The last testament

Succession planning through a will? It’s more than just a formality – it’s a power move to ensure your legacy continues exactly as you demand!

Abstract

Like the sands through the hourglass, so are the days of our lives[1]. We all know, beyond nay scintilla of doubt, that we will not get out this life alive. It is Benjamin Franklin who said, “…in this world, nothing is certain except death and taxes.” Yet, most of us are afraid to personalise our mortality. Death is always a touchy subject, akin to a taboo. It is considered un-African to talk about death. Most African cultures have practices, some of which are weird, to ward off man’s archenemy.  Among some Bantu tribes in Kenya, if you talked about the death of a loved one, anyone hearing you will quickly tell you to touch wood and to spit out three times while crossing your fingers and say, ‘God forbid’. This is because of the cultural belief that when you talk about death, you are seen to be summoning death upon yourself or another and therefore they believe that you can prolong life by avoiding talking about death. That would explain why we don’t say one has died, but has passed on, departed, slept etc. People who die are not buried, they are laid to rest, send off etc.

It is the fear of death that many of us do not plan for what happens when we die. In this article, Daniel Musyoka, Karen Muthee and Derrick Mugendi seek to demystify the concept of death and simplify the process of planning and distributing one’s estate through a will.

The legal history of wills

The history of wills can be traced back to the ancient civilizations of Egypt, Greece, and Rome. In these societies, individuals were able to give instructions on who should get what property after their death[2]. However, during this time, the transfer of property was only between deceased male citizens and their heirs.[3]

By the late Middle Ages, written wills began to take hold in England. In 1540, the Statute of Wills was enacted during the reign of King Henry VIII. Henry VIII was known for his liberal approach to marriage and wanted a little more control over the estate planning process. The Statute made it possible, for the first time, for landowners to dispose off two thirds of their estate to anyone they wished through a written will and testament.[4] Before the Statute was enacted, landowners did not have the liberty of determining who would inherit their land since this was dependent on whether the landowner was survived by a relative. If not, the land reverted to the crown.[5]

The Statute made it a requirement that all wills must be in writing, must be signed by the maker of the will and must be properly witnessed by other persons. Where the requirements were not met, then the will could not be enforced in Court.[6]

Wills have therefore come a long way- from informal oral instructions to more regulated written documents. They continue to be a crucial aspect of estate planning. Today, the laws that govern wills vary from jurisdiction to jurisdiction. In Kenya, wills are governed by the Law of Succession Act, (the Act) Cap 160 of the Laws of Kenya.

Introduction

What is a will? The Act defines a will as a “…legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death[7]…” Simply put, a will is a document in which a person makes his wishes known as who will inherit his property after death. The legal term for a person making a will is a testator.

Why should you have a will?

The following are some good reasons to have a will:

1. To make it clear who gets your assets. You can decide who gets what and how much.
2. To appoint executors to carry out your wishes.
3. To identify who should care for your children.
4. To avoid disputes among your dependants upon your death.
5. To make it easy for your beneficiaries to access your assets.
6. To minimize the estate taxes and other expenses related to transfer of assets.
7. To give instructions on how you would like your remains to be interred- bury, cremation, donation for scientific purposes.

Who May Write a Will?

A testator may be anyone who is eighteen years and above and is of sound mind[8]. The only exception is persons who, at the time of making the will is incapable of appreciating the nature and effect of their act either due to mental or physical illness, drunkenness, or any other cause as to not know what they are doing[9]. Where one alleges that the testator lacks mental capacity to make the will, then the onus of proving that lies upon him.

Types of Wills

Under Law of Succession Act, there are two types of wills: – Oral and written[10]. An oral will is spoken by word of mouth while a written will is written down (handwritten or typed).

However, the law is that, for an oral will to be valid, it needs to be made in the presence of two or more competent witnesses and must be made within a period of at least three (3) months before the death of the testator[11]. However, the validity timeline of oral wills does not apply for members of the armed forces who are in active service and pass away during the period of active service.

Validity of written wills.

1. The testator has testamentary capacity to make the will. This is to mean that the testator should be in the right mind to be able to dispose of their estate. Kimaru J in the case of In re Estate of Erastus Lunyagi Sagala (Deceased) [12]stated that:

“The essentials for testamentary capacity were laid out in the case of Banks vs Goodfellow [1870] R5QB549 in the following terms: “a testator shall understand the nature of the act and its effects, shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing property and bring about a disposal of it which if the mind had been sound, would not have been made.”

• The testator has free agency to make the will- this means that he is not induced by fraud, coercion, undue influence or by such importunity as to take away his free agency.
• It is signed by the testator or by some other person in the presence and direction of the testator.
• The will is attested by two (2) or more competent witnesses each of whom must see the testator sign the will or see some other person sign the will in the presence and direction of the testator, or have received from the testator a personal acknowledgement of his signature or the signature of that other person. The witnesses must also sign the will in the presence of the testator.

Invalidating, alteration and revoking of wills.

A will can be invalidated, revoked, or altered.

