Can the Will maker/Testator leave you out of the Will?

Section 5 of the Law of Succession Act states the freedom of the testator/will maker to write his will as he pleases. So yes, the Testator can leave out a close family member out of the will as he chooses. Nevertheless, if you feel you were entitled to benefit under the will, indeed there are remedies under the law to contest being left out of the will.

Is there any remedy if you are left out of the will?

Yes, firstly, you can apply to the family court to be a dependant of the deceased under Sections 26-29 of the Law of Succession Act. This allows you to claim as a dependant of the deceased on the basis you were being maintained or have been maintained by the Testator in the past.

Secondly, you can also contest the will by filing an objection and you can also apply to have the grant of probate revoked (if it has already been issued) on the basis that the will is invalid for a legal reason. Such reasons include that the will was invalid due to the testator lacking mental capacity; that the testator was under duress or coerced when he made the will; etc. An application for revocation of the grant of probate of the will is guided by Section 76 of the Law of Succession Act

What is the Power of the court if you are left out of the will?

Only the court has power to remedy you being left out of the will because all estates in Kenya must pass through court to get a grant through which the deceased’s estate is distributed. If your application to be a dependant is successful, the court will exercise its discretion to make provision for you out of the estate of the testator.

Who can contest if left out of the will?

Often the persons who contest being left out of the will are close family members and dependants. These include spouses, children and persons the Testator was taking care of prior to death such as parents or siblings.

What to prove in an application as a dependant?

Section 28 highlights factors that you need to present and prove to the court such as your income, needs, liabilities, your relationship with the deceased, the provision for other beneficiaries under the will, etc.

In seeking to revoke a grant on the basis of a fraudulent/invalid will, you need evidence/witnesses to prove the averment that the deceased lacked capacity in some way to make the will where you were left out e.g. as pertains to mental capacity, undue influence, forgery of will etc.

How long do I have to get a remedy if left out of the will?

Often time is of the essence as once a grant of probate is confirmed by the court, administration of the estate begins and assets begin being distributed to the legatees under the will. Thus practically filing such applications speedily is advised.

Who should I serve with my application?

You should primarily serve the executor in such a court case with any court papers you file and other parties beneficially interested in the case.

What if I bring an action after the grant of probate is confirmed?

An application for dependency is ideally done before the grant of probate is confirmed and where you are out of time, then you will have to convince the court that there are strong/compelling reasons for the delay in bringing the application.

An application to revoke the grant of probate can be made before or after confirmation of the grant

How long will it take to remedy being left out of the will?

This cannot be definitely answered as some cases are quick while other’s can take longer and also depending on the court calendar

Can costs be paid out of the estate?

Yes, the court has power to direct costs of contesting being left out of the will to be paid out of the deceased’s estate (usually where you have successfully contested.)

What if the deceased’s Children are left out of the will?

Children have a good basis to apply to be dependants of the deceased as they are the close survivors of the deceased and are termed dependants under Section 26 of the Law of Succession Act.