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FAQ Succession & Estate Planning

How to Write a Valid Will in Kenya

By 5 Sep 2021No Comments

FAQ’s

How to Write a Valid Will in Kenya

What constitutes a valid will in Kenya?

There are basic statutory requirements of a valid will under the Law of Succession Act.  See below the key characteristics to guide a testator on how to write a valid will or make a valid oral will:

  • The testator is of sound mind at time of making the will.
  • The testator has attained 18 years of age.
  • The testator has signed the written will.
  • Minimum of 2 witnesses to witness execution of the will by the testator.
  • A witness who is also a beneficiary, should in turn have their signature attested to by 2 other additional independent witnesses (while failure to adhere to this will not affect the validity of the will, it will void the bequest to such a witness).
  • If making an oral will, there should be a minimum of 2 witnesses.
  • An oral will shall only be valid if it was made less than 3 months before the death of the testator.
  • A subsequent will shall be valid only if the testator expressly revokes previously subsisting wills and addendums/codicils.

What is the essential validity of a will?

The essential validity of a will determines the validity of gifts passing under a will: for instance, a gift of immovable property is valid if bequeathed in accordance with the laws of the place where the land is situated; while a gift of immovable property is valid if bequeathed in accordance with the laws of the domicile of the testator.

Are online wills valid?

  • It is strongly advisable to hire a lawyer to draft a will due to the technical requirements on bequests stipulated in law and to avoid failure of bequests due to poor wording.
  • Online wills are not inherently invalid if you download the templates and prepare them competently based on the provisions of the Law of Succession.

Is an unregistered will valid?

Yes, there is no mandatory requirement to register a will.

If a will is not probated is it valid?

Yes, a will is still valid if not probated. Probate simply means the court process to obtain letters of probate to administer the estate.

Is a will still valid after marriage?

A marriage will revoke a previous will unless it is made in contemplation of marriage with a specified person.

Are handwritten wills valid?

  • Yes, handwritten wills are legal.
  • Wills may be typed or handwritten.

Is an unsigned will valid?

No, an unsigned will is invalid.

Is an undated will valid?

Dating does not affect intrinsic validity of a will; but opens up a will to contestation on grounds that there are other subsisting wills as the date is unknown.

Is a will valid without a notary?

Yes. In Kenya, there is no requirement to notarise a will. Simply sign and have it duly attested by witnesses.

Is an electronic will valid?

While you may store a copy of your will in electronic form; it is mandatory to keep the original hard copy will. Court registries in Kenya provide will depository services you can take advantage of.

What are the types of wills in Kenya?

  • Written will.
  • Oral will.

What are the sources of land inheritance laws in Kenya?

Land inheritance is governed by the provisions of the Law of Succession Act, the Land Registration Act and the Land Act.

What are Privileged wills in Kenya?

These are wills deemed valid despite failure to adhere to strict formalities on wills; for instance, an oral will by a soldier made more than 3 months before the death of the soldier in active service shall be valid even though it was made outside of the period prescribed for oral wills.

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