1. A will can invalidated if the will is procured through fraud, coercion, undue influence, suspicious circumstances, or mistake,[13] to take away the free agency of the testator. The Court in Julius Kinyua Chabari & another v Mary Mukwamugo Njagi & 4 others[14]  stated that: “To my mind, the errors or mistakes pointed out in the will not only point towards a possibility that the deceased was not only confused, but  that he was not in a proper frame of mind to identify and will his property.  That he was not in a position to know and approve the contents of the will when he executed it. In the view of this court, the will was not only made under suspicious circumstances, but the Petitioners sought to effect its alleged “intentions” in a very suspicious manner.” 
2. A will can be revoked through the action of a testator burning, tearing, or otherwise destroying the will with the intent of revoking it[15].
3. A will can be altered by the testator through use of a codicil, which is a document created in compliance with the parameters of validity of a will to make some changes to the will, or through creation of a subsequent will which has the effect of revoking the previous will[16].

Can the place of burial be included in a will?

Do you have a preferred place where you would like to be laid to buried rest when you die? And who has the final say on the burial rites? Is it your spouse or the clansmen? What would you want to be done with your body- funeral, cremation, or donation for medical purposes?

The case of Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another[17] was the first burial dispute in Kenya, between Wambui Otieno and her husband’s clan, Umira Kager, over the burial of Silvano Melea Otieno, popularly known as S.M. Otieno. In the case, the widow wanted the lawyer to be buried in Ngong. However, the clan would hear none of it and insisted that he be buried in Nyalgunga, Siaya, according to the Luo custom. After a five-month court battle, the clan had its way.

In the case of John Omondi Oleng and Charles Opondo Apuka v Svetlana Radol[18] relatives of the deceased moved to court immediately after the widow of the deceased placed an advertisement in the local dailies stating that the remains of the deceased would be cremated arguing that cremation went against their customs. They also argued that their custom gave the clan more rights than the widow in deciding where the deceased would be buried. On the other hand, the widow argued that on countless occasions the deceased had expressed the desire to be cremated. Justice Korir held that the widow was at liberty to follow the deceased’s wishes citing Article 44(3) of the Constitution which provides that, “a person shall not compel another person to perform, observe or undergo any cultural practice or rite.” Therefore, the Court held that as much as the deceased belonged to the relative’s community which practiced certain rites, the spouse was at liberty to ignore those rites and honour his burial wishes.

A will is confidential and does not bind the testator.

A will comes into effect after the death of the testator and so it must be kept in a secure location that is accessible after the testator’ death. At the testator’s discretion, he/she may discuss with his family members the division of his property under his will to avoid surprise, disappointment, or distress when the contents of the will are disclosed after the testator’s death. This may also help to avoid challenges to the will and claims for family provision.  However, considering that a testator can still deal with any of his properties under the will or revoke and substitute the will at any time, and that only the last will or testament takes precedent, divulging the contents of a will may create an expectation amongst the beneficiaries about their entitlement to the estate which can change if the will is changed. What is worth noting is that there is no legal obligation for the testator to reveal the contents of his will or to provide a copy of the will to family members or beneficiaries prior to the testator’s death. 

It is also prudent for the testator to inform the executor of his appointment under the will and the location of the original will for the purposes of administration of the estate after the testator’s death. This is more so where the will contains the testator’s wishes about the place of burial or disposal of the body and funeral arrangements.

A will is confidential. Therefore, the executor or counsel preparing the will or attesting witnesses must ensure that the contents of the will are not disclosed to anyone without the express authority of the testator.

Application for grant of probate

When the testator dies, the executor moves to court to petition for grant of probate and annexes the original will plus two copies of the will and a certified copy of the death certificate. If the original will is lost or destroyed, then an authenticated copy shall be produced[19].

Once the Grant of Probate is issued, it must be published for not less than thirty (30) days in the Kenya Gazette to allow for any objections.

After thirty days have lapsed and no objection has been brought before court, the grant of probate is granted to the executors and the grant is confirmed after six months or less subject to certain limitations.

After the grant is confirmed, the executors can proceed and distribute the estate as the testator wished in the will.

Conclusion.

Death is part of this fleeting life. It is the normal cycle of nature of all living things. “For everything there is a season, and a time for every matter under heaven: a time to be born, and a time to die”. [20] Now that you know, consider writing a will. That way, you can truly Rest in Peace (RIP).   

[1] Edward Macdonald Carey (March 15, 1913 – March 21, 1994) an American actor, best known for his role as the patriarch Dr. Tom Horton on NBC‘s soap opera Days of Our Lives

[2] https://tullyvi.com/estate-planning/f/a-brief-history-of-wills

[3] https://trustandwill.com/learn/history-of-last-will-and-testament

[4] https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/statute-wills

[5] Ibid.

[6] Ibid.

[7] Section 3 of the Law of Succession Act

[8] Section 5 of the Law of Succession Act

[9] Section 5 (3) of the Law of Succession Act

[10] Section 8 of the Law of Succession Act

[11] Section 9 of the Law of Succession Act

[12] (Succession Cause 12 of 2019) [2022] KEHC 12371 (KLR) (25 July 2022) (Judgment)

[13] Section 7 of the Law of Succession Act.

[14] [2016] eKLR

[15] Section 18 of the Law of Succession Act.

[16] Section 17 of the Law of Succession Act.

[17] (1987) eKLR

[18] civil case No. 382 of 2012

[19] Section 53 of the Law of Succession Act.

[20] Ecclesiastes 3:1