Articles

What are the Available Options If a Will Is Lost or Destroyed?

In Kenya, the loss or destruction of a will can create significant challenges for those seeking to execute a deceased person's estate. A will is a critical legal document that outlines how a person's assets should be distributed after their death. When it is lost or destroyed, questions arise about how to proceed and what rights individuals have under the law. The Law of Succession Act (Cap 160) provides a framework for addressing such situations, offering remedies to ensure the deceased's wishes are honored as closely as possible. This article explores the legal implications of a lost or destroyed will, the remedies available under Kenyan law, and the process for proving the will's contents and applying for probate.

Understanding the Importance of a Will

A will is a legal document that allows a testator (the person making the will) to specify how their estate should be distributed upon their death. It may also appoint executors to manage the estate, guardians for minor children, and other instructions. In Kenya, the validity and execution of wills are governed by the Law of Succession Act, which ensures that the testator's intentions are respected, provided the will meets legal requirements, such as being in writing, signed by the testator, and witnessed by at least two competent witnesses.

When a will is lost or destroyed, it does not automatically invalidate the testator's wishes, but it complicates the process of administering the estate. The absence of the original document can raise doubts about its existence, contents, or authenticity, potentially leading to disputes among beneficiaries or between beneficiaries and other claimants. Fortunately, the Law of Succession Act provides mechanisms to address these issues, allowing interested parties to prove the will's contents and seek probate.

Legal Framework Under the Law of Succession Act

The Law of Succession Act does not explicitly address lost or destroyed wills in a single provision but provides general principles and procedures that apply in such cases. The key objective is to ascertain the testator's intentions and ensure that the estate is distributed in accordance with those wishes, as far as possible. Below are the main legal considerations and remedies available when a will is lost or destroyed.

Presumption of Revocation

Under Kenyan law, if a will known to have existed cannot be found after the testator's death, there is a rebuttable presumption that the testator intentionally destroyed it with the intention of revoking it. This principle stems from common law and is recognized in Kenyan succession law. However, this presumption can be challenged by providing evidence that the will was lost or destroyed without the testator's intent to revoke it. For example, the will might have been misplaced, accidentally destroyed in a fire, or stolen.

To overcome this presumption, interested parties (such as beneficiaries or executors) must provide sufficient evidence to prove that the will existed, was valid, and was not intentionally revoked. This evidence is critical to obtaining probate and ensuring the estate is distributed according to the testator's wishes.

Proving the Contents of a Lost Will

To have a lost or destroyed will admitted to probate, the applicant must prove its existence and contents. This process involves presenting evidence to the court to reconstruct the terms of the will. The Law of Succession Act, under Section 3(1), defines a will as including both written and oral wills, but for written wills that are lost, the following types of evidence may be used to prove their contents:

  1. Copy of the Will: If a copy of the will exists (e.g., a photocopy or draft held by the testator's lawyer or a family member), it can serve as strong evidence of the will's contents. Courts are more likely to accept a copy if it is clear, complete, and verifiable.

  2. Witness Testimony: The witnesses who signed the original will can testify to its contents and execution. Their statements can help confirm that the will was validly executed and provide details about its provisions.

  3. Testator's Statements: Statements made by the testator before their death regarding the contents of the will may be admissible. For example, if the testator discussed their intentions with family members or advisors, these statements could support the reconstruction of the will.

  4. Other Documentary Evidence: Documents such as letters, notes, or emails written by the testator that reference the will's provisions can be used to corroborate its contents.

  5. Professional Records: If the will was prepared by an advocate or stored with a law firm, bank, or registry, their records may provide evidence of the will's existence and terms.

The court will evaluate this evidence to determine whether the will's contents can be established with sufficient certainty. The burden of proof lies with the applicant, and the evidence must be clear and convincing to satisfy the court.

Applying for Probate with a Lost Will

Once the existence and contents of the lost will are proven, the next step is to apply for probate. Probate is the legal process by which a will is validated, and the executor is granted authority to administer the estate. The process for applying for probate with a lost will is similar to that for an existing will but requires additional steps to address the absence of the original document.

