All you need to Know about Making of a Will

 1.0 A will

• Any person can write a will at any time as long as they are of sound mind, above 18 and not been coerced to do so.
• A person, may through his/her will appoint an executor. This is someone named in a will who has the legal responsibility to take care of a deceased person’s remaining financial obligation e.g disposing property, paying bills, taxes, etc.
• Takes effect after death of the maker (testator/testatrix)
• It’s a mere intention of the maker – can be amended but only by the maker during their lifetime.
• Can deal with property acquired after death of maker (ambulatory)


Advantages of Making a Will

• The deceased can exercise control over property
• Avoiding courts from determining who is entitled to property

• Appointing property representatives of choice

• Avoiding disputes over property
• Persons outside family can have property
• The deceased can decide on how he/she can be disposed off

2.0 Invalid Wills
• When the maker of a will lacks knowledge and approval of a will, the will is as if it was not made at all. This is because of;

• Fraud/forgery
• Coercion
• Mistake /duress/undue influence

3.0 Oral Will

• Is valid only if; 

• Made before 2 or more competent witnesses 

• The maker dies within 3 months of making it 

• An oral will made by a member of the armed forces during a period of active service shall be valid if the maker of the will dies during the same period of active service even if he/she dies more than 3 months after making the will. 

• If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except if the contents can be proved by a competent independent witness 

4.0 Written Will 

• Must be signed by the maker 

• If signed by somebody other than the maker, then this should be done in the maker’s presence and under his/ her directions 

• Must be witnessed by two or more witnesses. This two witnesses must not be beneficiaries in the will because otherwise there shall be need of an additional two witnesses. 

• If the maker of a will refers to another document in his will, the document shall be considered as part of the will as long as it is verified that it is the exact same document the maker was referring to in his/her will. 

• An executor shall not be disqualified as a witness to prove execution of the will or to prove the validity or invalidity of the will. 

• If a dependant or dependants feel that the deceased’s will does not provide adequately for their needs, they may make an application to the Court. 

• The Court may order a specific share of the property be given to the dependent (s) or periodical payments or a lump sum payment.

• In making its decision the Court will consider: 

• the nature and amount of the deceased’s property 

• any past, present or future income from any source of the dependant 

• the existing and future means and needs of the dependant 

• whether the deceased had given any property during his lifetime to the dependant(s) 

• the conduct of the dependant in relation to the deceased 

• the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will 

• the deceased’s reasons for not making provision for the dependant. 

• “dependant” means 

• the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased before his death; 

• the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, 

• brothers and sisters, and half-brothers and half-sisters, who were being maintained by the deceased before his death 

• Where the deceased is a woman, her husband if he was being maintained by her before her death. 

5.0 Revocation, Alteration and Revival 

• A will can be revoked, altered and revived only by the maker at the time when he is competent to dispose of his property. 

• Revocation of a will happens when the maker takes some action to indicate that he/she no longer wants the will to be binding. 

• For revocation to be effective, the intent of the maker, whether express or implied, must be clear, and an act of revocation consistent with this intent must take place. 

• Persons who wish to revoke a will may: 

• Use a codicil, which is a document that changes, revokes or amends parts of will or the whole will 

• Make a new will that completely revokes an earlier will 

• May tear, cancel or burn the will 

• A will can be revoked through divorce. If after writing a will, the maker separates, divorces from his/her spouse and enters into a separation agreement in which the 2 settle their property rights, any inheritance or powers made by the will to the former spouse will be revoked unless otherwise stated.

• No alteration made in a written will shall have any effect unless the alteration is signed and confirmed. • Revival of will: A revoked or part of a revoked will can revived by codicil or a new will. To revive by a codicil, the revoked will must be in existence that is, not destroyed. The codicil must show an intention to revive.