In recent months, there has been a raging debate on the legal provisions for contesting a will. This particularly came to light after a deceased judge left his properties to his younger brother, with claims that the brother would take care of his ageing parents and lock out his other siblings.
This forced other siblings to rush to court to block the release of estate funds totaling millions of shillings. The issue didn’t just affect the people involved. It raised broader legal questions about will drafting and the legal process following a person’s demise
Many people argued that the will, once drafted, could not be contested, and some even demanded that the siblings withdraw their petition from court and allow the release of the funds.
A will is a legal document that specifies how an individual intends their property to be distributed after their passing. The will’s owners will have the authority to appoint executors and specify what the beneficiaries will receive.
A photo of Milimani Law Courts in Nairobi
Photo
The Judiciary
In cases involving minors, the will also specifies who will take over the properties on behalf of the minors until they reach a certain age specified in the document.
During the signing, the law requires at least two witnesses who are not beneficiaries of the will or the spouses of beneficiaries. The law argues that allowing beneficiaries or those directly related to beneficiaries to witness the will’s signing could invalidate the beneficiary’s inheritance.
For safe storage of the will, the owner can use the court’s will registry or the public trustee’s office. Other places one can safely keep wills include law firms or an appointed executor, though others can store them at their preferred locations.
What the law says about will contestation
After one’s passing, the will is usually released by an advocate to outline how the deceased’s property can be shared.
While others argue that the will content cannot be challenged in court, the Kenyan constitution provides a straightforward legal procedure on what can take place.
A will can be challenged in courts, and it is governed by the Law of Succession Act (Cap 160).
The act dictates that a spouse, a child or any person maintained by the deceased can apply to the court if they feel the will did not make reasonable provision to them, and the court has the mandate to reallocate parts of the estate to such dependants.
Apart from feeling excluded or unfairly provided for in the will, other reasons that can lead to will contestation include fraud or forgery. Challenges can arise if there is evidence that the signature is forged or the document itself is fabricated.
The process
A complainant is required to file a caveat at the High Court registry to halt the issuance of a grant of probate temporarily. Once the petition is gazetted, the complainant is then required to file a formal objection within a period of 30 to 60 days, citing the grounds why they are blocking the execution of the will.
A judge then hears the case, including witness testimony and any official reports presented as evidence.
If a will is successfully declared invalid, the properties are then distributed according to a previous will if it existed or according to the rules of intestacy, meaning no will existed.
A file image of a Will
File