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Thursday, August 30, 2012

WILLS IN THE KENYAN SETTING



In the African setting, it is considered taboo to talk of death and it is even much more absurd to talk of preparing your own will. This has resulted in very few people actually taking time to draw up their own will or seeking the professional services of a lawyer to do this for them. As a consequence of the same, many cases in the Kenyan courts of law are about a person dying intestate; these cases can take years or decades to close — not only is that expensive it takes a toll on the family, breeds contempt and is very expensive. We might all be familiar with such cases such as the recent Kirima case which has sparked interest in several quarters or the mixed reaction of the public after the late Martin Shikuku pronounced that he had already finalized the planning of his demise prior to his death.

Definitions.

An estate is the net worth of a person at any point in time. It is the sum of a person's assets , legal rights, interests and entitlements to property of any kind less all liabilities at that time. 

A will or testament is defined as a legal declaration by which a person, the testator, names one or more persons to manage his estate and provides for the transfer of his property at death. In the strictest sense, a will has historically been limited to real property (land) while testament applies only to dispositions of personal property thus giving rise to the popular title of the document as the "Last Will and Testament", though this distinction is seldom observed today. A will may also create a testamentary trust that is effective only after the death of the testator.

In modern law, the terms inheritance and heir refer exclusively to the succession of property from a deceased who died intestate (without a will) or whose will was invalid. Alternatively, this may also apply where a will or declaration has been made, but only applies to part of the estate, the remaining part of the estate not covered in the Will forms the “Intestate Estate.” 

Future recipients of property through a will are termed beneficiaries, devisees, or legatees.

Advantages of writing a Will.
Writing a Will is of utmost importance, even if we acknowledge this, it seems to be treated as a daunting task and is more often than not often procrastinated upon. So why do we need to have a written Will? As mentioned above, a Will is a written instrument which we can use to facilitate the distribution of our assets to our loved ones upon our demise. The instrument will clearly state who will inherit our assets, when they can inherit the assets and the conditions that must be met in order for them to receive the said assets. If you do not have a will, your estate will be distributed according to the laws of intestate succession. Those laws may direct that your probate property be distributed to certain close relatives and sometimes to more distant relatives.  The specific relatives and the percentage of your probate property that goes to each relative may not be the same as you would choose if you had a will.  If no relatives are found, which does not happen often, then your probate property may go to the state.  

 A Will therefore ensures that our express wishes and preferences can be tailored with the option to bequeath to desires beneficiaries certain gifts by predetermined proportions and age.

In special circumstances, we might want to leave special instructions or requests to a specific person. This is made possible by use of a Testamentary Trust and is especially ideal if the testator has small children and would like to ensure that they are protected and catered for. If your Will includes a testamentary trust including an estate tax planning, you may save on death taxes.
 
A Will also allow us to appoint our preferred executors and trustees to manage and distribute the estate and also lets us to appoint a preferred guardian to act as a caretaker in cases of minors.

Further a Will, relatively minimizes legal formalities and expenses and sanctions assets administration and distribution to be carried out smoothly upon demise. This will ensure that family disputes will be kept to the minimum and that the grant of probate can be approved by normal procedures of the court. If there is no written will, assets will have to be frozen and will thus cause a delay in the distribution until the legal application for Letters of Administration is complete.

If you have a valid Will, you can change it depending on certain change in circumstances such as a marriage, divorce or following the death of a beneficiary.Amendements to the Will can be made by use of a codicil. If the amendments are too extensive or too numerous, it might be important to prepare a new Will all together and destroy the older one.

Requirements for creation

According to the Chapter 160 of the Law of Succession Act of Kenya, any person over the age of majority and of sound mind (having appropriate mental capacity can draft his own Will with or without the aid of a lawyer. The following requirements also apply: 

·         The testator must clearly identify himself as the maker of the Will, and that a Will is being made; this is commonly called “publication” of the Will, and is typically satisfied by the words ‘last will and testament’ on the face of the document.

·         The testator should declare that he revokes all previous wills and codicil, otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. If a subsequent Will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.

·         The testator may demonstrate that he has the capacity to dispose of his property and that he does so freely and willingly.

·    The testator must sign and date the will, usually in the presence of at least two disinterested witnesses who should ideally be person who are not beneficiaries in the Will. There may be an extra witness; these are called ‘supernumerary witnesses’, if there is a question as to an interested-party conflict.

·         If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either

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(i)                disallowing them to receive under the will, or
(ii)              Invalidating their status as a witness. An interested party is only an improper witness as to the clauses that benefit him or her
   The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.

·         One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.

There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain his intentions in case of dispute, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.

In Kenya as with many other jurisdictions, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman's will. A minority of jurisdictions even recognize the validity of nuncupative wills (oral wills), particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used.
A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. A will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate.
After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfy the legal requirements, and to appoint an executor. In most cases, during probate, at least one witness is called upon to testify or sign a "proof of witness" affidavit. In some jurisdictions, however, statutes may provide requirements for a "self-proving" will (must be met during the execution of the will); in which case witness testimony may be forgone during probate. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions – even the most accurate photocopy will not suffice.
It is a good idea that the testator gives his executor the power to pay debts, taxes, and administration expense and other cost that might be incurred in the division of assets.

12 comments:

  1. Hello Kate. Your article is very helpful to me as I am trying to prepare my will and I happen to be a dad of two minors, 1 and 6 years. Thank you so much!

    ReplyDelete
  2. Hey Wahome.glad to be of help.All the best.Kind Regards Kate

    ReplyDelete
  3. Laws now permit courts to recognize wills which may not meet all the
    requirements if the court is satisfied that a document does actually represent the testator's intentions. This does not mean that any deficiencies will automatically be overcome, so the lesson - Do it right! Disputing A Will

    ReplyDelete
    Replies
    1. Thanks Suhas.Its important to remember that the law can be a sword or a shield and yes getting in right the first time round is the best case scenario.

      Delete
  4. Hello,
    In my point of view Divorce can be a stressful experience: affecting finances, living
    arrangements, household jobs, schedules, parenting and the outcomes of children of the marriage as they face each stage of development from childhood to adulthood. If the family includes children, they may be deeply affected.Testamentary Trust Lawyer

    ReplyDelete
  5. Hi James, I agree that divorce can be a very stressful experience.I however am not clear on what your comment is directed at.In any event children must be catered for in a will regardless of whether or not parents are still in a marriage and the same also applies in intestacy.(dying without a will)

    ReplyDelete
  6. Nice Blog!!!! Thanks for sharing such an amazing and informative blog.
    If you want to protect your assets or facing any kind of property settlement problems it is important to take the help of a lawyer to resolve your case properly.Left Out Of A Will

    ReplyDelete
  7. Nice Blog!!! Thanks for sharing the blog...A trust is a relationship whereby property is held by one party for the benefit of another.
    Family Lawyers Northern Beaches

    ReplyDelete
    Replies
    1. thanks Adam, and yes that definition pretty much describes a trust relationship.

      Delete
  8. Thanks for sharing. its brief and staraight to the point. am currently doing a research on written wiills, can you kindly assist me with a list of cases in kenyan courts that are not older than 10years?my emailaddress is mosmabeya@gmail.com

    ReplyDelete
  9. Thanks for sharing. its brief and staraight to the point. am currently doing a research on written wiills, can you kindly assist me with a list of cases in kenyan courts that are not older than 10years?my emailaddress is mosmabeya@gmail.com

    ReplyDelete