SUCCESSION PLANNNG- How to write a Will

Everyone should have a Will in order to ensure that their property is distributed the way they want when they die.

A Will is a legal document in which a person expresses who should receive his or her property when they die.

A Will does not have any particular form. However, due to constant changes in the law and the risk of having a Will declared invalid it is important for a person to ensure that they contact an advocate for advice on how to prepare a Will.

Types of Wills

A Will can be

(a) Oral; or               

(b) Written.

Who may make a Will?

1. The maker of a Will must have attained the age of 18 years however a minor can write a Will which must be validated by re-execution when the testator (maker) reaches the age of majority.

• Other requirements required so as to make a valid Will is that a testator must be –
  • Of sound mind;

• Sound memory and understanding of his or her actions;

• The Will must be written and must be signed by the maker in the presence of at least two competent witnesses who also sign the Will in the presence of the maker;

• In the case of an Oral Will it must be witnessed by two or more competent witnesses, it must have been made three months before the testator died.

Being deaf or blind does not make one incapable of making a Will as long as they are of sound mind and understanding.

CHARACTERISTICS OF A VALID WILL

1. It distributes property.
2. It declares the intention of the maker.
3. It is revocable and therefore a maker of a Will can revoke the Will at any time during his or her lifetime.
4. It takes effect only after the death of the maker. Therefore a maker of a Will can deal with the property in a Will while he is alive regardless of the provisions of the Will.

CODICIL

A codicil is a document made in addition to a Will and by which the Will is;

1. altered,
2. explained,
3. added to,
4. subtracted from, or
5. confirmed.

It with must be executed the same formality as a Will, and when admitted to probate, forms a part of the Will.

Revocation of a will

A Will can be revoked by being:

• canceled,
• making of another Will,
• by subsequent marriage or
• destroyed by the maker.

WHAT CAN BE CONTAINED IN A WILL?

A testator can dispose off any property that belongs to him in a Will. There are however assets that cannot be disposed off by a Will. These include the following;

• Insurance e.g. life insurance
• Retirement plans
• Property that did not belong to the deceased
• Property owned as joint tenants (This automatically goes to the surviving owners).

Therefore, before making a Will, a person should consult an advocate in order to know which of their assets can be distributed.

GIFTS IN CONTEMPLATION OF DEATH

In some instances, a person on their deathbed may wish to transfer property to another person when he is contemplating death. They are otherwise known as ‘Donation Motis Causa’

There are certain requirements for gifts made in contemplation of death and the following conditions must be met:

• The person making the gift must be contemplating or anticipating the possibility of death as a result of present illness or imminent danger;

• The gift must be in the form of movable property that the donor could dispose of by Will;

• There must be a delivery of possession of gift by donor to the done or beneficiary;

• The circumstances of making the gift must indicate that the donor intents the property to revert back to him if he survives danger or illness contemplated;

• The intended beneficiary or donee must survive or be alive and present at the time or death of donor;

GIFTS THAT ARE CHALLENGED

1. Property contained in a Will but no longer exists or that the maker of the Will no longer is in possession of, this is known as the “Doctrine of Ademption.”

• Gifts given to witnesses in a Will. However, for a witness to be a beneficiary there should be further execution by another witness when the beneficiary attests.

• If the gift is not clearly identified in the Will.

• If the beneficiary dies before the testator (maker of the Will) this is known as the Doctrine of Lapse.

Can you exclude a spouse and family from the Will?

Generally, you are free to dispose of your belongings or estate as you wish.

However, your testamentary freedom is subject to certain rights of spouses, children, and other dependents.

Therefore, one should consider them before writing the Will in order to ensure that the Will is not invalidated due to lack of adequate provision.

CONSEQUENCES OF MAKING A WILL

A person who dies having made a Will is called a testator and is described or said to have died testate. A Will therefore serves as a plan on how the property of the deceased will be distributed.

A Will can appoint a person known as an Executor who will be responsible for distributing your property as described in the Will. If a person dies without appointing an executor, an Administrator will be appointed by the family or Public Trustee and will distribute the property in the manner as described in the Will.

Any person may be appointed as an Administrator or an Executor including beneficiaries.

It is a legal requirement that before any distribution is conducted, the administrator or executor should take up letters of administrations or grants of probate from the court.

It should be noted that the Executors of an estate are under an obligation to first fulfil the debts if any of the estate, the remainder after clearing the debts is what is available for distribution to the beneficiaries of the deceased.

WHAT IF THERE IS NO WILL?

A person who dies having not made a Will is said to have died Intestate. This means that your property will be distributed in accordance with the Law of Succession. Usually this will be done by an Administrator who will be appointed by the Court.

A Grant of Administration has to be issued by court and gazzetted allowing the administrator to deal with the property of the deceased.

Is it expensive to make a Will?

The cost of making a Will can vary depending on the complexity of the Will and the extent of your assets. This is however a minimal expense as compared to the benefits that your beneficiaries receive.

What are the benefits of making a Will?

By making a Will you will be able to control how your affairs and assets will be dealt with upon your death, this makes things much easier for those that you leave behind.

The benefits of making a Will are endless. Some of them are that:

1. It provides financial security for your beneficiaries and dependents.
2. It can help in appointing guardians for your children.
3. It helps appoint executors.
4. It expresses wishes for your funeral.
5. It helps set up trusts for your children of for charity.
6. It helps avoid inheritances disputes which can drag for years and destroy family relationships.
7. It helps avoid the unintended consequences of intestacy.

Wangeci Chege is an advocate of the High Court of Kenya, having been admitted to the Roll of Advocates in 2005. She practices in the firm name of Wangeci Chege & Company Advocates based in Nairobi.

Her areas of expertise are family matters including succession, divorce, child maintenance, adoptions and other civil matters.

She is a registered Pro Bono Lawyer at Kituo cha Sheria (an NGO in Nairobi) and at the Children’s Court, Milimani in Nairobi.

She is currently also the Communications Director of Soroptimist International Union  of Kenya (2016 – 2018).

Email: wangecichege@gmail.com

Disclaimer: The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the official policy or position of LawQuery Limited.