Be honest, has it ever crossed your mind to write a will? If the answer is no, then why? In many Kenyan households, the idea of writing a will still feels like taboo. It is often spoken of in hushed tones, if ever. In most cases, it never even crosses our minds, mostly being dismissed as something only the elderly or wealthy need to worry about. Yet every single day Kenyan courts are overwhelmed by inheritance disputes that could have been avoided with a simple will.
A will, at its core, is not an invitation to death (which quite frankly, is where the problem lies when it comes to most Africans.) A will is an act of responsibility, a way of ensuring that the people you love are protected, your wishes are respected and that your legacy does not become a source of conflict.
Under Kenyan law, writing a valid will is far more accessible than many people assume. It must, however, be done correctly.
What a Will Means Under Kenyan Law
In Kenya, wills are governed by the Law of Succession Act (Cap 160). A will is defined as a legal declaration by which a person (known as the testator) states how their property should be distributed after their death. It can also include instructions on guardianship for minor children and the appointment of executors to manage the estate.
The law recognizes both written and oral wills. However, while oral wills are legally valid under very specific conditions, written wills remain the safest, clearest and least disputable option.
Who Can Write a Will in Kenya?
According to the Kenyan law, there are three basic requirements for anyone wishing to make a will. That the testator must be at least 18 years old, must be of sound mind and must be acting freely i.e. without coercion, manipulation or undue influence.
“Sound mind” does not mean perfect health or advanced education. It simply means the person understands what a will is and what property they own. They should also be clear about who they are choosing to benefit. Courts often scrutinize this requirement after death, particularly where wills are contested, which is why clarity and proper witnessing matter more than anything.
The Legal Requirements of a Valid Written Will
A written will neither needs to follow a prescribed format, nor be drafted by a lawyer to be legally valid. It can be handwritten, typed, or professionally prepared. What matters is that it meets the legal threshold.
For a written will to be valid in Kenya, it must be in writing and signed (or marked) by the testator. That signature must be made in the presence of at least two competent witnesses, who must also sign the will in the presence of the testator and each other.
The choice of witnesses is critical. Witnesses must not be beneficiaries under the will. If a beneficiary acts as a witness, Kenyan law allows the will to stand, but the gift to that witness fails. This single mistake has undone countless well intentioned wills.
Another thing, the law does not require witnesses to read or understand the contents of the will, only to confirm that the testator signed it voluntarily.
What a Will Can and Cannot Do
Through a will, a person may distribute their property, appoint executors and name guardians for minor children. For that reason, wills become especially important for parents, business owners and blended families.
However, Kenyan law places limits on absolute freedom of testation. A will cannot completely ignore dependants such as spouses or children without justification. The Law of Succession Act empowers courts to make “reasonable provision” for dependants who have been unfairly excluded. In practice, this means that even a valid will may be adjusted by a court if it causes manifest injustice.
This provision reflects the important reality that in Kenya, inheritance is not only a personal matter, but also a social one.
Oral Wills: Legal but Risky
Kenyan law recognises oral wills, but only under strict conditions. An oral will must be made before at least two witnesses, and it is only valid if the testator dies within three months of making it. Unless the testator was a member of the armed forces engaged in active service.
In reality, oral wills are among the most disputed forms of succession. Memories differ and sometimes witnesses even disappear, and intentions are questioned. While legal, oral wills are fragile and often collapse under scrutiny. For anyone seeking certainty, a written will remains the wiser choice.
Is a Lawyer Necessary?
There is no legal requirement to involve a lawyer when writing a will in Kenya. Many simple wills are perfectly valid without professional assistance. However, legal guidance becomes valuable where estates are complex. These include polygamous families, where property spans multiple jurisdictions or where businesses and trusts are involved.
Always remember that the cost of drafting a will is often far lower than the emotional and financial cost of inheritance litigation later.
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Common Mistakes That Invalidate Wills
Despite good intentions, many wills have failed because of avoidable errors. Some of the most common include using beneficiaries as witnesses, failing to sign the will properly, or describing property vaguely. Others forget to update their wills after major life changes such as marriage, divorce or the birth of children, rendering parts of the document obsolete or legally questionable.
Another frequent mistake is secrecy. A will that no one knows exists or cannot be located, may as well not exist at all.
Safekeeping and Access
Once written, a will should be stored securely either with a trusted lawyer or in a known, safe location at home. More importantly, the executor should be informed of its existence and whereabouts. While Kenya does not mandate formal registration of wills, accessibility is essential to enforcement.
According to the Kenyan Judiciary, succession cases make up a significant portion of civil disputes filed annually, many stretching on for years as families battle over unclear intentions and undocumented wishes. These conflicts do not arise from malice alone but from silence.
Once again, writing a will is not about anticipating death, as most people tend to believe. It is about choosing clarity over confusion and chaos. It is a final act of love for those left behind, one that ensures grief is not made heavier by uncertainty.
In the end, a will does not speak when you are gone. It speaks for you.
