October 4, 2023
How to Write a Will: A Guide for Law Students
Introduction
Writing a will might seem like an intimidating task, especially for law students just beginning to navigate the complexities of legal documentation. Yet, understanding how to draft a will is an essential skill for any aspiring lawyer. This guide aims to break down the process, offering you a clear roadmap to create a legally sound will. Whether you’re preparing for coursework, internships, or your future career, this guide will serve as a comprehensive resource to help you master the intricacies of will writing.
The Role of a Will in Estate Planning
A will is a cornerstone document in estate planning, serving as a legal declaration of how a person wishes their assets to be distributed after their death. It provides a structured way to ensure that the testator’s (the person making the will) wishes are honored and reduces the potential for disputes among beneficiaries. For law students, understanding the role of a will in estate planning is crucial, as it forms the basis for more complex legal instruments and strategies.
Wills also play a crucial role in appointing guardians for minor children and specifying funeral arrangements. They can mitigate the risk of family disputes and provide clarity in the distribution of assets, thereby ensuring a smoother probate process.
Legal Principles of Will Writing
Testator’s Capacity
The testator must be of legal age and sound mind. This means they must understand the nature of making a will, the extent of their property, and the claims of those who might expect to benefit from their estate. In Kenya, the Law of Succession Act, Cap. 160, outlines these requirements in detail.
Free Will
The will must be made voluntarily, without undue influence, duress, or coercion. The testator’s intentions should be genuine and not manipulated by any external pressure.
Written Form
In most jurisdictions, including Kenya, a will must be in writing. Oral wills are generally not accepted unless under specific circumstances, such as imminent death.
Signature and Witnesses
The will must be signed by the testator in the presence of at least two witnesses, who must also sign the document. These witnesses should not be beneficiaries of the will to avoid conflicts of interest.
Step-by-Step Guide to Drafting a Will
1. Gather Necessary Information
Begin by listing all assets, including real estate, personal property, bank accounts, investments, and any other valuable items. Also, identify all potential beneficiaries.
2. Decide on an Executor
The executor is responsible for administering the estate according to the will’s terms. Choose someone trustworthy, capable of handling financial matters, and willing to take on the role.
3. Outline Specific Bequests
Detail specific gifts to individuals or organizations. This can include monetary gifts, property, or personal items. Be as clear and specific as possible to avoid confusion.
4. Appoint Guardians for Minor Children
If applicable, name guardians for any minor children. This ensures that they are cared for by individuals you trust.
5. Draft the Will
Using clear and precise language, draft the will, including all the necessary components: the declaration, bequests, appointment of executor and guardians, and any other relevant clauses.
6. Sign and Witness the Will
Ensure the will is signed by the testator in the presence of at least two competent witnesses who also sign the document. Consider having the will notarized for extra legal weight.
7. Store the Will Safely
Keep the will in a secure place, such as a safe or with a trusted attorney. Inform the executor and any close family members of its location.
Common Mistakes to Avoid
Ambiguity in Language
Ambiguous language can lead to misinterpretation and disputes. Ensure that the language used is clear and specific.
Not Updating the Will
Life changes such as marriage, divorce, birth of children, or acquisition of new assets necessitate updates to the will. Regularly review and update the document to reflect current circumstances.
Ignoring Legal Requirements
Failure to meet legal requirements, such as the proper number of witnesses or the testator’s capacity, can render a will invalid. Always adhere to the legal standards set forth by the jurisdiction.
Case Studies and Examples
Case Study 1: The Consequences of Ambiguity
John decided to draft his will using an online template. Unfortunately, the language he used was ambiguous, leading to disputes among his beneficiaries. This resulted in a lengthy legal battle that consumed a significant portion of his estate.
Case Study 2: The Importance of Witnesses
Mary created her will without the required witnesses. After her death, the will was deemed invalid, and her estate was distributed according to the laws of intestacy. This led to unintended beneficiaries and family disputes.
For more real-life examples, you can refer to M-Wakili's case studies.
Frequently Asked Questions
1. What are the legal requirements for a valid will in Kenya?
A valid will in Kenya must be in writing, signed by the testator, and witnessed by at least two competent witnesses. The testator must also have the legal capacity to create a will.
2. Can I create a will without a lawyer?
Yes, you can create a will without a lawyer using DIY templates and guides. However, it is essential to ensure that the will meets all legal requirements to avoid invalidation.
3. How much does it cost to hire a lawyer for a will in Kenya?
The cost of hiring a lawyer for a will in Kenya varies depending on the complexity of the will and the lawyer’s experience. It can range from thousands to tens of thousands of Kenyan Shillings.
4. What happens if my DIY will is invalid?
If a DIY will is invalid, it may be disregarded, and your estate may be distributed according to the laws of intestacy. This can lead to unintended beneficiaries and disputes among family members.
5. Can I update my will after it has been created?
Yes, you can update your will at any time by creating a codicil or drafting a new will. It is advisable to seek legal advice when making significant changes to ensure that the updates are legally valid.
Conclusion
Creating a will is a crucial step in ensuring that your assets are distributed according to your wishes after your death. While DIY wills offer cost savings and convenience, they come with several risks that can be mitigated by seeking professional legal assistance. Hiring a lawyer provides expertise, accuracy, and peace of mind, making it a worthwhile investment for many individuals. Ultimately, the choice between DIY and professional help depends on your specific needs, circumstances, and comfort level with legal complexities.
For more information on making a will in Kenya, visit M-Wakili's guide on wills.