Legal Clinic: How’s a will brought to the attention of beneficiaries?

Hello Wakili,

How is a will brought out of the bag after the death of the estate owner? How is it made known to the beneficiary and those who miss out?

Dear Reader,

First, let us agree. No one puts down a will without courting death as a reality of the present and affects lives thereafter. It is not easy to write a will, especially among societies that consider death talk a taboo.

Wills and will writing are often shrouded in the secrecy of a testator’s (the person anticipating their death, usually the author of a will) assessment of his estate and dependents upon their demise.

The Law of Succession Act is insightful on what makes a choice valid and effectively binding, at Sections 5 and 7. However, it is silent on how it is brought to the attention of the beneficiaries and any other interested party.

There is a presumption that a will is a self-executing in its construction, save for it being taken through the process of probate.

It should have instructions on how and when to be made public; similarly, and centrally indicate the sharing besides management of the free property, alongside minors.

However, a will can be announced in any of the following ways: first, is where the testator, before demise, gives clear instructions either to an attester, witness or confides in one or many persons of their will and likely place of custody.

Second, in the case of an oral will, the designated and unintended witnesses speak out about the deceased person's wishes as heard.

Thirdly, the testator shares about the presence of his will to the family, likely beneficiaries and other interested parties.

Fourthly, the presumption of knowledge and moral duty sets in on the part of the witnesses or attester to share what they know, having been part of will-making.

Knowing and reading of the will (though not a common practice), is neither legal nor final. The will must be subjected to probate. Probate being the court driven process that gives legal recognition to a will and appoints the executor or personal representative to administer the estate and distribute assets to the intended beneficiaries.

Remember, Section 3(1) of the Law of Succession Act defines a will as a legal declaration by a person of their wishes or intentions regarding the disposition of their property after death duly made and executed following the Act.

The purpose of prosecuting the will in court is threefold within its succession; first is to give it legal power to the wishes of the testator referenced as terms to be executed in the will; second, is to provide the executor with the legal mandate to follow through the instructions within the will: and third, is to provide an opportunity for the named.

The missing-BUT-feeling deserved beneficiaries, to raise any justice issues accruing from it. On an application to be lodged in the registry of the High Court, and after payment of requisite fee, one prepares probate and administration forms, which include; original will, consent form, letter from the chief or any authority confirming the beneficiaries of the deceased estate, and evidence of ownership of assets (copies of title documents) etc.

Once the documents have been lodged, the same will be advertised in the Kenya gazette as a succession cause for a thirty (30) day period to allow any person who feels aggrieved for any reason by the Petition ample time to lodge any objections. An individual, who feels entitled to the estate and is not included in the Petition, can file the said objection through another petition to stay the advertisement.

Under section 26 of the Law of Succession Act, persons claiming to be beneficially entitled and who are totally disinherited or inadequately provided for, whether under the terms of a will or in intestacy, may move the High Court appropriately for reasonable provision out of the estate.

Should there be no objection filed after the thirty (30) day notice period provided in the act, the person making the application receives letters of administration.

The said Letters serve as an authority for the administration of deceased’s estate. However, the holder(s) of the letters of administration cannot distribute the estate of the deceased but is to collect and preserve the deceased's assets.

Only after the lapse of six months from the date of the issues of the letters of administration, does the holder of the said letters of Administration petition the court for confirmation of grant of letters of administration.

In support of the application, as provided for under Section 71 (3) of the Law of Succession Act, the court is moved under summons, with an accompanying affidavit, alongside a schedule of assets giving clear description of the property and share of heirs.