Steps to Apply for Probate

  1. File a Petition: The executor or an interested party (e.g., a beneficiary) must file a petition for probate in the High Court or a magistrate's court with jurisdiction over succession matters. The petition should include details of the deceased, the fact that the will is lost or destroyed, and a request to prove the will's contents.

  2. Submit Evidence: The applicant must submit evidence to prove the will's existence, validity, and contents, as outlined above. This may include affidavits from witnesses, copies of the will, or other supporting documents.

  3. Overcome the Presumption of Revocation: The applicant must demonstrate that the will was not intentionally destroyed by the testator. This may involve showing that the will was lost due to circumstances beyond the testator's control, such as a fire, theft, or misplacement.

  4. Court Hearing: The court may hold a hearing to evaluate the evidence and hear from interested parties. Beneficiaries or other claimants may raise objections, particularly if they believe the estate should be distributed under intestacy rules (i.e., as if no will existed).

  5. Grant of Probate: If the court is satisfied that the will existed, was valid, and its contents can be reliably established, it may admit the will to probate and issue a grant of probate to the executor. The executor can then proceed to administer the estate according to the will's terms.

Challenges in the Probate Process

The probate process for a lost will can be complex and may face several challenges:

  • Disputes Among Beneficiaries: Beneficiaries or other parties may dispute the validity of the reconstructed will or argue that the estate should be distributed under intestacy rules. Such disputes can delay the probate process and may require additional court proceedings.

  • Insufficient Evidence: If the evidence provided is not sufficient to prove the will's contents, the court may refuse to admit it to probate, and the estate will be distributed as if the deceased died intestate.

  • Fraud or Forgery Concerns: Courts are cautious about admitting lost wills to probate due to the risk of fraud or fabricated evidence. Applicants must provide robust and credible evidence to avoid rejection.

Remedies for Lost or Destroyed Wills

The primary remedy for a lost or destroyed will is to prove its contents and obtain probate, as described above. However, other remedies and considerations may apply depending on the circumstances:

  1. Intestacy as a Fallback: If the court determines that the will cannot be proven, the estate will be distributed according to the rules of intestacy under the Law of Succession Act. This means the estate will be divided among the deceased's heirs (e.g., spouse, children, or other relatives) based on a statutory formula. This outcome may not align with the testator's wishes, highlighting the importance of proving the lost will.

  2. Rectification of Errors: If there are minor discrepancies in the evidence (e.g., a typo in a copy of the will), the court may allow rectification to ensure the will reflects the testator's intentions.

  3. Legal Advice and Documentation: To avoid issues with lost wills, testators are encouraged to store their wills securely (e.g., with a lawyer, bank, or court registry) and inform trusted individuals of its location. Maintaining copies of the will can also simplify the process of proving its contents if the original is lost.

Practical Tips to Prevent Issues with Lost Wills

To minimize the risk of a will being lost or destroyed, consider the following precautions:

  • Secure Storage: Store the original will in a safe place, such as a bank safe deposit box, a law firm's vault, or a court registry.

  • Multiple Copies: Keep certified copies of the will with trusted individuals, such as the testator's lawyer or executor, and inform them of the original's location.

  • Clear Communication: Inform executors and beneficiaries about the existence of the will and its storage location to avoid confusion after the testator's death.

  • Regular Updates: Review and update the will periodically to reflect changes in circumstances, and ensure that any new will explicitly revokes previous ones to avoid conflicts.

Conclusion

The loss or destruction of a will in Kenya does not necessarily mean that the testator's wishes cannot be honored. The Law of Succession Act provides a pathway to prove the will's contents and obtain probate, allowing the estate to be distributed according to the deceased's intentions. However, the process can be complex, requiring clear and convincing evidence to overcome the presumption of revocation and satisfy the court. By taking proactive steps to safeguard a will and maintain copies, individuals can reduce the risk of complications and ensure their estate is managed as intended.

For assistance with lost wills, probate applications, or other succession matters, contact us at +254 716 808 104 or info@lawguide.co.ke.