Drawing up a will is a sensible and responsible step that ensures loved ones are provided for.
For many people, particularly those of substantial means, drawing up a Will is considered a sensible and responsible step, ensuring that loved ones are provided for after their death.
The intention is to bring clarity, preserve harmony, and shield families from discord once the owner of an estate has passed away.
However, the reality is often far less orderly.
In many families, inheritance disputes have led to protracted court battles, with disgruntled relatives challenging the validity or fairness of a Will.
Fuelled by competing interests and long-simmering grievances, these disputes frequently undermine the very purpose the Will was intended to serve.
This raises the persistent question: if the clearly expressed wishes of the deceased can be contested by those eager to claim a share of the estate, why is a Will such a vital instrument?
Under the Kenyan Law of Succession Act, Cap. 160, a Will is defined as a person's legal declaration of their wishes or intentions regarding the disposition of their property after death, made and executed in accordance with the Act's provisions.
A Will may be made either orally or in writing.
An oral Will must be made before two or more competent witnesses and within three months prior to the testator’s death.
A testator is the person who creates and signs a last Will and testament, legally directing how their property and assets should be distributed upon death, including the appointment of an executor to manage the process.
A written Will, however, carries stricter requirements. It is invalid unless the testator has signed or affixed his mark to it, or it has been signed by another person in the presence and at the direction of the testator. The Will must also be attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark, or seen another person sign on the testator’s behalf, or received a personal acknowledgement of the signature or mark from the testator.
Despite these safeguards, a Will remains an intensely emotive document, for it shapes the future of those left behind.
A will is a person's legal declaration of their wishes or intentions regarding the disposition of their property after death.
Contesting a Will
In Kenya, Wills are commonly contested on several grounds: lack of testamentary capacity, allegations of fraud, undue influence or coercion, improper execution - particularly issues relating to witnesses - failure to provide for dependants, or claims that the document does not reflect the true wishes of the deceased. Suspicious circumstances surrounding its creation also often provide fertile ground for legal challenges.
Stanley Ogejo, an advocate of the High Court, says a Will remains essential because it captures and preserves the intentions of the deceased. Without one, he explains, asset distribution is left to subjective judgments rather than the wishes of the departed.
“A Will can be skewed to favour one party, and that is why it is sometimes contested. For instance, where some children are left out, the Will may be challenged on their behalf because, at the end of the day, they are all beneficiaries,” said Mr Ogejo.
According to the lawyer, the law steps in to protect beneficiaries from emotion-driven decisions and to ensure fairness within society. However, challengers - particularly relatives - must prove that the testator supported them during their lifetime, thereby establishing them as bona fide beneficiaries.
“The Will should be equitable, and the testator must clearly provide for how it is to be executed,” Mr Ogejo said.
One of the most common grounds for contesting a Will in Kenya is a lack of testamentary capacity. The person making the Will must be of sound mind at the time it is written.
Mr Ogejo noted that a Will may be invalidated if it is established that the testator was not of sound mind, or was influenced by illness, intoxication or mental disorder at the time of signing.
Another frequent ground is undue influence or coercion, claims that the testator was pressured or forced into making a Will that did not reflect their true intentions.
For Fredrick Maube, another advocate of the High Court of Kenya, authenticity is also a key fault line. A Will may be challenged where questions arise over whether it was signed under fraudulent circumstances or based on a serious misunderstanding.
He added that disputes also emerge when a testator fails to make reasonable provision for close family members, including a spouse, children and dependants.
“If the authenticity of a Will is questioned, attention turns to how it was crafted. In cases of doubt, a petitioner may involve the police to establish whether there was written correspondence, such as emails, in which the testator issued specific instructions,” said Mr Maube.
Financial trails can also come under scrutiny. Parties may demand evidence of payments, including cheques and dates when the lawyer was paid to draft the Will, and whether receipts exist to support this.
Improper execution, such as failure to sign or to have the required number of competent witnesses, also creates gaps that can cast doubt on a Will’s authenticity. Suspicious circumstances surrounding its creation, including the role of the lawyer or a lack of familiarity between the testator and witnesses, may further raise questions about its validity.
Another basis for challenge is a lack of testamentary intention, where it is argued that the testator did not intend the document to serve as their final Will.
Mr Maube also pointed to the hierarchy of succession under Kenyan law, which prioritises beneficiaries in the order of spouse, children, parents, grandparents, grandchildren and later siblings and paternal uncles.
Any deviation from this order may prompt challenges from other family members.
Ultimately, only individuals with a direct and legitimate interest in the estate, such as beneficiaries or legal heirs, may challenge a Will. This is done through filing a petition in court, lodging a caveat and presenting evidence to establish grounds for invalidity, a process that often requires legal assistance.
Some of Kenya’s most prominent succession battles have unfolded around contested Wills, laying bare the emotional fault lines that emerge when inheritance, family and law collide.
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