Mwale & Company Advocates

19/12/2018

Happy Holidays!!

06/12/2018

What you need to know when writing a will
A will is a legal declaration by a person stating their wishes or intentions regarding the distribution of their assets or property after death.
Who should write a will?
Anyone who has attained the age of 18 years and of sound mind, memory and understanding of his/her actions can write a will.

However, a minor (child) can also write a will which must be validated by re-execution when the minor reaches the age of majority (18 years).

What form should the will take?

There are two types of wills namely;

Oral will - it is made before two or more competent witnesses and it must have been made three months before the testator (maker) dies. Otherwise it shall be declared invalid.

Written will - A written will is reduced into writing and is only valid where the testator (maker) has signed it in the presence of at least two witnesses who should also sign it in the presence of the maker.

Who can revoke a will?
A will can be revoked or altered by the testator (maker) at any time when they are of sound mind and competent to dispose of their free property by will. A written will cannot be revoked by an oral will.

A will can also be revoked by writing another will or by declaring an intention to revoke it or by burning, tearing or destroying the will with the intention of revoking it by the testator (maker) or by some other person at their direction. The alteration must be signed and attested in a similar manner as a written will is required to be (i.e. signed in the presence of at least two witnesses).

A will which has been wholly revoked in any manner cannot be revived otherwise than by re-execution thereof with a deliberate intention of the testator (maker) to reinstate the will.

What are the benefits of writing a valid will?
• It helps avoid inheritance disputes which can drag on for years and destroy family relationships.
• It expresses your wishes for your funeral.
• It can help in appointing guardians for your children.
• It provides financial security for your beneficiaries and dependents.
• It allows for the selection of beneficiaries who are outside the testator’s (maker’s) family.
• It is relatively simple to establish and carry out.

03/12/2018

What is matrimonial Property?
This is any property acquired during the course of a marriage by either spouse which includes:-
• The matrimonial home(s)
• Household goods and effects in the matrimonial home or homes
• Any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
• The parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. A party to an agreement made under this subsection may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

NB: Any trust property (property held in trust for another person), including property held in trust under customary law, does not form part of matrimonial property.
Ownership
Ownership of matrimonial property is based on each marriage partner’s contribution and ought to be divided as such in event of divorce. In section 2, of the Matrimonial Property Act contribution is defined in terms of monetary and non-monetary contribution, which can included domestic work and management of the matrimonial home, child care, companionship, management of family business property and farm work.
Where one spouse acquires property before or during the marriage and the property does not automatically become matrimonial property. The other spouse must makes a contribution towards the improvement of the property. In doing so the spouse acquires a beneficial interest in the property equal to the contribution made by the acquiring marriage partner.
The parties to an intended marriage may also enter into a prenuptial agreement before their marriage to determine their property rights.
Property Rights of men and women in marriage
Contrary to common belief, in marriage a woman has the same property rights as a man that is:
(a) To acquire, administer, hold, control, use and dispose of property whether movable or immovable;
(b) To enter into a contract;
(c) To sue and be sued in her own name.

In case of dissolution of the marriage
Each partner must confirm his/her contribution. The main challenge here would be how to quantify/ recognize the contribution made. In the case of joint property, if one of the partners name is not registered then they need to show their effort towards improvement of the property. Failure to which they will not be granted any rights over the property by a court. In cases the dissolution process has begun (and has not been concluded), if one spouse would like to acquire or dispose property, then they would need spousal consent from the other party.

29/10/2018

Not every legal matter requires the use of an attorney but here are some of the 5 key reasons why you would need a lawyer;
1. Complicated Divorce- the terms of the finalized divorce are binding hence it is applicable when there are issues of property, investments, savings, support, debt, and child custody arrangements etc.
2. Criminal charges- facing any criminal charge is scary, and you may not even know your rights as an accused person. Get a lawyer immediately for protection of your rights and so that you are defended as well as possible whether you are guilty or not.
3. Writing wills and trusts- this could save your family the disputes and legal issues after you die by setting up your will or trust with a reputable attorney well in advance. You can change the will periodically throughout your life as circumstances change.
4. Business startup- Whether you are doing it alone, have a partner, or setting up a corporation, never try to navigate all of the legal requirements alone. You need to be protected. Only a lawyer who specializes in business law can ensure that you are protected.
5. Upon being bankrupt- you simply can’t be declared bankrupt without involving a lawyer.

22/01/2015

As promised in our earlier newsletter on capital gains tax (CGT), the following is an update on the implementation of the same so far. The recently re-introduced CGT which took effect on 1st January 2015 has witnessed a number of challenges in its implementation perhaps due to a number of inconsiste…

05/01/2015

Trade mark law and the protections offered to both registered and unregistered brands are essentially about the intrinsic value of names and brands that represent certain commercial interests within an increasingly competitive spectrum as far as the business marketplace is concerned. The oft-cited…

23/12/2014

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29/10/2014

http://www.mwalelegal.co.ke/beyond-watching-brief-court-testimonies-a-new-dawn-for-restorative-reparative-criminal-justice

In Kenya, the role of the victims of crime in the criminal justice system has normally been a peripheral one. Most victims of crime in Kenya only attend court when they are required to testify. In...

29/10/2014

http://www.mwalelegal.co.ke/5-changes-everything-when-is-more-less-what-you-should-know-about-capital-gains-in-kenya/

The familiar adage “It’s not how much you make, but how much you keep” is a truism that has become even more of a reality for investors in Kenya. President Uhuru Kenyatta recently assented to the ...