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.
- Dispotive
Nature
A will may dispose of testator’s property.
- 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.
- Formalities
A will must generally be in the form prescribed by Law.
- Revocability
A will may always be revoked by testator.
- Posthumous
Effect
A will becomes effective only on the death of the testator.
- 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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