Did you know that an estimated 6 out of every 10 people in Kenya (roughly 60%) die intestate? Dying intestate means passing away without leaving behind a valid will. And where this happens, your beneficiaries have no option other than to rely on the current legal provisions rather than abiding by the personal wishes of the deceased. In this guide, we not only talk about the importance of having a valid will in Kenya but also how to make one.

Why Should You Have a Valid Will in Kenya?

In cases where someone dies without a valid will in Kenya, their assets are managed and distributed per the Law of Succession Act (Cap 160), which follows a hierarchy when it comes to who benefits from the estate. According to this law, the property passes on to the surviving relatives. It is important to note that where no surviving relatives are present, this property transfers to the state.

As such, wills are very important documents because they set out the wishes of the testator (the owner of the estate) on how their property should be distributed upon their demise.

These documents are meant to ensure that what the deceased acquired during their lifetime is given to the people the testator cared for, and or the people who depended on them.

What’s more, valid wills can also make provision for certain properties to be directed to Trusts and, in this way, they can ensure the continuity of the businesses or activities covered in the trust.

Thus, it is very important to have the Will done in the proper way to ensure that the same is valid and is therefore taken into consideration and implemented upon the deceased’s death.

If a Will does not meet the legal requirements, it will be rejected by the courts. Consequently, the wishes of the deceased will become naught. The estate of the deceased will then be governed by the courts in the same way as an intestate person’s estate is.

What Would Invalidate a Will?

You may have noticed that rather than emphasizing the need for a will, our focus has been on valid wills, and that is because the court will only accept wills that are termed as valid. So, what constitutes a valid will in Kenya?

1. Capacity. The maker of the Will must have the capacity to do so. Per the law, this means that the person should be an adult who is mentally stable to understand what they are doing. If a question ever arises in the future over this issue, it renders the Will invalid.
2. Ownership. A valid Will in Kenya can only be made by the owner of the properties in issue. This can be done by the person himself or by an advocate on his behalf. You cannot include in the Will what does not belong to you. If you are hoping to acquire some property or have acquired it, but the same has not been transferred to you, the same is not yet yours, and you cannot include it in the Will.  However, once such property becomes yours, you can amend the will or do a codicil to bring the new property into the Will.
3. Witnesses. Your document must also be witnessed by at least two people who are not beneficiaries of the estate. These people need not know what the contents of the Will are unless the maker opts to give them the information. All the same, they must see the maker signing the same and also sign at the same time.
4. Clarity. A Will must be specific and clear on the intentions and provisions of the maker. It must state clearly what the maker is sharing and to whom. Thus, the properties being shared out must be indicated in such a way that they can be clearly identified. The people to benefit from the same must be well identified by their full names. This will make it clear to everybody what and how the estate will be distributed.
5. Conditionality. A Will should not include conditions precedent to the implementation of the Will that cannot be realized. This is in cases where the testator may decide to make conditions that beneficiaries have to meet before they get their share of the estate, and these conditions may be impossible or too hard for the beneficiaries to attain.

To sum it up, under the Law of Succession Act (Cap 160) in Kenya, a valid will in Kenya must not only be written down but also voluntarily executed and signed by the testator in the presence of two or more competent witnesses. This testator must be at least 18 years old and of sound mind.

What Else Can You Include In Your Will?

The features discussed in the earlier section constitute the foundation of a valid will in Kenya. However, they are often not enough to ensure a smooth asset distribution process. Therefore, many people drafting their wills choose to include the factors below, which are not necessary per se for legality but can simplify the estate distribution process.

1. How to handle the assets not included in the will. A Will also ought to take into consideration what may remain upon the testator’s death as part of the estate and which was not distributed in the Will. This may include, for example, assets acquired after the will is made, assets which the maker intended to dispose of and therefore did not include them in the Will, but the sales did not go through or were not completed during his lifetime, or anything else owned by the testator but for whatever reason was not included in the Will. A clause can be added to the Will to take care of that.
2. What happens if beneficiaries predecease the testator? A clause can also be made in the Will to take care of something called ‘the doctrine of lapse’. This clause refers to what would happen should some beneficiaries predecease the testator. In the circumstances, there should be provision of alternative beneficiaries to take the interest of the deceased beneficiaries.
3. Who takes guardianship of minors? A Will can also provide for the guardianship of minor children of the deceased. This guardian can work with the surviving parents. This can be tricky if the surviving parent objects and therefore calls for a very balanced appointment of such guardians.

A Will can also provide for executors to gather and distribute the estate of the deceased. This is not a must, but the executors make the inheritance process smoother and run more seamlessly.

Get Help Drafting a Valid Will in Kenya.

Given the complexities that come with the intestacy process, it is very important to ensure that the Will is done in the right way. It is also important to note that everyone’s will requirements are different, and what may work for one person may not necessarily serve another person. It is thus advisable to seek the services of advocates to help you make a valid Will in Kenya that sufficiently covers your personal needs and one that is acceptable to the courts.

To get professional help with this, you can submit a request using the form below, and our team will reach out to you as soon as possible.

Prepare a Will and Protect Your Loved Ones

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