Joan Mukoya is an Advocate of the High Court of Kenya and has extensive experience in the drafting of wills; set up of trusts and handling probate and intestate succession causes before the Court (8+ years).
She diligently works for clients and is always promptly responsive while endeavoring to provide up to date, innovative and reliable legal advice of value to local and international clients seeking to make wills and successfully resolve any succession matters after the death of a loved one.
She also has expertise in setting up and operating trusts, which expertise was gained while working with high net worth families channeling money into investments in trusts and limited liability partnerships in Kenya and Mauritius.
Before setting up Koya & Company Advocates, Joan previously worked at two top tier law firms and a leading investment fund manager investing in Sub-saharan Africa and Latin America (AUM exceeding USD 60M).
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Frequently asked questions on How to Write a Valid Will in Kenya
What constitutes a valid will?
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 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.
Frequently asked questions on How to Contest a Will in Kenya
What are the chances of contesting a will and winning?
· This depends on:
o 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.
o 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.
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.
Frequently asked questions on the Grant of Probate in Kenya
What is an application for grant of probate in Kenya?
· Probate is a grant of representation to executors named in the will –or if no executor is named in the will, a grant of representation to the administrator entitled to be appointed under law.
· Grant of probate allows the executor/administrator to administer the estate and make distribution of bequests to beneficiaries named under the will and if necessary administer any trusts formed under the will.
Where can I find the Probate Rules in Kenya?
· Probate rules are contained in the Probate and Administration Rules under the Law of Succession Act and guide you on where to file for a grant of representation depending on inter alia the net value of the estate; the appropriate forms to use; the procedure to contest a will; how to get the grant certified; how to object to a grant of representation to a particular person; court fees etc.
What P & A forms can I use in Kenya to obtain a full grant of representation?
· File a petition for a grant using the requisite forms found in the Probate and Administration Rules. There are different Petitions to be filed found in Forms 78-83 and 85-97A depending your circumstances e.g., the presence of the will and whether the deceased died intestate. All other forms are all found in these Rules.
When can I apply for the revocation of grant of probate in Kenya?
· One may apply for this if the proceedings to obtain the grant were defective in substance; the grant was obtained fraudulently by making a false statement; or the grantee has failed to confirm the grant within the requisite period.
Best lawyer to draft a will and contest a will?
· Get in touch with Koya and Company Advocates, Nairobi, Kenya to discuss your needs to prepare your will, challenge the validity of a will or contest a will. If a will is contested it is termed contentious probate.
Frequently asked questions on the Confirmation of a Grant in Kenya
What is an application for confirmation of a grant in Kenya?
This is an application made by the grantee after the grant of representation is issued. A confirmed grant empowers the executor or administrator to distribute the estate in accordance with the terms of either a will (if the deceased died testate) or rules of intestacy (if the deceased died intestate). The application is made 6 months after the grant or such shorter period as the person holding the grant may suitably determine.
Why and when can someone apply for revocation of certification of a confirmation of grant?
· This may be done at any time before or after the grant of representation is confirmed by the court when proceedings to obtain the grant were defective e.g. materially wrong type of petition was filed; the grant was obtained fraudulently etc.
Once a will is probated can it be contested?
· Invalid wills or bequests can be contested at any time during probate. The procedure under the law allows for this.
Frequently asked questions on Intestacy in Kenya
What is the succession term for dying without a will?
· If someone dies without a will while leaving an estate, they are said to have died intestate and the circumstances are termed as intestacy.
What are Intestacy laws?
· These are inheritance laws in Kenya that are applied if you die without a will. The laws are contained in the Law of Succession Act and under the Probate and Administration Rules and outline the rules of intestacy that apply.
Can there be inheritance without a will?
· Yes, this is possible and this type of inheritance is called intestate succession.
· Inheritance by beneficiaries is based on the provisions of the Law of Succession.
What happens if a parent, husband, or father dies without a will?
· Inheritance by the beneficiaries and dependants shall be guided by the rules on consanguinity and preference under the Law of Succession.
Distribution of the estate on intestacy?
· The spouse and children of the deceased always have prior right to the intestate estate ahead of all other relatives. This is determined by marital status and stations of consanguinity of the beneficiaries - meaning that relatives only inherit in the order in which they are related to the deceased.
What happens if a spouse dies without a will and leaves children?
· The remaining spouse is entitled to a life interest in the estate and the remainder shall be distributed equally among the children upon the death of the remaining spouse.
What is the order of inheritance without a will?
· The Spouse + Children; or
If the deceased had no children:
the deceased’s father; or if dead
the deceased’s mother; or if dead
the deceased’s siblings; or if dead
the deceased’s children of siblings; or if dead
the deceased’s half siblings; or if dead
any other blood relative.
· If the deceased had no relatives, the net estate is put into the Government of Kenya’s Consolidated Fund
Do spouses automatically inherit the estate of the deceased spouse?
· If the deceased dies leaving an intestate estate; any spouse(s) together with the deceased’s children are automatically in line to inherit ahead of all other relatives e.g., siblings, parents, grandparents, etc.
What happens if both parents die without a will leaving a child/children?
· If the children are over the age of 18, they are entitled to inherit an equal share of the deceased parents’ combined estate. If any child is below 18 years, their inheritance will be administered in trust until they are over 18 years old.