A case for oral Will

By Harold Ayodo

Some investors with no or little formal education give instructions orally on how their property should be distributed upon death.

They cannot write Wills detailing people who should inherit their residential and commercial buildings in major towns.

Some can only speak in their mother tongues, which does not deny them ownership rights over their property.

According to the Law of Succession Act, a Will refers to all that a person wishes to happen upon death.

Legally, illiterate investors can issue instructions in mother tongue on how their property should be divided when they die.

Courts have in the past ruled in favour of deceased investors who gave verbal instructions in vernacular — and reduced to writing — on disposal of their property.

According to precedents of the High Court, such written instructions amount to an oral Will provided that it was made before two witnesses.

Take the case of the late Rufus Ng’ethe Munyua who gave instructions on disposal of his estate amongst his wives and children.

The person who received the verbal instructions wrote them down before Munyua died a few days later. The High Court ruled that the writing amounted to an oral Will.

In a recent landmark ruling at the Court of Appeal, the three judges ruled that verbal instructions in Kikuyu language to dispose property were legal.

In this case, the deceased who was illiterate, called two people to his home and requested them to write down his wishes.

They took the instructions in Kikuyu and had them typed the following day before taking it back to read to the deceased.

The deceased investor then thumb printed on the document before he died. The Court of Appeal relied on the case of Rufus Munyua and ruled that it passed as an oral Will.

According to the Law of Succession Act, when there is a conflict between contents of a written Will and an oral one, contents of the written Will prevail.

However, oral Wills can only be valid when made in the presence of at least two competent witnesses and the subject dies within three months.

The rationale behind the three-month time span is that being oral, there is danger that some instructions may be forgotten or misreported if a longer period is allowed.

Another reason is that majority of oral Wills are often made in a state of panic, fear or anxiety when the investor is on his/her deathbed or imminent danger.

Time frame

The law presumes that people in such state could be irrational in their decisions and express intentions that they may not hold on free thoughts.

Therefore, the three-month period is mostly intended to allow them time to reconsider their Wills and if possible, reduce them to writing.

However, there are people like the military who, while in the battle field can make privileged Wills — oral Wills that do not have a three month time span.

For instance, a member of the Kenyan Defence Forces currently fighting Al Shaabab militants in Somalia can make an oral Will, which is timeless.

According to the Law of Succession Act, privileged Wills are made in circumstances that do not allow the opportunity to make a normal Will.

For soldiers who die at war, most Commonwealth courts rely on the case Re Stable (1919) where a lieutenant promised a woman his fortunes.

According to the landmark ruling, the lieutenant told the woman before he left for war that; “If I stop a bullet, everything of mine will be yours.”

The woman inherited the estate of the late soldier as he had uttered the words in the presence of one man who was called as a witness.

The writer is an Advocate of the High Court of Kenya

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