Procedure of Drafting a Will in Kenya

Drafting a will in Kenya is an important step to ensure that your assets are distributed according to your wishes after your death. Below is a step-by-step guide to help you create a valid and legally enforceable will.

Legal Requirements for a Valid Will

Before drafting a will, ensure you meet the legal requirements under the Law of Succession Act in Kenya:

1. Testamentary Capacity:

You must be at least 18 years old and of sound mind. This means you should understand the nature of the act of making a will, the extent of your property, and the claims of those who may expect to benefit from your estate.

2. Freedom of Will:

The will must be written voluntarily, without coercion, duress, or undue influence.

3. Form of the Will:

A will can be written or oral. However, an oral will is only valid if made within three months of the testator’s death (unless the testator is a member of the armed forces on active duty) and must be made in the presence of two competent witnesses. A written will is recommended for clarity and enforceability.

Key Components of the Will

A well-drafted will should include the following components:

1. Testator’s Declaration:

a. Clearly state your full name and address.

b. Declare that this document is your last will and testament, revoking all previous wills and codicils (if any). For example: “I, [Your Full Name], of [Your Address], declare this to be my last will and testament, and I revoke all previous wills and codicils made by me.”

2. Appointment of an Executor:

a. Name a trusted person as the executor of your will. The executor is responsible for managing and distributing your estate according to the will’s instructions.

b. If no executor is named, the court may appoint an administrator to manage the estate.

3. Distribution of Assets (Gifts/Bequests):

a. List the specific assets or property you wish to distribute (e.g., land, money, shares, personal items).

b. Identify the beneficiaries (individuals, organizations, or charities) and specify what each will receive.

c. Include any conditions attached to the bequests, if applicable.

Example: “I bequeath my plot of land in [Location] to my daughter, [Daughter’s Name], provided she attains the age of 25 years.”

d. Ensure you only gift property that legally belongs to you, as invalid gifts will not affect the entire will but will fail to pass to the intended recipient.

4. Guardianship for Minor Children:

- If you have minor children, appoint a guardian to care for them after your death.

Example: “I appoint [Guardian’s Full Name] as the guardian of my minor children, [Children’s Names].”

5. Other Provisions:

a. Include directions for payment of debts, taxes, or liabilities.

b. Provide instructions for the disposal of your body (e.g., burial or cremation), though these are not legally binding.

c. Set up trusts for specific purposes, such as managing funds for a child or charitable cause, and appoint trustees if necessary.

Draft the Will

Format: A written will does not need to follow a specific format, but it should be clear and unambiguous. You can write it by hand, type it, or hire a lawyer to draft it for you.

Language: Use simple, precise language to avoid misinterpretation. Be specific about assets and beneficiaries.

Consult a Lawyer (Recommended): While you can draft a will without legal assistance, consulting a lawyer ensures that your will complies with Kenyan law and minimizes the risk of disputes or invalidity. A lawyer can also help with tax planning and structuring trusts.

Sign the Will (Execution)

Testator’s Signature: Sign the will at the end of the document or have someone sign on your behalf in your presence and at your direction if you are unable to sign.

Intent: Your signature must show intent to give effect to the document as your will.

Have the Will Witnessed (Attestation)

a. Witnesses: The will must be witnessed by at least two competent witnesses who are present at the time of signing.

- A competent witness is someone who is not a beneficiary of the will and is of sound mind.

- Both witnesses must see you (the testator) sign the will or acknowledge your signature.

b. Witness Signatures: Each witness must sign the will in your presence and in the presence of each other.

Example Attestation Clause: “Signed by the testator in our presence, and we have signed as witnesses in the presence of the testator and each other on this [date] day of [month], [year].”

Store the Will Safely

- Keep the original will in a secure place, such as with a trusted lawyer, in a bank safe deposit box, or at the court registry.

- Provide copies to your executor, lawyer, or trusted family members, but ensure they know where the original is stored.

Review and Update the Will Regularly

- Review your will periodically, especially after major life events such as marriage, divorce, the birth of a child, or acquisition of significant assets.

- Update the will by drafting a new one (which revokes the previous will) or adding a codicil (a signed amendment to the will) if the changes are minor.

Prepare for Probate 

After your death, your executor will need to apply for a Grant of Probate to confirm their authority to distribute your estate. To make this process smoother:

i. Ensure all necessary documents (e.g., original will, death certificate) are accessible.

ii. Inform your executor of the will’s location and any specific instructions.

 

ADDITIONAL TIPS TO AVOID COMMON MISTAKES

a. Be Specific: Clearly identify assets and beneficiaries to avoid ambiguity.

b. Choose an Executor Wisely: Select someone trustworthy, capable, and willing to serve as executor. Ensure they are not a beneficiary to avoid conflicts of interest.

c. Avoid Invalid Provisions: Do not include gifts of property you do not own or provisions that violate Kenyan law.

d. Witness Properly: Ensure witnesses are not beneficiaries or their spouses, as this could invalidate their attestation.

e. Understand Tax Implications: While bequests are not subject to inheritance tax in Kenya, income generated from property or businesses may be taxable. Consult a lawyer for advice on tax planning.

f. Seek Legal Advice: A lawyer can help you avoid pitfalls, ensure compliance with the law, and address potential disputes among beneficiaries.

 

CONSEQUENCES OF NOT FOLLOWING THE PROCEDURE

If the will is not drafted, signed, or witnessed correctly:

- It may be deemed invalid, and your estate will be distributed according to Kenya’s intestacy laws under the Law of Succession Act.

- Disputes among family members may arise, leading to costly legal battles.

- The probate process may be delayed or complicated for your loved ones.

- Your wishes, such as guardianship for minor children or charitable donations, may not be fulfilled.

 

WHY INVOLVE A LAWYER?

While it is not mandatory to involve a lawyer, doing so provides several benefits:

1. Ensures the will is legally valid and complies with Kenyan law.

2. Helps avoid disputes by addressing potential issues in advance.

3. Assists with tax planning and estate structuring.

4. Provides representation in court if disputes arise during probate.