Simply put, an oral will is one that isn’t written but formulated by word of mouth. All you need to do is get a few competent witnesses who will listen to how you intend to dispose of your property and when you die, they will stand as witnesses to what you had instructed orally as your last will and testament.
Everything in regard to inheritance in Kenya is guided by the Law of Succession Act Cap 160 of the Laws of Kenya. Part 2 of this Law covers wills and it states that any person of sound mind and not a minor i.e. above 18 years, can dispose of all or any of their property by use of a will. This means, as long as one is 18 years and above, and they have some property to their name, then they can formulate a will.
The act further states that disposition of property can be made in reference to any secular or religious law that one chooses. It is also important to note that a female person, whether married or unmarried, has the same rights as a male person when it comes to making a will.
In regard to formalities in the formulation of a will, section 8 of part 2 of the Law of Succession states that a will may be made either orally or in writing. Let’s begin by analysing an oral will.
According to section 9 of part 2 of the law of succession, an oral will must be made in the presence of two or more competent witnesses. Competent witnesses for a will should be adults of sound mind who are not beneficiaries in the will. An oral will cannot be valid unless the testator i.e. the person who has formulated the will, dies within three months after it is made. Oral wills are mostly used by members of the armed forces or merchant marines and there is special provision for them. When a civilian, like you and I, makes an oral will, it will only be valid for three months, but when a member of the armed forces or a merchant marine makes one, it will be valid over their duration of active service in the armed forces or marine. What this means is, our guys fighting in Somalia can make this type of will and it will be valid as long as they are stationed in Somalia, even if it will be for a year.
An oral will shall not be valid if it is contrary to any valid written will which the testator made, whether before or after the date of the oral will. What this means is, if you formulated a written will before or after an oral will, the written will shall take precedence i.e. will be honored.
In case there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except when its contents are proven by a competent independent witness.
Based on the above, should one formulate an oral will? As stated, an oral will is only valid for a three months time frame. This means that if you formulate one and you are still alive after three months, you will have to formulate another one. However, if you are a member of the armed forces or a merchant marine in active service, then this will is ideal for you.