Reasons that Invalidate a Will in Kenya

Writing a valid will is essential to ensuring that your wishes are carried out after your death. Several factors can lead to a will being invalidated, making meticulous drafting crucial. If a will gets invalidated, the estate will be distributed according to laws of intestate succession laws.

This article explores the reasons a will may become invalid and underscores the importance of proper drafting to safeguard your intentions.

Reasons a Will May Be Invalidated

Lack of Testamentary Capacity

Understanding Testamentary Capacity: In Kenya, individuals must be adults of sound mind, capable of understanding the implications of making a will, and able to recall their assets and liabilities when writing their will. These are the essential elements of a valid will. This understanding forms the basis of testamentary capacity. If you are under 18 or mentally incapacitated at the time of writing your will, it may not hold up in court.
Legal Precedent: In the case of Re’ Estate of the Late Abdi Ali Mohamed (2016), the court determined that the deceased lacked testamentary capacity due to mental illness, leading to the invalidation of his will.

Improper Execution

Requirements for Execution: Kenyan law mandates that a testator must sign the will in the presence of at least two competent witnesses, who must also sign in the testator’s presence and follow their instructions. Failure to adhere to this procedure can result in a court invalidating the will.
Legal Example: The court in Re’ Estate of Kilonzo Ngumo (2019) declared a will invalid due to improper execution.

Undue Influence

Defining Undue Influence: This occurs when external pressure manipulates you into drafting a will. The Law of Succession Act identifies fraud, coercion, or importunity as potential methods of undue influence.
Burden of Proof: To establish undue influence, the claimant must demonstrate coercion or manipulation. In Karanja v. Ndung’u (2015), a will became invalid due to imposed undue influence from a family member.

Revocation of the Will

Revocation Process: You may revoke a will at any time before death, either by creating a new will or by destroying the old one. However, ambiguous revocations often lead to disputes among beneficiaries.
Case Reference: In Re Estate of the Late Mwangi Kamau (2017), the court confirmed that the deceased had revoked his will.

Fraud or Misrepresentation

Understanding Fraud: Fraud occurs when someone deceptively persuades you to create a will that favours their interests. Misleading information regarding the will’s contents can also lead to invalidation.
Legal Ruling: In Wanjiku v. Republic (2014), the court annulled a will based on evidence of fraud, where the testator had been misled about the assets included in the will.

Lack of Compliance with Legal Formalities

Essential Legal Formalities: A valid will must adhere to the stipulations of the Law of Succession Act. Non-compliance with these regulations can result in invalidation. Section 11 outlines the necessary elements for a valid will that must be meticulously followed.

Mistakes in the Will

Types of Mistakes: Errors can occur during the drafting process, leading to inaccuracies in the will’s terms. Such mistakes can create disputes that may invalidate the will.
Judicial Example: In the case of Re Estate of the Late David Karanja (2018), a clerical error in the will misrepresented the deceased’s intentions, resulting in the will’s invalidation.

Conclusion

Creating a valid will is crucial for ensuring that your wishes are respected after your death. Being aware of the circumstances that could lead to invalidation can help you avoid significant pitfalls in the estate planning process.

If you have questions about drafting a will, contesting its validity, or require legal advice, feel free to reach out. Our expertise in estate planning can guide you in creating a valid will that accurately reflects your wishes and protects your interests. Don’t leave your legacy to chance—contact us to secure your future.