When can a Will be revoked or altered?

By Harold Ayodo

The fear to write Wills could be partly to blame for unclaimed assets that stand at a whooping Sh200 billion, according to recent figures from Treasury.

Treasury Economic Secretary Dr Geoffrey Mwau recently said the banking sector alone holds Sh7.1 billion of the unclaimed assets — possessions presumed abandoned by owners over time.

What many might not know, however, is that it is possible for property owners to change heirs named in Wills several times.

A section of conveyancers who draft Wills, concur that the fear of many owners of homes and land is the belief that Wills are cast in stone. There are also some investors who give Wills a wide berth following a mentality that writing them is synonymous to preparing for death.

At the same time, there are bachelors and spinsters with investments in real estate who shy away from making Wills in fear of the unknown after marriage.

However, the Law of Succession Act provides for involuntary revocation of a Will by marriage — Wills made before tying the knot can be cancelled automatically.

There could be exceptions to Wills that were made in contemplation of marriage to a specific person, such are not revoked.

According to the Law of Succession Act (LSA), a Will can be revoked or altered by the investor at any time. The LSA provides that contents of Wills can be changed severally as long as the property owner is in a stable mental condition. Courts also refer to judicial precedents on destruction, cancellation or revocation of Wills by property owners. 

Provisions

The LSA also provides for revocation of Wills by burning, tearing or actual destruction by the maker or anyone under his/her instruction. An investor can also give instructions to his/her lawyer — in writing — to cancel a Will prepared on their behalf.

According to the LSA, when revoking a Will, the property owner must have the intention and capacity. For instance, in the case of Cheese vs Lovejoy (1877), a property owner cancelled his Will by striking out its clauses and his signature with a pen.

He then wrote at the back of the Will ‘All these are revoked’ and threw it in a pile of waste paper before his house help retrieved it and kept it in the kitchen drawer. He died eight years later, but the court ruled that acts of the property owner did not amount to destruction, although he intended to destroy it.

Separately, in another case, Re: Morton’s Goods (1887), the court held that the Will was destroyed after the maker completely scratched out his signature.

Legally, to establish actual destruction, it must be proved that the acts of destruction were completed by the maker of the Will. The destruction must be by the property owner or anyone else in his/her presence and direction.

Take the case of Gill vs Gill (1909) where a wife — in a fit of temper — tore up her husband’s Will, but the court ruled there was no actual destruction as it was not under direction!

And in the case of Re Aynsley (1973), an old woman tore her Will into 40 pieces before the matter ended up in court. The judge put the pieces together in a one-hour operation before he ordered that the woman lacked mental capacity to revoke, and the Will remained valid.

Destruction of Wills must not be accidental. If an investor thinks that it could be invalid, the destruction would not amount to revocation as there was no intention to revoke.

–The writer is an advocate of the High Court