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Post Reply: Comprehensive Guide to Navigating Wills in Kenya

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	A will is a legal document that outlines an individual’s wishes regarding the distribution of their property and assets after death. In Kenya, the Law of Succession Act (Cap 160) governs the creation, validity, and execution of wills. This writeup provides a detailed overview of a will, the requirements, contents, and procedures for writing a valid will in Kenya.
A will is a legal declaration by a person (the testator) of their intentions for the distribution of their property upon death. It can be written or oral and must comply with specific legal requirements to be valid. A will may include codicils, which are written amendments or additions to the will, signed and witnessed in the same manner as the original document.
<h3>Types of Wills</h3>
- Written Will: A documented will, either typed or handwritten, signed by the testator and witnessed by at least two competent witnesses.
- Oral Will: A verbal declaration made in the presence of two competent witnesses, valid only if the testator dies within three months of making it. An oral will does not revoke a written will.
Writing a will provides several benefits:
- Clarity and Certainty: It ensures the testator’s wishes are followed, reducing ambiguity for surviving family members.
- Conflict Prevention: A clear will minimizes disputes over property distribution.
- Comprehensive Distribution: It allows the testator to distribute both real property (e.g., land) and movable property (e.g., money, shares, intellectual property, personal effects).
- Guardianship and Trusts: A will can appoint guardians for minor children or establish trusts for specific purposes.
- Funeral Wishes: It may include non-binding instructions for the disposal of the testator’s body.
Without a valid will, the estate is distributed according to the Law of Succession Act, which may not align with the deceased’s wishes and could lead to disputes or delays.
<h3>Who Can Write a Will?</h3>
To write a valid will in Kenya, the testator must have testamentary capacity, which includes:
a) Age: The testator must be at least 18 years old.
b) Sound Mind: The testator must understand the nature of the will, the extent of their property, and the implications of their decisions. A person is presumed to be of sound mind unless proven otherwise (e.g., through medical evidence of mental incapacity).
c) Free Will: The will must be made voluntarily, without coercion, fraud, undue influence, or importunity (persistent pressure). A will made under such circumstances is void or voidable.
<h3>Requirements of a Valid Will</h3>
Written Will
A written will must meet the following requirements:
- Written Form: The will must be documented, either typed or handwritten.
- Testator’s Declaration: The will must include the testator’s name, address, and an unequivocal statement that it is their last will and testament. This revokes any prior wills or codicils, as the latest valid will supersedes earlier ones.
- Signature: The will must be signed by the testator or by another person in the testator’s presence and at their direction. The signature must appear intentional to give effect to the document.
- Witnesses: The will must be attested by at least two competent witnesses who:
- Are adults of sound mind.
- Are not beneficiaries of the will (or their spouses), as this may invalidate their attestation.
- Witness the testator’s signature or acknowledgment of the signature and sign the will in the testator’s presence.
- Date: While not mandatory, including the date helps establish the will’s validity and precedence over other wills.
Oral Will
An oral will is valid if:
- It is made in the presence of two competent witnesses.
- The testator dies within three months of making the declaration.
- There is no conflicting evidence from witnesses that could invalidate the will.
Notably, the testator can only bequeath property they legally own. Attempting to gift property that does not belong to the testator invalidates that specific bequest but does not necessarily void the entire will.
<h3>Contents of a Written Will</h3>
A written will typically includes the following components:
<ol>
<li>Declaration: A clear statement by the testator that this is their last will and testament, revoking all previous wills and codicils.</li>
<li>Bequests/Gifts: Details of the property (real or movable) to be distributed, the recipients, and any conditions attached to the gifts.</li>
<li>Appointment of Executor: The testator may name an executor to manage and distribute the estate. This is optional; if no executor is named, the court appoints administrators.</li>
<li>Additional Provisions (optional):
<ul>
<li>Appointment of guardians for minor children.</li>
<li>Appointment of trustees to manage trusts established by the will.</li>
<li>Instructions for paying taxes or liabilities.</li>
<li>Non-binding directions for funeral arrangements or body disposal.</li>
</ul>
</li>
<li>Execution and Attestation: The testator’s signature and the signatures of at least two witnesses, as described above.</li>
</ol>
A will or parts of it may be deemed invalid due to:
<ul>
<li>Lack of Testamentary Capacity: If the testator was underage or not of sound mind.</li>
<li>Coercion or Fraud: If the testator was forced or deceived into making the will.</li>
<li>Undue Influence or Importunity: Persistent pressure that overrides the testator’s free will.</li>
<li>Mistake: Errors in the will’s content or execution (e.g., signing the wrong document).</li>
<li>Improper Execution: Failure to meet signing or witnessing requirements.</li>
<li>Conflict in Evidence: For oral wills, contradictory witness testimonies.</li>
<li>Invalid Gifts: Bequeathing property the testator does not own or gifts to attesting witnesses (unless additional witnesses sign).</li>
</ul>
<blockquote>Notably, if a specific provision is invalid, the rest of the will may remain valid unless the invalidity fundamentally undermines the document. Courts may also alter a will to provide for dependants if the will fails to make reasonable provision for them.</blockquote>
A will can be revoked or destroyed by:
<ul>
<li>Writing a New Will or Codicil: A new valid will or codicil automatically revokes the previous one.</li>
<li>Marriage: Marriage revokes a will unless the will was made in contemplation of the marriage.</li>
<li>Physical Destruction: Burning, tearing, or otherwise disposing of the will (e.g., throwing it into a latrine) with the intent to revoke it.</li>
<li>Written Declaration: A written statement by the testator, signed and witnessed, declaring the intent to revoke the will.</li>
</ul>
To ensure a will is accessible after the testator’s death, it can be stored with:
<ul>
<li>A trusted family member or friend.</li>
<li>A lawyer’s office.</li>
<li>A bank or safe deposit box.</li>
<li>The court registry (e.g., Principal Registry or High Court).</li>
</ul>
<h3>Obtaining a Grant of Probate</h3>
A Grant of Probate is a court-issued document that confirms the executor’s authority to administer the estate according to the will. The process includes:
<ol>
<li>Application: The executor files a petition and affidavit in the prescribed form at the court registry, along with:</li>
<li>The original will and two copies.
