Drafting a Will in Kenya That Survives a Challenge

Clients assume a will fails because of a technical defect in signing. In practice, execution is straightforward and rarely the problem. The wills that are successfully challenged in Kenya are usually the ones that ignored someone the statute protects.

This article covers the formalities, the dependant provision rules that override them, and the drafting choices that determine whether a will survives.

The execution formalities

A written will must be signed by the testator, or by another person in the testator's presence and at their direction. The signature must be 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.

Two points catch people. The witnesses must be present simultaneously — a will signed in front of one witness on Monday and another on Tuesday is defectively executed. And a beneficiary who witnesses does not invalidate the will, but their gift fails. Asking an adult child to witness is the most common version of this error.

Oral wills are recognised narrowly: made before two or more competent witnesses, with the testator dying within three months, except for armed forces members on active service. They are frequently contested and are no substitute for a written will.

Capacity, and how to evidence it

The testator must understand the nature of the act, the extent of their property, and the claims of those who might expect to benefit.

Capacity is presumed, and the burden of challenging it sits with the objector. But where a testator is elderly, unwell, or making a significant change from a previous disposition, contemporaneous evidence is what defeats a later challenge.

Practical steps: a detailed attendance note by the drafting advocate recording the discussion and the testator's understanding; where there is any doubt, a medical opinion obtained at or near the time; and instructions taken from the testator alone, without the principal beneficiary present.

That last point matters independently — instructions taken in the presence of the person who benefits most invites an undue influence argument even where none existed.

Dependant provision: the rule that overrides the will

This is the provision that decides most Kenyan will disputes.

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.

Dependants comprise the wife or wives, former wives, and children of the deceased, whether or not maintained immediately before death. They also include 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.

The court considers the nature and amount of the estate, past and present contributions by the applicant, the deceased's reasons where ascertainable, and the general circumstances.

The consequence for drafting is direct. A testator who excludes a dependent adult child, a former wife, or an elderly parent they had been supporting has not prevented that person from taking. They have converted a distribution decision into litigation funded by the estate.

How to draft around it

Not by ignoring it. Three approaches work.

Provide something. A modest provision to a person who might otherwise claim frequently costs less than defending the claim, and a court asked whether provision was reasonable starts from a different place where some provision was made.

Record the reasoning. Where a testator deliberately excludes someone, a statement of reasons — in the will or in a contemporaneous letter kept with it — is evidence the court is entitled to consider. "I have made no provision for X because I transferred the Kiambu property to him in 2019" is materially more persuasive than silence.

Deal with it in life. Lifetime provision, documented, reduces both the claim and its moral force.

Our estate planning practice treats the dependant analysis as the first drafting question rather than a technical afterthought, because it is where the risk actually sits.

Choosing executors

Executors should be willing, capable, and likely to outlive the testator. Name substitutes — a will whose sole named executor has died requires an application for letters of administration with the will annexed, which is slower than probate would have been.

Consider whether a beneficiary should be an executor. It is common and usually workable, but where the estate is contentious an independent executor reduces friction and the suspicion of self-dealing.

Executors owe duties to account and can be personally liable for distributing before creditors have had the opportunity to come forward. The role deserves a conversation before the appointment rather than a surprise afterwards.

Provisions worth including

Guardianship of minor children, with a substitute.

A residuary clause catching anything not specifically gifted. Without one, assets acquired after the will was made pass on intestacy — a partial intestacy alongside a valid will, which is exactly the complication a will is meant to avoid.

Substitutional gifts providing for what happens if a beneficiary dies first.

Trusts for minors, with defined ages of entitlement, rather than outright gifts to children who may inherit at eighteen.

Specific gifts of land identified by title number, not description. "My house in Karen" fails if the testator owned two.

Funeral and burial wishes, which in Kenya are frequently contentious and worth recording even though they are not strictly binding.

Business interests

Where the estate includes a company, the will must be coordinated with the shareholders' agreement and the articles.

Where the will leaves shares to a child but the shareholders' agreement requires them to be offered to surviving shareholders, the agreement generally prevails as a contract binding the shares — and the beneficiary receives proceeds rather than shares. That may not be what the testator intended, and it is discoverable at drafting.

Probate can also freeze a trading company: bank mandates lapse, shares are frozen until confirmation, and where the deceased was sole director the board ceases to function. Continuity provisions belong in the corporate documents, not the will. Our corporate law team addresses these together.

Assets that pass outside the will

Pension and insurance benefits with a valid nomination pass to the nominee directly. Jointly held property with a right of survivorship passes to the survivor. Assets held in trust are governed by the trust deed.

A will that purports to dispose of these has no effect on them. An outdated pension nomination naming a former spouse defeats the will's intention entirely, and reviewing nominations is part of making a will rather than separate from it.

Wills for cross-border families

Where a testator holds assets in more than one country, a single global will is simpler to make and considerably harder to administer.

It must be proved in each jurisdiction, meaning the original travels between courts, and a will drafted for one legal system may execute or interpret badly in another. Administration runs consecutively rather than in parallel.

Separate interlocking wills — one per jurisdiction, each limited to that country's assets — allow both probates to proceed at once. The saving in time is substantial for families whose Kenyan estate would otherwise wait on a foreign grant.

The critical requirement is that each will expressly does not revoke the other. Wills drafted independently by advisers unaware of each other routinely contain general revocation clauses, so the later will revokes the earlier and the family is left with an unintended intestacy in one country. This is the single most common defect we see in cross-border estate planning.

Each will should also be executed to the formalities of its own jurisdiction, and the Kenyan will should identify the Kenyan assets specifically rather than by general description.

Storage, revocation and review

Store the original securely and tell the executors where it is. A copy raises a presumption that the original was destroyed with intent to revoke — rebuttable, but an evidential burden nobody needs.

A will is revoked by a later will, by destruction with intent to revoke, or by marriage unless expressed to be made in contemplation of it. Divorce does not automatically revoke a will in Kenya, which means a former spouse can inherit under a will nobody updated.

Review after marriage, divorce, a birth, a death among beneficiaries or executors, a significant acquisition, a change in the business, or relocation abroad. Every three years otherwise.

Common drafting failures

Vague identification of gifts. "My car" where the testator owned three. "My house in Karen" where there were two. Identify land by title number and assets by specific description.

No substitute beneficiaries. A gift to a beneficiary who dies before the testator lapses and falls into residue, or into intestacy where there is no residuary clause.

Gifts of assets already disposed of. A specific gift of property the testator sold before death simply fails, and the intended beneficiary receives nothing while others take the sale proceeds through residue.

Unequal treatment without explanation. Not a legal defect, but the most reliable predictor of a challenge. Where children are treated differently, record why.

Homemade wills. Precedents downloaded from foreign sources routinely use terminology and structures that do not fit Kenyan succession law, and they never address dependant provision.

What a properly drafted will costs, and what it saves

Drafting a will is inexpensive relative to almost any other legal work. Contesting one is not.

A dependant provision claim, a capacity challenge, or a dispute about a specific gift can consume years and a substantial portion of the estate's value, and costs in contested succession are frequently ordered out of the estate — meaning the family collectively funds the dispute regardless of who wins.

The wills that avoid this are not the ones with the simplest families. They are the ones where the drafting anticipated the claim the statute permits.