EXPLAINER: Everything To Know About Contesting a Will
In recent months, there has been an intense debate about the legal options for contesting a will.
This became especially apparent after a deceased judge bequeathed his estate to his younger brother, with the promise that the brother would care for his elderly parents while barring his other siblings from visiting.
This prompted other siblings to rush to court to prevent the distribution of estate funds worth millions of shillings.
The problem didn’t simply affect the individuals involved. It highlighted broader legal problems about wills and the legal process following a person’s death.
Many others believed that once the will was prepared, it could not be contested, and some even asked that the siblings withdraw their court suit and allow the cash to be released.
A will is a legal document that defines how an individual’s property will be dispersed after their death.
The will’s owners will be able to appoint executors and specify what the beneficiaries will get.
In circumstances involving minors, the will also specifies who will take over the minors’ properties until they reach the document’s stated age.
The law needs at least two witnesses to sign the will who are not beneficiaries or beneficiaries’ spouses.
For safe storage of the will, the owner can use the court’s will registry or the public trustee’s office.
Other places one can safely keep wills include law firms or an appointed executor, though others can store them at their preferred locations.
Law About Will Contestation
After one’s passing, the will is usually released by an advocate to outline how the deceased’s property can be shared.
While others argue that the will content cannot be challenged in court, the Kenyan constitution provides a straightforward legal procedure on what can take place.
A will can be challenged in courts, and it is governed by the Law of Succession Act (Cap 160).
The act dictates that a spouse, a child or any person maintained by the deceased can apply to the court if they feel the will did not make reasonable provision to them, and the court has the mandate to reallocate parts of the estate to such dependants.
Apart from feeling excluded or unfairly provided for in the will, other reasons that can lead to will contestation include fraud or forgery.
Challenges can arise if there is evidence that the signature is forged or the document itself is fabricated.
The Step-By-Step Process
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A complainant is required to file a caveat at the High Court registry to halt the issuance of a grant of probate temporarily.
Once the petition is gazetted, the complainant is then required to file a formal objection within a period of 30 to 60 days, citing the grounds why they are blocking the execution of the will.
A judge then hears the case, including witness testimony and any official reports presented as evidence.
If a will is successfully declared invalid, the properties are then distributed according to a previous will if it existed or according to the rules of intestacy, meaning no will existed.
EXPLAINER: Everything To Know About Contesting a Will
