What is a will?

A Will is a written document in which a person (“the testator”) makes sure that their property is distributed in accordance to their wishes upon their death.

Who can make a Will?

  • Any person of sound mind of the age of sixteen 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 or you can easily fill in our simple questionnaire and Wakili 101 will generate one for you.

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 die within 3 months.
  • 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.
  • If the Will consists of more than one page, each page must be signed by the owner of the will (testator) and by the witnesses 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 a 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
    • a distribution of properties to a single beneficiary or among several beneficiaries;
    • the identities of the beneficiaries or heirs (the persons who must receive the property).
    • 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 property will be distributed in terms of the laws of succession in Kenya i.e. Laws of Succession Act.
  • According to intestate succession, property will be distributed amongst the deceased’s family and children (if any).
  • If there are no family and children of the deceased, the property will be transferred to the public trustee who is the Government of Kenya.

Will 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.
  • The law provides that if the testator dies within three months after the divorce, it will be assumed that his/her ex-spouse died before him/her.
  • 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.
  • A person’s personal circumstances may change and his/her Will should be revised to accommodate these changes.

Can a Will be changed?

  • 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 more property acquired or the owner of the will (testator) might want re-distribute his property

Where must a Will be kept?

  • Wills 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 can also be stored by and 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.

For more inquiry about making of a Will please chat us on the chat option through our Wakili 101 mobile APP or www.wakili101.com and our dedicated team of advocates will respond to you immediately.