Revocation of Wills

A person making a will, known as the testator, usually has the freedom to make the will but it is to be noted that all wills are revocable. A written will cannot be revoked by an oral will. Wills can be revoked either voluntarily or involuntarily.  

Voluntary Revocation

These  involves deliberate intentional acts of the testator intended to revoke the will.  These methods ought to have the following elements:-

  1. Mental Capacity: The testator must have mental capacity to the same degree as to the creation of a will.
  2. The intention to revoke.

Voluntary revocation can be done in three ways:-

  1. Express Revocation

A will can be revoked  by another will or codicil declaring an intention to revoke it eg  “ I revoke all former Wills and Testamentary dispositions previously made by me..”

  1. Implied Revocation

A Will is impliedly revoked by a later will if the latter is inconsistent with the earlier will meaning if one makes a later will that is not inconsistent with the earlier one, it will not revoke the earlier one.

  1. Revocation by Destruction.

Revocation by destruction involves two elements:

  1. Actual destruction

Actual destruction may be done either by burning, tearing or  destroying the will. The destruction must not be accidental, otherwise there is no intention and thus there is no revocation.

  1. The intention to revoke.

The testator must have the same capacity to revoke as is necessary to execute a valid will.

 

Involuntary Revocation

There is only one involuntary method of revocation under Kenyan Law and that is revocation by marriage. As a general rule the marriage of a testator automatically revokes any Will or codicil made prior to the marriage.  The rationale is that marriage gives rise to new obligations which would ordinarily be taken into account where a Will is made by a single person and revocation is intended to give the testator an opportunity to make a Will taking into account the new obligations.  

This arises by the operation of the law and therefore it does not require the testator to have mental capacity or intention to revoke and the question of intention does not arise.

 

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