Writing a valid will ensures that your assets are distributed according to your wishes and spares your loved ones from unnecessary conflict and legal battles.
In this guide, we explore the topic – how to write a valid will in Kenya. We discuss the essential elements that make a will legal or binding and are a stepping stone to learning how you can safeguard your legacy.
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Meet Kamau. Kamau is married to one wife Diana. Together Kamau and Diana have four children; three sons and one daughter. He also has another child, Amos by a woman he dated while in university. All his children are minors.
During his lifetime, Kamau provided for all his children including Amos and helped raise Andrew, his nephew who also lived with his family.
He always assumed that his property would naturally pass to his family when he was gone. He never thought of drafting a will, convinced that his intentions were clear. But when he suddenly passed away, his family faced confusion and disputes. Several relatives came forward to claim portions of his estate, eventually involving the courts in a long, costly process of sorting out who was entitled to what.
This is a story too many Kenyans face—one that could have been avoided with a valid will.
The Importance of Writing a Will
A will is a legal document in which you declare how your estate should be distributed after your death. It can include instructions on who should manage your estate, provide for your children, or donate to charitable causes. Without a valid will, your estate will be distributed according to the Law of Succession Act, which might not align with your intentions.
The Key Legal Requirements of a Valid Will
To ensure your will is legally binding in Kenya, you must meet these key requirements:
1. Testamentary Capacity
Under the Law of Succession Act, the person making the will (testator) must be of sound mind and at least 18 years old. You must understand the nature of your actions and be free of undue influence or coercion. In Banks v Goodfellow (1870), the court reaffirmed the need for soundness of mind, stating that a will is invalid if the testator lacked mental capacity at the time of writing.
2. Clear Intentions and Provision for All Beneficiaries
A valid will must clearly state how your estate will be distributed. You need to identify the beneficiaries—whether they are family, friends, or charitable organizations.
You must also make sure to provide for all your beneficiaries as failure to include one of them could lead to its invalidation. In our story, Kamau’s nephew Andrew is a legitimate beneficiary of the estate.
It must also be clear. Using proper identifiers for each beneficiary. For example, the PCEA church of Molo is a much better description than the PCEA church if you intend to bequeath something to the church in Molo. Vague wording can lead to your gift going to the wrong recipient or the gift failing as no such person or institution exists.
A well-written will will leave no room for doubt about your intentions.
3. Appointment of an Executor
An executor is responsible for carrying out the instructions in your will. You can choose a trusted individual, a lawyer, or an institution such as a trustee. The executor ensures that the estate is properly managed and distributed. You may also appoint an alternative executor in case the first is unable or unwilling to serve.
4. Witnesses
For a will to be valid, it must be signed by the testator in the presence of at least two witnesses who are not beneficiaries of the estate. These witnesses must also sign the will in the presence of the testator. Witnesses should not be beneficiaries of the estate to avoid their inheritance being voided.
5. Proper Format
The will should be in writing. Although oral wills are recognized in Kenya, they are only valid if made in front of two or more competent witnesses and are limited to small estates. A written will provides stronger legal protection and is less likely to be contested.
6. Revocation of Previous Wills
If you have made previous wills, it is important to explicitly revoke them in your new will. This step ensures that your most recent will is the only valid one. Failure to do so may lead to conflicting instructions that could complicate the administration of your estate.
Common Pitfalls to Avoid When Writing a Will
Writing a will may seem straightforward, but many people make mistakes that can render the will invalid. Here are common pitfalls to watch out for:
1. Failure to Update Your Will
Life changes—marriages, divorces, births, and deaths. If your will does not reflect these changes, it could lead to disputes. For example, if you marry after writing your will, Kenyan law assumes that you intend to include your spouse in your estate, even if they are not explicitly mentioned.
2. Not Naming a Guardian for Minor Children
If you have minor children, it is essential to name a guardian in your will. Failure to do so could lead to court-appointed guardians, which might not align with your wishes. Your will ensures that your children are cared for by someone you trust.
3. Neglecting to Account for Your Liabilities
Many testators forget to specify how their debts will be handled. Outstanding debts must be settled before the estate can be distributed to beneficiaries. This could mean selling assets or reducing inheritance amounts. Make sure your will outlines how debts will be paid off.
Debts in Wills
When dealing with debts in a will, it is crucial to distinguish between your assets and liabilities.
Failing to cater to a liability means that a creditor might contest your will and can have the whole will invalidated. Further, if you have unsettled debts, your executor must use part of your estate to settle them before distributing the remainder to beneficiaries.
Lessons from Kenyan Courts
Kenyan courts have handled many cases related to wills and inheritance disputes, highlighting the importance of drafting a valid will. In Re The Estate of Charles Kipng’eno Arap Ng’eny (2015), the court emphasized the need for clear intentions in a will, ruling in favor of a properly drafted document over claims from family members. This case underscores that even close relatives cannot override a valid will.
In another case, Re Estate of M’Ngari M’Mboroki (2013), the court rejected an oral will made under suspicious circumstances, demonstrating that proper formalities must be followed to avoid disputes.
Steps to Writing a Valid Will in Kenya
Here is a simplified guide to writing a valid will:
- Document your Assets and Liabilities.
Identify all your property, including real estate, vehicles, bank accounts, and personal belongings. - Identify your Beneficiaries.
Decide who will inherit your assets. Be as specific as possible to avoid confusion. Provide for all your beneficiaries. - Appoint an Executor.
Choose someone you trust to carry out your wishes and manage your estate. - Appoint Guardians for Minor Children
If you have minor children, it is advisable to appoint someone to take charge of them. Choose someone you trust. It is also prudent to appoint two guardians. - Determine How you want your Assets Distributed.
Using clear language, specify how you would like each asset handled. You can name the beneficiaries for each specific asset or direct that an asset is sold and the proceeds distributed in a certain way. It’s pretty much up to you. However, it is important to seek legal counsel to ensure that your will is valid. - Sign the Will in the Presence of Two Witnesses.
Sign the will in the presence of at least two witnesses who are not beneficiaries of the estate. They must sign the will after you in your presence. - Store the Will in a Safe Place.
Keep your will in a safe and secure place, remembering to inform your executor(s) and beneficiaries of its whereabouts. - Review and Update you will Regulary.
In Kenya, a written will is valid as long as a new will has not been written to replace it, and the testator has not destroyed it. However, regularly updating it to include newly acquired property or to remove property that has been disposed of.
Read on: Reasons that Can Invalidate Your Will
Secure Legal Counsel While Drawing your Will
Although you can write your will on your own, hiring a lawyer can help you avoid costly mistakes. A lawyer will ensure that your will complies with the law, is clear, and valid reducing the likelihood of invalidation and disputes.
Lawyers are also aware of current case law and can provide advice tailored to your specific circumstances.
Conclusion: Secure Your Legacy with a Valid Will
Writing a valid will is one of the most important steps you can take to protect your family and your legacy. It ensures that your wishes are honoured and prevents costly and painful disputes among your loved ones. By following the legal requirements, avoiding common pitfalls, and seeking professional guidance, you can create a will that brings you peace of mind.