Over the years, more people have become interested in drafting wills in the hope of meeting the needs of their loved ones even after they are gone. Even so, there exists a lot of misinformation about what wills entail and how to draft this important document. We explain the nuances in great detail.
What is a Will?
A will is a legal document that is prepared by a person in ownership of properties/assets and or rights/interests to show their wishes on how they would like what they own to be distributed or applied upon their demise. There are various types of wills recognized in Kenya, and they include written wills and oral wills.
Written wills are normally done formally by the testator (the property owner and or maker of the will), clearly laying out the wishes of the testator on the intended distribution and or application of what he/she owns in the presence of witnesses. It is signed by the testator and the witnesses. Oral wills, on the other hand, amount to an oration by the testator in the presence of intended witnesses and which is not committed to writing. The latter are limited in their application as it is hard to prove what was said by the testator, and it is therefore not advisable to have an oral will.
What Are the Benefits of Having a Written Will?
There are many benefits to having a written will, and they include the following:
- The wills provide clarity upon the demise of the testator as they serve to show the deceased’s wishes on how they wanted their assets distributed and the specific beneficiaries to the same.
- They cater to cases where there are young children in determining who will be their guardian.
- They indicate the executor(s) of the will, and this is important as the executor is the person who distributes the estate of the testator upon successfully getting through the probate process. The executor also deals with issues regarding any taxes that are to be paid by the estate and may also handle minor disputes that may arise in the succession process involving the estate. The executor may also collect income from the assets and or investments of the deceased and keep a record of the same on behalf of the beneficiaries. The executor has a huge role to play in whether the wishes of the disease will be followed, and the testator should therefore choose an executor who is trustworthy, reliable, organized, and understands the legal process of succession in Kenya.
- Having a written will reduces disputes between the beneficiaries on distribution, as the shares of each beneficiary are clearly spelled out in the will.
A testator should review his or her will regularly to make sure that it reflects his or her current circumstances as changes occur from time to time. One is free to change or modify his or her will at any time using a codicil or by revoking the previous will and then writing a new one The new one has to conform to the legal requirements including being executed by the testator and witnessed properly just like the earlier one and hence the need for the testator to seek and use the services of an Advocate well versed in that field.
Can You Contest a Will?
There are instances where the beneficiaries of a will contest the provisions of the same, and the law allows for this and also provides the grounds for the same. The grounds include questions by the beneficiaries on the issue of the capacity of the testator to do a valid will due to for example the testator suffering from a subsisting illness or being in intense pain at the time of making the will and which circumstances may have inhibited the testator from making a right judgement in his intentions and/ or the testator being of unsound mind.
Sometimes the beneficiaries may also allege fraud as being involved in the making of the will, resulting in an invalid will. Use of coercion, duress, or any other pressure subjected to the testator to influence the will-making process by outside forces or interested persons will result in a questionable document/will and which is not valid.
In all the cases where the validity of the will is questioned, there must be credible evidence to support the allegations of fraud or any other allegations brought forth. Where the will is found to be valid, the testator’s wishes will be respected by the court and the same will be implemented by the executors.
The process of contesting a will is complex and requires the party interested in pursuing the same to engage the services of an advocate well-versed in that area of law. The court process of hearing and determining the matter might be long and rigorous. During the process, if the parties so wish, they can decide to have their dispute settled through an Alternative Dispute Resolution method(s). The parties can also engage in this alternative process before they start the court process and settle their differences.
Should You Hire a Lawyer?
On the basis of the foregoing, it’s clear that it is always advisable to engage an experienced Advocate in succession matters right from the beginning of writing a will to ensure that the will properly and clearly covers all the interests of the testator. An ambiguous will creates an atmosphere for endless disputes.
The Advocate will also advise on safekeeping of the document, and also agree with the maker on how the same will be read after the testator’s demise. The Advocate will also be required if the testator decides to change the terms of the will or in case any dispute arises concerning the terms of the will upon the demise of the testator.
The advocate is also needed to help the party or parties navigate the complex succession processes involved upon the demise of the testator. Hence, it is always advisable at all times to seek the services of the advocate until the finalization of the distribution of the assets and the transfer process, consequently, to the beneficiaries.
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