The power of a written Will
| January 27th 2013
If you were to pass on today what would happen to your children? Who will determine how your property will be divided? Who would secure the lives of your children? SHIRLEY GENGA let’s us in.
James Mwangi is a simple man; he is in his late 40s and is not rich, but he can comfortably provide for his wife and three children. He runs a business that specialises in car parts, and owns two pieces of land in Kitengela. When I ask him if he has a Will or if he has ever considered writing one, he looks surprised and replies: “ No, I do not have one.” What’s more, when I ask him if he intends to have one, he says: “I will think about that when I get older, not now.”
He is not alone, as most Kenyans do not like to think about death, let alone plan for it. Yet how many times have we heard sob stories of a widow whose property has been taken right from under her nose by greedy relatives? Or the circus that usually unfolds when a prominent or wealthy public figure dies, and the public is treated to drama as family members turn against each other?
Just recently, Kenyans were treated to the twists and turns of the late billionaire, Gerishon Kirima’s family inheritance saga. However, it is not just the families of public figures who get embroiled in property battles; they just simply magnify a deeper societal problem that often arise when a loved one dies — how to distribute property that is left behind. Usually, when a bereaved family member feels they did not inherit something they believe was owed to them, it leads to conflict.
Disputes will also develop in families when arrangements are left until the last minute or unattended to by the deceased. It is no wonder that numerous cases in Kenyan courts today concern the property of people who died intestate (without a Will); these cases drag on for years and end up being costly to family members who are left behind.
There are a number of reasons why many Kenyans will often die intestate. A commonly held belief is that writing a Will is akin to attracting death to one’s doorstep; while for others it is simply just not part of our culture. In the African set up it was, and still is somewhat taboo for one to plan for his/her death. However, family disputes over inheritance can be minimised and hopefully avoided with the help of a properly drafted Will.
So what is a Will? Carolyne Daudi, an advocate at Kyalo & Associates advocates says a Will is a person’s (the Testator) oral or written wish on how his/her property is to be dealt with upon his/her demise within a legal framework.
“It is of practical importance for any individual who owns property in Kenya to write a Will, because it makes it is easier for the High Court to deal with the disposal of property, particularly for beneficiaries. Also one does not have to be over 50 to write a Will: Any person of sound mind who has attained the age of 18 can write a Will as long as they have movable or immovable assets. And while one can make both an oral or written Will, it is, however, wise to have a written Will as it is more definite and thus helps to reduce conflict,” she says
What advice does she give to Kenyans who are superstitious about writing a Will and believe that it is an open invitation to death: “When one dies without a written Will, they leave their estate to be distributed by the law of succession (law of intestacy) through our courts if no one proves that there was an oral Will. This means that the deceased person loses the right to decide who inherits from him or her, and how much such a person will inherit.”
Thus the best way for a person to ensure that they have the last word when it comes to control over their property even after they leave this earth, is through a properly drafted Will.
When it comes to drafting a Will, there is no legal requirement that it has to be drawn up by a lawyer, although Carolyne warns that there are pitfalls, which home-made Wills easily fall into.
“Often, homemade Wills are made in the lay man’s language and when that person is no longer around to explain his intentions in case of dispute, or to correct any technical deficiency or error in expression, conflict is bound to exist. However, when drafted with the help of a lawyer, then legal terminologies will be used and thus there will be no confusion during the interpretation process. Thus the best move is to draft a Will with a competent advocate,” says Carolyne.
Furthermore, once a person has a valid Will they are still permitted by law to make changes and to even draft a new one if necessary.
“The first Will that is drafted is not the final word; once a person has a valid Will, it can be amended. If the amendments are too extensive or too numerous, it might be important to prepare a new Will altogether and destroy the older one,” she continues.
Additionally, when a testator makes a new Will, he or she should declare that they have revoked all previous Wills. Otherwise, a subsequent Will revokes earlier Wills but only to the extent to which they are inconsistent. However, if a subsequent Will is completely inconsistent with an earlier one, the earlier Will is considered completely revoked by implication.
When Can A Will Be Contested?
Taking the initiative to draft a Will is only the first step in the process involved in taking control of one’s property after death. The most important step is to ensure that the Will is drafted properly so that it can take full effect. According to Faith Waigwa, an advocate at Nungo of Oduor & Waigwa Advocates, there are a variety of reasons that would render a Will contestable; they range from unsound mind, to duress during the process of drafting a Will.
When I ask her if it is possible to make a Will incontestable, she says: “You cannot completely rule out the fact that a Will can be contested, but if one is fair in their distribution of her property to all her beneficiaries, then it is unlikely that the Will can be contested,” she explains. In addition, she says that a Will is a private document and once made, it should be registered with the Registrar of Documents and kept with the maker’s advocates, or in a safe for security purposes. “Apart from a Will, another option one can take to ensure control of his or her property is by way of a Gift Deed to her children or spouse, wherein her children may be registered as the owners of such gifts in her lifetime. This, however, only happens if the children are adults. If the children are young, one can elect a trusted adult to be registered as owner of a property in trust of her children and when the children become of age, the property is transferred to them,” says Waigwa.
Alternative To Wills
However, she advises that while Gift Deeds provide an alternative to writing a Will, they come with a hiccup.
“The main problem with Gift Deeds is that stamp duty in immovable property will be levied at the same amount as if your children are the ones buying the property from you to enable them to have the gifts registered in their names. While in a Will, the amount of stamp duty involved is quite nominal,” she adds. She thus strongly advocates that the best way one can secure the future for his or her children is through a properly drafted Will. “The reasons why a Will is the best way to ensure the financial security of those left behind are many. A Will tidies up one’s affairs and shows clear considerations for those they leave behind.
One can even make their own funeral arrangements and see to the costs of it by specifying that part of their estate will cater for funeral expenses. This way, some money is set aside and the family members left behind will not have to pay the large expenses that usually accompany funerals. Further, ensure that those who have the right to inherit have access to property left behind as soon as possible, to prevent possible hardship,” she concludes.
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