A valid will protects your family and prevents disputes. Here is what Kenyan law requires — who can make a will, how it must be signed and witnessed, and the mistakes that cause wills to fail.
Many families only discover the value of a will after a loved one dies without one. Without a will, property is shared under the intestacy rules of the Law of Succession Act (Cap. 160) — which may not reflect what the deceased wanted — and relatives can spend years in court. A valid will lets you decide who inherits your property, who manages your estate and who looks after your young children.
Who can make a will in Kenya?
Under section 5 of the Law of Succession Act, any person of sound mind who is not a minor may dispose of their property by will. “Sound mind” means that, when making the will, you understand what you are doing, the nature and extent of your property and the people who would ordinarily expect to benefit. A will, or part of a will, made as a result of fraud, coercion or undue pressure can be declared void.
The legal requirements for a valid written will
Section 11 of the Act sets out the formalities. A written will is valid only if:
- It is signed by the testator — the person making the will — or by someone else in their presence and at their direction. A thumbprint or mark is acceptable.
- The signature is placed so that it is clear it was intended to give effect to the will — normally at the end of the document.
- It is attested by two or more competent witnesses. Each witness must have seen the testator sign (or received the testator’s personal acknowledgment of the signature), and each must sign the will in the testator’s presence.
Kenyan law does not require a will to be registered, stamped or filed in court during the maker’s lifetime.
Choose your witnesses carefully
A gift to a person who witnessed the will, or to that witness’s spouse, is generally void unless the will was also witnessed by at least two other people who do not benefit (section 13). The rest of the will remains valid, but the witness loses their gift. The safest course is to use two independent adults who receive nothing under the will.
Are oral wills valid in Kenya?
Only in limited circumstances. Under section 9, an oral will must be made before two or more competent witnesses, and it is valid only if the person dies within three months of making it. Oral wills are easily disputed, so a properly signed written will is always the safer choice.
What to include in your will
- Your full name, ID number and a clause revoking all earlier wills.
- One or more executors to administer your estate — people you trust who are likely to outlive you.
- A clear description of your assets: land (with parcel numbers), bank and SACCO accounts, shares, vehicles, pension benefits and business interests.
- Who receives each asset, and who receives the remainder — the “residue” — of your estate.
- A guardian for any children under 18.
- Any wishes about your burial, which families and courts generally take into account.
Make reasonable provision for your dependants
You are free to decide who inherits, but that freedom has limits. Under section 26 of the Act, a dependant — as defined in section 29, including a spouse, children and certain people you were maintaining before your death — can ask the court for reasonable provision if your will does not adequately provide for them. Explaining your reasons in the will, and considering every dependant, reduces the risk of a successful challenge.
Common mistakes that cause wills to fail
- Only one witness, or witnesses who did not actually see you sign.
- Leaving a gift to a witness or a witness’s spouse.
- Handwritten changes made after signing that are not themselves signed and witnessed.
- Vague descriptions such as “my land” when you own more than one parcel.
- Trying to give away property you do not own alone — for example land held as joint tenants, which passes automatically to the surviving co-owner.
- Never updating the will after marriage, separation, the birth of children or the sale of major assets.
Where should you keep your will?
Keep the original in a safe place and tell your executors where it is. Many people leave the original with their advocate or deposit it with the Public Trustee, keeping a copy at home. If the original cannot be found after death, it may be presumed to have been revoked — so safe storage matters.
Changing or revoking your will
You can change your will at any time while you have capacity, either by making a new will or by adding a codicil that is signed and witnessed in the same way as the will. Review your will every few years and after any major life event. Marriage after making a will can also affect it, so take advice whenever your family circumstances change.
Frequently asked questions
Does a will have to be drafted by an advocate in Kenya?
No. A will is valid if it meets the requirements of the Law of Succession Act, whoever prepares it. But a professionally drafted will is far less likely to be challenged for unclear wording, missing formalities or doubts about the maker’s capacity.
Can a will be challenged in court?
Yes. A will can be challenged on grounds such as lack of capacity, undue influence, fraud, forgery, failure to follow the legal formalities, or failure to make reasonable provision for a dependant.
If I have a will, does my family still need to go to court?
Yes. Executors must still apply for a grant of probate before they can deal with the estate. A clear, valid will makes that process faster and far less contentious — see how succession works in Kenya.
Our succession and estate planning team can help you prepare or review a will that reflects your wishes and protects your family. Book a confidential consultation.
