LAW OF SUCCESSION PART 2: A GUIDE TO WILLS AND INHERITANCE

 Last week on the blog, I defined what a will is and gave a general overview of the requirements for its formal validity. See UNDERSTANDING LAW OF SUCCESSION: A GUIDE TO WILLS AND INHERITANCE it will give you a solid foundation for today’s discussion. This week, I’m taking it a step further by breaking down those requirements in more detail. We’ll also look at the key characteristics of a valid will. Whether you’re a law student or simply interested in succession law, this post will help you gain a deeper understanding of what gives a will its legal effect.

FORMAL VALIDITY OF A WILL 

        1. CAPACITY 

This section will discuss capacity in two parts which are age and mental capacity. 

Age- According to Section 5(1) of the Law of Succession Act, the law grants every individual who has reached the age of majority, which is 18 years, the legal capacity to make a will. This means that as long as a person is not considered a minor, they have the freedom to dispose of any property they own through a will, in accordance with their wishes. 

Mental capacity- Section 5(1) of the Law of Succession Act provides that any individual who is of sound mind has the legal right to dispose of their free property through a will. Further, Section 5(3) clarifies that a person will be deemed to lack sound mind if they are suffering from a physical or mental illness, under the influence of alcohol or drugs, or affected by any other condition that impairs their awareness and understanding of what they are doing. 

The issue of capacity to make a will was clearly outlined in the case of Banks v Goodfellow, where the judge, Chief Justice Cockburn, laid out three key requirements:

• Understanding the act of making a will: The person making the will (the testator) must be of sound mind, meaning they fully understand that they are creating a will and what that means. If their judgment is affected by mental illness, alcohol, drugs, or anything else that prevents them from understanding their actions, this requirement is not met.
• Remembering what they own: The testator must be able to recall the property they own and what they are giving away through the will.
• Recognizing their responsibilities: The testator must also understand their duty to provide for the people who depend on them. If they leave out dependents unfairly, the will could be challenged under Section 26 of the Law of Succession Act. A good example of this is the case of Harwood v Baker (1840), where a testator, who was suffering from a brain-related illness, forgot to include some of his close family members in his will. This raised concerns about whether he truly had the capacity to make a valid will.

        2. KNOWLEDGE AND APPROVAL 

In addition to having the mental ability to make a will (testamentary capacity), the testator must also be aware of and agree to the contents of their will, as provided under Section 8 of the Law of Succession Act. This means the testator should understand what is written in the will, even if they don’t fully grasp the technical legal terms. It’s also important that the testator willingly signs the will without being forced, influenced, or misled by someone else. Situations involving mistake or fraud can also show a lack of genuine knowledge and approval. This requirement becomes especially important when someone else like a friend, relative, or lawyer helps draft the will on the testator’s behalf. 

A will can still be considered valid even if the testator did not fully understand or approve its contents at the exact moment of signing, as long as the following conditions are met:

• The testator had clearly understood and agreed to the contents when giving instructions for the will to be drafted
• The will was written based on those instructions without any changes
• At the time of signing, the testator was aware that they were signing a will that reflected their earlier instructions.

        3. EXECUTION AND ATTESTATION 

Execution- According to Section 11 of the Law of Succession Act, a written will is only legally valid if specific conditions are fulfilled. One key requirement is that the testator must sign the will themselves or, if unable to do so, must authorize a capable person to sign it on their behalf.

Attestation- Section 11(c) of the Law of Succession Act requires that a written will be witnessed by at least two competent individuals. These witnesses must either see the testator sign the will or observe someone else doing so on the testator’s behalf, in the testator’s presence and with their permission. Alternatively, the witnesses may be present when the testator acknowledges the signature. Both witnesses must then sign the will in the testator’s presence, though there is no requirement for them to do so in a particular order or format. Additionally, Section 13 of the Act provides that if one of the witnesses is also a beneficiary in the will, then two or more other qualified and impartial witnesses must also be present to ensure the validity of that gift. 

CHARACTERISTICS OF A WILL 

• A will only takes effect upon death- One key characteristic of a will is that it is meant to take effect only after the testator's death. As long as the document is made according to legal requirements and shows a clear intention that it should not have any effect during the testator’s lifetime, it can be treated as a valid will. However, if any part of the document is intended to be carried out while the person is still alive, then it does not qualify as a will.
• A will represents future intentions only- A will simply reflects the testator’s wishes for how their property should be handled after death, it does not restrict what they can do with their property while they are still alive. This means the testator is free to sell, gift, or otherwise deal with the property mentioned in the will during their lifetime, without being bound by the will’s contents. 
• A will can always be revoked- Since a will only comes into effect after the testator’s death and simply expresses their future intentions, it can be changed or cancelled at any time during their lifetime. This holds true even if the will includes a statement claiming it cannot be revoked—it still remains legally revocable.

Understanding the requirements and characteristics of a valid will is essential, especially when navigating matters of succession. A will not only ensures that a person’s wishes are honored after their death, but it also provides clarity and reduces the potential for disputes among beneficiaries. From having the right capacity to make a will, to ensuring it is properly executed and witnessed each step plays a vital role in its validity. Next week, we’ll shift focus to intestate succession, what happens when someone dies without leaving a valid will. Stay tuned as we explore how the law steps in to distribute the estate in such cases.

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Kimanzi, A. (2014, April). The Law of Succession. Africa Law Centre.

Class Handout: Testate Succession - P. Ager