Contesting a Will in Kenya: Dependants, Unmarried Partners and Polygamous Families

A will does not always have the last word in Kenya. Contesting a will is possible on two quite different grounds: that the will is invalid, or that it leaves a dependant without reasonable provision. The second ground surprises many families, because it can succeed even where the will is perfectly valid. This article explains who counts as a dependant, how unmarried partners and polygamous families fit in, and what the courts have said.

Testamentary freedom has limits

Section 5(1) of the Law of Succession Act lets any adult of sound mind dispose of all or any of their free property by will. Part III qualifies that freedom. Under section 26, on the application of a dependant, the court may order reasonable provision out of the net estate if it considers that the will, a gift in contemplation of death, the law of intestacy, or a combination of them does not make reasonable provision for that dependant. Section 26 applies so far as succession to the deceased’s property is governed by the Act. Section 27 gives the court complete discretion to order a specific share, periodical payments or a lump sum, and to impose conditions.

Section 28 lists what the court must consider. These include the nature and amount of the deceased’s property, the dependant’s own capital or income, the dependant’s existing and future means and needs, any advancement the deceased made to the dependant during life, the dependant’s conduct towards the deceased, and the circumstances of the deceased’s other dependants and the beneficiaries under the will.

Who is a dependant

Section 29 defines a dependant for these purposes in three limbs. The first covers the wife or wives, or former wife or wives, and the children of the deceased, whether or not the deceased was maintaining them immediately before death. The second covers the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children the deceased had taken into the family as their own, brothers and sisters and half-brothers and half-sisters, but only those who were being maintained by the deceased immediately before death. The third covers the husband of a deceased woman, if she was maintaining him.

The distinction matters. A child or a wife does not have to show past maintenance, while a sibling or a parent does. The text above is from the Act as consolidated on Kenya Law to 31 December 2022, so check for later amendments or court rulings before relying on a particular limb.

Unmarried partners

Section 29 refers to a wife and children and does not mention a cohabiting partner. The route a partner has used is to prove a marriage by presumption. In Kipyego & another v Cheromei [2021] KEHC 901 (KLR), the High Court at Eldoret dismissed an appeal against a finding that the respondent was a presumed wife of the deceased and that her children were his dependants. The judge relied on the principle, quoted from an earlier decision, that long cohabitation without a formal marriage can give rise to a presumption of marriage. The court said that a birth certificate is not by itself sufficient proof of paternity. It held that, because the appellants had not asked for a DNA test, the burden of disproving paternity had shifted to them.

That is a decision of a single judge on appeal, and it turned on its own facts. A partner who cannot prove a presumed marriage should not assume protection, which is why a will that provides for a partner expressly is far safer. The children of an unmarried partner, once paternity is proved, fall within section 29 in their own right.

Polygamous families

Section 3(5) of the Act provides that a woman married under a system of law that permits polygamy is a wife for the purposes of the Act, and in particular sections 29 and 40, even where her husband made a previous or subsequent monogamous marriage to another woman. Her children are children within the Act.

Where a man who married more than once under such a system dies intestate, section 40 divides his personal and household effects and the residue of the net intestate estate first among the houses, according to the number of children in each house, adding any surviving wife as an additional unit. Distribution within each house then follows sections 35 to 38. If there is a will, the will governs the distribution, but a dependant in any house can still apply under section 26.

What the Court of Appeal has said

In Dadhialla v Chaudri [2025] KECA 728 (KLR), decided on 2 May 2025, a daughter was left out of her mother’s will, and it was common ground that the will gave no reason for the omission. The Court of Appeal applied section 26 together with section 28, noting that a dependant must give satisfactory evidence of past, present and future income and of existing and future needs. It allowed the appeal and ordered that reasonable provision of Kshs 130 million be made for her out of the estate. The decision shows that testamentary freedom is real but not unlimited, and that evidence of the applicant’s own means and needs shapes the outcome.

Time limits and invalidity

Section 30 provides that no application under this Part may be brought after a grant of representation has been confirmed under section 71. A dependant who waits until after confirmation may be out of time, so the application should be made while the estate is still before the court.

A separate challenge goes to validity. Section 7 makes a will, or any part of it, void if its making was caused by fraud or coercion, by importunity that takes away the testator’s free agency, or by mistake. Section 11 sets the formalities for a written will, including signature by the testator and attestation by two or more competent witnesses.

If you are making a will

Provide expressly for spouses, children and anyone you maintain, even if the provision is modest, and record your reasons if you leave someone out. Consider a trust where the beneficiaries have different needs. Our article on succession disputes involving diaspora beneficiaries covers disputes across borders.