The Law of Succession Act, Cap 160 provides for two forms of wills: –
- Written wills
- Oral wills.
For any form of will to be valid, the maker of the will must have had the mental and testamentary capacity to make it. This means that the maker of the will must: –
- Be of sound mind
- Have mental recollection of their property (movable and immovable) and beneficiaries (children, spouse (s) and dependents); and
- Be of sound understanding such that they know and have the intention of making a will.
Of note is that it is a rebuttable presumption in law that the maker of a will was of sound mind unless proven otherwise in a court of law.
A written will is a legal document that indicates how your property will be distributed among your beneficiaries after you pass away. It can also indicate your preferred guardian for your child, your funeral wishes or preference, for example, by cremation or burial, among others.
The Law of Succession Act does not impose any restrictions on the language of will or the type of material the will should be written in. The language of the will can be English, Swahili or your mother tongue and it can be handwritten or typed.
The above notwithstanding, the Law of Succession Act provides for certain formal requirements that have to be met for the will to be valid. They include: –
- The maker of the will has to sign or affixed his or her mark to the will
- The signature or the mark of the maker of the will has to be placed in such a position as to show that he or she intended to give effect to the will
- The will is formally witnessed by two or more competent witnesses, each of whom must see the maker of the will sign the will or receive a personal acknowledgement from the maker of the will that the signature or mark is his or hers.
It is important to note that the persons who witness a will must do so in the presence of the maker of the will. However, it is not necessary for both witnesses to be present at the same time while witnessing the will.
An oral will is simply a verbal statement of wishes that expresses how you property will be distributed among your beneficiaries.
The Law of Succession Act provides that for an oral will to be valid, it has to be made before two or more competent witnesses and the maker of the oral will has to have died within a period of three months from the date of making the will.
An oral will is often made when a person has founded reasons to believe that they may pass away soon, for example, someone who is terminally ill or is in fear of their life. Nevertheless, it is not advisable to make an oral will as it relies on human memory and the witness’s may misrepresent your wishes.
Of note, if the maker of an oral will is a member of the armed forces or merchant marine, the oral will is valid if it meets the following requirements: –
- The oral will should be made during a period of active service;
- The oral will should be made before at least one competent witness;
- The maker of the will should have died during the period of active service (this period can be more than three months after the date of making the will).
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