Video and digital wills may soon be the norm

A few years back, the court held a video recording of a will made by a testator to be invalid for a number of reasons. Most of the reasons were that the video Will did not meet the statutory standards set out in the Succession Act of Kenya.

Despite the ruling by the court, it is evident that changes in technology may necessitate corresponding legal reforms, to cater for the current trends and the legislative environment.

Video and digital wills may soon be the norm rather than the exception. In the Covid-19 era in 2020, major changes were made to the laws to allow for digital amendments. For example, for the first time, electronic signatures have become recognised as valid.

The court also allowed for litigating parties to be served virtually or on e-mail unlike previously when service of court documents could only take place physically.

The legal reforms ensure that the law remains up to date and there are no major obstacles to the implementation of the legal provisions. In the case of the Succession Act, there have been rallying calls for the same to be amended to give room for video wills provided they meet certain thresholds.

Some argue that writing a will need not be an expensive affair. The legal fees for writing a will are charged a percentage of the estate value. Those arguing for video will argue that a will can simply be recorded and shared.

However, it is not that simple. In many jurisdictions in the world including Kenya, one of the main issues to be considered is the validity and legitimacy of the will. Kenya has very strict laws and regulations concerning the validity and legitimacy of a will.

First, the testator must be of sound mind. How do you prove soundness of mind in a video recording? For written wills, the law provides that the same must be signed and witnessed. How do you address issues of witnessing the will in a video recording?

When it comes to oral wills, the law has clear provisions on their validity and legitimacy. Due to the strict laws around the making of wills, it seems that video or digital wills cannot on their own stand without legislative backing. Additional challenges to making video wills arise from technological obstacles that may arise.

For example, the rise of hacking and Artificial Intelligence means that it is possible for a hacker to doctor an invalid video will. Despite all the above challenges in will-making and validation, the need to recognise video wills is there.

The Evidence Act provides a strict threshold for the recognition of digital and electronic evidence. However, these provisions alone are not enough to prevent a qualified hacker from doctoring electronic evidence.

The main suggestion concerning video wills is that they can be done as a supplement to legally binding documents and instruments. So, for example, a testator can still have in place a written will but in addition to the written will he can record a video will to give in depth of some of the issues arising from the written will.

For example, a testator can record a video stating how he would want his children to be raised. While the written will provides for guardianship, the video will would go deeper. A testator can also record a video stating how he would like his business to be run and so on.

Video wills can also be used to record the signing ceremony and attestation of a written will as further proof that the will was witnessed.

Ms Mputhia is the founder of C Mputhia Advocates | (email protected)