Kenya, on the other hand, has a unique approach to will creation, as David Gatheru explains: ’While testators must be adults of sound mind, Kenya offers flexibility in form, allowing oral or written wills.’ He further adds, ‘However, oral wills must adhere to strict conditions, and written wills must be signed in the presence of witnesses. This approach accommodates cultural practices while ensuring the testator's freedom and capacity to execute the will.’ Coercion, undue influence, or mental impairment can render a will invalid in all three jurisdictions, emphasising the importance of the testator's freedom and capacity.
Estate planning is a fundamental aspect of legacy preservation, ensuring that individuals' assets are distributed according to their wishes after death. However, the legal and cultural landscapes shaping estate planning practices vary across jurisdictions. In this article we discuss the nuances of estate planning in England & Wales, India, and Kenya, highlighting differences, commonalities, and the expertise of legal professionals in each jurisdiction. We are thankful to Sameer Tapia (Founder & Senior Partner of Mumbai-based ALMT Legal Advocates & Solicitors) and to our colleague David Gatheru (from international law firm Murugu Rigoro & Co Advocates, based in Nairobi, Kenya) for their expertise.
Exploring Key Features of Inheritance Laws
Inheritance laws vary significantly across jurisdictions, shaping wealth distribution and tax obligations. In the UK, inheritance tax is a significant consideration, triggered when the estate surpasses a specific threshold. Various exemptions and reliefs mitigate the tax burden, emphasizing the balance between tax revenue and familial wealth preservation. On the other hand, India's inheritance laws reflect the religious and cultural diversity in that country. Different religious communities are governed by specific laws, such as the Hindu Succession Act of 1956, Muslim Personal Law, and Indian Succession Act of 1925. Sameer Tapia elaborates, ‘These laws accommo - date and respect the religious customs and traditions of various communities, ensuring that inheritance matters are handled in accordance with their beliefs. For instance, the law accommodates the practice of the Khasi community in Meghalaya whereby inheritance passes through daughters for ancestral property.’
Understanding the Legal Requirements of Creating a Will
In England & Wales, creating a valid will involves stringent legal requirements to ensure authenticity and validity. Testators must be at least 18 years old, of sound mind, and adhere to specific formalities, including writing the will, signing it in the presence of witnesses, and having witnesses sign in the presence of the testator. This process mitigates the risk of disputes among beneficiaries and safeguards the testator's intentions. The requirement that the testator is of sound mind is also present in the Indian context. Sameer Tapia of ALMT Legal explained the legal framework outlined in Section 63 of the Indian Succession Act of 1925. He states, ‘the testator must be of sound mind and at least 18 years old, with the will written, signed, and witnessed to authenticate the document and prevent fraud or coercion.’
THE LEGAL CORNER MAGAZINE | ISSUE 007 APRIL '24 | PRIVATE CLIENT SPECIAL HB 18
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