A Will is an essential and one of the simpler forms of estate planning tools. It is a legal declaration by a person of their wishes or intentions regarding the disposition of their property after death.
The provisions of a Will are not cast in stone. They can be amended or updated from time to time in order to reflect a person’s changing life circumstances using a codicil (written amendments to a will). A Will can also be cancelled or revoked altogether.
What is Revocation of a Will?
Revocation of a Will refers to the process cancelling or annulling a Will. A Will can only be revoked or cancelled by the person who created it (the testator) at any time before their death.
Additionally, a Will can only be revoked while the testator is alive and has the mental capacity to do so. Once the testator has passed away, the Will cannot be revoked or amended in any way.
What does the law provide on Revocation of Wills?
Revocation of Wills in Kenya is covered under section 17, 18 and 19 of the Law of Succession Act.
Section 17 of the Law of Succession Act provides that:
“A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will.”
Section 18 of the Law of Succession Act provides for the voluntary revocation of Wills. It provides that:
“Save as provided by Section 19, no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it, or by the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some other person at his direction.
A written will shall not be revoked by an oral will.”
Based on section 18 above, a written will cannot be revoked by an oral will. It can only be revoked by another new Written will.
Involuntary revocation of Wills is stipulated under Section 19 of the Law of Succession Act. Section 19 provides that:
A will shall be revoked by the marriage of the maker; but where a will is expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated.”
What are the forms of Revocation of Wills?
Based on the above legal provisions, a Will can be revoked in the following ways:
- By executing a subsequent will:
If a person executes a new will, it automatically revokes all previous wills and codicils (written amendments to a will).
For avoidance of doubt, it is common practice that the new Will explicitly states that all other previous Wills and Codicils made by the maker of the will are revoked. This would ordinarily appear in the Will as indicated below;
“I revoke all former wills and testamentary dispositions made by me”.
- By physical act:
A Will can be revoked by cancelling, tearing, burning or destroying it with the intention of revoking it.
- By operation of law:
A Will can be revoked by operation of law in the case of a new marriage by the maker of the Will unless it is made in contemplation of marriage as provided in section 19 of the Law of Succession Act highlighted above.
What are the consequences of Revoking a Will?
Once a Will is revoked by the testator, it automatically ceases to exist. In the event the testator dies without making a subsequent Will, his or her properties will be distributed to his or her beneficiaries in accordance with the laws of Intestacy (when someone dies without leaving a valid will) as provided under the Law of Succession Act.
How can we help?
Gabael Trust Corporation Limited has established itself as a ‘go-to-firm’ that provides premier estate planning services in Kenya. We also provide value-added services such as advice on investment, tax and retirement that may be critical for your Will.
We have an excellent team of experts and strategic partners across the East African Region who are ready to meet your unique estate planning needs and we welcome you to take advantage of our excellent, professional and cost-effective services.
If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.
