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Edition 01

Is a Will really necessary

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Toiling through toils to acquire the very best of the assets can be lost when people inevitably breathe their last on earth writes Cathy Mputhia as she stresses the need for all to write a valid Will so that the property by law does not devolve to the State. 

Most people dread contemplating their own death. Consequently, they fail to draw a Will and occasion hardships to their survivors when they pass-on after acquiring so much assets and wealth.

Writing a Will is however one of the most prudent step one could make for themselves and their families. It really is a very simple way through which one may preserve their wealth beyond the inevitable death.

A Will is a legal document containing a person’s declaration as to their wishes regarding the disposition of their property after they die. For such a document to be legally enforceable, it must conform to the requirements as set out under the laws governing succession. In Kenya, this would be the Law of Succession Act, (Chapter 160, Laws of Kenya).

 Be on the safe side

By means of a Will you could almost literally determine the course of his wealth from the depths of their grave. Many are the stories of thriving estates which got dissipated not long after the demise of their patriarchs or matriarchs because of their having landed in the wrong hands. To avoid this, one may appoint a trusted person to act as the Executor of his estate, appoint trustees and or guardians for children who are still minors.

To be on the safe side, one may appoint an alternative executor or guardian just in case the default one is unable to act. He could also give instructions as to how his body is to be disposed of or generally how his funeral is to be conducted. This will definitely reduce the strain death causes among friends and relatives as there will be no need for lengthy funeral committee meetings deliberating on the same.

Something foreseeable

It is a very shameful to witness relatives squabbling in public over who is to get what as relates to the estate of a deceased. Imagine the anguish his immediate family had to endure over something both foreseeable and avoidable.

The mere appointment of executors or trustees does not mean that the wealth preservation process will be smooth. Indeed for complicated ventures such as investment, trusts or maintenance, they may encounter difficulty and thus a Will may specifically outline what they are to do and even empower them to do that which they would otherwise have been unable to do.

No prescribed format

So who needs to write a Will and how does one go about it? Well, the Law of Succession Act states that anybody who owns free property, is over 18 years of age, and is of sound mind can write a Will. There is no prescribed format for writing a Will but the maker must indicate from the onset that he is drafting one by describing the document as such.

Generally, a Will must be in written form (for an oral Will to be valid, the maker must have died within three months of it) and the Testator, for that is what he who drafts a Will is called, must sign and affix his mark to it or some other person must do so on his behalf in his presence and direction.

This process is referred to as executing the Will. Subsequently, the Will must be attested, which means it be signed in the Testator’s presence by at least two people who must have witnessed its execution. It would suffice if they receive from the Testator a personal acknowledgement of his signature or mark. The attesting witnesses should not be beneficiaries under the same Will, but if they are, their bequests may fail.

People need not fear writing a Will. They are indeed free to revoke or alter it at any time. Furthermore, a revoked Will can still be revived by being re-executed.

Whilst people are free to dispose of their estate as they like (Testamentary Freedom), care should be taken when making a Will to ensure all dependants are catered for reasonably. If that does not happen and an aggrieved dependant goes to Court, the Court has the right to intervene and secure them reasonable provision out of the deceased’s net estate.

However it is always best if one was able to determine how the wealth they have worked so hard for is inherited rather than to let the Courts decide for them. In the West, wills have been used to settle scores with dependents. You find cases of someone bequeathing millions of dollars to their pets.

In Kenya, an aggrieved dependant can petition the court to intervene. However, one must be a dependant for this to happen as testamentary dispositions are an exercise of one’s freedom over their property. In the very unlikely event that one does not have dependants to survive him in addition to their not having left a valid Will, the property will by law devolve to the State.

Clearly, there is no excuse why anyone should not write a Will. It is actually in our own best interests to do so. The legal costs for writing a Will, far out-weighs the costs of not having a Will. One shall disclose to his advocate the assets in his possession and make a list of how he would like to bequeath them.