John C. Maxwell wisely cautions that “Change is Inevitable and Growth is Optional”. This is evident in Estate Planning where one of the most frequent questions is “what happens to my Will if things change, or if I change my mind?”.
It is important to understand that Wills take effect only after the demise of the maker of the will (“testator”). This is captured in the definition of a Will found in Section 3 of the Law of Succession Act which states that:
“(A) ‘will’ means the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed”.
Therefore, even after one has made a Will, they are free to deal with their property as they wish prior to their death. This means that property included in a Will may be sold or leased for the benefit of the maker of the Will up until their demise. The maker of a Will is also free to acquire additional property or change their mind and redistribute their property by changing the provisions of their Will. This is supported by Section 17 of the Law of Succession Act which provides that, “A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will.”
Any of the above-mentioned changes (transfer of assets, acquisition of property or change of intended beneficiary) should prompt a Will review.
Changes in Wills are effected through codicils or revocation. A codicil is a “testamentary instrument made in relation to a will, explaining, altering or adding to its dispositions or appointments”. It can be described as a document which is supplementary to a will. It does not stand alone as it is attached to an existing Will which it alters or amends by subtracting or adding to it.
Revocation, on the other hand, refers to the official cancellation of the Will by its maker.
The extent of the changes will determine whether the changes to the Will shall be made by the preparation of a codicil or revocation of the existing will and making a new one.
The case of re Estate of Ephantus Munyutu Waigi (Deceased)  eKLR is illustrative of how the courts recognize both revocation and codicils as a means to effect changes to one’s estate plan. In this matter, the deceased had made a Will on 12th January 2000, another on 24th November 2004 and a codicil signed on 12th July 2007. In his 2004 will, the deceased had expressly revoked all other wills and testamentary dispositions made by him prior thereto and declared the 2004 will to be his last will. This was upheld by the court and the 2000 will was deemed invalid for the purposes of succession. The court held that distribution of the estate of the deceased should accord with the will dated 24th November 2004 and the codicil dated 12th July 2007. In giving its decision the court reiterated that a “codicil may be described as a document which is supplementary to a will. It does not stand alone like a will. It is attached to some will. It does not have a life of its own, for it rides on a back of a will. It serves to revoke, alter, amend, subtracts to form, add to or connect a will...a codicil never stands alone, but with the will it seeks to supplement or add to, and when admitted to probate, the codicil becomes part of the will it seeks to supplement or add to.”
While this article mainly deals with intentional changes to a Will, it is worth noting that the revocation of a Will shall be automatic in the following instances:
- by the making of another Will;
- by the burning, tearing or otherwise destroying of the Will with the intention of revoking it by the testator; or
- by the marriage of the maker, except where a Will is expressed to be made in contemplation of marriage.
Thus, Kenyan law anticipates that one’s circumstances may change even after making a Will. One can therefore have a Will in place and ensure that any changes in circumstances are adequately addressed through periodic reviews. We therefore advice all testators to update their wills regularly to ensure that it captures any changes in property and intentions and to ensure that the will remains valid.