LEGAL PROVISIONS AND REQUIREMENTS OF A VALID WILL

A will is a legal declaration by a person, of his/her wishes or intentions regarding the disposition of his property after his/her death, duly made and signed in accordance with  the law. 

A person who dies having a valid will is called a Testator and the persons gifted  properties in the will are called beneficiaries 

In Kenya, Preparation of wills is dictated by The Law of Succession Act cap 160 Laws of  Kenya. Section 5 of The Law of Succession Act provides that every adult of sound mind  may gift/bequeath off her free property (owned by you) through a will as she deems fit. The gift may take effect after death or sometime in the future. 

The law presumes a person making a will is of sound mind however while making gifts  beneficiaries and giving reasons thereof in the will, care to be taken to avoid a situation where the court may conclude that the testator had some delusions or harbored malice  or ill feelings against some beneficiaries thus rendering you incapable of making sane  decisions. 

The law grants you freedom to gift your free property as you deem fit. You may gift your  property to your spouse, children, grand-children, friends, charitable organizations, e.t.c  and you may also determine when the gifts take effect and even give conditions to be met  before the gifts can take effect. 

However, you must make reasonable provision for your dependents, i.e your children &  dependents i.e persons maintained by you.  

What amounts to reasonable provision varies from case to case but is mostly dependent  on the nature and amount of your properties, the circumstances and needs of your 

dependents and your wishes in respect of why you have chosen to gift your properties  as you have done. 

Where there is a big difference between the amount and value of properties gifted to each  of your children some reason should be given for the disparity. 

You will be required to appoint an executor(s) who will be responsible for implementing  your wishes. The Executor can be one of the beneficiaries of the will or not. We  recommend you appoint one or two persons. 

For efficient distribution of your properties, he or she or they should be somebody of  good character that your beneficiaries trust and respect. 

The will should properly describe the properties being gifted {copies of titles, bank cards,  log books, share certificates, e..t.c are required} and also properly describe yourself and  your beneficiaries by their full names {copies of your ID and those of your beneficiaries  (if possible)} 

Any uncertainty or ambiguity in description of properties, beneficiaries, e.t.c the will  renders it subject to legal challenge. 

The will should be signed by you in the presence of two competent independent  witnesses, i.e not benefitting from the will. 

The will can be amended vides an addendum or codicil which must be similarly signed  and witnessed by two competent witnesses. A will can be revoked in total by another  properly executed and witnessed will. 

A person may also state in their will where they wish to be buried. 

The advantages of having a will includes but is not limited to;

• Its provides certainty to the surviving members of the deceased’s family, by  distributing the property of the deceased according to his/her wishes.  • It prevents or minimizes family disputes that are likely to arise during division of  property. 
• Makes the succession process easy and orderly. 

Get in touch with us for further advise on preparation of your will