A will is a legal declaration y a person of his wishes and intentions to dispose of his property after his

death.

Section 8 of the LSA provides that a will can either be written or oral and need no particular form
provided it meets the necessary requirements;
 The person making it has to be sound mind
 Has to be of legal age not a child
 Must be made in the presecnce of 2/more
witnesses.
 There has to be a signature of the testator and
those of the witnesses.

Xtics of a will

1. It is post human. This means that the will only takes effect after the death of the testator.
2. It is revocable. It can be declared void by the testator but under some requirements. It can be
done by destroying the will in any manner together with the intention to revoke it section 18
LSA. The mere fact that the testator declares that his will is irrevocable doesn’t make it so.
3. It is disposive in that it purposes to transfer the testator’s estate to the beneficiary.
4. There has to be an intention by the testator to transfer property to the beneficiary.
5. It can be either written / oral.

ORAL WILL

 Section 9 of LSA provides that an oral will must be made in the presence of two or more
witnesses and not valid unless the testator dies within three months after it was made.
The stipulation behind the three months is due to the fact that being oral there is danger of
some information being forgotten if a longer period was allowed.
Also since they are usually made in a state of panic fear and anxiety, the three months are there
so as to consider the terms of the will and also reduce them to writing.
 Sction 9(1) of LSA provides for an exception to this rule , which covers persons in the active
servive. An oral will made by such person is valid if he / she dies in the line of serviveregardless
of whether it was made in three / more months before such death.
 Such wills are known as privileged wills as tey do not follow the formal requirements.
 Courts have held that where a deaceased persons give instructions regarding disposal of his
property and the instructions are reduced into writing by persons recording / listening, such will
amount to oral will. In the case of Rufus Ng’ethe Munyua Public Trustee vs. Wambui, deceased
gave instructions on the disposal of his properties which were reduced into writing by persons
receiving the paper. The deceased died a few days later and the court held that the disposing
of property was an oral will.
WRITTEN WILL
 Section 11 of LSA provides that no written will shall be valid unless;
 it is signed by the testator or he affixes marks to the will.
 If it is signed by someone else it has to be in the presence of and by the
direction of the testator.
 There has to be an intention to g9ive effect to the will which is by signing.
 The signature is made or acknowledged by the testator in the presence of
two or more competent witnesses, present at the same time.
 Each witness must attest and assign the will in the presence of the testator
but not necessarily in the presence of the other witness.

DETAILS OF A WILL.
1. Writing.
 No prescribed form is placed therefore it can either be handwritten typed printed or
lithographed.
 The writing may be that of te testator or another person.
 It may be in any language. In the case of Kell vs Chamer, the will was written in a jewwelers
code and was admitted to probate.
 It may be written on any material provided that the material produces a visible form. In Hodson
vs Barnes, the will was written on an eggshell and was considerd to be valid and admitted to
probate.
2. Signature
 It is any mark of the testator intended as asignature e.g. thumbprint initials, rubberstamp.in Re
Cook’s Estate, the words, ‘your loving mother’ placed at the end of the document was
considered to be a valid signature.
 Wher will is signed by a nother person it should be in the presence of the testator and under
his directions. The testator has to be in a physical and mental condition that he could eithet
object or assent to the signature made on his behalf. A will is normally signed on behalf of the
testator where he is too weak through illness to sign for himself.
 S 11 (b) states that the prpose of the signing is to show the intention of the testator to give effect
to the will.
 There comes an issue as to signing in the middle or the end of the will. In the case of Weatherall
vs Pearce, a testator printed a will and signed in the middle of the attestation clause but not at
the end of the will. It was held that since she intended her name as signed to be her signature
the will was properly signed.
 In Beth Wambui and another vs. Gikonyo and others Nairobi CACA the court held that the
deceased thumb printed last the witness having signed first didn’t invalidate the will.
3. Witnesses
 Their role is called attestation and where the beneficiary is a witness and signs, there has to be
two or more other independent witnesses. As provided by section 13 of LSA stating that a will
shall not be considerd as insufficiently attested merely due to the fact that it was attested by a
beneficiary provided that there are 2/more additional independent and competent witnesses.
 Sec 11 provides for that the testator signature must be attested by two or more witnesses who
must be present at the same time. This was reiterated in the case of James Ngengi Muigai, that
the law allows the will to be witnessed by 2/more witnesses but each should sign in the
presence of the testator.
 If a witness is present but unaware of what the testator is doing the attestation shall be
considered invalid. innBrown v Skirrow a testatrix took her will to a grocer’s to be executed. She
asked two shop assistants to act as witnesses. As she was signing the document, one of the
assistants was busy serving a customer. The will was held invalid.
 Section 11 C also provides for acknowledge of the signature, where the witnesses may be called
after the testator has signedthe doc in which event the testator should acknowledge the
signature whether b him or by another prson on his behalf anfd under his direction to the
witnesses. The witnesses must be present at the same time during acknowledgment.
 To be present at the same time means that the witnesses are able to see the testator sign.in the
case of John Kinuthia Githinji v Githua Kiarie, court was of the view that it isn’t concinceable
how witnesses can each see the testator sign the will if both were not present at the same time
unless it was signed twice by the testator.
 A will signed by 1 witness as was in the case of in the matter of the estate of Susan Kanini
Kilonzo, as it was in contravention with section 11 c of LSA.

PRESUMPTION THAT A WILL IS VALID.

REVOCATION OF A WILL

SECTION 17 provides that a will may be revoked or altered by the maker at any time when he is
competent and capable to dispose off his free property by will.
According to sec 18 , a will can only be revoked by another will or coicidil declaring an intention to
revoke it, or destroying or burning the will with the intention to revoke it by the testator. A written will
shall not be revoked by an oral will.
Sec 19 adds that a will shall be revoked by marriage of the testator unless the will was made in
contemplation of the marriage.

VOIDING A WILL
Section 7 of LSA provides that wher a will or part of it has been made by fraud or coercion or any othe
opportunity that takes away the free will of the testator, or has been induced by a mistake, such will is
void.
In the English case of Wilkinson V Joughin (1866) a gift in a will to a married woman who represented to
the testator that she was free to marry him while indeed her marriage with another man was still
subsisting, was held to be fraudulent and so it was omitted from probate