A Will is one of the most powerful tools of estate planning. In Kenya, making a valid Will allows a person to express their wishes on how their property should be distributed upon their death. This not only provides clarity and control but also helps to avoid family disputes and lengthy succession proceedings.

1. Legal Framework for Wills in Kenya
The primary law governing Wills in Kenya is the Law of Succession Act (Cap 160). Key provisions on Wills are found in Part II of the Act. Under Section 5 of the Act, any person of sound mind and who is 18 years or older can make a Will.

2. Types of Wills in Kenya

• Oral Wills: Recognized under Section 9 of the Act. Must be made before two or more competent witnesses and only valid if the maker dies within 3 months.
• Written Wills: Covered under Section 11. Must be signed by the testator and witnessed by at least two competent witnesses who must sign in the presence of the testator.
• Privileged Wills: Available only to members of the armed forces or merchant marine under special circumstances.

3. Key Requirements for a Valid Written Will

• Must be made voluntarily by a person of sound mind
• Must be in writing
• Must be signed by the testator
• Must be attested by at least two competent witnesses
• Must clearly name the beneficiaries and assets

4. Revocation and Alteration of Wills
A Will can be revoked by:

• A subsequent Will or codicil
• Destruction by the testator with intent to revoke
• Marriage (unless it was made in contemplation of marriage)

Wills can also be altered by a codicil— a formally executed supplement to a Will.

5. Probate of a Will in Kenya
After the testator’s death, the executor named in the Will must apply for probate. This is done by filing a petition with the High Court (Family Division), including:

• The original Will
• A petition for probate
• Affidavit of the attesting witnesses (Form P&A 5)
• Statement of assets and liabilities
• Death certificate

If the Will is uncontested, probate is granted and the executor can begin administration of the estate.

6. Grounds for Challenging a Will

• Lack of testamentary capacity
• Undue influence or fraud
• Improper execution (e.g., not properly signed or witnessed)
• Forgery

Courts will uphold the Will unless the challenger proves serious legal defects.

7. Why You Should Make a Will

• Ensures your property goes to the right people
• Appoints guardians for minor children
• Reduces family conflict and court delays
• Allows you to appoint a trusted executor
• Enables tax and estate planning

Conclusion
Making a Will is a crucial part of responsible estate planning. It ensures your wishes are honored and your loved ones are protected from avoidable legal hurdles. Whether your estate is modest or substantial, a Will can provide clarity, reduce disputes, and safeguard your legacy.
Kenyan courts also remain guided by statutory law and sound legal principles, but also weigh intent, family dynamics, and equity. As seen in recent case law, the courts are increasingly attentive to procedural integrity and fairness when interpreting Wills.

For individuals looking to draft a Will, or for families navigating contested estates, seeking legal counsel is crucial for safeguarding intentions and minimizing conflict.

At P. A. KWEGA & CO. ADVOCATES we help individuals and families draft clear, legally sound Wills tailored to their unique needs.
Contact us for confidential assistance.
Contact us at;
Email : info@pkwegaadvocates.co.ke ; pkwega.advocates@gmail.com
or
Phone call : 0732575066
WhatsApp: 0732575066