Statement of intent: Should you write your will or not?

Wednesday, September 25th, 2019 12:00 |
Writing down a will. Photo/Courtesy

Sandra Wekesa and Ann Nyathira

“The will in itself is a statement of intent. It does not give anyone anything and it is challengeable,” said lawyer Philip Murgor in relation to the late Tob Cohen’s will in which his wife Sarah Wairimu was reportedly left out.

Cohen, who did not have biological children is said to have given 50 per cent of his estate to his sister Gabrielle Stratan.

The other 50 per cent is to be split into half between his nephew and niece while his bank account balances are supposed to be channelled to his sister, Gabrielle.

But in ontesting the will, Murgor argued that the document had been compromised.

And in the case of self-made billionaire and politician, Njenga Karume, all his wealth  was placed under three holding companies to be managed by the Njenga Karume Trust.

The trustees were required to ensure that all financial needs of the beneficiaries, who included his widow, children and grandchildren, were catered for.

They also had clear instructions on how the proceeds from his businesses would be managed.

Cause of dispute

But some of his children claim the trustees have not fully hnoured their father’s will and have consequently been to court severally to have it respected. The legal battle over the wealth has been a cocktail of pain and joy.

A week ago, Karume’s granddaughter Michelle Karume, died from cancer while in the USA where she had hoped to get treatment.

She penned a painful plea for funds from home for treatment prior to her death.

Michelle was among grandchildren that Karume had catered for in his will as beneficiaries of his vast estate, estimated at Sh100 billion upon his death, but which had dwindled to Sh17.8b last year.

Traditionally, it was presumed that if a husband died, his property went to his wife and children. But with a will, the wishes of the deceased are followed. 

Reuben Mutegi says, there is no way he would distribute his wealth equally among his family members.

For him, it is better to have his children get the lion’s share. “I feel like if I give my wife the bigger share, she might cause disputes in the family.

This is because women are soft-hearted and this might mean that she would pick out her favourite child,” he says.He would rather have it that way than see his family fall apart because of his property.

“I am not wealthy, but the little I have should not be the end of my family,” he adds.

Anthony Odeck, a lawyer at Mwangangi and Nzisa Associates, says under Kenyan law, a will may either be oral or in written form and may thus take any form provided and satisfies the laid down requirements of formal validity.

Where a conflict arises between the content of a written and an oral will, the contents of the written will prevail.

Odeck explains that  a will is a testament and a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution.

So if at all he died not intending the children or wife or relatives to inherit, that will is upheld as the law always looks to uphold the wishes of a dying or dead man/woman.

 He notes that if the testator leaves his property under a trustee, the court grants him as per the wishes in the hope that the trustee will hold that property in trust and an equitable manner.

“In case the trustee is unscrupulous, the heirs can go to court and demand the administrator to be removed for misuse of their position. Then the court may summon them to give an account,” he says.

But are wills losing their intended meaning? And where does this leave other existing laws such as the Matrimonial Property Act?

Chui Karera, of Chui Karera and company advocates  says under the succesion law, a wife can contest to be included in the will.

She is entitled to personal and household effect, but it excludes cars and any other thing connected with the business or profession of the deceased.

Under the Matrimonial Causes Act, she is a joint tenant as long as they bought property together after their union. This is as long as as she proves she contributed in the matrimonial property.

Dependants leeway

Ken Ouko, a sociologist, says a will may be a legal instrument of instruction, but in the true sense, it is a statement of comfort crafted by a member of a family to forestall any emergent issues arising from family disputes after demise.

“It is presumed that a will is written willfully, under no duress and hence represents true wishes of the deceased.

In emotive terms, the will is significant because its contents reveal the true feelings of the deceased towards the members of the remnant family.

No wonder it is commonly joked that parents can never reveal their favoured offspring except via a will when it will not matter since he or she will be six feet under,” he says.

Ouko says the will is designed as a dispute-proof instrument mainly because it would be disrespectful to revoke the wishes of the deceased and also because if it was crafted willfully, it stands irrevocable.

“Wills are important; their utilities in apportioning of wealth or such related variables are far weightier than their dysfunctions.

When a patriarch or matriarch passes on, the will actually becomes a point of familial unity because in most cases, the will is never terminated at wealth distribution.

He adds that usually they come laced with emotive instructions from the deceased about family relations, family leadership or even familial morality. 

However, in case the deceased has another family not included in the will, they have the right to contest in court and provide valid evidence including receipts of how they were depending on the deceased.

When it comes to proof; then they involve witnesses who state the relations and on what grounds they witnessed them being beneficiaries.

“Anyone can be a dependant, be it a kin or a friend as long as there is evidence or certified documents and that could be settled,” he says.

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