DEMYSTIFYING WILLS IN KENYA

Introduction
The Law of Succession Act[1] came into effect on 1st July, 1982.  The intention of Parliament was for the Act to have universal application in relation to all cases of intestate or testamentary succession.[2]  However, the Act does not apply to testamentary or intestate succession to the estates of persons who professed the Muslim faith at the time of their death.[3] Such estates are governed by Muslim law. The immovable property of a deceased person which is located in Kenya shall be governed by the law of Kenya.[4] On the other hand the movable property of a deceased person shall be governed by the law where he was last domiciled.[5]  This brief article attempts to demystify a will and looks at the benefits of preparing one.

Wills

Features of a Will

A will can be defined as an instrument where an adult of sound mind uses to dispose his/her property.[6]  A person may appoint an executor to put into effect his/her last wishes in the will upon their demise.[7] A will may be oral or in writing.[8] However, in practice a written will is highly recommended.  For a will to be valid it must fulfil certain criteria:

  • The Testator has to append his signature or affix his mark in the will;[9]
  • The will has to be witnessed by at least two or more competent witnesses;[10] and
  • Each witness must have seen the Testator append his signature or affix his mark in the will.[11]

Nullification of a Will
A will may be void[12] if the Testator while writing the will was influenced by fraud or coercion or mistake.[13]  It is safe to state any action which would nullify a contract would have similar consequences on a will.  It may be argued that fraud, coercion or mistake would take away the testamentary freedom of the Testator.

Revoking or Altering of a Will
It should be noted that a will may be revoked or altered at any time by the maker.[14] A Testator cannot revoke a written will through the use of an oral one.[15] The revoking or alteration can only be done through preparing another will or codicil.

Benefits of Preparing a Will[16]
There are numerous benefits of preparing a will.  This list is by no means exhaustive:

  1. A will enables a Testator control how his/her property will be handled upon their demise.
  2. A will enables a Testator provide financial security for his/her loved ones. It ensures that the loved ones are catered for.
  3. A will reduces the likelihood of inheritance disputes since it provides how the estate of the deceased shall be distributed.
  4. A will gives the Testator freedom to appoint executors who shall be responsible for administering the estate. These are people the Testator trusts and believes will do a good job.
  5. If the Testator has young children, a will provides an opportunity for the Testator to appoint guardians who shall take care of the children until they attain the age of majority.
  6. A will enables a Testator capture their last funeral rites.

In conclusion, if there is anything we have learnt from the covid-19 pandemic is that life is uncertain and we do not know the hour the Almighty will call us home.  It is therefore prudent to put our affairs in order by preparing a will!

APPENDIX I

Application for Grant of Probate

The following documents should be filed:

* P & A 78 Petition

* P & A 3 Affidavit

* Original Will and two photocopies

* Death certificate (certified copy)

[1] Chapter 160 Laws of Kenya

[2] See s 2(1) Law of Succession Act (Cap.160)

[3] s 2(3) Law of Succession Act (Cap.160)

[4] s 4(1)(a) Law of Succession Act (Cap.160)

[5] s 4(1)(b) Law of Succession Act (Cap.160)

[6] s 5(1) Law of Succession Act (Cap.160)

[7] s 6 Law of Succession Act (Cap.160)

[8] s 8 Law of Succession Act (Cap.160)

[9] s 11(a) Law of Succession Act (Cap.160)

[10] s 11(c) Law of Succession Act (Cap.160)

[11] Supra

[12] This means it has no legal force or ineffectual

[13] s 7 Law of Succession Act (Cap.160)

[14] s 17 Law of Succession Act (Cap.160)

[15] s 18(2) Law of Succession Act (Cap.160)

[16] North Devon Wills, ‘The Benefits of Making A Will’ www.northdevonwills.co.uk accessed 23 March 2021

Lilian Kanyita
Head of Operations

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