A will is the difference between deciding who inherits your estate and letting the law decide for you. Yet many Kenyans put it off, and their families pay for it in delay and disputes. How to write a will in Kenya is not complicated, but a will must meet legal requirements to be valid. This guide explains those requirements and what a good will contains.
This guide is for anyone with property, a family or a business who wants to control what happens to their estate. If you want an overview of estate planning, start with our estate planning and succession page. To understand what happens without a will, see our guide to intestate succession, and for the process after death, our guide to probate and administration.
In practice, a will does three things. First, it lets you decide who receives your property, rather than leaving it to a statutory formula. Next, it lets you appoint the executors who will carry out your wishes, so your family is not left to sort out who is in charge. In addition, it lets you name guardians for children who are still minors, which is often the most important decision of all. A will also makes administering your estate quicker and less contentious, sparing your family a harder version of an already hard time.
A will has to meet the requirements of the Law of Succession Act (Cap 160) to be effective. For a written will, the essentials are straightforward. You must be of sound mind and making the will freely. The will must be in writing. You must sign it, or acknowledge your signature, and the signature must be made or acknowledged in the presence of at least two competent witnesses, present at the same time, who then attest and sign. A crucial practical point is that a witness should not be a beneficiary, or the married partner of one, because a gift to a witness can fail even though the will itself stands.
A clear will covers a handful of things well:
One important limit deserves emphasis. Under the Act, a will does not give you an entirely free hand to leave out those who depend on you. A dependant who is not reasonably provided for can apply to the court, which may order provision out of the estate. So a will that ignores a spouse, a child or another dependant can be challenged and adjusted. Good drafting takes this into account rather than inviting a fight.
A will is only useful if it can be found and is current. Keep the signed original somewhere safe and known to your executors, and review the will after major life events, a marriage, a divorce, a birth, a significant purchase, or the death of a beneficiary. Marriage in particular can affect an existing will, so revisit it when your circumstances change.
How many witnesses does a will need in Kenya? At least two competent witnesses, present at the same time, who attest and sign.
Can a beneficiary witness the will? They should not. A gift to a witness can fail, so use independent witnesses.
Can I leave my property to whomever I want? Largely, but you cannot leave a dependant without reasonable provision, or the court may intervene.
Do I need a lawyer to write a will? It is not strictly required, but a professionally drafted will is far less likely to fail or be disputed.
What happens if I die without a will? Your estate passes under the rules of intestacy, which may not match your wishes.
For example, the frequent mistakes are using a beneficiary as a witness, so a gift fails; signing without two witnesses present together, so the will is invalid; leaving a dependant unprovided for, inviting a claim; and writing a will and then losing it or never updating it. Others use vague wording that causes disputes over what was meant.
Our private clients team drafts wills that are valid, clear and hard to challenge, advising on executors and guardians, provision for dependants, and the fit between a will and any trust or business succession plan. We also store wills and update them as your life changes. To make or update your will, contact John Maina, Partner, at OLM Law Advocates LLP.
This article is a general guide only and is not legal advice. Please seek advice on your specific circumstances.
OLM Law Advocates LLP advises families and individuals on wills, probate, family trusts and succession planning.
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