In Kenya, planning for the distribution of one's estate after death is crucial for avoiding disputes and ensuring loved ones are provided for. The Law of Succession Act, Cap 160, governs wills and succession matters.

This guide provides general information on wills in Kenya, including requirements and processes. It is not legal advice. Consult a qualified lawyer for personalized guidance.

2. What is a Will?

A will is a legal document that outlines how a person's property and assets should be distributed after their death. It allows the testator to appoint executors, guardians for minors, and specify beneficiaries.

Under Kenyan law, a will must comply with statutory provisions to be valid. Without a will, intestacy rules apply, which may not align with the deceased's wishes.

3. Importance of Making a Will in Kenya

Creating a will ensures control over asset distribution.
It minimizes family conflicts and court interventions.
A will can protect vulnerable dependents and incorporate charitable gifts.
In Kenya, where family structures vary, a will provides clarity and peace of mind.

4. Types of Wills Recognized Under Kenyan Law

Kenyan law recognizes two primary types of wills under the Law of Succession Act. These include oral and written forms, each with specific validity conditions.

4.1 Oral Wills

An oral will is made verbally before at least two competent witnesses. It is valid only if the testator dies within three months of making it.

Exceptions apply for members of the armed forces or merchant marine during active service. Oral wills are less common due to proof challenges.

4.2 Written Wills

A written will is documented on paper, either handwritten or typed. It requires proper execution to be enforceable.

This type offers more certainty and is preferred for complex estates.

5. Legal Requirements for a Valid Will

For a will to be valid in Kenya, it must meet criteria set out in the Law of Succession Act. These ensure the testator's intentions are genuine and legally sound.

5.1 Testamentary Capacity

The testator must be at least 18 years old and of sound mind. Sound mind means understanding the nature of the will, the extent of property, and claims of potential beneficiaries.

5.2 Formalities for Execution

For written wills:

The testator must sign or mark the document.
Signature must appear at the end, indicating intent.
At least two competent witnesses must attest, each seeing the testator sign or acknowledge the signature.
Witnesses should not be beneficiaries to avoid conflicts.

5.3 Freedom from Undue Influence

The will must be made voluntarily, without fraud, coercion, or mistake. Any such influence renders the will void.

6. Step-by-Step Guide to Drafting a Will

Drafting a will involves careful planning. Here is general guidance:

1. Identify assets: List all property, including land, bank accounts, and investments.

2. Choose beneficiaries: Decide who receives what.

3. Appoint an executor: Select a trusted person to administer the estate.

4. Include guardians if needed: For minor children.

5. Write the document: Use clear language.

6. Execute properly: Sign in front of witnesses.

7. Store securely: Keep in a safe place or with a lawyer.

Timelines: A will takes effect upon death, but drafting can occur anytime after age 18.

7. Revoking or Amending a Will

A will can be revoked by making a new one, destroying the original, or through marriage unless specified otherwise. Amendments require a codicil, executed like a will. Compliance ensures the latest intentions prevail.

8. The Probate Process in Kenya

After death, the executor applies for probate at the High Court.
This involves filing the will, death certificate, and asset inventory.
The court grants probate if valid, allowing estate administration.
Process timelines vary but typically take 6-12 months.

9. Common Mistakes to Avoid

Not updating the will after life changes like birth or divorce.
Choosing beneficiary witnesses.
Vague language leading to disputes.
Failing to consider intestacy rules for uncovered assets.

Addressing these promotes smooth succession.

10. FAQ

Q1: What is the minimum age to make a will in Kenya?

The testator must be at least 18 years old, as per the Law of Succession Act.

Q2: Can Muslims make wills under Kenyan law?

Yes, but Muslims may opt for Islamic law under Section 2 of the Act, limiting dispositions to one-third of the estate.

Q3: How many witnesses are needed for a written will?

At least two competent witnesses who are not beneficiaries.

Q4: What happens if there is no will?

Intestacy rules apply, distributing assets to spouse, children, and relatives in order.

Q5: Can a will be contested?

Yes, on grounds like lack of capacity, undue influence, or forgery.

Q6: Is a lawyer required to draft a will?

Not mandatory, but recommended for compliance and complexity.

Q7: How long is an oral will valid?

Only if the testator dies within three months, with exceptions for military personnel.

Q8: What assets can be included in a will?

All free property, but joint assets may pass directly to survivors.

11. Simple Draft Will Template

This is a basic, adaptable template for a written will under Kenyan law. It is for illustrative purposes only and not legal advice. Customize it and ensure proper execution with witnesses.

Consult a lawyer for validity.

LAST WILL AND TESTAMENT

I, [Full Name], of [Address, including County], Kenya, being of sound mind and over the age of 18, hereby make this my Last Will and Testament.

1. Revocation: I revoke all previous wills and codicils.

2. Appointment of Executor: I appoint [Executor's Full Name], of [Executor's Address], as the executor of this will. If they are unable or unwilling, I appoint [Alternate Executor's Full Name] as alternate.

3. Guardianship: If applicable, I appoint [Guardian's Full Name] as guardian for my minor children.

4. Distribution of Assets:

I bequeath [specific asset, e.g., my house in Nairobi] to [Beneficiary's Full Name].
I bequeath [another asset] to [another Beneficiary].
The residue of my estate shall be divided equally among [list beneficiaries, e.g., my children].

5. Debts and Expenses: My executor shall pay all debts, taxes, and funeral expenses from my estate.

In witness whereof, I have signed this will on [Date] at [Place].

Signature of Testator: ____________________________

Witness 1:

Name: ___________________________

Address: _________________________

Signature: ________________________

Date: ____________________________

Witness 2:

Name: ___________________________

Address: _________________________

Signature: ________________________