This archive report was first published on 22 May 2020.
As the world grapples with the Covid-19 pandemic, many people are being forced to confront their own mortality and the importance of having a will in place.
However, the current law in Kenya, as outlined in the Law of Succession Act, can make it difficult to create a will during emergency situations, such as the pandemic.
According to the Act, a will must be in writing and signed in the presence of two competent adult witnesses of sound mind. The witnesses must also sign the will in the presence of the testator.
But what happens when social distancing requirements and containment measures make it impossible to gather two witnesses in person?
Advocates Karim Anjarwalla and Mona Doshi, partners at Anjarwalla & Khanna LLP, argue that the law needs to be adapted to make it easier for people to make wills during the pandemic.
They propose that the Law of Succession Act be amended to allow oral wills to be read in the presence of witnesses through video conference or other virtual means. The session should be recorded, and the witnesses should sign a statement confirming that they witnessed the will virtually.
They also suggest that the Act be amended to allow the testator to sign the written will in manuscript or by electronic signature, and for the witnesses to sign a statement confirming that they witnessed the will virtually.
These amendments would provide much-needed flexibility in emergency situations, allowing people to create wills that meet the current requirements of the law.
As Anjarwalla and Doshi note, the Covid-19 pandemic provides a stark reminder of the importance of wills. But it is in such emergency situations that it is most difficult to put a will in place.
Interim amendments to the procedural requirements regarding the creation of wills should therefore be considered to make them adaptable to the needs of the people in the current unprecedented circumstances.
