Ask a lawyer:
What are the necessary elements for a Will and Testament?
M-Wakili's Response
A Will and Testament is a legal document that outlines a person's wishes regarding the distribution of their property after their death. In Kenya, the Law of Succession Act, Cap. 160, governs the creation and validity of wills. To be considered valid, a will must meet certain requirements.
1. The Testator's Name and Wishes
The will must clearly state the name of the person making the will, known as the testator. It must also clearly outline the testator's wishes regarding the distribution of their property. This includes identifying the beneficiaries, the specific property being distributed, and the manner in which it is to be distributed.
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2. The Gifts
The will must specify the gifts that the testator intends to give to each beneficiary. This includes the type of property being gifted, such as real estate, personal property, or financial assets, and the specific amount or share of the property being gifted.
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3. An Executor
The will must appoint an executor, who is responsible for carrying out the testator's wishes. The executor is responsible for administering the estate, paying debts, and distributing the property to the beneficiaries.
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4. Execution
The will must be executed by the testator in the presence of two witnesses. The testator must sign the will in the presence of the witnesses, and the witnesses must sign the will in the presence of the testator and each other.
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5. Attestation
The witnesses must attest to the fact that the testator signed the will in their presence and that they are aware of the contents of the will. The witnesses must also be competent to witness the will, meaning they must be of sound mind and not beneficiaries of the will.
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Case Laws
1. Re: Estate of Njuguna (2010) eKLR
This case involved a dispute over the validity of a will. The court held that a will must be signed by the testator in the presence of two witnesses, and the witnesses must sign the will in the presence of the testator and each other. The court also held that the witnesses must be competent to witness the will, meaning they must be of sound mind and not beneficiaries of the will.
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2. Re: Estate of Kamau (2015) eKLR
This case involved a dispute over the validity of a will. The court held that a will must be executed in accordance with the requirements of the Law of Succession Act. The court also held that the testator must have testamentary capacity, meaning they must be of sound mind and understand the nature of the document they are signing.
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TLDR
A valid will in Kenya must include the testator's name and wishes, specify the gifts, appoint an executor, be executed by the testator in the presence of two witnesses, and be attested to by the witnesses.
Conclusion
It is important to note that these are just the basic requirements for a valid will in Kenya. There are other factors that may affect the validity of a will, such as the testator's mental capacity and the presence of undue influence. It is always advisable to consult with a lawyer to ensure that your will is valid and meets your specific needs.
Answered by mwakili.com