Ask a lawyer:
What are the necessary elements for a Will and Testament?

Table of Contents

1. Introduction

2. The Law of Succession Act

3. Elements of a Valid Will 3.1. Testamentary Capacity 3.2. Intention 3.3. Formalities

4. Conclusion

Introduction

This response will address the necessary elements for a valid Will and Testament in Kenya. The Law of Succession Act, Cap. 160, governs the distribution of a deceased person's estate. This Act outlines the requirements for a valid Will, ensuring that the testator's wishes are respected and their property is distributed according to their intentions.

The Law of Succession Act

The Law of Succession Act, Cap. 160, is the primary legislation governing the distribution of a deceased person's estate in Kenya. It outlines the legal framework for succession, including the requirements for a valid Will.

Elements of a Valid Will

A valid Will in Kenya must meet the following essential elements:

3.1. Testamentary Capacity

The testator must have the mental capacity to understand the nature and effect of their actions when making the Will. This means they must:

• Understand the nature and extent of their property: The testator must be aware of the assets they own and their value.

• Understand the nature of the Will: The testator must comprehend that they are making a document that will determine the distribution of their property after their death.

• Understand the claims of their beneficiaries: The testator must be aware of the individuals who will inherit their property and their relationship to them.

• Be free from undue influence: The testator must not be coerced or pressured into making a Will that does not reflect their true wishes.

Source: Section 4 of the Law of Succession Act, Cap. 160.

3.2. Intention

The testator must have a clear and present intention to create a Will. This means that they must:

• Have a genuine desire to dispose of their property: The testator must not be making the Will under duress or as a result of a misunderstanding.

• Understand the consequences of their actions: The testator must be aware that the Will will determine the distribution of their property after their death.

• Have a specific plan for the distribution of their property: The testator must have a clear idea of how they want their property to be divided.

Source: Section 4 of the Law of Succession Act, Cap. 160.

3.3. Formalities

The Will must be executed in accordance with the prescribed formalities. These include:

• Writing: The Will must be in writing.

• Signature: The testator must sign the Will or direct another person to sign on their behalf in their presence and under their direction.

• Witnesses: The Will must be attested to by two credible witnesses who are not beneficiaries of the Will. The witnesses must sign the Will in the presence of the testator and each other.

Source: Section 5 of the Law of Succession Act, Cap. 160.

Conclusion

In conclusion, a valid Will in Kenya must meet the requirements of testamentary capacity, intention, and formalities. The Law of Succession Act, Cap. 160, provides a comprehensive framework for succession, ensuring that the testator's wishes are respected and their property is distributed according to their intentions. It is crucial to consult with a legal professional to ensure that your Will meets all the legal requirements and reflects your wishes accurately.