Legal Requirements for a Valid will in Kenya- Testamentary capacity and Testamentary intent (Issue1)
Legal Requirements for a Valid will in Kenya- Testamentary capacity and Testamentary intent (Issue1)
Testamentary Capacity
In Kenya, a valid will must comply with the Law of Succession Act (Cap 160). One of the key legal requirements for a will to be considered valid include testamentary capacity as will be discussed in this issue.
The applicable law on testamentary capacity is found at Section 5(3) of the Law of Succession Act which provides that the testator must have testamentary capacity to make the will and it reads as follows;
‘Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he was doing.’
As such, at Section 107 of the Evidence Act and at Section 5(4) of the Law of Succession Act, the law provides that the evidentiary burden of disproving testamentary capacity lies upon the person who so alleges.
This was as indicated in the case of Re Estate of GathuthuNjuguna (Deceased)(1998) eKLR; where it was held that;
‘It seems that, if the objector produces evidence which raises the suspicion of the testator’s capacity at the time of the execution of the will which generally disturbs the conscience of the court as to whether or not the testator had the necessary capacity, he will have discharged his burden of proof and the burden then shifts to the person settling up the will to satisfy the court that the testator had the necessary capacity.’’
Testamentary Capacity
Testamentary capacity is best captured in the words of Cockburn CJ in Banks v. Goodfellow (1870) LR 5 QB 549, where he stated:
“Testamentary capacity means that the testator must have a sound and disposing mind, enabling them to understand the nature of will-making, a sound memory to recollect the property they intend to dispose of, and a sound understanding to remember the persons who should benefit from their estate and the manner in which it is to be distributed.”
In Kenya, the Law of Succession Act (Cap 160) establishes the legal age for testamentary capacity at 18 years. This means that, generally, a person must be at least 18 years old to make a valid will.
Judicial Interpretation of Testamentary Capacity
The principles set out in Banks v. Goodfellow were reaffirmed in the case of Vaghella v. Vaghella, where the court outlined the essential elements of testamentary capacity:
- The testator must understand the nature and effect of making a will.
- The testator must have knowledge of the extent of their property.
- The testator must be able to comprehend and appreciate the claims of those who should benefit from their estate.
- The testator’s mind must be free from any mental disorder or delusion that could influence their decision and lead to a distribution they would not have made if they were of sound mind.
These principles form the foundation for determining whether a testator had the requisite mental capacity to make a valid will
Testamentary intent
Beyond merely having testamentary capacity, another essential requirement for a valid will is testamentary intent. Testamentary intent ensures that the testator, in addition to having the mental ability to make a will, genuinely intended for the document to serve as their final testament. Testamentary intent and testamentary capacity often complement each other. While testamentary capacity establishes that the testator understood the nature and consequences of making a will, testamentary intent confirms that the document was voluntarily created to distribute their estate upon death. A testator may be mentally competent but lack testamentary intent if, for example, they draft a will as a joke, under duress, or without the serious purpose of estate distribution.
The court in Re Estate of Murimi Kennedy Njogu (Deceased) [2016] eKLR outlined four main requirements for a valid will, emphasizing both testamentary capacity and testamentary intent:
- The will must have been executed with testamentary intent.
- The testator must have had testamentary capacity.
- The will must have been executed free of fraud, duress, undue influence, or mistake.
- The will must have been duly executed in accordance with legal formalities.
The court further noted that testamentary intent requires that the testator, at the time of execution, subjectively intended for the document to serve as their will.
As guidance, a four-prong test is often used in the Kenyan legal jurisprudence as noted In re Estate of Jemimah Nyambura Gakuya (Deceased) [2024] KEHC 14194 (KLR). The court noted that the testator must:-
- Know the nature of the act (of making a will);
- Know the “natural objects of his bounty”;
- Know the nature and extent of his property;
- Understand the disposition of the assets called for by the will.
Conclusion
In conclusion, testamentary intent and testamentary capacity are both essential for the validity of a will, working together to ensure that the testator not only possesses the mental ability to make a will but also genuinely intends for the document to dictate the distribution of their estate. Without testamentary capacity, a will may be challenged on grounds of mental incompetence, and without testamentary intent, it may be invalidated due to coercion, fraud, or lack of serious purpose. As such, both elements serve as safeguards in succession law to uphold the true wishes of the deceased. Look out for the next issue on Legal Requirements for a valid will in Kenya!
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Disclaimer
This Article does not amount to any kind of legal advice. For any legal inquiries, reach out through njeri@knjenga.co.ke