The coronavirus pandemic has led to an increase in the number of people making or updating their wills.
The virus brings into sharp focus the importance of succession planning and putting a will in place.
After all, it is prudent to set out your wishes as to who should inherit from your estate rather than letting the intestacy provisions under the Law of Succession Act of Kenya dictate who your estate should vest in the unfortunate event of death.
The law requires that the person making the will, known as a testator, must sign the will by his own free will and not be unduly influenced or coerced in making the document.
It is a statutory requirement that save in the limited circumstances in which an oral will can be made, a will needs to be in writing and be signed in the presence of two competent adult witnesses of sound mind. Each witness must sign the will in the presence of the testator.
If the will is not signed and witnessed in accordance with the statutory requirements then the will is invalid.
If after the testator’s death, there is a dispute regarding the will and whether it was signed voluntarily by the testator, the witnesses would be called to give evidence.
The will should not be witnessed by a beneficiary of the will; otherwise the beneficiary will be prohibited from inheriting the bequests made to him under the will.
In limited circumstances, for example, where the testator is unwell and cannot make or sign a written will then an oral will may be made.
An oral will has strict requirements. The testator has to verbally state his wishes before two or more competent witnesses of sound mind.
It remains valid only for a period of three months of making the will.
If the testator survives after three months of making an oral will then the testator should make a written will as the oral will becomes invalid. Furthermore, a written will takes precedence over an oral will such that when making the oral will the previously written will must be burnt, torn or destroyed for the oral will to be valid.
Proposed Changes to the Law of Succession Act
Whilst the Law of Succession Act is fairly robust, it does have certain shortcomings which make it less than ideal when one is seeking to put in place a will during a pandemic when there are containment measures such as restrictions on movement and social distancing requirements.
Changes are needed to adapt the Law of Succession Act to the current situation to make it easier for people to make wills during the pandemic.
As the witness should not be a beneficiary under the will, the spouse and immediate family should not be witnesses as it is likely that they would be beneficiaries under the will.
During the pandemic most people would be with their immediate family and may not have in-person access to friends, professionals or other persons who can act as independent witness one’s oral will.
An amendment to the Law of Succession Act should therefore be considered to allow oral wills to be read in the presence of witnesses present virtually through video conference or other virtual means. The session ought to be recorded.
The Act further provides that an oral will is invalid if its contents are different to any existing written will made by the testator.
In view of the current containment measures and remote-working arrangements, a testator wishing to amend their will may be unable to access their existing written will if it is in the custody of their lawyer, a bank locker or other secure place and would therefore not be able to destroy their written will before they make an oral will.
It is therefore important to rethink the hierarchy of wills at this time. Where a testator in an emergency situation is unable to make a new written will, the law should be amended to provide that any oral will that is made during the pandemic takes precedence over any previous written will provided that adequate safeguards are put in place. For instance, the testator could be required to verbally declare in the presence of the two independent witnesses that he is revoking the written will when making the oral will.
The amendment could also provide that upon the expiry of 90 days from the end of the pandemic, oral will would expire, and the testator would be required to prepare a new oral or written will.
In the case of a written will, the witnesses would sign the will in the testator’s presence. This might not be possible due to social distancing requirements.
An amendment to the law should be considered to allow the testator to sign the written will in manuscript or by electronic signature.
Furthermore, provision should be made to allow the presence of the witnesses through video conference or other virtual means.
Thereafter the witness can sign a statement, in manuscript or via electronic signature, to confirm that they witnessed the will virtually.
The validity of such a written will using electronic signature, virtual witnessing and only one witness as proposed above would only persist for the duration of the pandemic and for a further period of 90 days from the end of the pandemic upon which it would expire and the testator would need to make another will signed by hand and witnessed in-person by two independent witnesses in line with the current requirements of the Law of Succession Act.
The Covid-19 pandemic provides a stark reminder of the importance of wills.
And yet it is in such emergency situations when wills are most needed that it ever more difficult to put a will that meets the current requirements of the law in place.
Interim amendments to the procedural requirements regarding creation of wills should therefore be considered to make them adaptable to the needs of the people in the current unprecedented circumstances.
Mr Anjarwalla & Mrs Doshi are Advocates of the High Court of Kenya and Partners at Anjarwalla & Khanna LLP