not compel any parent to leave an inheritance for them. It is therefore not uncommon to hear that despite their massive wealth, parents have disinherited their children for one reason or another, explains Ms Majune.
However, the disinherited child can petition the court to consider giving them a portion, which, at the sole discretion of the court, sometimes may go against the wishes of the deceased.
Are my daughters less entitled to inherit my property?
The Law of Succession Act does not discriminate on the gender of the children that are allowed to inherit. Conflict, however, arises in traditions that disinherit girls. But courts have come in to resolve this conflict and laid down jurisprudence to guide this misconception, disregarding all traditions considered discriminative.
Isn’t my next of kin information just as good as a formal will?
In most business transactions in Kenya, individuals are required to name their next of kin. However, it does not mean that the money automatically passes to the person named as the next of kin if the account holder dies. If the person dies having made a valid will and passed the money to that next of kin, then the money is inherited legally. However, if there is no will that directs that the money be transferred to the next of kin, it is not automatically passed to them, and is therefore distributed according to the law. Ms Majune says indicating the next of kin is merely for the purposes of contacts in the event that the person transacting cannot be reached and has nothing to do with inheritance.
What are the current trends regarding wills?
Ms Majune explains that written wills are gaining popularity in Kenya as people are beginning to think more progressively. ”I was surprised lately when I received instructions from a 29-year-old man looking to write it . That is positive but we still have a long way to go,” she says.
MISTAKES TO AVOID WHEN WRITING WILL
1. Using traditions to guide your property sharing
It is wrong to assume that writing this is a preserve of men who were traditionally the only ones to own property. According to Kenyan succession laws, both men and women are at liberty to write wills stating how they want their property managed or distributed upon death.
Some people still hold on to the customary belief that only sons can inherit property and daughters cannot be bequeathed. This is not the case.
2. Making a will before marriage
This may come as a surprise to many but a will made before marriage has no legal effect! Under Kenyan law, it is revoked by marriage of the maker.
3. Excluding children born out of wedlock
Some wills fail to take effect after children born out of wedlock and step children troop to court to demand their share of the cake. Legally, all children (including one in the womb) have the right to inherit from their biological parents.
4. Assuming your ‘come we stay’ partner is a heir
Unless you specifically state in your inheritance, your come-we-stay partner may walk out of your relationship empty handed when you die. The law is only clear that a legal spouse is the known heir of the deceased.
5. Suspicious circumstances
It is usually risky for an investor to instruct someone to write a will on his/her behalf then goes ahead to give him a substantial benefit.
The person who writes it may be honest but can be regarded as suspicious because eyebrows are likely to be raised whether the testator knew the contents of the inheritance .
6. Not having capacity
Under both Kenyan and Common Law, a will cannot be valid unless made by a person who is over 18. The person should also be mentally stable. As a legal rule of the thumb, infants and persons of unsound mind are incapable of making it valid
7. Failure to have valid witnesses
For a written will to be valid, there must have been two or more witnesses who must have seen the testator either signing the document or appending his/ her thumb print. It is also a requirement for the witnesses to all sign it in presence of the testator.
8. Making changes to wills
Making casual changes in signed and witnessed wills is not a walk in the park. Testators are legally required to make codicils (formal alterations which must be signed and witnessed the same way a it is).
9. Failure to name an executor
10. Cause for coercion or undue influence
COST OF WILL IN KENYA
it will depend on how you agree with your lawyer and the value of what you are declaring.