<ul>
<li>The original death certificate.</li>
<li>Proof of the testator’s assets and liabilities (e.g., bank statements, title deeds).</li>
</ul>
</li>
<li>Verification: The Deputy Registrar reviews the documents and places the file before a judge.</li>
<li>Advertisement: The application is advertised in the Kenya Gazette, allowing 30 days for objections.</li>
<li>Issuance: If no objections are raised, the court issues the Grant of Probate with a copy of the will attached.</li>
<li>Confirmation: The grant is confirmed after six months, allowing the executor to distribute the estate.</li>
<li>If no executor is named or willing to act, interested parties must apply to the court for Letters of Administration with Will Annexed.</li>
</ol>
The Will Executor is responsible for:
<ol>
<li>Applying for the Grant of Probate.</li>
<li>Identifying and collecting the testator’s assets.</li>
<li>Paying debts, taxes, and liabilities.</li>
<li>Distributing the estate according to the will.</li>
<li>Maintaining records of all transactions.</li>
</ol>
The executor is obligated to act in the best interests of the beneficiaries and comply with the law. If any dispute arises, the court may intervene to ensure fair administration. The Courts are empowered to:
<ul>
<li>Alter a will to provide for dependants if it fails to make reasonable provision.</li>
<li>Resolve disputes over the will’s validity or interpretation.</li>
<li>Appoint administrators if no executor is named or willing to act.</li>
</ul>
Dependants (e.g., spouses, children, or others reliant on the testator) can apply to the court for provision from the estate within six months of the Grant of Probate.
<h3>Testamentary Freedom</h3>
Testamentary freedom in Kenya, as outlined in Section 5 of the Law of Succession Act (Cap. 160), grants adults of sound mind the right to dispose of their property through a will as they see fit, regardless of gender or marital status. This freedom allows testators to distribute their estate according to their wishes, referencing secular or religious laws. However, this right is not absolute.
Section 26 of the Act permits courts to intervene if a testator fails to make reasonable provision for dependents, such as spouses or children, who were reliant on them during their lifetime. Courts may order provisions for such dependents without invalidating the will. Additionally, a will can be challenged if it was made under fraud, coercion, undue influence, or if the testator lacked testamentary capacity. Thus, while testamentary freedom is a cornerstone of estate planning in Kenya, it is balanced by legal safeguards to protect dependents and ensure fairness.
The case of Harvinder Kaur Dadhialla v Mohamed Munir Chaudri &amp; Others (Civil Appeal No. E309 of 2021) has profound implications for testamentary freedom in Kenya. The case illustrates the balance between a testator’s right to dispose of their property and the court’s authority under Section 26 of the Act to ensure reasonable provision for dependents. Harvinder, the biological daughter of Gurdip Kaur Sagoo, was excluded from her mother’s will, which favored her daughters-in-law. The exclusion was allegedly influenced by her father’s will, which claimed Harvinder had been provided for during his lifetime. Harvinder challenged this, arguing that her mother’s testamentary freedom was independent and that her exclusion was unlawful.
The key effects of the case on testamentary freedom include:
A. Limits of Testamentary Freedom
Section 26 empowers courts to intervene when a dependent is inadequately provided for. The Court of Appeal’s award of Kshs. 130 million to Harvinder, despite her exclusion, reaffirms that testamentary freedom is not absolute. Testators must consider their responsibilities to dependents, as seen in Elizabeth Kamene Ndolo v George Matata Ndolo (1996).
B. Independence of Wills
The court ruled that Gurdip’s will was not bound by her husband’s intentions. Importing Balwant’s wishes into Gurdip’s will was erroneous, as each testator’s intentions must be derived from their own document. This upholds the autonomy of individual wills.
C. Burden of Proof
As a biological child, Harvinder was not required to prove dependency but needed to show a compelling need. Her financial dependence on her husband justified provision, highlighting the court’s discretion in favor of dependents in substantial estates.
D. Cultural Practices and Discrimination
The respondents’ reliance on Sikh cultural practices was rejected as discriminatory under Article 27 of the Constitution. This limits the use of cultural norms to justify exclusion, prioritizing statutory and constitutional law.
E. Reasonable vs. Equal Provision
The court rejected Harvinder’s request for an equal share, emphasizing that reasonable provision does not equate to equal distribution. The Kshs. 130 million award balanced the testator’s intent with the dependent’s needs.
<h3>Conclusion:</h3>
The case underscores that testamentary freedom is subject to judicial oversight to protect dependents. Testators must therefore draft clear, independent wills and avoid discriminatory practices. Careful estate planning is essential to minimize challenges and ensure intentions are honored.
<blockquote>A will is essential to ensure your loved ones are cared for and your assets are distributed according to your wishes. 
Take all factors into account and engage a lawyer to create a legally sound, enforceable will that complies with applicable laws.
For assistance with your will, reach out to our probate and administration law specialists, available to support you anywhere in Kenya.
Contact us for expert legal guidance at +254 716 808 104.</blockquote>
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