EDUCATION 101: Wills and Capacity To Make Wills.

Principles Of Law

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A will; means a declaration or statement made by a person during his or her lifetime indicating how he or she wishes or intends to dispose off his or her property after death

The person who makes a will is called a Testator (male) or Testatrix (Female) Property distributed through a will is called legacy and the person to which the property is given is called legatee (beneficiary)

There’s no prescribed standard format required by law for making a will. Such a will may be made orally or in writing provided it complies with its own essential elements.

Any the person can make a will and dispose off his property provide the person is not a minor, person of unsound mind or bankrupt. A person making a will is presumed by law to be of sound mind at the time of making the will.

Where a will or any part of it is made by fraud, coercion or inducement, such a will or part of it is void. An alien (foreigner) can make a will in Kenya and dispose off property provided it meets the requirements of law. A woman whether married or unmarried, has the same capacity to make a will as a man.

REQUIREMENTS OF A VALID WILL

This can also be referred to as Formalities, Requisites or essential elements of a valid will

  • A will may be made either orally or in writing. In either case. It is valid provided it meets its own requirements or essential elements.
  • An oral will must be made before and in the presence of at least two or more witnesses.
  • For an oral will to be valid, the testator or Testatrix must die within a period of three months from the day of making the will unless it is renewed.
  • An oral will made by a member of the armed forces or a merchant marine during period of active service remains valid after the expiry of the three months provided the maker dies during the same period of active service.
  • A written will must contain the Testators signature or the affixed mark or it may be signed by some other person in the presence and direction of the Testator.
  • The signature or mark of the testator or that of someone else signing for him must be placed on the document so as to show that it was intended to give authority to the document as a will.
  • A written will must be counter signed (Attested) by at least two or more competent witnesses who must be present as the Testator signs the will.
  • For an oral or written will to be valid, the testator or testatrix must have intended to make a will. This intention may be interfered with where there’s fraud, coercion, mistake, misrepresentation and so on.
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