SUCCESSION: Wills
PART I
A will is a testamentary document that states how property shall be divided upon the death of a specific individual. The legal definition of a will is, “A document by which a person directs his or her estate to be distributed upon death.”
A valid will helps a family avoid the legal battles of the share of the deceased’s properties after his/her death.
“A testator” is someone who makes will. The word derives itself from the word “testate” which means dying while having made a valid will. “Intestaste” is the opposite of testate i.e dying without having made a valid will.
Under Section 8 of the Law of Succession Act Cap 160 Laws of Kenya, there are two types of wills:- Oral and written. An oral will is spoken by word of mouth while a written will is written down (handwritten or typed) on paper. An oral will can also be reduced to writing.
There are certain requirements that a will should encapsulate for it to be valid.
What is a valid will?
A valid will is a will that has met all the criteria in Law for it to be considered valid or acceptable by a Court of Law. We shall below discuss the minimum criteria applied under our Kenyan Laws:-
- Age:
Any person above the age of 18 years has the capacity to make a will. Therefore a minor lacks the ability to make a will. A will made by a minor would be invalid unless the maker re-executes it when they come of age.
- Sound Mind:
Persons of unsound mind cannot make a valid will. However if such a person makes a will during a lucid interval such a will is valid. In law, a person of unsound mind cannot make rational decisions unless they are in a mentally stable state/condition.
- Sound and disposing mind and memory:
This element consists of a 3 tier test. The Learned Justice Musyoka in Succession Cause No. 1721 Of 2000 In The Matter Of The Estate Of Josphat Gatia Muchiri (Deceased) opined that, “….The judgment of Cockburn CJ in Banks vs. Goodfellow(1870) LR 5 QB 549, is considered the cause classiccus on matters touching on soundness of mind of a testator, he said –
“He must have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he meant to dispose of, and of the persons who are the objects of the bounty and the manner it is to be distributed between them.”
Put in simple layman’s language, it says that the testator must at the material time know what he is in fact doing, disposing of his assets to the persons that he is obligated in law to dispose it of to. He must know that he is making a will, and for that purpose he must be able to know or remember the assets that he should be distributing and the persons who in law should be entitled to such distribution. This would mean that a person who draws or signs a document purporting it to be a will, yet not knowing what he was doing, in terms of not knowing that he is disposing of his property by will is said to lack a sound disposing mind. This should also apply to a person who, while purporting to dispose of property by will, cannot recall the persons that he obliged legally to provide for.
NB:
A will is a voluntary document made by the free will of the testator. Section 7 of the Law of Succession Act Cap 160 Laws of Kenya provides that “A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.”
TYPES OF WILLS:-
- Oral will
According to section 9 of the Law of Succession Act Cap 160 Laws of Kenya for an oral will to be valid it should be made before two or more competent witnesses; and the testator should die within a period of three months from the date of making that will.
However there is an exemption in the same section states that an oral will made by a member of the armed forces or merchant marine during a period of active service is valid if the testator dies during the same period of active service notwithstanding the fact that he dies more than three months after the date of making the said will.
- Written Will
Section 11 of the Law of Succession Act provides the following as being the requirements for a valid will:—
- The person making the will has to sign it or someone else can sign on his behalf in the presence of the testator.
- Two competent witnesses should see the testator sign, or see the person appointed to sign do so. However, both witnesses need not be present at the same time to see the signing of the will.
Witnesses are a key element in the preparation of a will as was In RE the estate of Josphat Gatia Muchiri (2018) where the Court in revoking a grant was of the view that “…….no one appears to have been present when the will was made, as no one was presented to me as having been present when the will was made, and there is no evidence as to whether the attesting witnesses appended their signatures in the presence of the deceased or after he had acknowledged his signature to them. The role of witnesses is to authenticate the making of the will as and when the fact of its making is called into question. They come forward to testify as to having been present at the making of the will or to the acknowledgment by the deceased of his signature on the document before they appended their signatures. It would suggest that there is no proof that the deceased made the will in question. It was allegedly made on a day when the deceased had people all around him as he was unwell, yet no one saw him make it, the witnesses never came to his home that day and he did not himself talk about it.”
According to Section 13 of the Law of Succession Act Cap 160 Laws of Kenya, a person can be a witness to a will e.g. a spouse, child and still receive a gift from it. However it has to be attested by at least two additional competent and independent witnesses for the gift to be valid.
Writing the Will
As seen above, the law puts a high standard to ensure that all criteria is followed so that the document is properly prepared.
Any individual can prepare a will. It is however advisable that one seeks advice from a legal practitioner or have the will prepared by a lawyer. This will ensure that it meets all requirements for it to be valid. Once the will is prepared, the testator and his/her witnesses can execute it respectively.
APPLICATION FOR GRANT OF PROBATE (WITH WILL ANNEXED)
When the testator passes away the surviving beneficiaries can move to court for grant of probate. The executor appointed in the will makes the application (petition) on their behalf by filing the necessary documents and annexing the written will. If the original will is lost or destroyed then a copy authenticated by a competent court or to the satisfaction of the court shall be produced.
Note that in the case of an oral will, it also has to be reduced into writing for the court to be able to assess it.
- Additionally, a Notice of application for grant not less than thirty days has to be published in the Kenya gazette while making that Application.
- After thirty days have lapsed and no objection has been brought before court, the grant of probate is granted to the applicants and the full grant is confirmed after six months or less subject to certain limitations.
- After the grant is issued to the executors of the will, the executors can act in the same capacity as the testator would in relation to his/her properties, debts and liabilities.
LETTERS OF ADMINISTRATION IN INTESTATE SUCCESSION (WITHOUT A WILL)
The procedure in applying for the letters of administration is similar to where there is a will subject to certain alterations. The major difference would be appointment of administrators (not more than 4 people) who would apply for the letters of administration.
Note that where there is no will, the beneficiaries have to decide on how the deceased’s properties are to be shared and this is where most parties in succession cases differ. Should the parties not agree, the division of the deceased’s properties will be subject to the Law of Succession Act and discretion of the court.
CONCLUSION
Therefore inasmuch as the African culture frowns upon any form of anticipation of the inevitable, it is apparent that a Will could mean the difference as to proper administration of the estate and total chaos.
It is then imperative to prepare a valid will. Ideally one can approach and instruct an advocate to prepare the will. In all take into consideration that decisiveness and deliberate planning is key.
By Mwangi Emmanuel – Managing Partner
