You can change, destroy a will

I am toying with the idea of writing a will specifying how my investments in real estate should be distributed among my nuclear family upon my death. However, I keep changing my mind on how to divide the portions as some of my children are more educated and earning more than others. My question is whether wills are cast in stone once written and whether there are precedence (incidences in law whereby wills have been either cancelled or revoked) and how courts ruled. I want to have a clear mind before I put pen to paper as I am suffering from a terminal ailment that is fast impacting negatively on my health.

Peter, Mombasa

Yes, it is possible for property owners to change their wills several times before death. According to the Law of Succession Act, a will can be revoked or altered by the investor at anytime. Courts also refer to several precedents on destruction, cancellation or revocation of wills by property owners before death.

The Law of Succession Act provides for revocation of wills by burning, tearing or actual destruction by the maker or anyone under his or her instruction. There are also several precedences where courts have authoritatively ruled on cancelled or revoked wills.

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 househelp retrieved it and kept it in the kitchen drawer.

Not destroyed

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 the case of 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. And the destruction must be by the property owner or anyone else in his or her presence and direction.

Take the case of Gill vs. Gill (1909) where a wife, in anger, tore up a will of her husband before the court ruled there was no actual destruction as it was not under direction! Professionally, property owners can instruct their lawyers – in writing – to destroy a will prepared on their behalf.

When revoking a will, the property owner must have the intention and capacity before it is legally cancelled. For instance, in the case of Re Aynsley (1973), an old woman tore her will into 40 pieces before the matter ended up in court.

Lack of mental capacity

Interestingly, 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. In some cases, a will may be lost or found torn or mutilated after death of a property owner who wrote it death.

In such cases, the document is presumed to have been destroyed by the maker with the intention of revoking it if it was last in his possession.

— The writer is an Advocate of the High Court of Kenya