When Should You Update Your Will?

Your Last Will and Testament is a crucial legal document that outlines your wishes regarding the distribution of your assets and the care of your dependents after your passing. However, life is dynamic and circumstances change over time. Therefore, it is essential to periodically review and update your Will to ensure that it accurately reflects your current intentions and circumstances. In this article, we explore some key life events and circumstances that may warrant updating your Will. 

1. Marriage 

Marriage is a significant life event that can have implications for your estate. According to section 19 of the Law of Succession Act (Cap. 160, Laws of Kenya), a Will shall be revoked by the marriage of the maker unless the Will is expressly made in contemplation of marriage with a specified person. This will require you to create a fresh Will or consider creating a family trust as an alternative estate planning tool. 

2. Divorce 

Much like marriage, divorce marks a significant turning point in one’s life. While divorce itself does not automatically revoke a Will, it is imperative to revise your Will afterward, especially if changes in your circumstances may affect the beneficiaries in your Will. It is also worth noting the following:- 

a. Matrimonial Property- in cases where matrimonial property has not been divided between divorced spouses, the surviving spouse retains the right to claim an interest in the matrimonial property upon the death of the other spouse, irrespective of whether it has been allocated to another beneficiary in the Will; 

b. Former wives- under section 29 of the Law of Succession Act, former wives are considered dependents of the deceased whether or not they were being maintained by the deceased immediately prior to his death; 

c. Provision for dependents- under section 26 of the Law of Succession Act, a dependent who feels there has not been reasonable provision for him or her under the Will, can apply to the court for such reasonable provision. In considering whether to make such an order, the court will look at the testator’s reasons for not making provision for the dependent. In addition, due consideration ought to be given to children the testator acquired parental responsibility over by virtue of their dependency on the testator. 

3. Growing Family 

As your family grows, it becomes increasingly important to revisit and update your Will to reflect the evolving responsibilities. The arrival of children or grandchildren brings new responsibilities and considerations that should be reflected in your estate plan, particularly where such family members are your dependents. As highlighted above, dependents who feel they have not been reasonably provided for in the Will have the option to seek redress through the courts. To pre-empt such situations, it is advisable to include provisions for all your dependents in your Will. If you choose not to, it is essential to clearly articulate the reasons behind this decision within your Will.   

4. Change of Name 

A legal change of name, whether due to marriage, divorce or personal preference, is another instance that necessitates updating your Will. Your legal name is a fundamental identifier and any discrepancy between your Will and your current legal name can lead to confusion or potential challenges during the probate process. If people named in your Will such as your executor or beneficiaries have legally changed their names, it is advisable to update your Will to reflect these changes to mitigate any ambiguity or uncertainty. 

5. Change of Executors 

Your executor plays a critical role in ensuring your estate is administered according to the terms of your Will. However, circumstances change and your chosen executor may no longer be able to fulfill this important responsibility for various reasons, such as their unwillingness to act, death or incapacitation.  

Alternatively, you may simply decide that you no longer wish to appoint that individual as your executor for personal reasons. Whatever the case, it is prudent to revisit and update your Will to appoint a new executor. It is also advisable to appoint an alternate executor in the event that the chosen executor is unable to act as executor for the reasons stated above.  

6. Disposal of Assets 

If you have made specific bequests in your Will, leaving assets to particular individuals and you subsequently sell or dispose of those items, it is advisable to update your Will accordingly.  

It is worth noting that while the specific bequest may remain in the Will, the asset it pertains to no longer belongs to the testator, which will result in that specific clause failing. It is crucial to note that this does not typically affect the validity of other provisions within the Will. Nonetheless, leaving outdated or irrelevant specific bequests in your Will can potentially lead to confusion or disputes over the distribution of your assets.  

7. Acquisition of Additional Assets 

If you acquire new assets that you wish to include in your estate plan, it is advisable to consider updating your Will. A well-crafted Will typically includes a provision known as a general residuary bequest, which covers all remaining property of the testator at the date of their death (whether or not acquired after the date of the Will) if it hasn’t been addressed elsewhere in the Will.  

If your Will already contains such a provision designating a particular beneficiary or beneficiaries and you wish for your new assets to pass to the beneficiary of the residuary estate, immediate revisions may not be necessary. However, if you intend for these new assets to go to a different beneficiary, then it is advisable to update your Will to include a specific bequest to your desired beneficiary. 

8. Acquisition of Foreign Assets 

If you already have a Will and subsequently acquire assets located in a foreign jurisdiction, it is essential to access whether your existing Will adequately addresses these new assets. The course of action depends on the type of Will you currently have, as detailed below

a. Worldwide Will: A Worldwide Will, also known as a multijurisdictional Will, is a testamentary document that governs the succession of assets located in multiple jurisdictions. If you have a Worldwide Will and your newly acquired assets can be encompassed by the general residuary bequest clause, immediate revisions may not be necessary. 

b. Kenyan Will: If you have a Kenyan Will i.e. a Will that governs only your Kenyan assets, it is advisable to consider updating your Will in one of the following ways:- 

1. Convert your Kenyan Will into a Worldwide Will- this involves updating your Kenyan Will to encompass assets located in different jurisdictions. However, drafting a single Will to adhere to the legal requirements of multiple jurisdictions can be complex, considering substantial differences in laws. It is also crucial to recognize that succession laws governing immovable property typically defer to the laws of the jurisdiction where the property is located. Consequently, while converting your Kenyan Will into a Worldwide Will is feasible, option (ii) below may be more practical.  
2. Create a new Will for the foreign jurisdiction- in this approach, you would create a separate Will to govern assets situated in the foreign jurisdiction. This results in having multiple Wills, each applicable to a specific jurisdiction. Upon creating a foreign Will, it may also be necessary to update your existing Kenyan Will to specify that the Will only pertains to your assets in Kenya, while acknowledging the existence of a separate Will(s) that govern your assets located outside of Kenya. 

Conclusion: 

Periodically updating your Will ensures that it accurately reflects your current intentions and circumstances, safeguarding your legacy and the interests of your loved ones.   

By staying proactive and responsive to life changes, you can ensure that your estate plan remains effective and legally sound throughout your lifetime and beyond, and mitigates the risk of potential disputes.  

Consulting with a qualified estate planning lawyer can provide invaluable guidance in navigating these complexities and crafting a Will that aligns with your intentions while safeguarding the interests of your loved ones. Stay tuned for our next informative article where we will discuss how to effectively update your Will. 

How can we help? 

The Wealth & Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills and experience on matters of family law including but not limited to Succession & Probate Matters, Estate planning, Children matters, Adoptions and Guardianships, and Divorce/ Separation/ Annulment and Matrimonial Property Matters spanning across the East African Region and other International Regions. We are practical and innovative in our approach and offer quick turnaround timelines. 

We offer an edge to our clients based on our legacy of having handled various delicate family matters over the years and therefore are well capable of guiding you through any matter dealing with inheritance. Find our full profiles below. 

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Contact Persons: email address: law@cmadvocates.com , phone number: 0716209673

Written by: Melissa Machua  

Wealth & Private Clients