Rethinking Succession Practices In Kenya: The Feasibility Of Electronic Wills

Many aspects of the law have come to grips with the pressures and realities of the advancements and use of digital technology and testamentary succession is no exception. Succession is simply defined as the transfer of the deceased’s property, and the rights and obligations accruing, to their heirs. There are several estate planning tools such as wills, trusts and pre and post-nuptial agreements. All these tools offer different benefits to individuals and families depending on their estate planning objectives and goals. Estate planning tools speak to effective private wealth management with the aim of consolidating, preserving and growing individual or family wealth. Effective wealth management also involves succession planning which guarantees smooth and seamless transfer of assets to future generations. In this article, we take special focus on wills as an effective private wealth management tool with a view of keeping up with technological changes.

What is a Will?

A will is a legal document prepared in accordance with the Law of Succession Act where a person decrees how their assets will devolve upon their death. Wills are restricted to assets owned by that person (the testator) meaning they exclude assets owned by other legal entities such as trusts, companies, partnerships etc. Regarding companies or partnerships, one can bequeath their specific shareholding in the company but not the assets owned by the company. A will comes into effect upon the death of the will maker (testator). Wills are not only confined to disposing off property. It may also appoint executors, trustees, guardians for any minors or give instructions about the testator’s burial wishes and funeral arrangements or revoke a prior will. In Kenya, a will goes through a court process known as Probate to ascertain the authenticity of the will. Probate is also a step taken in administering the estate of a deceased person and distributing assets to the beneficiaries. Kenyan law provides that a will may either be oral or written.

The Formalities of Conventional Wills

The validity of a will is predicated upon capacity and the formal requirements indicated in the Law of Succession Act. The four main requirements for the formation of a valid will were pronounced in the matter of the Estate of Murimi Kennedy Njogu (Deceased), Succession Cause No. 1141 of 2011  and include;

1. The will must have been executed with testamentary intent.
2. The testator must have had testamentary capacity.
3. The will must have been executed free of fraud, duress, undue influence or mistake.
4. The will must have been duly executed.

The court in Banks vs. Goodfellow (1870) LR 5 QB 549 reiterated the essentials of testamentary capacity, where the court stated 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 of property and bring about a disposal of it which if the mind had been sound, would not have been made.”

Are Electronic Wills a Viable Option?

With the above in mind, it is clear there are certainly no laudable policy and legislative programs aimed at electronic wills. In fact, some critics infer that there is a statutory bar on electronic wills while there are those that opine that the law has not categorically barred them. While electronic wills are important in lieu of technological advancements, it is important to assess the widely cited cons of electronic wills.

Some challenges cited regarding electronic wills

1. Electronic wills are cited as unreliable based on the fact that they disintegrate faster than paper records, and rapid development in word- and data-processing formats renders older ones obsolete and unreliable.
2. Targeted hacking of software is another cause of concern.
3. Given the sensitive and confidential nature of the information in wills, issues such as privacy infringement and ransomware also emanate.

Others critics proffer that to address these issues, the law can allow the use of electronic wills in limited circumstances of imminent danger of death or other exigent circumstances. This article is cognizant of a paradigm that supports gradual changes in legislation that allows for electronic wills as a feasible standalone category. In rethinking the formalities needed in conventional wills, we seek to revise the evidentiary and cautionary aspect of electronic wills manifest in the writing, signature, and witnessing which all serve as evidence of the testator's testamentary intent in an electronic will that can be enforced by court.

Electronic Will Writing

The Law of Succession Act does not prescribe a particular form for written wills. However, it is presumed that the will may be handwritten, typed, printed or in lithographed form from the testator. The law also provides that a will may be written in any language. Such wills are to be translated to the English language. For wills written in a language which the testator was not wholly familiar, an affidavit is required to show that the testator was aware of its contents and appeared to understand them. The courts have held in the highly publicized persuasive case of Kell vs. Charmer (1856) 23Beav 195,  that a will may even be in a jeweler’s code so long as the code can be deciphered. Section 106B of the Evidence Act provides that any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as "computer output") shall be deemed to be also a document. Whereas statutory approval may not be needed for documents that exist entirely in digital form saved on a computer, statutory approval would be needed for an electronic will in the form of a video or audio recording. We opine that the courts with evidentiary proof could find that an electronic document satisfies the Act's requirement of a written will and admit an electronic will on the basis of a reasonable permanent record.

