8 Mistakes to Avoid in a Will for Assets: Kenya
A DIY Will is likely to be a flawed will due to lack of legal input that you would otherwise get if a lawyer drafted the will. It is inadvisable to draft your own will if you are unfamiliar with the legal rules governing making of gifts to beneficiaries under a will. Otherwise the gifts you make will likely fail or be deemed void on your passing due to lack of requisite knowledge on the art that is will making.
Failing to have an original of the will. Not taking good care of the original and relying on existence of photocopies.
Courts require the original of the will as a basis for the grant of letters of probate. In the event that a party wishes to rely on a copy because the original is lost or destroyed; they will need to rely on a duly authenticated copy of the will which they will annex to the application for grant of representation. This can bring complications of authenticating the copy as a valid copy of the original, so it is important that the testator takes good care of the original and the family members also have knowledge of the location of the original will and not just the copies.
Failing to write a will.
Intestate inheritance suits make up some of the most fractious court disputes in Kenyan courts and especially when the disputes touch on the land of the deceased. This is because of the prominence of land in Kenyan culture such that families fight viciously to inherit the land of their deceased relatives. Coupled with the presence of polygamy and one person having multiple families some of which are unknown to each other, intestate inheritance in Kenya is a headache for the bereaved that can be avoided by drawing up a will when you are still alive.
Failing to amend a will despite major life changes.
Because wills are your last word on how your property should be divided amongst your family upon your death, it makes sense that you keep it up to date to ensure it always reflects your intentions and the circumstances of your life. Thus you should amend your will on the occurrence of the following events: new marriage; divorce; birth of child; death of a child; purchase of new immovable assets or other significant assets etc. Otherwise you may end up inadvertently disinheriting a loved one whom you wanted to receive a portion of your estate.
Failure to congruently refer to wills made in foreign jurisdictions.
It is common for parties holding assets in foreign jurisdictions in addition to Kenya to have wills for the assets in those countries. If this is the case, ensure the references to your last will do not inadvertently displace the operation of another will you have prepared for your foreign assets. Thus have your lawyer in Kenya review your foreign wills to avoid cancelling out foreign wills and your foreign lawyers should do the same as pertains to the Kenyan will.
Failure to sign, witness or date your will.
A will is only valid if signed and witnessed appropriately. Failure to do this can invalidate the will and in case of improper witnessing can void gifts to witnesses. Failing to date your will is a big mistake as it opens the door for forged wills to be presented as it is difficult to persuade the court on the basis of an undated will if for instance another will which is dated is presented as the most recent will of a deceased person.
Altering the will.
It is a mistake to alter the will without having the alteration attested to: for instance, removing staples and re-stapling; writing on the will, etc. Any alteration to a will must be signed by the testator and signed by 2 witnesses and alterations not duly signed in this manner e.g. by the use of a codicil may render the will invalid.
Relying on oral pronouncements by the deceased as evidence of the existence of a will.
Oral wills are valid in Kenya, however they will be void if the oral pronouncements on distribution to beneficiaries is not made within 2 months of your death and you will be deemed to have died without a will – i.e. intestate.
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