Testate succession occurs where a person who desires to retain absolute or limited control over his property after death, arranges to ensure that upon his death the property passes to a person or persons of his choice through a valid will. This is because one goes through a lot of trouble acquiring property and one does not want it to go to waste, so you give control to someone who will not waste it by for example making someone a trustee.

The word “will” refers to all that a person wishes to happen on their death.  In the context of the law of succession, it refers to the document or documents in which a person expresses their wishes on death.  It means therefore a will is a record of a deceased person’s wishes and intentions pertaining to the devolution of his property upon his death. It is defined under section 3(1) as the legal declaration by a person of his intentions or wishes regarding the disposition of his property after his death duly made and executed in accordance with Act.

A will being a testamentary document has no legal effect until the maker dies.  While he is alive, it neither limits his rights of ownership nor confers any benefits to anyone.  Before the testator’s death, the document is a mere declaration of intention with no legal effect whatsoever. A will has five essential characteristics/elements:
  • the wishes expressed are intended to take effect upon death,
  • the will only takes effect on death,
  • a will can only operate as a declaration of intention,
  • a will is ambulatory, and
  • a will is always revocable.

Wishes Expressed Are Intended To Take Effect Upon Death

Any document made/executed in accordance with the law, may take effect as a will if the intention was that it should not operate until after the death of the maker.  The document should clearly make reference to the death of the maker. Where there is nothing in the instrument or document showing that it has reference to the death of the person executing it cannot take effect as a will. 

A Will Only Takes Effect On Death

Beneficiaries under a will do not acquire an interest in the property before the testator’s death – so that a gift to a beneficiary who dies between the making of the will and the death of the testator elapses.

A Will Can Only Operate As A Declaration Of Intention

The execution (making) of a will does not affect the way in which the testator deals with his property during their lifetime. It is not a fetter to the testator’s freedom to deal with their property as they please during their lifetime.  During their lifetime, the will is only a mere expression of intention since the testator cannot be certain that a beneficiary will receive a particular asset, which is given to them by will. After death of the testator, the property vests in the personal representatives. The personal representatives/ executors are under a duty to settle all debts and liabilities of the deceased (Ss 83 (a), (b), (c) and (d) of the LSA. S 99 of the Act vests the property of the deceased in the personal representative/executor while section 82 of the Act gives them a general power of sale.  If the debts of the estate are large, the gifts, including gifts of a specific asset, may be absorbed in the payment of debts.  A will therefore is a mere declaration of intention, there is no guarantee that the wishes expressed in it would be carried to effect.

A Will Is Ambulatory

The fact that a will takes effect upon death makes it ambulatory.  It is capable of dealing with property which is acquired after the date of the will (even after its execution) e.g. if Onyango executed a will in 1997 containing a clause to the effect that all the testator’s land was to pass to Owiti, this would include any land acquired by the testator after 1997.
However, this is only possible if the will carries a general clause.

A Will Is Always Revocable

S 5 gives freedom to dispose property by will. Freedom of testation includes the freedom to revoke it before testator dies; because a will takes effect upon death and because it is a mere declaration of intention it is always revocable.  It may be revoked even where it expressly states that it is not revocable.

A will is chiefly concerned with disposing of property, but it can be used for other purposes and for incidental matters, such as:
  • The appointment of persons to administer the estate of the testator (i.e. personal representatives/executors),
  • The appointment of the trustees to administer trusts set up under will,
  • The appointment of guardians for children of the testator who are minors at the date of the testator’s death,
  • Directions as to payment of taxes and other liabilities of the dead person. In most cases, testators never disclose debts which is misleading if debts exceed assets. Testator may give directions on how debts should be settled,
  • Directions as to the manner of disposal of the deceased’s body or that the deceased’s body or part of it be donated for medical or scientific purposes. However, these directions are not binding! The family members may disregard such wishes i.e. there is no property in a dead body so testator has no business disposing it.


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