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Close up of black woman hand writing on document - notes on an invalid will

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.

I 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.

  • Age and mental capacity – you, the testator, must be of legal age and have the mental capacity. That means you must be over 18 years old. and by mental capacity, it means having the mental capacity to understand the nature of the will, what you’re including in it, who the beneficiaries are, and the implications of your decisions. If there’s any doubt about your mental state when drafting, your will can be called into question.
  • Signature – if you have a written will, you must append your signature at the bottom of the document. This isn’t just any old signature; it has to be done in the presence of witnesses, which leads us to the next requirement.
  • Witnesses – you must sign your will in the presence of at least two independent witnesses. Your witnesses must not be beneficiaries of the will to avoid any appearance of conflict of interest or undue influence.

Common Reasons for Will Invalidation

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.

Lack of Testamentary Capacity

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:

  • Understand the nature of a will – they must comprehend that a will is a legal document that expresses their wishes regarding the distribution of their property after their death.
  • Know the extent of their property – they should be aware of the assets they own and who their potential beneficiaries are.
  • Understand the consequences of making a will – they should grasp the fact that a will can alter the natural course of inheritance laws.
  • Make rational decisions – they should be able to weigh the pros and cons of different options and make choices that reflect their intentions.

Several factors can affect a person’s testamentary capacity, including:

  • Age – while age alone does not automatically invalidate a will, individuals who are very old or very young may have difficulty meeting the requirements for testamentary capacity. However, at the very minimum, the testator must be an adult of 18 years and above in Kenya.
  • Mental illness – conditions such as dementia, Alzheimer’s disease, or severe depression can impair a person’s cognitive abilities and make it difficult for them to understand the implications of their will.
  • Substance abuse – excessive consumption of alcohol or drugs can cloud a person’s judgment and affect their ability to make sound decisions.

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.

Improper Execution

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:

  • Be in writing or oral – wills can be written documents or oral. for an oral will to be valid in Kenya, it must be made before two witnesses and three months before the testator’s death. 
  • Be signed by the testator – the testator must sign the will at the end of the document.
  • Be witnessed – the will must be witnessed by at least two individuals who are not beneficiaries of the will.

Undue Influence or Coercion

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:

  • Coercion – this involves using threats or force to compel the testator to make a will in favor of a particular person or group.
  • Manipulation – this involves using psychological tactics to persuade the testator to change their mind or make decisions that benefit someone else.
  • Isolation – this involves isolating the testator from their loved ones and friends, making it easier to control their decisions.

Signs of undue influence may include:

  • Unnatural changes in the testator’s will – sudden or unexplained changes in the testator’s testamentary plans may be indicative of undue influence.
  • Isolation of the testator – if the testator was being kept away from friends and family, it may be a sign that someone was trying to exert control over them.
  • Unusual or unfair provisions – if the will contains provisions that are inconsistent with the testator’s known wishes or benefit a particular person or group disproportionately, it may be a sign of undue influence.
Couple using laptop and calculating in the living room

Fraud and Forgery

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:

  • Fraud in the inducement  – this occurs when someone misrepresents facts or makes false promises to the testator to persuade them to make a will in their favor.
  • Fraud in the execution – this occurs when someone tricks the testator into signing a document that they believe is a will, but is actually something else.

Examples of fraud in a will may include:

  • Forging a will: Someone may create a fake will that purports to be the testator’s wishes.
  • Misrepresenting the contents of a will: Someone may mislead the testator about the contents of their will, causing them to make unintended decisions.
  • Unduly influencing the testator: Someone may use fraudulent tactics to exert undue influence over the testator and force them to make a will that benefits the fraudster.

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.

The Consequences of an Invalid Will

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.

Intestacy Laws Take Over

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.

Delays in Distributing the Estate

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.

Loss of Control

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.

How to Safeguard Your Will Against Invalidation

Here’s how you can shield your will from potential invalidation and keep your final wishes intact.

Consult a Legal Expert

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.

Double-Check Legal Compliance

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.

Update Your Will Regularly

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.

Store Your Will In a Safe Place

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.

FAQ

Can my will be contested?

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.

What happens if my will is invalidated?

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.

Can I change my will after it has been executed?

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.

How often should I update my 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.

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