Is My Will Valid? Testamentary Capacity In Kenya

The importance and benefits of estate & succession planning cannot be overstated, it ultimately affords peace of mind to the remaining family members as they devolve the estate of their loved one. A Will is considered an essential and one of the simpler forms of estate planning. It is a legal declaration by a person of his or her wishes or intentions regarding the disposition of his or her property after his or her death.

Legal Requirements of a Valid will in Kenya

The Law of Succession Act (Cap. 160, Laws of Kenya) (the “LSA”) is the anchor law for the preparation of Wills in Kenya. Wills can either be made orally or in writing; the LSA provides certain requirements that must be adhered to in order for a Will to be declared valid. These requirements include;

1. The testator (e. the make of the Will) must have testamentary capacity – be of sound mind and not a minor.
2. The testator must have free agency- not induced by fraud, coercion or by such importunity as to take away the free agency of the testator or induced by mistake.
3. Oral wills are to be made in the presence of two witnesses with the testator’s demise being within three (3) months of the making of such Will, except where:
4. they serve as members of the armed forces or merchant marines during a period of active service; and
5. they become deceased during that period of active service.
6. Written wills are to be signed by the testator (or it has been signed by some other person in the presence and direction of the testator) and signed by two (2) or more competent witnesses.
7. The signature or mark of the testator (or the signature of the person signing for him), is so placed that it shall appear that it was intended to give effect to the writing of the Will;
8. Where a Will makes bequests (makes provision for) to attesting witnesses or their spouses, such Wills shall only be valid if also attested by at least two (2) additional competent and independent witnesses.

You may read more about our interesting discussion on Electronic Wills and their viability. In this article, we shall focus on one element of making a will, that of testamentary capacity.

Testamentary Capacity

Testamentary capacity basically refers to the ability of a person to make a valid Will. Section 5 (3) and (4) of the LSA provides as follows; (3) Any person making or purporting to make a Will shall be deemed to be of sound mind unless at the time of executing the Will, they were in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what they were doing. (4) The burden of proof that a testator was, at the time of making the Will, not of sound mind lies upon the person who so alleges.’

The courts approach to testamentary capacity:

Over the years, the courts have grappled with the question of testamentary capacity and have provided some further guidelines as detailed below; UK case law: In the persuasive case of Banks vs. Goodfellow (1870) LR 5 QB 549, the court held as follows; “…A testator shall understand the nature of the act and its effects, shall understand the extent of property of which he is disposing: shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall influence his will in disposing property and bring about a disposal of it which if the mind had been sound, would not have been made…”  Kenyan case law: The court in Re Estate of Gatuthu Njuguna (Deceased) (1998) eKLR, stated as follows; “…where any dispute or doubt on sanity exists, the person propounding the will must establish and prove affirmatively the testator’s capacity and that where the objector has proved incapacity before the date of the will, the burden is shifted to the person propounding the will to show that it was made after recovery or during a lucid interval.  The same treatise further shows that the issue of a testator’s capacity is one of fact to be proved by medical evidence, the oral evidence of the witnesses who knew the testator well or by circumstantial evidence and that where the question of capacity is one of degree, the testator’s mind does not have to be perfectly balanced and the question of capacity does not solely depend on the scientific or legal definition.  It seems that if the objector produces evidence which raises suspicion of the testator’s capacity at the time of the execution of the will which generally disturbs the conscience of the court as to whether or not the testator had necessary capacity, he had discharged his burden of proof, and the burden shifts to the person setting up the will to satisfy the court that the testator had necessary capacity…” In the case of Re Estate of Murimi Kennedy Njogu –Deceased (2016) eKLR, the court stated as follows; “…Generally, it takes less capacity to make a will than to do any other legal act. As guidance, a four-prong test is often used. The testator must: -

1.  Know the nature of the act (of making a will)
2. Know the natural objects of his bounty
3. Know the nature and extent of his property
4. Understand the disposition of the assets called for by the will…”

In light of the above, we will now consider various scenarios and whether they impact the validity of a Will.  

1. Does physical illness/impairment render a person incapable of making a valid will?

In addressing whether a physical illness has an impact on the testator’s mental capacity, the court takes evidence of the witnesses to the execution of the Will and other caregivers/persons who were around the deceased when the physical ailment is alleged to have affected their mental/testamentary capacity. To this end, doctor testimony may also be a necessity. To prove incapacity, such a medical report would state the deceased’s mental challenge or incapacity and it would be prudent for the doctor to be called as a witness. Ultimately, despite a testator’s physical illness, the court would want to be satisfied that the testator was fully aware of what they were doing.  

2. Does failure to provide for a beneficiary invalidate the Will or prove testamentary incapacity? Read more on Testamentary freedom 

The legal position is clear that failure to provide for a beneficiary in a Will does not invalidate it. This is because the court is empowered by the law to make reasonable provisions for the dependant in the exercise of its discretion and in accordance with legal considerations, such as the nature and amount of the deceased’s property.  

3. Does exclusion of some property from the Will indicate that the testator lacked testamentary capacity?

The courts have held that it does not require a testator to know precisely the value of their individual assets, or even of certain classes of assets. This particularly applies as one accumulates more wealth leading to an increased degree of complexity of his or her estate. Notably, where property is not specifically bequeathed in the Will, the testator may include a residual clause to deal with his or her remaining assets. Where assets are completely left out of the Will, such assets devolved to the beneficiaries and dependents through intestate succession, such that the estate will be dealt with as partially testate and partially intestate.Quote  ‘In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent-more so than in most persons of younger age. But those are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of their property by will…were the rule to be otherwise, so many wills would be liable to be set aside for want or testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed…’  Kirby P. (South Africa)

Conclusion

 Preparation of valid Wills takes a lot of time, thought and consideration by the testator. We would argue that it also requires a competent legal team to guide the process. This is particularly prudent if the Will is prepared when one is on their death bed, as legal representation can ensure the testator’s wishes are covered and the will is properly executed. Before ousting a testator’s testamentary wishes, the courts have been seen to carefully scrutinize the facts of each case, the circumstances of the testator at the preparation of the Will and evidence adduced on the opinion of the witnesses at the point a Will was being prepared. Therefore, a testator should endeavor to fulfil all the legal requirements of a valid Will.Please click here to download the article

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Dianah Gichuru- Partner & Head of Unit Nelima Walubengo- Senior Associate 

Disclaimer

This article is for informational purposes only and should not be construed as legal advice.