5 Myths About a Will in Kenya Clearing the Fog
Ever wondered whether a mad man thinks another mad man is mad? Well, it’s complicated. So let’s just talk about some common myths about a will in Kenya and shine a light on the truth.
1. A woman can not make a will
This is entirely untrue! When it comes to writing wills, women in Kenya enjoy the same rights as men. The legislation, notably Article 5(2) of the Law of Succession Act, stresses that women, whether married or single, have the same competence as males to make a will.
2. A person cannot make an oral will
An oral will is allowed in Kenya under Section 8 of the law of succession. This implies that individuals may express their final wishes verbally. However, legal acceptance is dependent on certain requirements being met. To begin, an oral will must be made in front of two or more competent witnesses to be regarded as legally legitimate. When we talk about a “competent witness,” it simply refers to someone who is mentally sound and of age (usually 18 years and older). Furthermore, for an oral will to be legally valid, the person making the will (referred to as the “testator”) must die within three months of the date the oral will was made. So if the oral will was made more than 3 months before the testator died, it is not valid. The only people who can make oral wills that remain valid regardless of time restraints are members of the armed forces. Military personnel can make oral wills that can remain valid for the longest time as long as they are in a military operation during the making of the will. But still, there must be at least two competent witnesses.
3. A witness can’t benefit from the property of the deceased
You know, when someone is making a will in Kenya, he or she might have a friend or family member witness it. Now, here’s the thing: if that witness is gifted something by the person making the will or if the spouse of that witness is mentioned in the will, it becomes a bit tricky. But guess what? The law says it’s okay, but only if there are at least two other people (who aren’t getting anything from the will) also watching and saying, “Yep, this is genuine.” So, it’s like having a couple of extra pairs of eyes to make sure everything is fair and square. This regulation serves to ensure that no one is prejudiced or taking advantage of the circumstances.
4. A person, after making a will, cannot change it
Certain individuals assert a strong sense of entitlement to their parent’s assets, going as far as confronting them with machetes and daring them to change a single letter on a previously drafted will. Probably because a previous will is more in their favor. For those who identify with this, I have some disturbing news for you. In Kenya, you can change your mind about your will; it’s not cast in stone. Let’s say you make a will today, saying who gets what when you’re not around anymore. But hey, tomorrow you feel differently and want to change it. That’s totally okay! The law allows you to change your will or even cancel it if you want. You can do this by making a new will and saying, “Hallo, my loved ones; forget the old one; this is what I really want now.” Or you can tear up or destroy the old will to show you don’t want it to count anymore. So, yeah, the law understands that people can change their minds, even about serious stuff like who gets their things after they’re gone.
5. If you are not mentioned in the will, you are doomed
In Kenya, if someone dies and their will does not adequately provide for everyone who relied on them, there is an umbrella of security. This safety net is intended for dependents—people who were cared for or supported by the deceased before they died. Dependents can include spouses, children (whether or not they were specifically cared for at the time of death), parents, step-parents, grandparents, grandchildren, stepchildren, adopted children, siblings, half-siblings, and even individuals whom the deceased treated as family members even without relationship by blood. It essentially encompasses everyone who was supported or cared for by the deceased right before their death. The law steps in to guarantee that these dependents receive a fair share of the deceased’s inheritance, even if the will does not expressly provide for them. In this way, the law attempts to ensure that everyone who relied on the deceased is well taken care of.
It’s not surprising that heated disputes arise even in testate succession cases (where a will exists). Therefore, understanding the law of succession is very vital, not just for the dependents but also for the testator (writer of the will). Creating a will in Kenya might seem tricky, but it’s about making sure things are fair for your loved one. Knowing what is required of you while drafting a will is critical. You can be dead sure that you will straighten things up for your loved ones when you are surely dead. I hope that did not sound frightening. Did it? In case it did, let me remind you what someone said: we should not take life too seriously coz no one gets out alive anyway. So there you have it, the myths busted, the fog lifted!