Electronic Will Attestation

Succession law in Kenya provides that no written will shall be valid unless the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will. It is however not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. The witnesses’ signatures need not to be in a particular place in the will, but it should be so placed or positioned as to show the intention to ratify the testator’s signature.

How would parties attest an electronic will?

Electronic Signature

The term “signature” is not defined in the Law of Succession Act, but the courts have widely interpreted it to cover any mark of the testator which is intended as a signature. For example, a thumb print, initials, assumed name, mark by a rubber stamp with the testator’s name have all been held to amount to valid signatures.

The applicability of section 106B of the Evidence Act in attestation.

This provision states that any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer, also "computer output", shall be deemed to be also a document. The admission of such document as evidence is however subject to proof on the following grounds:

• The computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;
• Information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of the said activities;
• Throughout the material part of the said period, the computer was operating properly or, if not, was not such as to affect the electronic record or the accuracy of its content;

The legislation proceeds to state that in any proceedings where it is desired to produce such electronic documents in evidence, a certificate must be produced to:

• Identify the electronic record containing the statement and describing the manner in which it was produced;
• Give such particulars of any device involved in the production of that electronic record

An electronic signature certificate must also be produced if the electronic signature of any subscriber is alleged to have been affixed to an electronic record. Courts have since interpreted 'electronic document' to include audiotapes, print-outs, and electronic documents in several instances. Of peculiar interest is the Big Kev case where Justice Lydia Achode addressed the concern as following: In The Matter of the Estate of Kevin John Ombajo(Deceased) Succession Cause No. 555 of 2018  

Brief Facts

In this case, Kevin Ombajo (also Big Kev) had a written will dated February 2015 where he appointed both his wife and sister as joint executrices. Overtime, Big Kev got diagnosed with a brain tumor and his condition deteriorated. His caregiver, his sister sought his treatment and in that fracas, appointed her signatory to his bank account and about December 2016, he made an audio visual will that stipulated his last wishes on how he wanted his property to be distributed as he wanted certain things in his previous will changed. 7 months later he passed on and his wife moved to court to challenge the revocation as the parties could not agree on which of the two was a valid will.

Issue

The court in hearing this petition determined that the only issue in this matter is whether the audio – visual recording is a valid will of the deceased and can dislodge the written will which came before it.

Analysis and Determination

Justice Achode in her ruling analyzed that in the Kenyan context, no recognition of audio – visual recordings have been provided for in the Law of Succession Act. She however pointed out that sections 78A, 106A and 106B of the Evidence Act provides for the conditions upon which electronic records are admissible in court. Section 78A on the admissibility of electronic and digital evidence provides as follows:

• In any legal proceedings, electronic messages and digital material shall be admissible as evidence.
• The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.
• In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to—
  • the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;
  • the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;
  • the manner in which the originator of the electronic and digital evidence was identified; and
  • any other relevant factor.
• Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.”

Justice Achode posits as following on the feasibility of admitting electronic:

“there are other factors that must be considered in the use of modern technology in recording of the last wishes of a deceased. Although not formally recognized in many jurisdictions including Kenya, electronic wills and the use of technology as a medium of documenting evidence is on the rise. As a result of the COVID-19 pandemic they are more relevant than ever. Just like conducting of court sessions virtually, there is need to have policies and regulations in place to ensure that these processes are guarded against the challenges that are already there such as cyber security, obligations to assess capacity, understanding, undue influence and duress. The bottom line is that courts have been reluctant to accept audio-visual recordings due to lack of statutes and policy regulations.”

Conclusion

Without a doubt, there is a need for the Law of Succession Act to be amended to accommodate a large majority of Kenyans that have embraced technological and are interested in coming up with a wealth and succession plan. Given the effect or importance of a will, it is important that there are laws in place to guide the making of electronic wills and give parameters within which such wills can be validated. As it is, there is a lot of adjustments and considerations to be done by any court as it is when they encounter an electronic will, it can be done but the process needs to be a lot more seamless.Please click here to download the alert.

How can we assist you?

Where you and your loved ones have encountered what seems to be an electronic will, the Wealth & Private Clients Team at CM Advocates LLP has the ability to assist you to navigate the probate process of such a will and other forms of wills.

Contributors

Nelima Walubengo Tindi- Senior Associate Beverly Tracy- Associate

Disclaimer

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