Under the law, there are certain rules a testator must follow while writing his/her will. During the process of obtaining letters of probate, the courts ensure that the will before them meets the prescribed statutory requirements of validity before granting letters of probate. Validity of a will can be divided into two categories, validity as to the capacity of an individual to make a will, and validity as to the contents of the document itself.
Capacity to make a will (Section 36 of the Succession Act CAP 162)
Anyone who fulfills the requirements below can make a will:
1. Any person who is not a minor
Any person who has not attained the age of 18 years is considered to be a minor. Consequently, only persons who have attained the age of 18 years and above can make a will.
2. A person who is of sound mind
Having a sound mind refers to the mental capacity that enables one to fully understand the decisions they make. Therefore, anyone who has attained or is above the age of 18 years and has the mental capacity to fully understand the risks, benefits, and effects of making a Will, can make a Will.
3. A person who is ordinarily insane
An ordinarily insane person is one who has been diagnosed to be mentally ill or unwell. Such a person can only make a will during an interval in which she/he is found to be of sound mind. All that matters is that at the time of making the Will, the ordinarily insane person has a full understanding that they are indeed making a Will, the effect of making said Will, what makes up their estate, and who they intend their beneficiaries under the Will to be.
4. Guidance for blind, deaf, dumb, or illiterate person(s)
A person who is deaf, blind, dumb, or illiterate is still able to make a Will as long as they are made aware of its contents and agree to it. This is done by having someone read back to them the contents of the will before they sign it or make a mark instead of a signature in the presence of a witness to the Will.
5. Deployed armed forces or mariners (Section 52 of the Succession Act CAP 162)
Any member of the armed forces employed in an expedition or engaged in actual warfare, or a mariner at sea may make a Will instructing how he/she wants their property to be managed or distributed. Given the unique nature of the circumstances of such persons, the mode of execution of this Wills is different and a bit more liberal, for example, such Wills need not to be signed by the testator or be attested to, among others. Hence, they are known as privileged wills.
6. A will must be made voluntarily
A Will is a voluntary document in nature and any evidence of undue influence or coercion whilst the testator was drafting it renders it void.
Validity as to what a will must contain (Section 50 of the Succesion Act CAP 162)
Below are the statutory requirements of a valid will;
- A will must be written and signed or marked by the testator. If the testator can not sign or mark his/her will, he/she can direct someone else to sign on his/her behalf in the testator’s presence.
- A will must be dated.
- A will must be witnessed by at least 2 persons. These witnesses must have seen the testator or his/her representative affixing his/her signature or mark to the will, or should have received some form of acknowledgment of affixation from the testator.
- The witnesses must sign the will in the presence of the testator.
- The witnesses to the will should not be beneficiaries of the will (Section 54 of the Succession Act CAP 162).
- If the will is on more than one page, the testator must sign on each page to prevent forgery.
A will that does not meet the above requirements is rendered invalid and will not be executed. It is therefore important to seek counsel from a professional when writing a will to ensure its validity.
Disclaimer: This blog post is for informational purposes only and does not constitute financial or legal advice. Always consult with a qualified professional for personalized guidance.
