Can’t write a will? Just speak your wishes

20th Oct, 2016


Most land owners in Kajiado where I come from declare heirs to their property verbally. Do verbal wills have a basis in law?

Tororei, Kajiado.

Yes, it is legal for a property owner to issue verbal instructions on how his or her property should be distributed upon death. It is also true and understandable that there are property owners with no formal education and cannot read or write wills naming their successors.

There are also many others who can only communicate in vernacular despite owning prime property in key places like Nairobi.

According to the Law of Succession Act, illiteracy does not deny anybody property ownership rights. Such investors can issue instructions in mother tongue on how their property should be divided when they die.

The law says that when there is a conflict between contents of a written will and an oral one, contents of the written will prevails. However, oral wills can only be valid when made in the presence of at least two competent witnesses and the maker dies within three months.

The rationale behind the three-month time-span is that being oral, there is danger that some instructions may be forgotten or misreported if a longer period is allowed.

Another reason is that most oral wills are often made in a state of panic, fear or anxiety when the investor is on his or her deathbed or imminent danger.

The law presumes that people in such a state could be irrational in their decisions and express intentions that they may not on free thoughts.

Therefore, the three-month period is mostly intended to allow them time to reconsider their wills and if possible, reduce them to writing.

According to the Law of Succession Act, privileged wills are made in circumstances that do not allow the opportunity to make a normal will.

In real life situations, courts have ruled in favour of deceased investors who gave verbal instructions in vernacular – and reduced to writing – on disposal of their property.

According to precedents of the High Court, such verbal instructions amount to an oral will provided that it was made before two witnesses.

Take the case of the late Rufus Ngethe Munyua who gave instructions on disposal of his estate among his wives and children. The person who received the verbal instructions wrote them down before Munyua died a few days later. The High Court ruled that the writing amounted to an oral will.

In a landmark verdict recently, three Court of Appeal judges ruled that verbal instructions in Kikuyu to dispose of property were legal. In the case, the property owner in question, who was illiterate, called two people and requested them to write down his wishes.

They took the instructions in Kikuyu and had them typed the following day before taking it back to be read to him. He then thumb-printed on the document before he died. The Court of Appeal relied on the case of Rufus Munyua and ruled that it passed as an oral will.

– The writer is an advocate of the High Court.

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