The formal requirements
Under the Law of Succession Act a written will must be signed by the maker, or signed by someone else at the maker's direction and in the maker's presence, and it must be attested by at least two competent witnesses. Each witness must have seen the maker sign, or seen another person sign at the maker's direction, and must then sign in the maker's presence. Oral wills are recognised in narrow circumstances and are a poor substitute for a written document. The maker must be of sound mind and, in general, of full age.
Witnesses: the most common failure
A beneficiary should not witness the will. Nor should the spouse of a beneficiary. Witnesses who cannot later be traced, or who did not actually watch the signing because the document was passed around an office, create precisely the evidential gap that a challenge exploits. Record the full names, identification numbers, occupations and addresses of the witnesses on the document itself.
A will that will not be easily unsettled
- Signed by the maker, in the presence of both witnesses
- Two competent witnesses, neither a beneficiary nor married to one
- Full identification details for maker and witnesses
- A clear appointment of executors, with an alternate
- A complete schedule of assets and liabilities
- Express revocation of every earlier will
- A statement of intentions where a dependant is excluded
- The original stored somewhere the executors can find it
Testamentary freedom is not absolute
The maker may dispose of property as they choose, but dependants may apply to the court for reasonable provision, and the court may vary the distribution. A will that explains the maker's reasoning, particularly where a dependant is provided for outside the will or deliberately excluded, is materially harder to challenge than one that is silent. Silence is read as oversight.
Land, business interests and assets abroad
Land held under customary tenure, agricultural land subject to consent requirements, shares in a private company with pre-emption provisions in its articles, and assets located in another country each raise questions a standard form cannot answer. Property outside Kenya may require a will made under the law of that jurisdiction, and two wills must be drafted so that neither revokes the other.
Revocation, and keeping the will current
A will is revoked by a later will, by a written declaration of revocation executed with the same formalities, or by destruction with that intention. Marriage, divorce, the birth of a child, the sale of a major asset and the death of an executor are all reasons to review. Amending a will by writing on the original is not amendment; it is a defect.
Which route to use
For a straightforward estate, Wosia produces a structured Kenyan will online in about thirty minutes, backed by lawyers, and is a considerably better outcome than the intestacy that follows from doing nothing. Where there is land, a business interest, a blended family or an asset abroad, the will should be drafted by an advocate. If you are not sure which of those describes you, that is itself a reason to ask.
This guide is general information about the law in Kenya and is not advice on your particular circumstances. Speak to an advocate about your own facts.
This guide is general information about the law in Kenya and is not advice on your particular circumstances.
Speak to an advocate