Wills are crucial in estate planning as they outline how an individual’s assets will be distributed after death.
In Kenya, having a will is essential for everyone, regardless of wealth, as it helps avoid disputes among family members and ensures your legacy is secured.
1. What is a will, and why is it important?
A will is a legal document outlining how a person’s property and assets should be distributed after death.
It is crucial because it allows individuals to express their wishes regarding their estate, ensuring their loved ones are cared for according to their preferences.
Having a will helps to avoid disputes among family members, as it clearly states the deceased’s intentions, thus minimising potential conflicts over inheritance.
2. Who can make a will in Kenya?
In Kenya, anyone with a sound mind and at least 18 years old can create a will. This includes anyone not under duress or coercion when making the will.
The individual making the will is known as the testator. The law requires that the will be signed by the testator and witnessed by at least two competent witnesses who are not beneficiaries of the will.
3. What happens if I die without a will?
If a person dies without a will, they are said to have died intestate. In such cases, the distribution of their estate is governed by the Law of Succession Act, which dictates how assets are divided among surviving family members.
This often leads to complications and disputes among heirs, as the law may not reflect the deceased’s wishes.
Additionally, intestate succession can result in lengthy legal processes and increased costs for the family.
4. What are the legal requirements for writing a valid will in Kenya?
To create a valid will in Kenya, certain legal requirements must be met as outlined in the Law of Succession Act.
The testator (the person making the will) must be at least 18 years old and of sound mind.
The will must be written and signed by the testator. If someone else signs on behalf of the testator, it must be done in their presence and at their direction.
The will must be witnessed by at least two competent witnesses who are NOT beneficiaries or spouses of beneficiaries.
Oral wills are permissible under specific conditions, such as in the presence of at least two witnesses and within three months before the testator’s death.
5. Do I need a lawyer to draft my will?
While hiring a lawyer to draft a will in Kenya is not legally required, it is highly advisable. An estate planning lawyer can help ensure all legal requirements are met, and the language is clear and unambiguous, reducing the risk of disputes after your death.
Additionally, they can provide guidance on how to distribute your assets effectively.
6. How do I ensure my will is legally binding?
To ensure your will is legally binding:
- Follow all legal requirements for drafting and signing as specified above.
- Have your will properly witnessed by at least two competent witnesses.
- Keep your will safe and inform your executor or trusted family members about its location.
Consider registering your will with a local court or a law firm that offers will storage services for added security.
7. Can I write my will by hand, or must it be typed?
You can write your will by hand (also known as a holographic will), and it is legally valid as long as it meets the requirements: it must be signed by you and witnessed appropriately.
However, typed wills are generally recommended to clarify and avoid misunderstandings or disputes regarding your intentions.
8. What is the role of witnesses in drafting a will?
Witnesses play a crucial role in validating a will. They must:
- Be present when the testator signs the will.
- Be of sound mind and at least 18 years old.
- Not be beneficiaries or spouses of beneficiaries to avoid conflicts of interest.
Their signatures confirm that the testator was of sound mind and free from coercion when making the will.
9. Where should I store my will for safekeeping?
For safekeeping, you should store your will in a secure location such as:
- A safe deposit box at a bank.
- A fireproof safe at home.
- With your lawyer if you have one.
Some courts offer depository services for wills.
It’s important to inform your executor or trusted family members where your will is stored so they can access it when needed.
10. What are the different types of wills in Kenya?
In Kenya, there are primarily two types of wills recognised under the Law of Succession Act:
Written Will
This is the most common type of will and can be typed or handwritten. It must be signed by the testator and witnessed by at least two competent witnesses who are not beneficiaries.
Oral Will
An oral will is spoken and must also be made in the presence of at least two witnesses. However, for it to be valid, the testator must die within three months of making the oral will.
This type of will is often used in urgent situations, such as by military personnel during active service.
11. Is an oral will valid in Kenya?
An oral will is valid in Kenya but under specific conditions. It must be made before at least two competent witnesses, and the testator must pass away within three months of making the oral declaration.
This provision allows flexibility when a written will cannot be created promptly.
12. Can I make a joint will with my spouse?
While joint wills are not explicitly recognised under Kenyan law, couples can create individual wills that mirror each other’s intentions.
This means each spouse can express their wishes regarding the distribution of their estate, often leaving everything to one another and specifying secondary beneficiaries.
However, it is advisable to consult a legal expert to ensure both wills comply with legal requirements and effectively reflect each partner’s intentions.
13. How often should I update my will?
It is advisable to review and update your will every 3 to 5 years or whenever significant life events occur, such as marriage, divorce, the birth of a child, or changes in financial circumstances.
Regular updates ensure that your will reflects your current wishes and circumstances.
14. What happens if I want to change my will?
If you wish to change your will, you can create a new one that explicitly revokes the previous one or make a codicil, an amendment to the existing will.
The latest codicil must meet the same legal requirements as the original will, including being signed and witnessed properly.
15. Can a will be revoked? If so, how?
Yes, a will can be revoked in several ways:
Creating a new will: The new will should state that it revokes all previous wills.
