A will is a legal declaration of how a person wishes their estate to be distributed after death. In Kenya, the Law of Succession Act sets out the requirements for a valid will, and strict compliance with these requirements is essential — a will that fails to meet the statutory requirements may be invalid, leaving the estate to be distributed on intestacy instead.
Who Can Make a Will?
Any person who is 18 years of age or older and of sound mind may make a will. A person who lacks testamentary capacity — through mental illness, dementia or undue influence — cannot make a valid will. Courts may refuse to admit a will to probate if capacity is in question.
Formal Requirements
Under the Law of Succession Act, a valid written will must be:
- In writing: The will must be in written form (typed or handwritten).
- Signed by the testator: The testator must sign at the foot or end of the will, or acknowledge a prior signature in the presence of witnesses.
- Witnessed: Two or more witnesses must be present simultaneously and must sign the will in the presence of the testator. Witnesses (and their spouses) should not be beneficiaries under the will — a gift to a witness is void.
What Should a Will Cover?
A comprehensive will should address: identification of the testator, appointment of executors, specific bequests of significant assets, the residuary estate (everything not specifically given), guardianship of minor children, and any funeral or burial wishes.
Common Mistakes
- Failing to update the will after marriage, divorce or the birth of children.
- Not making provision for a spouse or dependant, risking a legal challenge.
- Appointing an executor who predeceases the testator without naming an alternative.
- Using vague or ambiguous language that creates disputes among beneficiaries.
Professional Drafting
While it is legally possible to write your own will, professional drafting by an advocate is strongly recommended for anyone with significant assets or a complex family situation. A professionally drafted will reduces the risk of challenges and ensures the testator's true intentions are carried out.