Challenging a Will in Kenya: Grounds, Evidence and Realistic Odds

A family that feels wronged by a will usually reaches for undue influence. It is the most intuitive complaint and the hardest to prove. The claim that would actually succeed is often sitting unused.

This article sets out the four routes, what each requires, and how to identify which one fits.

Route one: dependant provision

The strongest and most under-used route.

Under the Law of Succession Act, a dependant who has not been reasonably provided for may apply to court for provision out of the estate — regardless of what the will says. The applicant does not have to show the will is invalid, that the testator lacked capacity, or that anyone behaved improperly. Only that reasonable provision was not made for them.

Who qualifies. The wife or wives, former wives, and children of the deceased, whether or not they were being maintained. Also parents, step-parents, grandparents, grandchildren, step-children, adopted children and siblings — but this second group only where they were being maintained by the deceased immediately before death.

What the court considers. The nature and amount of the estate; any contributions the applicant made to the deceased's property or welfare; the deceased's reasons for the disposition, where these can be ascertained; the applicant's own means and needs; and the general circumstances.

The court is not asking whether the testator was fair. It is asking whether the provision made was reasonable in the circumstances.

Route two: lack of testamentary capacity

The testator must have understood the nature of the act of making a will, the extent of their property, and the claims of those who might expect to benefit.

Capacity is presumed, and the burden of displacing that presumption sits with the challenger. Where the will was professionally drafted and the advocate kept an attendance note recording the discussion, that burden is heavy.

The evidence that succeeds is contemporaneous and medical: records showing cognitive impairment at or near the date of execution, a diagnosis predating the will, or evidence that the testator did not know what they owned.

Evidence that rarely succeeds: family members' recollection that the deceased "was not himself", or that the disposition was surprising. An eccentric or unfair will made by someone with capacity is a valid will.

Route three: undue influence

The route families reach for first and the hardest to establish.

Undue influence requires coercion — pressure that overpowered the testator's own volition. Persuasion is not enough. Nor is a close relationship, dependence on the beneficiary, or the beneficiary having arranged the appointment with the advocate.

Unlike some lifetime transactions, there is no presumption of undue influence in the making of a will. The challenger must prove it affirmatively, and courts require the evidence to be inconsistent with any other explanation.

Circumstances that support such a claim: a testator who was physically dependent and isolated from other family; a will made shortly before death that reversed a long-standing disposition; a principal beneficiary who was present when instructions were given and who controlled access to the testator.

Even then, the argument is difficult. Where the same facts also support a dependant provision claim, the provision claim is usually the better route.

Route four: defective execution

A will must be signed by the testator, or by another in the testator's presence and at their direction, with the signature made or acknowledged in the presence of two or more competent witnesses present at the same time, who then attest in the testator's presence.

The failures: witnesses not present simultaneously; no attestation; the testator's signature not acknowledged; alterations made after execution without re-attestation.

These challenges succeed where the will was homemade. They rarely succeed where an advocate supervised execution, because the attestation clause raises a presumption of due execution which is difficult to displace.

Note the related trap: a beneficiary who witnesses does not invalidate the will, but their gift fails. That is not a challenge to the will so much as a defect in one gift.

Which claim actually fits?

Work through it in this order.

Were you a dependant who received nothing or very little? If so, dependant provision is almost certainly your strongest route, and it does not require alleging misconduct by anyone.

Is there contemporaneous medical evidence of impairment at the date of execution? If so, capacity is arguable. Without such evidence it usually is not.

Was the testator isolated, dependent, and did the will reverse a long-standing position shortly before death? If so, undue influence may be arguable, but expect it to be difficult.

Was the will homemade? If so, check execution carefully.

Our dispute resolution practice advises on which ground fits before proceedings are filed, because pursuing the wrong one is expensive and frequently forecloses the right one through delay.

Procedure and timing

A challenge to a will is made by lodging an objection to the application for a grant of probate, following the gazettement of that application. The objection is supported by an affidavit setting out the grounds.

Where the grant has already issued, the route is an application to revoke or annul it — available where the grant was obtained fraudulently, by concealment of material facts, or where the proceedings were defective.

A dependant provision claim is brought by summons in the succession cause. There are time limits, and applications made after distribution face additional difficulty because the assets have gone.

Move at gazettement. A person who watches the process and objects at the confirmation stage, or afterwards, is in a materially worse position than one who objected when the application was advertised.

What it costs and how long it takes

A contested succession matter commonly runs three to seven years. The driver is the number of contested issues rather than the court's speed.

Costs in contested succession are frequently ordered out of the estate where the litigation was reasonable. That has a consequence families rarely anticipate: the estate funds both sides, so the asset everyone is fighting over shrinks regardless of who wins.

On a modest estate, two years of litigation can consume a substantial fraction of what is in dispute. That arithmetic should be put to clients at the outset.

Mediation

Court-annexed mediation is available and succession disputes are well suited to it, particularly between family members who will continue to see each other.

Before reaching that point, however, the evidence position should be understood, because it determines what any settlement is worth.

The drafting advocate's attendance notes are the single most valuable item in a contested succession. A note recording what the testator said, what they understood about their assets and family, who was present, and why they made the dispositions they did will defeat most capacity and undue influence challenges.

Medical records from around the date of execution. A challenger needs these to establish impairment; a defender needs them to rebut it. Their absence usually favours the defender, since capacity is presumed.

Evidence of lifetime provision. Where the testator transferred property to a child years earlier, that bears directly on whether the will's provision was reasonable. Transfers documented at the time carry weight; assertions made afterwards carry little.

The pattern of earlier wills. A disposition consistent with wills made over two decades is far harder to attack than one that reversed everything six weeks before death.

Mediation permits outcomes a court cannot order — one sibling taking the land and buying out the others over time, an agreement about the family home, arrangements for a surviving parent. A settlement recorded as a consent order is enforceable and final.

Where the dispute is genuinely about a point of law — whether a will was validly executed — mediation has less to work with. Where it is about fairness between family members, it usually has a great deal.

Defending a will

Executors and beneficiaries facing a challenge should assemble the file immediately.

The drafting advocate's attendance notes are the most valuable evidence, recording the testator's instructions, their apparent understanding, and whether anyone else was present. Medical records from around the date of execution. Evidence of the testator's relationship with the challenger, including any lifetime provision made to them.

Where the testator recorded reasons for excluding someone — in the will or a contemporaneous letter — that is evidence the court is entitled to consider on a dependant provision claim. Our estate planning practice drafts wills with this in mind precisely because it is what defends them.

Who has standing, and who does not

Not everyone unhappy with a will can challenge it, and identifying standing early avoids wasted proceedings.

For a dependant provision claim, standing is defined by the statute: spouse, former spouses and children whether or not maintained, plus parents, grandparents, grandchildren, step-children, adopted children and siblings where maintained immediately before death. A person outside those categories has no claim however deserving.

For a challenge to validity — capacity, undue influence, execution — standing belongs to anyone who would benefit if the will were set aside. That means beneficiaries under an earlier will, or those entitled on intestacy. A person who takes nothing either way cannot challenge.

This produces a strategic point. Where an earlier will exists and was more favourable, a validity challenge revives it if successful. Where there is no earlier will, success produces intestacy — and the challenger should confirm intestacy actually improves their position before pursuing it. Families occasionally succeed in invalidating a will only to discover the statutory distribution gives them less.

The preventive point

Almost every successful challenge we see traces to a will that ignored someone the statute protects.

A testator who wants to exclude a dependant should provide something, record the reasons, or deal with that person during their lifetime and document it. Doing none of the three does not prevent the claim — it guarantees it, and the estate pays for both sides.