LAW OF

SUCCESSION

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 FORMAL
REQUIREMENTS OF
A WILL
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WRITTEN
WILLS

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 s. 11, LSA
(a) testator’s mark or that of another in
the presence and by the direction of
testator
(b) place – intention to give effect to Will
(c) attestation – two or more competent
witnesses; 3 scenarios; each must sign
in testator’s presence

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 Writing
üno particular form: handwritten, typed,
in code (as long as can be deciphered)
üany language
üwriting of testator or any other person
üany material as long as visible: egg shell,
cigarette packet etc.

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 Signature

üany mark intended to be signature:

thumb print, initials, assumed name,
rubber stamp…
üneed not even consist of a name
üeven part of a signature

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 Signature – cont’d
üAnother (testator too weak or ill):
• presence - physical and mental
• direction - testator capable of objecting
or assenting
• may sign own or testator’s name (better
former and state that signs on behalf)
• may be a witness
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 Witnesses
üin testator’s presence
üno particular form
üWitness the fact of signing; need not
look at the signature or even know that
the document is a Will; nec is to see the
testator signing. Blind persons
üExecutor can be a witness (s. 14)
Brown v Skirrow (1902) & Re Colling (1972)

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s. 13
Where witness or spouse is beneficiary,
bequest valid if signature is attested by at
least two additional competent and
independent witnesses.

In the Matter of the Estate of George Mbugua Ngare

(deceased) (1995) – Will properly attested
In the Estate of Bravda (1968) - Will invalid

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 Presumption of due execution
Where a Will is regular on the face of it
with an execution and attesting clause,
there is a rebuttable presumption of due
execution and attested.

see Karanja & ano v Karanja [2002]

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 Incorporation by reference
s. 12 – documents* that satisfy the
following conditions regarded as part of
the Will:
a) must be in existence at the date of
execution of the Will;
b) referred to in the Will as exiting; &
c) be clearly identified.
* even though not executed

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 Existing Wills – LSA, s. 15
Any written Will executed before the
commencement of the LSA shall, whether
the testator dies before or after the
commencement of the Act, be treated as
properly executed if it was executed acc to
the legal requirements of the law in force
at the date of execution.

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 Other Wills
Every Will, whether of movable or
immovable ppty, and whether executed
before or after the commencement of the
LSA, shall be treated as properly executed
if its execution conformed, either at the
time of execution or at the time of
testator’s death, to the law in force…

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