Wills.

Introduction.

Section 3 of the Law of Succession Act, defines a will as the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death. It expresses how a person’s property and affairs should be managed and distributed after his death. It details how a person’s assets, property, and debts are to be managed and distributed after death, typically naming an executor to manage the estate.

Why do you need a will?

1. Ensures Property is Distributed According to the testators Wishes. A will identifies who inherits the assets, the proportion each beneficiary receives and how special property should be handled. Without a will, the estate is distributed according to intestacy rules under the Law of Succession Act, which may not reflect the deceased’s intentions.
2. Prevents Family Disputes and Litigation over the deceased asserts. A properly drafted will reduces conflicts among beneficiaries, minimizes succession disputes and provides clarity on ownership and inheritance.
3. Enables Appointment of legitimate Executors/administrators. A testator appoints executors who will apply for probate, collect assets, pay debts and distribute the estate according to the will.
4. Protects Dependants and Vulnerable Beneficiaries. A will allows allocation of properties to children, spouses, elderly parents, persons with disabilities and other dependants who could not have been recognized under the normal intestate succession proceedings.
5. Facilitates faster completion of Succession Proceedings. Where there is a valid will, executors apply for Grant of Probate instead of lengthy intestate proceedings. The court process is often faster and more straightforward and beneficiaries access property more quickly.
6. Helps Preserve Family Wealth and Businesses. A will can provide business succession plans as well as future management structures. This reduces disruption or supervision quarrels after death.

Types of will.

1. Written will. It is a testamentary document made in writing or typed in which a testator sets out how their estate should devolve upon death.
2. Oral will. It’s a verbal declaration of testamentary wishes made before witnesses. The testator must die within three months from the date of making the oral will. If the testator survives beyond three months, the oral will becomes invalid.
3. Privileged wills. They are wills made under special circumstances by persons exposed to danger, particularly soldiers, airmen, sailors and mariners. They may be oral, lack formal witnessing or be informally written. The rationale is that persons facing imminent danger may lack opportunity to comply with strict legal formalities.

Formalities for a valid will.

1. Testamentary Capacity. The maker of the will (testator/testatrix) must possess legal capacity. Under Section 5 of the Law of Succession Act, the testator must be at least 18 years old, be of sound mind and understand the nature and effect of making the will.
2. Testamentary Intention. The will must show clear intention that the document or declaration is meant to take effect upon death and it disposes of the testator’s property without any ambiguity.
3. Certainty. The will must clearly identify beneficiaries, property, executors and instructions to act. Uncertainty or ambiguity may render parts of the will unenforceable.
4. Voluntary and legality. Vitiating traits such as coercion, pressure, manipulation or undue influence may invalidate the will.The will should also not offend public policy or violate mandatory legal protections.

N/B

1. Oral wills are to be made in the presence of two witnesses with the testator’s demise being within three (3) months of making of such Will.
2. Written wills are to be signed by the testator and signed/attested by two (2) or more other competent witnesses who must be present to see the testator signing the will.
3. For privileged wills, there must be existence of exceptional circumstances such as the maker being engaged in military service, exposed to danger or in circumstances preventing normal execution formalities.

Revocation of wills.

Revocation of wills is governed by Sections 17, 18 and 19 of the Law of Succession Act. It refers to the legal cancellation, withdrawal, or nullification of a previously valid will by the testator or by operation of law. Once revoked, the will ceases to have legal effect and cannot govern the distribution of the deceased’s estate. It can occur through the following circumstances:-

1. Testator executing a revocation. Entails the testator executing a separate written document declaring intention to revoke the original will.
2. Revocation by physical destruction. It includes Burning, tearing or destroying the original will with intention to invalidate it.
3. Revocation by Operation of Law. In instances where the will is vitiated by circumstances like incapacity, involuntariness, lack of testators consent, lack of certainty among others, the court through operation of the law may invalidate the will.
4. Revocation by marriage. Upon marriage of a testator, his original will is always automatically revoked unless there is an exemption clause demonstrating that the will was made in contemplation of that marriage. This principle recognizes that marriage fundamentally changes a person’s social, financial, and legal obligations, especially towards a spouse and future children.
5. Testator executing a new will. The testator may execute a new will distributing his asserts, properties and liabilities afresh. In the new will, he can incorporate a clause revoking the original will.

At Siyasa and Company Advocates, we offer expertise and professional legal services to our clients to who may wish to write or revoke wills. We guide our clients on all the formalities they need to adhere so that their wills will not be deemed void. We have a seasoned, competent and esteemed team ready to serve you diligently. Conduct us for further advise.

Disclaimer: “This article is for informational purposes only and does not constitute legal advice. For inquiries, please contact Siyasa and Company Advocates.”

-Contributed by-

-Francis Kitheka-