Common Mistakes to avoid when writing a will
A will is a legal document by a person on how his or her property should be managed upon death. However, it can only be valid when a mentally stable person above 18 years old makes it in the required form. Some of the many common loopholes made include:
1. Using traditions to guide your property sharing
It is wrong to assume that writing wills is a preserve of men who were traditionally the only ones to own property. According to Kenyan succession laws, both men and women are at liberty to write wills stating how they want their property managed or distributed upon death. Some people still hold on to the customary belief that only sons can inherit property and daughters cannot be bequeathed. This is not the case.
2. Making a will before marriage
This may come as a surprise to many but a will made before marriage has no legal effect! Under Kenyan law, a will is revoked by marriage of the maker. The legal reason is marriage changes the status of a person by bringing dependents (wife and children) who are heirs. However, where a will is made in contemplation of marriage with a specified person, it cannot be revoked by the union.
3. Assuming your ‘come we stay’ partner is a heir
Unless you specifically state in your will, your come-we-stay partner may walk out of your relationship empty handed when you die. The law is only clear that a legal spouse is the known heir of the deceased.
4. Excluding children born out of wedlock
Some wills fail to take effect after children born out of wedlock and step children troop to court to demand their share of the cake. Legally, all children (including one in the womb) have the right to inherit from their biological parents.Therefore, the easiest way out is to cater for all your biological children and hence avoiding protracted legal battles over property that can drag on for decades.
5. Suspicious circumstances
It is usually risky for an investor to instruct someone to write a will on his/her behalf then goes ahead to give him a substantial benefit.The person who writes the will may be honest but can be regarded as suspicious because eyebrows are likely to be raised whether the testator knew the contents of the will.
6. Not having capacity
Under both Kenyan and Common Law, a will cannot be valid unless made by a person who is over 18. The person should also be mentally stable. As a legal rule of the thumb, infants and persons of unsound mind are incapable of making a valid will.
However, a will made before attaining the age of 18 can be legal when the testator (writer of a will) re-executes it confirming details of the fine print. On mental incapacity, it does not mean that people suffering from mental illnesses are barred from writing wills. For instance, if such people write wills before their minds become affected, such wills are valid.
7. Failure to have valid witnesses
For a written will to be valid, there must have been two or more witnesses who must have seen the testator either signing the document or appending his/ her thumb print. It is also a requirement for the witnesses to all sign the will in presence of the testator.On the flipside, oral wills can only be valid when made before two or more competent witnesses and the testator dies within three months from the date of his/her pronouncement.
8. Making changes to wills
Making casual changes in an already signed and witnessed wills is not a walk in the park. Testators are legally required to make codicils (formal alterations which must be signed and witnessed the same way a will is).The wills are not cast in stone – the testator can change his/her will several times before death. However, if the alterations are several, writing a fresh will is advisable towards avoiding possible confusions.
9. Failure to name an executor
There are living examples where testators write explicit wills stating how their property should ether be divided or managed upon death. However, the testators fail to name or appoint executors of their instructions.For starters, an executor is a person who should implement the will. In such instances, the court appoints the executor(s).
10.Cause for coercion or undue influence
Undue influence occurs when a testator is coerced into making a will or some part of it that he does not want to make. Undue influence is proved if it can be shown that the testator was induced or coerced into making dispositions that he did not really intend to make.
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