DO YOU HAVE A WILL?
Probably not. It is true that many people fail to write a will, often because they’re afraid to face their own mortality. However, with the high number of deaths recorded everyday due to Covid-19, death is a harsh reality that we need to consider seriously during this pandemic. The thought of drafting a will for most people is unnerving and it is even considered as un-African or taboo to even think of death when one is alive and well. It is a myth in most African cultures that writing a Will is inviting death in your midst.
What is a Will?
The basic definition according to Wikipedia is a legal document that expresses a person’s wishes as to how their property is to be distribut- ed after their death and as to which person is to manage the property until its final distribution. In Kenya, the Law of Succession Act recognizes both written and oral wills.
Why is it important to have a Will?
- A Will assures that your property or estate is distributed in accord ance to your wishes.
- A will ensures that persons outside your immediate family may benefit from your estate if you so wish.
- A will allows you to appoint persons you trust as the executors of your will.
- A will permits you to give directions regarding your burial or crema tion.
- Most importantly, writing a will may deter your family from court cases based on disputes over how to divide your property.
If one dies without a valid will, the deceased estate shall be distribut- ed in accordance to the law of succession and the court might deter-mine who will inherit your estate especially where there is a dispute.
Who can make a Will?
- Any person of sound mind of the age of eighteen years or older may make a Will
- Any person can write a will in whatever format they wish but it is advisable that you obtain the necessary legal assistance of an advocate to draw up a Will.
What are the requirements for a valid Will?
- It must be in writing although an oral Will may be allowed in law as long as the person making the oral Will passes on within 3 months of making the Will.
- The Will must be signed at the end of it by the owner of the will (testator) and two witnesses.
- The owner of the Will (testator) and the two witnesses must sign the Will in the presence of each other. It should be noted that a person who signs as a witness is disqualified from receiving any benefit from the Will unless two other independent witnesses attest his signature.
- If the Will consists of more than one page, it is important that the owner of the will (testator) and the witnesses sign on every page.
- If the testator is not able to sign the Will (for example where they cannot read or write), the owner of the will (testator) can sign the Will by the making of a mark (like affixing their thumbprint). In this instance, a commissioner of oaths must also be present when the owner of the will (testator) makes the mark.
What are the basic elements that must be included in the Will?
- The Will must contain:
The name of the owner of the will (testator);
The list of properties i.e. land, house, shares, vehicle or personal belongings like jewellery;
Adistribution of properties to a single beneficiary or among several beneficiaries;
The identities of the beneficiaries or heirs (the persons who must receive the property) and
The extent of the interest being inherited in the property in the property by the beneficiaries i.e. full or limited ownership.
- The Will can also make provision for the nomination of the person who will divide the property (an executor) and a legal guardian of the minor children of the owner of the will (testator);
What will happen if a person dies without a Will?
- If a person dies (“the deceased”) without a Will, the person is said to have died intestate and the property will be distributed in terms of the laws of succession in Kenya i.e. Law of Succession Act.
•According to intestate succession, property will be distributed amongst the deceased’s family and children (if any).
•If the deceased has no family and children, the property will be transferred to the public trustee who is the Government of Kenya.
Does a divorce have any effect on a Will?
•A divorce will not invalidate the Will or the part of a Will where a bequest was made to an ex-spouse.
•If the testator dies three months after the divorce without changing his/her Will, it will be assumed that the testator wanted to include his/her ex-spouse in the Will.
Can a Will be changed?
- A person’s personal circumstances may change and his/her Will should be revised to accommodate these changes.
- A will can be changed at any time by the owner of the will (testator) but the same has to be signed and witnessed.
- The change could be because of acquisition of more property or the owner of the will (testator) might want re-distribute his property.
Where must a Will be kept?
- A Will should be kept in a place that is safe and where it can be easily found after the death of the owner of the will (testator).
- A will can also be stored by an advocate if of the owner of the will (testator) has a family advocate.
- The owner of the will (testator) must inform a reliable person of the whereabouts of their Will.
It is important to note that before drafting a Will you need to have gathered information about all of your assets and debts. Assets include real estate, financial accounts, retirement accounts, invest- ment accounts and valuable personal property.
It is also crucial for you to have made a decision to whom you are going to bequeath your estate to so that you avoid frequent amend- ment of your Will.
Lastly, drafting can be a daunting task for many people and it is prudent that before attempting to draft a will by yourself, you consult an advocate that has expertise in drafting of wills and estate planning to guide you accordingly.