What you need to know about a will

A will is a legal document in which a person, known as the testator, expresses their wishes regarding the distribution of their assets upon their death said family lawyer Frank Oriku (Photo: Courtesy)

Eve: What is a will and why is it important in Kenya?

Oriku: A will is a legal document in which a person, known as the testator, expresses their wishes regarding the distribution of their assets upon their death. It plays a crucial role in ensuring that property is distributed as per the testator’s intentions, reducing family disputes, and providing clarity in estate administration. The importance of a will is underscored in The Law of Succession Act (Cap 160), which governs succession matters in Kenya.

At what age do you think individuals should consider making a will? What cannot be captured in a will?

 There is no specific mandated age, but individuals should consider making a will once they have dependents or significant assets. Major components typically include appointing executors, specifying beneficiaries, and detailing how assets are to be distributed. It’s important to note that a will cannot capture assets held in joint tenancy, certain pensions, or life insurance policies, as these are governed by separate agreements.

What are the key legal requirements for a valid will in Kenya?

A valid will must meet the following conditions under Section 5 of the Law of Succession Act: First, the testator must be of sound mind and at least 18 years old. The will must be made voluntarily without undue influence or coercion and it must be in writing. Also, the testator must sign or affix their mark to the will in the presence of at least two competent witnesses who must also sign the document. Failure to adhere to these requirements can lead to the will being declared invalid.

Under what circumstances can a will be contested?

A will can be contested. One of such a case would be in a situation where there is lack of testamentary capacity; if the testator was mentally unfit at the time of making the will. Also, in a case of fraud or forgery – if the will was tampered with or forged. A will can also be contested in a case of undue influence – if the testator was coerced or manipulated. Failure to provide for dependents is another, that is, the law allows dependents to challenge a will under Section 26 of the Law of Succession Act.

What are the major areas where Kenyans contest wills in court?

Common grounds for contestation include allegations of undue influence, lack of testamentary capacity, failure to follow formal requirements in creating a valid will, and disputes over interpreting specific provisions of the will itself.

What happens when someone dies without a will?

If a person dies intestate (without a will), their estate is distributed according to Sections 35-38 of the Law of Succession Act. The estate will be divided among the surviving spouse, children and other dependants. This could be through equitable distribution of an intestate estate among beneficiaries.

Can a will be updated or revoked?

A testator can update their will at any time through a codicil, which is a legally recognised amendment to the will. A will can also be revoked by destroying the will intentionally, making a subsequent will that expressly revokes the earlier one and also in case of marriage, unless the will was made in contemplation of marriage.

What happens to a will in the event of remarriage?

In Kenya, under the Law of Succession Act (Cap 160), specifically section 20, a will made prior to a marriage isn’t automatically revoked by subsequent marriage. However, if the will was created with that particular marriage in mind, it might be upheld. That said, if the new spouse is not mentioned, they may have rights under the Act that entitle them to a portion of the estate unless specifically excluded.

Is there a limit on the number of words?

While there is no strict limit on the word count of a will under Kenyan law, it’s advisable to keep the language clear and concise. Longer, more complex wills can lead to misinterpretations and disputes, so clarity is key.

What do you think is the safest place to store a will?

Oriku: A will should be kept in a secure location, such as a bank’s safety deposit box or with an attorney who specialises in estate planning. It’s also essential that trusted family members or executors are aware of its location for easy access after the testator’s passing.

What would you say to someone who believes that creating one implies wishing for death?

It’s quite common for people to hold such superstitions. However, I’d emphasise that a will is actually a practical legal tool designed to clearly articulate one’s wishes after death. Creating a will helps prevent disputes among loved ones and ensures that your intentions are honored.

What advice would you give Kenyans regarding will-making?

Draft a will early and review it periodically to reflect any changes in their assets or family dynamics. Engaging a legal professional can help avoid ambiguities and ensure compliance with the law. Wills are a powerful tool for estate planning. Proper planning ensures the protection of your loved ones and the smooth administration of your estate. I encourage everyone to take this step for peace of mind and legal certainty.

Between men and women, who tends to be more adversely affected by issues related to wills?

Both genders can be significantly impacted by will-related issues, but societal norms often place women in more vulnerable situations, especially concerning inheritance rights. Cultural attitudes can favor men in property ownership, leading to more legal challenges for women seeking their rightful inheritance. Thus, women might often find themselves in more precarious positions when navigating the complexities of inheritance laws and wills.

- Frank Oriku is a Family Lawyer