A will is a legal declaration of a Testator’s intentions for distribution of his/her estate after their demise. A Testator is the person making a will. Making a will is often viewed as a somber occasion or as inviting bad omen. More often than not it is put off till the last minute making it susceptible to mistakes which invalidate it. This article will take you through the importance of making a will and how to make a valid will.
Value of making a will
- To set out your wishes e.g. children guardianship, gifts, donations etc.
- To avoid a lengthy and costly probate process. Having a will expedites the probate process since there will be no qualms on who is entitled to what.
- To avoid family conflict.
- You can modify it if your circumstances change e.g. marriage, acquire or dispose property etc.
- To choose who will execute/administer your estate. The executor ensures that your wishes under the will are respected and carried out.
Types of Wills
Section 8 of The Law of Succession Act recognizes 2 types, oral wills and written wills.
Oral wills are usually made in emergency situations e.g. when someone’s health is in critical condition, or they are undertaking a dangerous assignment.
They are only valid if:
- Witnessed by two or more competent witnesses (adults of sound mind);
- The Testator dies within 3 months of making the will. This is because it relies on a person’s memory/recollection and the details may be forgotten or obscured over time.Exception: If a member of the armed forces or merchant marines makes an oral will during a period of active service and dies during that same period of active service the will is valid notwithstanding more than three months passed since the will was made.
Written wills are wills that have been reduced into writing of some form. It may be written by the Testator or another person and can be in any language; provided that, if written in a language the Testator was not familiar with, an affidavit sworn by the Testator is required to show he/she knew & understood its contents.
Requirements for a valid will
The following are the requirements:
- Testator must be an adult. (18+);
- Testator must be of sound mind meaning; capable of understanding the nature of making a will and its implications. If under the influence of drugs or drink so that they are incapable of understanding what they are doing the will would be invalid/void. If the Testator is of unsound mind but makes a will during a lucid moment the will would be valid.
- For a written will the Testator must sign or affix their mark on the will. A mark includes thumbprint, initials, assumed name. The signature or mark need not consist of the Testator’s name. In Re Cook’s Estate (1960) 1 All ER 639 the words ‘your loving mother’ was found to be a valid signature.Section 11 of the Law of Succession Act provides that another person may sign the will in the presence and at the direction of the Testator. The Testator must be physically present and able to understand the nature and implications of the will.
This can be done where the Testator is too weak to physically do it themselves. For clarity, the person signing on their behalf should sign in their name and indicate ‘they are signing in the presence and at the direction of the Testator.”
- The signature or mark of the Testator, must be placed in such a place to give effect to the writing as a will. In Wood v Smith (1991) 3 WLR 514 the Testator wrote ‘My will by Percy….’ at the beginning before listing his bequests and this was held to be a valid signature. It is advisable to have signatures at the end of the will, however the test is what the Testator intended to be the effect of the signature.
- It must be witnessed by at least two (2) competent witnesses. Section 2 of the LSA defines a competent witness as one of sound mind and full age. Minors and mentally challenged persons would therefore be unreliable witnesses.The witnesses should be present when the Testator affixes their mark on the will or when another person signs the will on their behalf. If the witnesses are not present they must receive a personal acknowledgement by the Testator of his mark or signature or that of the person signing on their behalf.
It is advisable to choose persons who are younger than the Testator and who can be easily traced as opposed to strangers.
- Where a beneficiary under a will is a witness, the will must be witnessed by two additional independent witnesses (who are not beneficiaries). Section 14 of the LSA also states that being named as an executor does not disqualify you as a witness.
- Property bequeathed must be free property meaning property the testator was legally competent to dispose during their lifetime. Property held under a Joint Tenancy is not free property as it passes to the joint tenant. Insurance policies and retirement benefits are also not free property and therefore pass to the nominated beneficiary. A gift of such property in a will fails.
Circumstances when a will can be invalidated
Section 7 of the Law of Succession Act states that will or any part of a will made as a result of fraud, coercion, importunity such that it takes away the free agency of the testator or has been induced by mistake is void/invalid.
- Fraud ; Where a Testator makes a gift or excludes a person as a result of false statements made about an intended beneficiary’s character or conduct.
- Coercion & importunity; Where a testator is consistently nagged/forced to make a will or some part of it they do not want to make. E.g. if the Testator is weak/failing health and care is withheld to induce a gift in the will.
- Mistake; This occurs where the Testator or someone engaged by a Testator makes an error in the will. It may relate to a part of the will or the whole will. Where the mistake affects the whole will the will is void where it is with regard to a particular bequest then that bequest fails.
Most people do not have wills because they lack knowledge to make one or the means to hire a Lawyer to do it. It requires great care and thoroughness to make a valid will. However by adhering to the requirements above it is possible to do it yourself. You can complete a will here.
Law of Succession Act Cap 160.
Musyoka W. Law of Succession, Law Africa, Nairobi, 2010.
Re Cook’s Estate (1960) 1 All ER 639.
Wood v Smith (1991) 3 WLR 514.
In the Goods of Hunt (1875) LR P & D 250