Destruction: Physically destroying the will (e.g., tearing it up) to revoke it.
Writing a statement: A declaration stating the intent to revoke the will can also be revoked if signed and witnessed.
16. Who is responsible for executing a will?
The person responsible for executing a will is known as the executor. This individual is appointed by the testator in the will and is tasked with ensuring that the deceased’s wishes are carried out according to the terms of the will.
The executor manages the estate, pays debts, and distributes assets to beneficiaries.
17. What happens if the executor of a will dies or cannot act?
If the executor dies or cannot fulfil their duties, an alternate executor named in the will can step in.
Beneficiaries can apply to the court to appoint a new executor or administrator to handle the estate if no alternate is specified.
18. How long does it take to execute a will in Kenya?
The time it takes to execute a will in Kenya can vary widely depending on factors such as the complexity of the estate, whether there are disputes among beneficiaries, and how quickly probate is granted.
Generally, it can take six months to several years to fully execute a will and distribute assets.
19. What is probate, and why is it necessary?
Probate is the legal process through which the court validates a deceased person’s will. It involves proving that the will is genuine and complies with legal requirements. Probate is necessary because it ensures that:
- The deceased’s debts are settled.
- The estate is administered according to the law.
- Beneficiaries receive their rightful inheritance without disputes.
Obtaining probate provides legal authority for executors to manage and distribute assets, making it an essential step in executing a will.
20. Can a will be contested? If so, on what grounds?
Yes, a will can be contested in Kenya. Common grounds for contesting a will include:
Fraud or Undue Influence: If the testator was coerced or manipulated into making the will.
Lack of Capacity: If the testator did not have a sound mind when creating the will,
Improper Execution: If the will was not signed or witnessed according to legal requirements.
Failure to Provide for Dependents: If dependents were not adequately provided for in the will.
Omission of Necessary Parties: If a person who should have been included (like a minor child) was left out.
21. What are the rights of dependents if they are excluded from a will?
Dependents who are excluded from a will have certain rights under Kenyan law. They can apply to the court for provision from the deceased’s estate if they demonstrate that they were financially dependent on the deceased.
This is particularly relevant for children, spouses, or other dependents who may need to be adequately provided for in the will.
The court may grant them a share of the estate based on their needs and the deceased’s obligations during their lifetime.
22. How can I prevent disputes over my will?
To minimise disputes over your will, consider the following steps:
Be Clear and Specific: Clearly outline your wishes and ensure your intentions are unambiguous.
Communicate with Family: Discuss your plans with family members to manage expectations and reduce misunderstandings.
Choose Competent Executors: Appoint trustworthy and competent executors who can handle potential disputes fairly.
Regular Updates: Regularly review and update your will to reflect changes in circumstances or relationships.
Legal Guidance: Consult with a lawyer when drafting your will to ensure it meets all legal requirements and effectively addresses potential issues.
23. What is a deed poll?
A deed poll is a legal document allowing a person to change their name officially. It shows that the person intends to use their new name consistently in all areas of life.
24. Why is a deed poll important for wills?
A deed poll is important for wills because it ensures the person’s new name is legally recognized. This helps avoid confusion about who the will belongs to.
25. How does a deed poll help with estate distribution?
A deed poll clarifies which person is supposed to inherit under the will.
If someone changes their name, the deed poll clarifies who the testator (who wrote the will) wants to benefit from their estate.
26. What happens if there’s no deed poll?
If there’s no deed poll, it can lead to misunderstandings or disputes about the will’s validity.
This can complicate things for family members and executors after the person dies.
27. How does a deed poll create consistency in legal documents?
A deed poll ensures that all legal documents, including wills, have the same name.
This consistency makes managing the deceased’s affairs easier and helps avoid legal challenges related to name changes.
28. Can foreigners draft wills for their assets in Kenya?
Yes, foreigners can draft wills for their assets located in Kenya. They should seek legal assistance from a lawyer in Kenya to ensure their wills comply with Kenyan property ownership and succession laws.
29. What happens to my digital assets (e.g., social media, cryptocurrencies) after I die?
Digital assets such as social media accounts and cryptocurrencies can be included in your will.
It’s essential to provide clear instructions on how these assets should be managed or transferred upon death.
Many platforms have specific policies regarding account access after death, so familiarizing yourself with these policies and including relevant information in your will is advisable.
30. Are there special provisions for Muslims or customary law?
Yes, there are special provisions for Muslims under Islamic law, which governs succession matters separately from the general Law of Succession Act.
Additionally, customary laws may apply depending on the ethnic background of the deceased.
These laws often dictate how property is distributed among family members and may differ significantly from statutory provisions.
Conclusion
Drafting a will is vital in ensuring your wishes are honored after passing. Understanding the various aspects of wills—such as legal requirements, execution, and potential disputes—can help you navigate the complexities of estate planning.
By being proactive and informed, you can create a clear and legally binding document that protects your loved ones and minimizes conflicts.
If you have questions about drafting a will or need assistance with estate planning in Kenya, our experienced team at Chepchieng and Company Advocates is here to help.
We specialize in providing personalized legal guidance to ensure your estate is managed according to your wishes.
