Tag: discretionary

[vc_row][vc_column][vc_column_text]A Will is an essential and one of the simpler forms of estate planning tools. It is a legal declaration by a person of their wishes or intentions regarding the disposition of their property after death.

The provisions of a Will are not cast in stone. They can be amended or updated from time to time in order to reflect a person’s changing life circumstances using a codicil (written amendments to a will). A Will can also be cancelled or revoked altogether.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

What is Revocation of a Will?

Revocation of a Will refers to the process cancelling or annulling a Will. A Will can only be revoked or cancelled by the person who created it (the testator) at any time before their death.

Additionally, a Will can only be revoked while the testator is alive and has the mental capacity to do so. Once the testator has passed away, the Will cannot be revoked or amended in any way.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

What does the law provide on Revocation of Wills?

Revocation of Wills in Kenya is covered under section 17, 18 and 19 of the Law of Succession Act.

Section 17 of the Law of Succession Act 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.”

 Section 18 of the Law of Succession Act provides for the voluntary revocation of Wills. It provides that:

“Save as provided by Section 19, no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it, or by the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some other person at his direction.

A written will shall not be revoked by an oral will.”

Based on section 18 above, a written will cannot be revoked by an oral will. It can only be revoked by another new Written will.

Involuntary revocation of Wills is stipulated under Section 19 of the Law of Succession Act. Section 19 provides that:

A will shall be revoked by the marriage of the maker; but where a will is expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated.”

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What are the forms of Revocation of Wills?

Based on the above legal provisions, a Will can be revoked in the following ways:

1. By executing a subsequent will:

If a person executes a new will, it automatically revokes all previous wills and codicils (written amendments to a will).

For avoidance of doubt, it is common practice that the new Will explicitly states that all other previous Wills and Codicils made by the maker of the will are revoked. This would ordinarily appear in the Will as indicated below;

“I revoke all former wills and testamentary dispositions made by me”.

2. By physical act:

A Will can be revoked by cancelling, tearing, burning or destroying it with the intention of revoking it.

3. By operation of law:

A Will can be revoked by operation of law in the case of a new marriage by the maker of the Will unless it is made in contemplation of marriage as provided in section 19 of the Law of Succession Act highlighted above.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

What are the consequences of Revoking a Will?

Once a Will is revoked by the testator, it automatically ceases to exist. In the event the testator dies without making a subsequent Will, his or her properties will be distributed to his or her beneficiaries in accordance with the laws of Intestacy (when someone dies without leaving a valid will) as provided under the Law of Succession Act.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

How can we help?

Gabael Trust Corporation Limited has established itself as a ‘go-to-firm’ that provides premier estate planning services in Kenya. We also provide value-added services such as advice on investment, tax and retirement that may be critical for your Will.

We have an excellent team of experts and strategic partners across the East African Region who are ready to meet your unique estate planning needs and we welcome you to take advantage of our excellent, professional and cost-effective services.

[/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

 

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[vc_row][vc_column][vc_column_text]It goes without saying that creating a valid Will is very important and should be done at the earliest opportune time.

Once you create your Will, its provisions are not cast in stone. Your Will can be updated from time to time to incorporate any changes in circumstances or major life events.

Before updating your Will, it is advisable that you consult your lawyer or trusted estate planner to ensure that you follow all the formal requirements prescribed in law.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

When should I update my Will?

The Law of Succession Act in Kenya provides that a person can update their Will at any time as long as they are mentally competent to do so.

Proof that the amendments to a Will were made as a result of coercion, fraud or when a person was under the influence of drugs or alcohol may lead the amendments to be declared void.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

Why should I update my Will?

A person should update their Will when there is a significant change in their personal or financial circumstances. Some common reasons for updating a Will include:

1. Marriage or divorce;
2. Birth or adoption of a child;
3. Death of a beneficiary or executor of the Will;
4. Change in assets or liabilities;
5. Move to a different country; or
6. Change of mind regarding distribution of assets.

It is important to regularly review and update your Will to ensure that your final wishes are accurately reflected and your assets are bequeathed as per your wishes and intentions.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

What are the formal requirement of updating my Will?

The Law of Succession Act in Kenya provides that a person can update their Will by executing a codicil (a written amendment to the Will) or by making a new Will entirely.

The codicil should be signed in the same manner as the original Will, that is, it should be signed by the maker of the Will in the presence of two independent witnesses who should also attest that they saw the maker of the Will sign the codicil.

