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How to Write a Valid Will

In recent years, we have witnessed a lot of wealthy men and women in the society die and their properties lost or squandered by their kin. Worse yet, the property may be stolen by administrators of the estate who are meant to be guardians of the property and are to convey it to the beneficiaries when the time is right. The government has also taken control of some of the deceased assets as a last resort since it is unclaimed by the deceased next of kin.

Examples of such people in Kenya whose families are struggling with such kind of succession issues include the famous rags to riches business and politician Njenga Karume whose net worth was around 100 billion shillings; the other Gershon Kirima who was a carpenter cum butcher and later a successful business man who at the moment of death was worth 750 million shillings.

All kind of assets that are not claimed by next of kin after some period of time are reclaimed by the government but in the Kenya we live in, this money lines people’s pockets. A will guards against all such scenarios and more so as you have observed, its one thing creating an empire and it’s another ensuring it lasts.

You may think that wills are only relevant in regard to the wealthy but you can safe guard any given asset for future generations. The asset may be as minute as a treasured necklace or as big as a million dollar estate.

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A will is a legal document made by a person in contemplation of death and it entails what they wish to happen to their property after their passing.

A person who dies with a will is said to be testate while a person who dies without one is intestate. The latter is doomed and always turns in his grave in regret as what will happen to their hard sought property after their passing will be beyond their control.

There are two main categories of wills in Law which caters for your dependants in case the inevitable happens.

  • Oral will – made by word of mouth.
  • Written will – written down.

Other rare types of will include:

  • Conditional wills – takes effect after a certain event or fulfillment of a certain requirement in the future.
  • Joint or mutual wills – made by more than one person, i.e. a married couple.

In Kenya succession matters are dealt by the court in accordance to the Succession Act Cap 160 – Kenya Law. There are also other respective Acts of parliament that are used in relation to the above which include:

  • Family law.
  • Equity and trust law.
  • Property law.

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Requirements for any will to be valid in Kenya are stated in the Law of Succession Act, Sect 5 -13 which includes the following:

  • The person making the will must have the capacity to make the will.
  • There must be two or more competent witnesses who should actually witness the testator signing the will but don’t need to know the contents of the document signed. If the witness wasn’t there, the testator must show that the witness validated the will. The witnesses mustn’t however be present at the same time the will is written.
  • In an oral will for it to be valid, the testator must die within three months of making the will.
  • An oral will made by a member of the armed forces or merchant marine during a period of active service shall be valid perpetually (for life.) Oral wills are made mostly due to a state of danger making someone irrational on the will one has made and may want to revert afterwards.
  • For normal people who aren’t in active service i.e. the military and not in immediate face of the risk of death, oral wills are valid only to a maximum of three months.

It would be important to know that a written will always triumph over an oral will anytime any day. You can write your will on any type of material; stone, tissue paper, leaf etc and it will be valid as long as it has your signature and it’s duly attested by two competent witnesses.

The following are some of the benefits of writing a will:

  • Avoiding squabbles between the dependents over the estate when you die.
  • Enables the testator to maintain control over the property even in death
  • Formally enables a testator to appoint administrators’ over his estate who can be anyone of their choice.
  • Enables you to include more than your next of kin as beneficiaries i.e. a friend. Intestate’s property will be distributed in accordance with the rule of intestacy which doesn’t cover for non relatives.

One can make a will with or without the aid of a lawyer as long as all the conditions of a valid will are met. It is never too late or too early to write a will. You can always revoke, revive or amend a will you have written while alive.

death

Since no one knows the time that death would come knocking, it would be prudent to have a will in place to safe guard assets for your future generation.

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Posted by Titus Wenanga