Most contested wills fail on simple technical defects. Understanding the requirements of a valid will under the Law of Succession Act (Cap. 160) prevents most disputes.
Written, oral and privileged wills
Section 8 recognises written wills (the norm), oral wills (valid for three months and only where made in the presence of two witnesses) and privileged wills for members of the armed forces on active service.
Witnesses and signatures
A written will must be signed by the testator (or by another person on the testator's direction in the testator's presence) in the presence of two or more witnesses who each sign in the testator's presence.
Mental capacity
The testator must understand the nature of the act, the extent of the property and the claims of those who might expect to benefit. Capacity is presumed but can be challenged on medical evidence.
Revocation
A will is revoked by a subsequent will, by destruction with intention to revoke, or by marriage (unless the will was made in contemplation of the marriage). Divorce does not automatically revoke a will.
Common grounds for challenge
Undue influence, fraud, forgery, failure of due execution, lack of capacity and failure to provide for dependants under Section 26 are the recurring grounds for probate disputes.
Citations & further reading
Frequently asked questions
Does a will need to be registered in Kenya?
No. Registration is not required. Many testators deposit their will with their advocate or the Public Trustee for safekeeping.
Can a beneficiary witness a will?
A beneficiary should not witness the will. Under Section 13, a gift to an attesting witness is void, although the will itself remains valid.
Related practice areas
This article is for general information only and does not constitute legal advice. Readers should obtain specific counsel on their particular matters.