Characteristics of a Will.
Characteristics of a Will
The law of succession is the branch of civil law that regulates the transmission of property on upon the death of a person. It is primarily concerned with how property of a deceased person is distributed after his or her death.
In Kenya Succession matters are regulated by the provisions of the Succession Act (Cap 160)
Succession to property may take place in either of the two ways as:
- TESTATE succession refers to a situation where a person dies leaving behind a valid will on how he or she intends to dispose off his property after death.
- INTESTATE succession occurs where a person dies without having made a will or where the will left is proved to be invalid.
Characteristics of a Will
- Dispositive in nature; A will must be capable of disposing off or transferring off property from the testator/ testatrix to someone else. That is legatee (beneficiary) hence it is said to be of dispositive nature or character.
- Declaration of intention; A will is only a declaration of the testators intention on what he would like to do with his property at a future date. It does not interfere with the rights of the testator to deal with his property inter vivos (during his lifetime)
- Revocability; A will may be revoked/ terminated by the testator at any time during his lifetime. This may be done by burning, tearing or destroying the will in any manner with the intention of revoking it.
- Post humous effect; A will becomes effective and operational only after the death of the testator. As long as the testator is alive the will is dormant and the testator can deal with his property in any manner he likes without regarding the contents of the will.
- Ambulatory nature; This means the capacity of a will to deal with any property acquired by the Testator after the date of making the will. Such property may be dealt with through a document called a CODICIL provided the same property is owned by the Testator at the time of his death.
- Other formalities; A will may be made either orally or in writing. In each case, it must comply with its own essential elements/requirements relating to witnesses, signatures and so on.
After making a will, the testator may wish to amend it. He may do this by making another testamentary document known as a codicil.
A codicil is a document which explains, alters or makes additional statements to the contents of a will. For a codicil to be valid it must be prepared and signed in the same manner as the original written will.