Contesting a will in Kenya is possible, but it is not a matter of simply disagreeing with how an estate is shared. You must show a recognised legal ground, and you must act at the right moment in the probate process. This guide sets out the grounds, the steps, and the deadlines that decide whether a challenge succeeds.
This guide is for beneficiaries, executors and dependants who believe a will does not reflect what the deceased truly intended, or who need to defend a will that is under attack. It explains, in plain terms, when a Kenyan court will hear a challenge and how to bring one. It sits within the wider probate and administration process.
Before you can challenge a will, it helps to know what the law asks of a valid one. In short, section 5 of the Law of Succession Act (Cap 160) gives any person of sound mind, who is not a minor, the freedom to dispose of their property by will. It also places the burden of proving unsoundness of mind on the person challenging the will. A written will must then meet section 11. That means it is signed by the testator, or by someone else at their direction, and attested by at least two competent witnesses who saw the signing.
There is also an oral will. Under section 9, an oral will needs two or more competent witnesses. It is valid only if the testator dies within three months of making it, with a limited exception for members of the armed forces on active service. Most disputes, though, concern written wills, and most turn on how the will was made rather than on what it says.
A will challenge usually rests on one or more of five grounds.
Lack of testamentary capacity. The testator must have understood that they were making a will, the extent of their property, and the people who might expect to benefit. Advanced illness, dementia, or heavy medication at the time of signing can put capacity in issue. Because section 5 places the burden of proving unsoundness of mind on the challenger, medical records and the evidence of those present at the signing carry real weight.
Undue influence. A will must reflect the testator’s own wishes, not pressure from someone who stood to gain. The classic case is coercion of a frail or dependent testator by a carer, relative, or beneficiary. In our view this is the most heavily litigated ground, and also the hardest to prove, because the influence is rarely documented.
Fraud or forgery. A forged signature, a substituted page, or a will procured by deceit is void. Handwriting and forensic evidence often decide these cases.
Want of proper execution. The will may not have been signed and witnessed as section 11 requires — for example, only one witness attested, or a beneficiary was one of only two witnesses. Under section 13, a gift to an attesting witness is void unless the will is also attested by at least two additional competent and independent witnesses. Section 14 confirms that an executor is not disqualified from witnessing.
Lack of knowledge and approval. Even a properly executed will can fail where the testator did not know and approve its contents — for instance, where a blind or illiterate testator was not shown to have understood what they signed.
Separately, a will can be revoked. Under section 18, a later will or an act of destruction revokes it. Under section 19, marriage revokes an earlier will unless the will was made in contemplation of that marriage. A “valid” will that was in fact revoked no longer governs the estate.
Grounds are only half the battle; timing and procedure decide most cases. Here, the Probate and Administration Rules 1980 provide the machinery.
Lodge a caveat. Under rule 15, a person with an interest lodges a caveat at the registry, in the prescribed form and on payment of the fee. The court will then not issue a grant without notifying the caveator. Once notified of an application, the caveator has 30 days to lodge an objection; if they do not, the caveat ceases to have effect for that grant. A caveat is an early-warning device, not a permanent block.
File an objection and answer. Where a petition for a grant is opposed, rule 17 governs the objection, the answer to the petition, and any cross-application. The objector files an objection within the period fixed in the notice, and then an answer in the prescribed form (Form 25). The matter proceeds as a contested cause, and the court hears evidence on the disputed will rather than admitting it as a formality.
Citations. The Rules also allow a citation. Under rule 22, an executor or person entitled can be cited to accept or refuse a grant; under rule 23, a person holding a document said to be a will can be cited to propound it. That last tool is useful where someone is sitting on a will and refusing to act.
Not every grievance is a challenge to the will’s validity. Sometimes the will, or the intestacy rules, simply fails to make reasonable provision for a dependant. In that case, section 26 of the Act allows the court to order reasonable provision out of the net estate. Section 29 defines who counts as a dependant, including a surviving spouse and children, and other relatives the deceased was maintaining. This is a distinct remedy: the will may stand, yet the court adjusts what the dependant receives. For families facing this on an intestacy instead, our guide to intestate succession in Kenya explains how the estate is shared where there is no valid will.
What are the grounds to contest a will in Kenya? A will can be challenged where the testator lacked testamentary capacity, was subject to undue influence, or where there was fraud or forgery, improper execution, or a lack of knowledge and approval of the contents. General unfairness is not, by itself, a ground.
How many witnesses must a valid written will have? Under section 11 of the Law of Succession Act, at least two competent witnesses must attest the will, having seen the testator sign.
Is there a time limit to contest a will? Act early. There is no benefit in waiting, and once a grant has been confirmed it is far harder and more expensive to unwind. The practical step is to lodge a caveat at the registry to preserve your position while you take advice.
What is a caveat, and how long does it last? A caveat is a notice lodged at the probate registry that stops a grant issuing without notifying you. Once you are notified of an application for a grant, you have 30 days to lodge an objection, failing which the caveat ceases to have effect for that grant.
Can I contest a will simply because it is unfair? No. Unfairness on its own is not a ground to set a will aside. But if you were a dependant of the deceased and were left without reasonable provision, you may apply under section 26 for provision out of the estate, even where the will is valid.
The costly mistakes are familiar. Leaving it too late, so the grant is confirmed before any objection is lodged. Objecting in vague, general terms instead of pinning the challenge to a recognised ground. Confusing a challenge to the will’s validity with a section 26 claim for provision — they are different cases with different evidence. And failing to preserve the evidence a court will want: the original will, medical records, and the details of the attesting witnesses.
Our Private Clients, Wealth and Family team advises executors, beneficiaries and dependants on contested estates, from lodging caveats and objections to running a full probate cause. If you are considering contesting a will, or defending one, speak to Andrew Mochu in our Private Clients, Wealth & Family practice. We also handle related trust disputes, and can help you get a will right in the first place — see our guide to how to write a will in Kenya.
This article is a general guide only and is not legal advice. Please seek advice on your specific circumstances.
