Can a recorded will disinheriting me override what my husband wrote earlier?

Dear Vivian,

My husband died having made a will, which was never revoked, amended or cancelled during his lifetime. Recently, a purported audiovisual recording surfaced showing that my husband, at the point of his illness six months before his death, revoking the written will, thus disinheriting me. What should I do?

Rachael Nthumbi, Embu

Dear Rachael,

The issue for determination in your case is whether the audiovisual recording is a valid will of the deceased and if it has the power to cancel the initial will. Therefore, the audiovisual recording must be strongly tested with regard to the well-established principles of wills. The validity of wills depends on the capacity of the maker and whether the same was made in proper form.

A will is a voluntary document made by the free will of the testator (maker). The legal definition of a will is “a document by which a person directs his or her estate to be distributed upon death.”

Section 5 of the Law of Succession Act provides that the maker be a person of sound mind, who is not a minor. This section goes on to state that the soundness of mind of the maker shall be presumed unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.

On this issue, the burden of proving your late husband’s soundness of mind shall be on the one who shall allege his unsoundness. With reference to the audiovisual will, it shall be treated as an oral will. The requirements of the law on this type is that the oral will must be made before two or more competent witnesses and the maker must die within three months from the date of making the will.

On this requirement, the audiovisual version shall fail the test of three months, noting that your late husband died within six months. Notably, the Law of Succession provides that a written will shall not be revoked by an oral will.

Finally, the courts in Kenya have been reluctant to accept audiovisual recordings because of lack of statutes and policy regulations. However, it is time to do so, especially having emerged from the Covid-19 pandemic that taught us the importance of audiovisual mediums.

We can borrow from countries such as Australia, which has legislated the Covid-19 Omnibus (Emergency Measures) Act, 2020, which gave way to the regulations providing for electronic execution and remote witnessing of certain documents. The United Kingdom has also accepted audiovisual recordings as a step to solidify written wills.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).