When the word WILL is mentioned, what comes to mind is a pen and paper. We immediately think about taking a pen and paper to write down our wishes into a Will. Or even contacting an advocate or a legal expert to do it for us. We think exclusively about a written document. But do you know that you can actually make an Oral Will?
We know that a Will comes to effect after the death of the maker. It’s what replaces the maker in this life. In other words, a Will is only read out and interpreted by other people long after the maker has died.
Like a written will, an oral can only be made by a person of sound mind and above 18 years of age. And just like a written Will, an Oral Will in Kenya can be made by a man or a woman whether married or unmarried.
An Oral Will however, is only valid if it was made before two or more competent witnesses. And for it to be valid, the maker must then die within three months after making the Will. This means after making an Oral Will and you leave beyond three months, the Will expires and you must say the words again before the witnesses.
However, an Oral Will made by a member of the armed forces or a merchant marine will still be valid even if the maker dies more than three months after uttering the words. The only condition is that the officer must have made the will during the period of active service and died during that same active service.
If you make a written will then decide to make an Oral Will, you must choose which one to go by. If you choose the Oral Will, then you must ensure the written Will becomes invalid. There are many ways of doing that including tearing it up.
In case you die before doing that, the Oral Will becomes invalid and the Written Will takes preference.
Likewise, if you make an Oral Will, then make another one in writing, the Oral One becomes invalid to the extent that it contradicts the written one.
Lastly, if there is any conflict in evidence of witnesses as to what you said when making the oral, an independent witness will have to be sought to clear the air. Failure to this, the Oral Will or the portions raising the conflict in evidence, will not be valid.
