Friday 21 June 2019

Wills in Executorship


WILLS

A Will is a declaration made by a person during his life time regarding certain matters which he desires to take effect on or after his death. The property disposed of by will is called legacy and its recipient is called the beneficiary or a legatee. Also a person may by his will give certain directions intended to satisfy his wishes. The person making the will is called Testator or testatrix in case of a female. The powers of the will are not obsolete but are confined and restricted by the Law.

Characteristics of a Will.

  1. Dispotive Nature
A will may dispose of testator’s property.

  1. Declaration of Intention
The will does not negate the testator’s right to deal with his property in his life. The Testator may therefore still deal with property as he wishes.

  1. Formalities
A will must generally be in the form prescribed by Law.

  1. Revocability
A will may always be revoked by testator.

  1. Posthumous Effect
A will becomes effective only on the death of the testator.

  1. Ambulatory Nature
A will is said to be capable of dealing with property acquired by the testator after making his will as long as its owned by him at his death.

Capacity to make a Will.
Law of succession Act (Cap 160) provides that any person who is of sound mind and not minor may dispose of all or any of his free property by Will.

A will or part of the will, Will be void if the making of the Will has been caused by fraud or coercion or induced by a mistake.
The capacity to make a Will can be affected by old age illness, blindness and illiteracy.

Formalities of a Will.

Formalities of a valid will have been contained in the Law of succession Act (Cap 160). These are:-
(i)                 A will may be made either orally or in writing.
(ii)               No Oral will shall be valid unless;
(a)    It is made before two or more competent witnesses.
(b)   The testator dies within the period of three months from the date of making the will.
(iii)             No written will is valid unless;
(a)    The testator has signed or affixed his mark to the will or has been signed by the other person in the presence and the direction of the testator.
(b)   The signature or mark of the testator or the signature of the person signing for him, must be so placed that it appears that it was  intended thereby to give effect to the writing as a will.
(c)    The will is attested by two or more competent witness each of whom must have seen the testator sign or affix his mark to the will or have seen the other person sign the will in the presence and by the direction of the testator.

(iv)             If a testator refers to another document in a will then actually written and expressing any part of his intention will be considered as forming of the will provided it is clearly identified to which document the will refers.
(v)               A bequest in a will to an attesting witness or to his/her spouse is valid, provided the will is also attested by at least two additional competent and independent witnesses.
(vi)             An executor can be also a witness to the will.
(vii)           Will executed before the commence of the Law of succession (Cap 160) will be treated as properly executed if executed according to the requirement of the law in force at the date of such execution but the administration of such estates will proceed as far as possible in accordance with the provision of the Act.

Probate
It is a legal recognition of a will. The executor has the authority to operate the will but cannot prove this authority until he has obtained the probate. An application for grant of representative is made by the executor to the court which may give the legal recognition to a will where it is proved that a deceased person has left a valid will in respect of the property to which the will applies.

Revocation of a Will
According to the succession Act (Cap 160) a will may be revoked;-
(i)                 It is revoked by another will.
(ii)               By marriage of the maker.

Alteration of a Will
No alteration, or other alteration made in a written will after execution is valid unless such alteration is signed and attested as a written will.

Revival of a Will
The Acts provides that once a Will has been revoked, it can only be revived by the re-execution of the said will.
GIFT IN CONTEMPLATION OF DEATH.

The Law of succession Act (Cap 160) provides that a gift made in contemplation of death shall be valid inspite of the fact that there has been no complete transfer of legal title, subject to the following conditions:

(a)    The person making the gift is, at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger.
(b)   A person gives a movable property which he could otherwise dispose of by will.
(c)    There is delivery to the intended beneficiary of possession or means of possession of such property or the documents or otherwise evidence of title thereto.
(d)   A person makes a gift in such circumstances as to show that he intend it to revert to him should he survive the same illness or danger.
(e)    The intended beneficiary survives the person who made the gift to him.


Provided that;
(i)                 no gift made in contemplation of death shall be valid if death is caused by suicide.
(ii)               The person making the gift may at any time before his death, lawfully request its return.

INTESTACY
Law of succession Act (Cap 160) relates the rules applicable when a person dies without leaving a will or leaving a will which is invalid.
The Act provides that the rules regarding intestacy succession do not apply in specific arrears to;-
(i)                 Agricultural land and crops thereon.
(ii)               Livestock

Where an intestate leaves on surviving spouse and a child or children, the surviving spouse is entitled to;
(a)    the personal and household effects of the deceased absolutely.
(b)   A life interest in the whole residue of the net intestate estate.

If the surviving spouse is a widow then the interest is determined on her re-marriage to any person.

Where the intestate has left one surviving spouse, but no child or children the surviving spouse is entitled out of the net intestate estate to:-

(a)    The personal and household effects of the deceased absolutely, and
(b)   The first shs.10,000 out of the residue of the intestate estate or 20% thereof whichever is greater and
(c)    A life interest in the whole of the remainder.

Where an intestate has left no surviving spouse or children, the net intestate shall derive upon the other relative in the following order of priority.

(a)    Father or if dead
(b)   Mother or if dead
(c)    Brothers and sisters and any child or children of deceased brothers and sisters in equal shares; or if none.
(d)   Half –brother and half sisters and child or children of deceased half brothers and half – sisters in equal shares or if none.
(e)    The relatives who are in the nearest degree of consequently upto and including the sixth degree, in equal shares.


Failing the survival of any of the above named, the net estate devolves upon the state and is paid into consolidated fund.

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