THE PLACE OF WILLS IN KENYA

Most Kenyans and Africans in general perceive wills as a taboo. In traditional society, writing a will was seen as inviting death to your household. This made a number of people shun wills and the need to have them. In this article we discuss the place of wills in Kenya and the need to have a will.   

Statistics show that about 60% of Kenyans do not have a will. Such Kenyans rely on next of kin nominations, verbal declarations or they confide in a family member as a way of formalizing succession. This does not always work as some of these methods lack formality and may not be enforced.

Many Kenyans have held off from writing wills due to the costs involved in hiring a professional, accessibility to the professional, cultural beliefs relating to death, lack of trust in wills and inadequate understanding of how the will works.

However, things have taken a turn for the better through awareness and education on the overall benefits of having a will. People have begun to think more progressively and have shunned the fear and misunderstanding that surround the making of a will. Wills are slowly gaining popularity and traction in Kenya what was once thought of as a taboo is now being embraced by many.

Wills have especially become popularized and seen as important after the death of several famous and wealthy people whose families have been left in dispute and are still in dispute years later over their inheritance. We have all witnessed how the families are left fighting and in wrangles over the distribution of property.

Why should you go through the trouble of getting a will prepared?

Well, if you do not write a will you lose all control over who should inherit from you and how your property will be distributed as the law of intestacy takes over upon your death governing the distribution of your property.  

A will enables you to control how your property will be handled upon your death. It acts as a guide for the distribution process of your property. A will also reduces the likelihood of inheritance disputes since it provides how the estate of the deceased shall be distributed. In addition, a will gives the Testator (the person making the will) freedom to appoint executors who will be responsible for administering the estate. These are people the Testator trusts and believes will do a good job.  If the Testator has young children, a will provides an opportunity for the Testator to appoint guardians who will take care of the children until they attain the age of majority. Lastly a will enables a Testator to capture their last funeral rites and wishes on where their final resting place should be and how it should be taken care of. Recently when Nicholas Biwott passed on, it was revealed that he had allocated a substantial sum of money in his will towards the maintenance of his grave.

With all that said, the question remains what is required for you to prepare a valid will? There are various basic requirements, you must be of sound mind, above the age of 18 years and must have a sound understanding of your property and the beneficiaries that you would like to gift. The will must be prepared free of any coercion or influence. The testator should also appoint an executor to administer the will upon death. The will should finally be signed and then witnessed by two independent persons.

In conclusion, the will may be considered a bad omen by some but its benefit far outweighs any superstitious belief that may be followed by it. We make plans in preparation for any disasters and any bad fate that may befall us e.g. Medical insurance in case we get sick or car insurance in case of an accident. This does not necessarily mean we are inviting disaster into our lives. It is just a precaution that we take in the event that the risk materializes. A will is also the precaution we take to prepare for any eventuality. In many ways a will eases the burden for your family upon your passing and provides clarity on your property. It is better to leave your family well provided for because no one knows when the end may come knocking. If there is anything we have learnt from the Covid-19 pandemic is that life is uncertain. It is therefore prudent and well advised to put our affairs in order by preparing a will.

This article is for informational purposes only and should not be taken to be or construed as a legal opinion. For more insights, please do not hesitate to contact Jane Makena Kirimi ( jkirimi@jmkadvocates.co.ke) .