A will written in an exercise book, signed by the maker and kept in a drawer, Kenyan courts see many of these, and some are upheld while others fail. The difference usually turns on the formal requirements of the Law of Succession Act (Cap 160).
What are the requirements for a valid written will?
The Act requires a written will to be signed by the testator and attested by two or more competent witnesses present at the same time. The formality exists so the court can be satisfied that the document records the testator’s own decisions, made freely and with understanding. An oral will is recognised only in narrow circumstances, so families should not rely on spoken wishes alone.
Who can make a will?
An adult of sound mind may make a will. Capacity is judged at the time the will is made, which is why wills executed during illness or cognitive decline attract closer scrutiny. A will may also appoint an executor and, where there are minor children, a guardian, decisions that spare families difficult arguments later.
What mistakes commonly cause problems?
- Wills that were not witnessed by two competent persons present together.
- Alterations and crossings-out that were never attested.
- Documents that are ambiguous about which assets or which beneficiaries are meant.
- Wills signed under pressure from a family member or carer.
- Wills that overlook dependants who can apply for provision under the Act.
- Wills that dispose of property the testator no longer owns at the date of death.
Can a will be changed or revoked?
Yes. A testator may amend a will by codicil or replace it entirely with a new will, and certain events, marriage is the familiar example, can affect the validity of an earlier will. Reviewing a will after major life events is therefore sensible, and storing it where the executor can find it matters just as much. CS Advocates LLP prepares wills and advises executors on probate; see our practice areas, and for families weighing trusts alongside wills, our governance and advisory practice. The Act is published on Kenya Law.
For guidance on your specific situation, contact CS Advocates LLP, call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.