Several reasons can invalidate a will including when the testator lacks capacity to make the will, improper execution, undue influence, fraud, among other reasons. When these circumstances occur, an affected person may approach a court to invalidate the will.
A will ensures that the wishes of the maker (testator) are carried out after their death. However, if it is not made under the proper circumstances, it may be invalidated. Several factors can lead to a will being invalidated, making meticulous drafting crucial. After a will is invalidated, the deceased’s estate is distributed according to the laws of intestate succession, essentially as if no will had been written.
This article explores the reasons a will may become invalid and underscores the importance of proper drafting to safeguard your intentions.
Table of Contents
- Reasons a will may be invalidated
- The Process of Invalidating a Will in Kenya
- Frequently Asked Questions
- Conclusion
Reasons a Will May Be Invalidated
1. Lack of Testamentary Capacity
A testator must be:
- At least 18 years old
- Of sound mind
- Capable of understanding the nature and effect of a will
- Aware of their assets and beneficiaries
If the testator was mentally incapacitated or under the influence of medication or illness, the will can be invalidated.
The above are better known as the essential elements of a valid will.
2. Improper Execution
Under Section 11 of the Law of Succession Act for a will to be valid:
- It must be signed by the testator
- The signing must be witnessed by two competent witnesses
- The witnesses must sign the will in the presence of the testator
- Any failure in this execution process may render the will invalid.
3. Undue Influence
Undue influence occurs when the testator is coerced, pressured, or manipulated into making a will that does not reflect their true intentions.
Legal basis: Undue influence includes fraud, coercion, or force, as recognised under Section 7 of the Law of Succession Act.
Burden of proof: The person alleging undue influence must provide convincing evidence of the undue influence.
- 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.
3. Fraud or Misrepresentation
If a will is based on lies or misleading information — for example, about the testator’s assets or relationships — the court may invalidate it.
4. Mistakes in the Will
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.
Revocation of the Will
A testator can revoke their will by:
- Creating a new will
- Writing a revocation clause
- Physically destroying the previous will
Disputes often arise when revocation is ambiguous or undocumented.
The Process of Invalidating a Will in Kenya
Step 1: File a Caveat at the High Court
If you suspect the will is invalid, you must file a caveat to prevent probate from being issued. This alerts the court to your objection.
Step 2: File an Objection to the Petition for Probate
Once the will is presented for probate, you must file a formal objection under the Probate and Administration Rules, citing your grounds (e.g., undue influence, lack of capacity).
Step 3: Initiate a Probate Suit
The matter is converted into a contentious probate suit, where both parties present evidence. Medical reports, witness testimony, handwriting experts, and circumstantial evidence may be used.
Step 4: Court Determines Validity
The court evaluates whether the will meets the requirements under Section 11 and whether allegations of undue influence, fraud, or incapacity are proven.
Step 5: Final Orders
- If the will is valid, Probate is granted.
- If invalid, the estate is distributed under intestate succession rules.
Common Pitfalls to Avoid
- Using unqualified drafters or templates from foreign jurisdictions
- Failing to involve impartial witnesses
- Not updating your will after major life changes (e.g., divorce or death of a beneficiary)
- Ambiguous language or clauses
- Losing the original copy
Frequently Asked Questions (FAQs)
What happens if a will is declared invalid?
The estate is distributed as though the deceased died without a will — under the Law of Intestate Succession.
Can a handwritten will be valid in Kenya?
Yes — as long as it complies with Section 11 requirements on signing and witnessing.
How long do I have to challenge a will?
There’s no strict deadline, but it’s advisable to object before probate is granted.
Can I revoke my own will?
Yes — at any time, through a written declaration, a new will, or destruction of the previous will.
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.