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FAQ Succession & Estate Planning

How to Contest a Will in Kenya

By 5 Sep 2021No Comments

FAQ’s

How to Contest a Will in Kenya

What are the chances of contesting a will and winning?

This depends on:

  • The factors affecting the validity of the will – for instance was the testator of sound mind at the time of making and signing the will; were two independent witnesses present at the time of signing the will.
  • The relationship of the contesting party to the testator – in terms of whether they were a dependant of the testator and their age. For instance, the court would consider whether there are children of the testator below the age of 18 not provided for under the will. The court would consider whether there are indigent beneficiaries who previously relied on the testator during his/her life and not adequately provided for under the will etc.

What are the grounds to contest a will?

To mention a few grounds that can make a will invalid or liable to be contested:

  • Fraud or undue influence by exercised upon the testator by anyone including a beneficiary.
  • Failure to make adequate provision for the objector under the will.
  • Failure to include a person who should be under the will such as a minor child.
  • Lack of capacity of the testator i.e. if the testator was not of sound mind at the time of making the will.
  • Lack of adequate witnesses to witness signature of the will.
  • Failure to revoke previous wills under the new will.
  • Etc.

Can a child contest a will if excluded?

Yes, any child can contest a will on various factors including those highlighted above; but they are more likely to win and be added as beneficiaries of the testate estate if they are below the age of 18 (age of minority).

Who pays to contest a will?

The party that wants to be brought under the provisions of the will or a beneficiary who contests the legacies under the will pay the costs to file an objector application.

The validity of a contested will is decided by?

There are varying factors considered here including: soundness of mind of the testator; absence of undue influence vitiating the free will of testator to make the will; etc. Soundness of mind is a legal inference that refers to the state of mind whereby a person is capable of understanding that they are writing a will and they have good memory at the time of making the will. This means the person is not drunk or drugged at the pertinent time.

How can a testator make a will that cannot be contested?

  • The testator should follow the requirements that pertain to the validity of a will; make adequate bequests to your dependants e.g., your spouse and children and sort out your inter-family disputes while still alive.

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