Similarly, a new Will must also be signed and witnessed in the presence of two independent witnesses and should clearly indicate that it revokes all previous Wills and codicils made by the maker of the Will.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

What are the advantages of Updating my Will?

Some of the advantages of updating a Will include: –

• Reflects current wishes:

Updating a Will ensures that it reflects a person’s current wishes and intentions for the distribution of their assets.

• Avoids confusion:

An outdated Will can lead to confusion and disputes among beneficiaries. Updating a Will can avoid these issues by clearly outlining the maker’s final wishes.

• Protects beneficiaries:

Updating a Will can protect beneficiaries by ensuring that they receive their intended inheritance and minimize the chance of challenges or disputes.

• Accommodates changes in family or financial circumstances:

Changes in family dynamics or financial circumstances can be accommodated by updating a Will. This can help ensure that the maker’s assets are distributed according to their current intentions.

• Facilitates the probate process:

An up-to-date Will can facilitate the probate process and reduce the chance of challenges or delays in obtaining the grant and overall distribution of assets to the intended beneficiaries.

All in all, updating a will can provide peace of mind and ensure that a person’s final wishes are accurately reflected and carried out.

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How can we help?

Gabael Trust Corporation Limited has established itself as a ‘go-to-firm’ that provides premier estate planning services in Kenya. We also provide value-added services such as advice on investment, tax and retirement that may be critical for your Will.

We have an excellent team of experts and strategic partners across the East African Region who are ready to meet your unique estate planning needs and we welcome you to take advantage of our excellent, professional and cost-effective services.

[/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

 

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The Law of Succession Act, Cap 160 provides for two forms of wills: –

1. Written wills
2. Oral wills.

For any form of will to be valid, the maker of the will must have had the mental and testamentary capacity to make it. This means that the maker of the will must: –

1. Be of sound mind
2. Have mental recollection of their property (movable and immovable) and beneficiaries (children, spouse (s) and dependents); and
3. Be of sound understanding such that they know and have the intention of making a will.

Of note is that it is a rebuttable presumption in law that the maker of a will was of sound mind unless proven otherwise in a court of law.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

Written Will

A written will is a legal document that indicates how your property will be distributed among your beneficiaries after you pass away. It can also indicate your preferred guardian for your child, your funeral wishes or preference, for example, by cremation or burial, among others.

The Law of Succession Act does not impose any restrictions on the language of will or the type of material the will should be written in. The language of the will can be English, Swahili or your mother tongue and it can be handwritten or typed.

The above notwithstanding, the Law of Succession Act provides for certain formal requirements that have to be met for the will to be valid. They include: –

1. The maker of the will has to sign or affixed his or her mark to the will
2. The signature or the mark of the maker of the will has to be placed in such a position as to show that he or she intended to give effect to the will
3. The will is formally witnessed by two or more competent witnesses, each of whom must see the maker of the will sign the will or receive a personal acknowledgement from the maker of the will that the signature or mark is his or hers.

It is important to note that the persons who witness a will must do so in the presence of the maker of the will. However, it is not necessary for both witnesses to be present at the same time while witnessing the will.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

Oral Will

An oral will is simply a verbal statement of wishes that expresses how you property will be distributed among your beneficiaries.

The Law of Succession Act provides that for an oral will to be valid, it has to be made before two or more competent witnesses and the maker of the oral will has to have died within a period of three months from the date of making the will.

An oral will is often made when a person has founded reasons to believe that they may pass away soon, for example, someone who is terminally ill or is in fear of their life. Nevertheless, it is not advisable to make an oral will as it relies on human memory and the witness’s may misrepresent your wishes.

Of note, if the maker of an oral will is a member of the armed forces or merchant marine, the oral will is valid if it meets the following requirements: –

1. The oral will should be made during a period of active service;
2. The oral will should be made before at least one competent witness;
3. The maker of the will should have died during the period of active service (this period can be more than three months after the date of making the will).

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How Can We Help?

Gabael Trust has established itself as a ‘go-to-firm’ that provides premier corporate trustee, corporate administrator and corporate executor services in Kenya. We also provide value-added services such as advice on investment, tax and retirement that may be critical for your Family Trust.

We have an excellent team of experts and strategic partners across the East African Region who are ready to meet your unique estate planning needs through wills and trusts. We welcome you to take advantage of our excellent, professional and cost-effective services.[/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

 

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Parents are always concerned about the well-being of their children especially when they are highly dependent minors that require constant specialized care.

