The Law in Kenya provides that a Testator has complete testamentary freedom except that you have to provide reasonably for all beneficiaries. The Testator need not be fair, but provide reasonable provision for the beneficiaries.

Testators must reasonably provide for beneficiaries, if they do not, then on the application by or on behalf of a beneficiary, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will is not such as to make reasonable provision for that Beneficiary, order that such reasonable provision as the court thinks fit shall be made for the beneficiary out of the deceased’s net estate.

Reasonableness depends on the circumstances of the matter as each case stands on its own facts. The court shall have regard to certain circumstances prior to making this order such as the nature and amount of the deceased’s property, the relationship between the beneficiary and the deceased, the existing and future means and needs of the beneficiary, the existing and future means and needs of the beneficiary among others.

What happens if a beneficiary dies?

In this case, the gift is said to have failed, hence the gift will be handled under Intestate succession. A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.

What happens when the Will does not provide for certain assets of the Testator?

In this case, the specific assets not provided for under the Will, shall be administered using intestate succession, which would be a cumbersome process, hence it is always advisable for a Testator to include a Residuary clause in the will.

A residuary clause in a will directs the disposition of property not provided for under the will.

Is it possible to will a property that is jointly owned?

Yes, it is possible to will a jointly owned property, however this should be provided for in the will while recognizing the survivorship clause, which provides that the survivor takes it all, automatically without going to court. It is important to provide for this, just in case, the Testator outlives the other joint owner, then they can will it to a certain beneficiary.

How do you cater for minors in a Will?

A minor cannot hold property, hence to cater for a minor in a Will, a Trustee can hold the assets on behalf of the minor until they turn the age of majority or until a certain age that the Testator stipulates in the will.

How then do you validate a will?

The executor named in the will, has to file the same in court to have the will validated, through a grant of probate. The court will gazette the same, to allow for any objections on the will prior to its confirmation.

Some of the objections that can be made in respect of a will are: lack of capacity of the Testator, forgery; fraud; improper witnessing. The onus to prove the said allegations lies on the objector of the Will on a balance of probabilities. In the event that the court finds the will to be competent, the court will then issue a grant of probate, have it confirmed and the court will distribute the Estate in accordance with the wishes of the Testator.

Please contact us if you require further advise on the above subjects or require us to draft a will.

Email: info@kendikadvocates.co.ke
Website: www.kendikadvocates.co.ke
Tel: +254768028504

Disclaimer:
This information provided in this Article is intended as a general overview of the subject dealt with. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Kendi & Company Advocates is not responsible for any actions taken or not taken on the basis of this information.