Invalid Will: 4 Reasons That Can Lead To The Invalidation Of Your Will
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Crafting your Last Will and Testament is one of those pivotal adulting moments—it’s your chance to make clear decisions about the future of your estate. But what if, after all that careful thought, your will isn’t considered legally valid? It’s more common than you might think.
In this article, we’ll explore the common reasons why wills can be invalidated and provide you with valuable information to help you avoid such situations.
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ToggleI have talked in detail in a previous article about the legal requirements for a will to be valid in Kenya. You can read the article here. For this article, I’ll just give you a simplified version of these key requirements.
Even with the best intentions, a will can trip over a few legal hurdles. Knowing what these are can keep your will from being considered invalid. Below are the common reasons that can lead to the invalidation of your will.
One of the most common reasons why wills can be invalidated is due to a lack of testamentary capacity. This means that the person who made the will (the testator) was not mentally competent during its creation.
To have testamentary capacity, a person must be able to:
Several factors can affect a person’s testamentary capacity, including:
To avoid these complications, it’s important to have your will reviewed by a legal professional who can assess your mental capacity and ensure that your document is legally sound.
Another common reason why wills can be invalidated is due to improper execution. This means that the will was not signed or witnessed correctly, or that it does not meet other legal requirements.
The specific requirements for the proper execution of a will vary depending on the jurisdiction, but generally, a will must:
Another common reason why wills can be invalidated is undue influence. It occurs when someone exerts control over the testator’s mind or emotions, forcing them to make a will that doesn’t reflect their true wishes.
Your will should be a reflection of your wishes, not someone else’s. If someone pressures you into making decisions in your will that don’t align with your true intentions, that’s undue influence.
Undue influence can be exerted through various means, including:
Signs of undue influence may include:
Fraud is another serious issue that can lead to the invalidation of a will. Fraud occurs when someone intentionally deceives the testator to influence their testamentary decisions.
Two main types of fraud can affect a will:
Examples of fraud in a will may include:
To protect your will from fraud and forgery, store it in a secure location. Having your will’s contents known to a few trusted individuals can also go a long way in reducing the chances of foul play.
Unfortunately, when a will is deemed invalid, the consequences can ripple through your estate, affecting your beneficiaries and potentially causing long, drawn-out legal battles. Here’s what happens if your will is found to be invalid.
When a will is invalidated, the estate doesn’t get distributed as per your wishes. Instead, it falls under the rules of intestacy, which means your assets are distributed according to Kenyan law. This often means that your closest relatives will inherit, regardless of whether that’s what you wanted or not.
The law follows a strict hierarchy, typically starting with spouses and children, and then moving to extended family. If you want to leave specific items to friends, charities, or distant relatives, those wishes won’t be honored.
Without a valid will to guide the process, the distribution of your estate can be significantly delayed. Sorting out assets through the intestacy process often takes more time, especially if there are disputes or if the estate is large and complex. This delay can cause financial strain for loved ones who may be relying on their inheritance.
The biggest consequence of an invalid will is the loss of control over how your assets are divided. You’ve worked hard to accumulate your wealth, and an invalid will means that someone else—through intestacy laws—gets to decide how it’s distributed. This could completely contradict your wishes and leave some beneficiaries receiving more or less than you intended.
Here’s how you can shield your will from potential invalidation and keep your final wishes intact.
While it might be tempting to do it all yourself, consulting with an estate planning lawyer can be a game-changer. A legal expert can provide critical insights and help you navigate complex legal waters that you might not be aware of. They can also help tailor your will to your specific circumstances, ensuring all legal bases are covered.
Ensure your will meets all the legal standards required in Kenya. This includes being of legal age and sound mind, having the will written and signed properly, and ensuring it’s witnessed by two impartial adults who are not beneficiaries. Review these requirements periodically, especially if there are legal updates or changes in your personal circumstances.
As your circumstances change, it’s important to review your will and make any necessary updates. This will help to ensure that your will remains valid and reflects your current wishes.
Where you store your will can be as important as its contents. Keep your will in a secure, accessible place where your executor or a trusted person knows where to find it. Avoid places where it might be tampered with. Some opt for a lawyer’s office or a safe deposit box as secure storage solutions.
Yes, a will can be contested by individuals who believe that it was not properly executed or that the testator was not of sound mind when it was made. If a will is contested, it can lead to legal disputes and emotional distress.
If your will is invalidated, your estate will be distributed according to the laws of intestacy. This means that your assets will be divided among your heirs based on a predetermined legal formula. This may not align with your intended wishes.
Yes, you can change your will at any time. This is called a codicil. A codicil is a legal document that modifies or revokes a previously executed will.
It’s a good idea to review and update your will whenever there’s a major life event, such as marriage, divorce, the birth of a child, or acquiring new assets. Regularly updating your will ensures it stays aligned with your current wishes.