Often, their primary concern is how to come up with the best plan to ensure that their child is well taken care of in the event they become incapacitated or when they eventually pass away. This can be done through establishing a discretionary trust through which they can put in place financial arrangements for the future care and well-being of their children.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]What is a Trust?

A trust is a legal arrangement through which a parent can appoint a trusted person (a trustee) to hold and manage the funds or assets transferred to the trust (the trust fund) for the benefit of a specified person, in this case their child or children.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]What is a Discretionary Trust?

The word discretion refers to a person’s ability to act as per their own judgment and conscience. In a trust arrangement, the power of discretion is usually exercised by the trustees while undertaking their duties in the discretionary trust and ought to be done with utmost good faith and in the best interest of the beneficiaries.

Based on the above definition, a discretionary trust can be defined as a flexible trust arrangement that enables the trustees to exercise their fair judgement while exercising their duties in the trust deed, in order to meet the beneficiaries’ changing circumstances.

Due to the wide discretionary powers given to trustees, it is always advisable for a parent to prepare a letter of wishes to accompany the discretionary trust. A letter of wishes usually sets out the parent’s primary requests with regard to the distribution of the trust fund to their children. For example, it can indicate that the child should only receive benefit from the trust after obtaining their first degree or that a large portion of the trust fund should be used to cater for the specialized care of a disabled child, etc…

[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]What are the defining features of a Discretionary Trust?

There are three essential features that make a discretionary trust the most preferred form of family trust for parents of minors, children living with disability or unruly children. They include:

• Flexibility;

It may be difficult for a parent to predict their children’s future interests and needs while creating the trust. Therefore, by establishing a discretionary trust, the trustees can be able to meet the child’s evolving financial needs in health care, education, sports and any other legitimate activity that may require financing by the trust.

• Protection;

A discretionary trust provides protection to the beneficiaries from their own extravagant choices. For example, it allows the trustees to halt the distribution of trust income to a child especially when the parent had raised concerns about the child’s wasteful lifestyle and there is real concern on how they would cope after inheriting large sums outright. In such a case, the trustees are at liberty to hold and manage the assets of that beneficiary on their behalf and provide occasional and controlled benefits to them.

• Adaptability

A discretionary trust enables the trustees to adapt to the child’s changing health care, education and extracurricular requirements as their powers of distribution of trust fund are not cast in stone. It also makes it easier for the trustees to take advantage and align the trust to any future changes in legislation that may be of benefit to the trust.

 

What is the importance of creating a discretionary trust for your child?

Clients with young children often do not wish their children to inherit substantial assets at a young age. Many would prefer their children to have obtained a degree, have established careers or have an understanding of financial matters, before they can obtain any benefit from the trust.

In addition, when children are very young it is difficult to anticipate their future needs, some children may require more assistance than others. Discretionary trusts facilitate a wait and see approach, enabling parents to choose responsible individuals to assume the guardianship role for their child at a later stage. It also allows the trustees to quickly adapt and facilitate to the changing needs of the child.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]What are the drawbacks of creating a discretionary trust?

Most may argue that discretionary trusts donate wide and unfettered discretionary powers to trustees. Such unfettered control of trust assets by trustees may lead to self-dealing, self-enrichment or general abuse of power by trustees to the detriment of the beneficiaries.

Nonetheless, this can be mitigated by the parent by writing a letter of wishes indicating their primary requests for the welfare of their child or by appointing an enforcer in accordance with the Trustee (Perpetual Succession) Amendment Act of 2021.

An enforcer is a company or an individual who can be appointed in the trust to monitor the administration of the trust for the benefit of their children. Even though it is not a mandatory role, it may be prudent to include an enforcer in the discretionary trust as they can exercise a supervisory role over the trustees with the mandate to:-

1. Inquire into the status of implementation of the terms of the trust;
2. Require the trustee to remedy any breach of the terms of the trust; and
3. Pursue legal action against the trustees for such breaches.

It is important for the the enforcer of the trust to be different from the trustee(s), therefore, the two offices cannot be occupied by the same person.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]How can we help?

A parent can ensure the proper administration of their discretionary trust by appointing a corporate trustee as a trustee, solely or jointly with other trustees, or as an enforcer whose mandate is to ensure adherence of the Trust Deed. Gabael Trust Corporation is an independent and reliable corporate trustee that provides premier estate planning, trust management and trust administration services and can be appointed as enforcer to ensure the proper administration of your trust.

 

Get in touch with us today to take advantage of our excellent and cost-effective services.

 

Karibu Gabael.

[/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

 

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