Legal Clinic: Can the owner of a will leave property to only sons and not wife, daughters?

Dear Eric,

Can the owner of the Will bequeath his property to his sons leaving out his wife or wives and his daughters? Please answer me and I will be happy. I read your segment every Wednesday.

Dear Reader,
Your question seems to test the concept of fairness. It also invites a talk on justice connotations and impressions with regard to management of a deceased person’s estate. In my biased estimation, fairness in such matters regarding distribution of property upon one’s death is often resigned in the relationships of the-would be beneficiaries had with the deceased. While it may not be public, it could easily be mirrored in a will. Fairness in this context is seen as the prerogative of the deceased person. Therefore, notwithstanding its legal meaning and implication, a will is a reflection of the relationships between the living and the now dead.
However, a will is a legal instrument that is either oral or written. It sets out someone’s wishes regarding the management and distribution of their property, and care for minors, if any, upon their death. It is the testator’s privilege, as the will writer and property owner, to decide with whom such property can be shared or given. If, in doing so, the testator denies their spouse, daughter, son or any other person, who by law of succession deserves to be part of an inheritance chain, then it becomes a matter of justice if contested. Despite possible contestation, the right of a will writer not to allocate any person in line of succession their property is not negated. 
A will purports to represent the wishes, positions and preferences of a dead person, who in a state of lifelessness holds no capacity to affirm what they said or wrote. It must therefore be made to pass the believability test. In law this is the validity test. Basics that define validity of will are outlined in Part II, at Section 5 of the Law of Succession Act. First, a will can be made by male or female adult, married or unmarried of sound mind, and must not exhibit forms of insanity or mental instability. Similarly, he or she, must not be experiencing alcoholic stupor, mental or physical illness able to reduce their ability to make objective decisions. Such a person must be in a position to understand what secular or religious law to apply and their right to dispose off part or whole of their free property. This is to reduce instances of accusations from the left-out groups or individuals. Section 5 (4) of the Law of Succession Act, states that anyone who alleges the testator’s incapacity to have written a will has the onus of providing proof.
The testator has a right to deny anyone a share of their property or assets. Whoever, may feel aggrieved can challenge such a position in court. The aggrieved parties could also raise allegations of fraud, coercion, importunity and mistake with regard to circumstances under which the will was made as provided for under Section 7 of the Law of Succession. Its states: a will or any part of it, the making of which has been caused by fraud, or coercion, or by such importunity as takes away the free agency of the testator or has been induced by mistake is void. It is not the business of the court to amend or remake a will. However, where the path of justice has been offended the court, will step in, if moved, since its cardinal role is to affirm or reject the validity of a will.
An oral will is valid if: it is made before two or more competent witnesses: if the testator dies within three months from the date of making the will: it does not provide contrary information to any other written will by the testator, whether before or after the oral will was made: it has not been revoked as indicated at Section 18 and 19 of the Act. Written wills as Section 11 provides requires that: the testator signs or affixes their mark to the will: the will be signed by other person in the presence and direction of the testator: the signature or mark of the testator, or of the person signing on their behalf, is placed to appear that it intended to give effect or power to the writing as a will: the will is attested by two or more competent witnesses each of whom must have witnessed the testator sign or affix their mark to the will: or saw the person signing on behalf append theirs in the direction of the testator. The witnesses may have also received personal acknowledgement of his signature or mark, or of the signature of that other on-behalf of person. Each of the witnesses must sign the will in the presence of the testator, although it is not necessary that both be present at the same time.
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Eric Mukoya has over 17 years’ experience working in Kenya and abroad within the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]