- What is a will?
A will is a written document expressing a person's wishes, regarding the distribution of their property. A will may also provide for the care of minor children, other dependants and how one wants their funeral to be held. A will only takes effect upon the testator’s death.
- Form of a will
Whereas, there is no prescribed form for a will under the Succession Act Cap 162, the Act does provide guidance under Section 49 about what the contents of a will are. A will ought to include the following:
- Name of the person making a will and their address.
- Name of the executors.
- Appointment of heirs.
- Name of guardian of young children if that person has any younger children.
- Names of the persons who are given specific gifts say money etc.
- Names of the persons who are beneficiaries of the will makers’ property.
- Signature of the testator.
- Two or more witnesses and their address plus their signatures on every page of the will.
A will must be in writing, bear the date on which it is written and have the testator’s signature.
- Types of wills
Privileged wills are those made by any member of the armed forces being employed in an expedition or engaged in actual warfare, or any mariner being at sea, if he or she has completed the age of eighteen years.
They are unique in nature and may be made either in writing of by word of mouth. Privileged wills may be written wholly by the testator by their hand and in this case, it need not be attested or signed; and where is it written wholly or in part by another person, and signed by the testator, it may not be a need for it to be attested; and where it is wholly or partly written by another person and it is not signed by the testator, it is considered to be a testators will if it is proved that it was written under his or her instructions or that they recognised it as their will. A testator may also by word of mouth in the presence of two witnesses declare their intentions, however, this expires in one month after the testator has ceased to be entitled to make a privileged will.
Unprivileged wills are made by persons other than those entitled to make privileged wills.
For unprivileged wills, the testator signs or affixes their mark to the will, or it shall be signed by some other person in his or her presence and by his or her direction; the signature or mark of the testator or the signature of the person signing for him or her shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
- Who can make a will?
Any person of sound mind and above the age of 18 years, whether married or unmarried can write a will.
A person who is ordinarily insane can make a will during an interval of sanity. The law does not exempt the physically challenged, i.e., the blind, the deaf and the mute from disposing off their property as long as they know what they are doing.
The testator (person writing the will) should be capable of understanding the nature of the will, the effect of the will and the extent to which they bequeath their property.
- Who can attest a will?
A will is attested by two or more competent witnesses, each of whom
- must have seen the testator sign or affix his or her mark to the will,
- or have seen some other person sign the will in the presence and by the direction of the testator,
- or have received from the testator a personal acknowledgment of his or her signature or mark, or of the signature of that other person;
- and each of the witnesses must sign the will in the presence of the testator,
It is not mandatory that more than one witness be present at the same time, and no particular form of attestation shall be necessary but each of the witnesses must, in the presence of the testator, sign and write their names and address on every page of the will. If a will is executed in conformity with the provisions of Section 50 of the Succession Act as Amended, Courts will be reluctant to interfere with it – Estate of James Ngugi Muigai (Nairobi High Court Succession Cause No. 523 of 1996
No information contained in this article should be construed as legal advice from Kleeva Associated Advocates or the authors. Neither is it intended to be a substitute for legal counsel on any subject matter. The information contained in the Site is general legal information and should not be construed as legal advice to be applied to any specific factual situation.