Assessing testamentary freedom vis-a-vis the strict compliance with formal requirements

Abstract

Wills are an essential part of society as they determine how one’s property is to be administered and distributed. The primary law governing wills and succession matters in Kenya is the Law of Succession Act (Cap 160). It looks at the testamentary capacity of a testator before delving into the intricacies of the forms of wills. It then gives a guideline on the creation of wills, and the formal requirements that are to be met in the event of intestacy. This research delves on the conflict between testamentary freedom and strict legal requirements that are to be met when validating wills. It examines the history of power distribution in succession law and its role in addressing stringent requirements. By examining the history of power distribution in succession law and observing how jurisdictions like South Africa, Queensland, and California have adopted a more intent-focused approach to estate administration, the study reveals the difficulties arising from strict compliance. The findings indicate that such a strategy effectively mitigates the negative effects of rigorous formality by aligning legal practice with the genuine preferences of testators. While the adoption of this doctrine raises concerns about potential overreliance on informal paperwork and associated legal costs, the overall benefit is in protecting true testamentary intentions. The study takes a qualitative approach, analysing key statutes and case law to demonstrate the practical implications of these legal criteria. Additionally, it looks into the existing social frameworks that govern the jurisdictions, particularly Kenya and South Africa where customary norms are taken into consideration. Finally, this study proposes a more flexible approach that strikes a balance between the requirement for legal clarity and the respect of individual autonomy in testamentary concerns, proposing modifications that could improve the effectiveness of the dispensing authority in protecting testamentary intent. The findings are intended to add to existing discussions in succession law in Kenya and shape future legal practices and policy.