A will written in an exercise book, signed by the maker and kept in a drawer is a common sight in Kenyan succession matters. Some such wills are upheld and others fail. The difference usually turns on the formal requirements of the Law of Succession Act, the capacity of the maker and whether the document truly records the maker’s own decisions. This article explains what makes a will valid and what to check before signing.
Quick answer
A written will must be signed by the testator and attested by two or more competent witnesses present at the same time. The testator must be an adult of sound mind, and the will should be clear about the assets and the beneficiaries. A will can be amended by codicil or replaced by a new will, and certain events, such as marriage, can affect an earlier will. Storage and safekeeping matter as much as drafting.
The formal requirements for a written will
The Law of Succession Act sets out the formal requirements for a written will. The document must be signed by the testator, and the signature must be made or acknowledged in the presence of witnesses who attest it. The witnesses must be competent and must be present at the same time. The formalities exist so that the court can be satisfied that the document records the testator’s own decisions, freely made.
An oral will is recognised only in narrow circumstances, so families should not rely on spoken wishes alone. Where the estate matters, a written and properly witnessed will is the safer course.
Who can make a will: capacity
An adult of sound mind may make a will. Capacity is judged at the time the will is made, which is why wills executed during serious illness, cognitive decline or heavy medication attract closer scrutiny. The testator should understand the nature of the document, the extent of the property being disposed of and the persons who would ordinarily be expected to benefit.
Where capacity may be questioned, the drafting process should record the circumstances: who was present, what was explained, and why the testator was able to understand the will. A medical assessment may be appropriate in some cases, and the records should be kept with the will.
What a will should cover
A will should identify the testator, revoke earlier wills, appoint an executor and, where there are minor children, a guardian. It should identify the assets and the beneficiaries clearly, and deal with the residue of the estate after specific gifts. Where a beneficiary is a minor or a person who needs support, the will can provide for a trust or a guardian.
Ambiguity is the enemy. A description such as my plot in the home area invites dispute if the family cannot agree which parcel was meant. Identifying the property by its registered details, and the beneficiaries by their full names and relationships, reduces the room for argument.
Witnesses and attestation
Witnesses should be competent adults who are not beneficiaries under the will, and they should be present together when the testator signs or acknowledges the signature. Each witness should then sign in the testator’s presence. A will witnessed by a beneficiary may create a conflict of interest and can affect the gift, so the choice of witnesses deserves attention.
Alterations, crossings-out and additions should be avoided after signing. If a change is needed, a codicil or a new will is the cleaner route, and the change should be witnessed in the same way as the original.
Codicils, revocation and change of circumstances
A testator may amend a will by codicil or replace it entirely with a new will. Certain events can affect the validity of an earlier will, and marriage is the familiar example, which is why reviewing a will after major life events is sensible. Births, deaths, divorce, the acquisition or sale of significant assets and changes in a family business are all reasons to revisit the document.
Revocation should be deliberate and documented. A new will should say that it revokes earlier wills, and the earlier copies should be located and destroyed or clearly marked as superseded, so that the executor does not later find two documents and a dispute. The related article on whether marriage revokes a will in Kenya explains the interaction between marriage and an earlier will.
Common mistakes that cause wills to fail
- A will that was not witnessed by two competent persons present at the same time.
- Alterations and crossings-out that were never attested.
- Wording that is ambiguous about which asset or beneficiary is meant.
- A will signed under pressure from a family member or carer.
- A will that overlooks dependants who can apply for provision under the Act.
- A will that disposes of property the testator no longer owns at the date of death.
- A will that is stored where no one can find it, or not stored at all.
Where to keep a will and how executors find it
A will kept in a drawer may never be found, and a will that cannot be found is of limited use. The testator should tell the executor and at least one trusted family member where the original is kept, and should consider holding it with the advocate who prepared it or in a safe deposit arrangement. The executor should know which document is the latest version.
After death, the executor named in the will applies for probate, and the court will want the original will and evidence of its execution. The related article on probate and letters of administration compared explains the grant that follows a valid will. The firm’s governance and advisory practice prepares wills and advises executors.
When to take advice
Advice is worth taking where the estate includes land or a business, where the family structure is complex, where a dependant needs protection, where the testator is elderly or unwell, or where an existing will needs review after a life event.
Primary sources
- Law of Succession Act (Cap 160), Kenya Law, for the formal requirements and probate of wills.
- Judiciary of Kenya, for probate and administration procedure.
- Kenya Law, for the Act and related succession legislation.
This article is general information, not legal advice.
