Wills, Probate and Estate Administration in Kenya: A Comprehensive Guide

Wills and probate in Kenya are governed by the Law of Succession Act, Cap. 160. The Act sets out who can make a will, how it must be signed and witnessed, what happens when someone dies without one, and how a court grant is obtained and confirmed before the estate can be shared out. This guide covers those rules, the dependant claims that can override a will, and the steps that avoid delay.

Making a Valid Will Under the Law of Succession Act

Section 5 allows every person who is of sound mind and not a minor to dispose of all or any of their free property by will. A woman, married or unmarried, has the same capacity as a man. A testator is presumed to be of sound mind unless, when signing, their mental or physical illness, drunkenness or any other cause meant they did not know what they were doing, and the burden of proving otherwise lies on the person who alleges it (section 5(3) and (4)). The test in the Act is whether the person is a minor.

Section 11 sets the formalities for a written will. The testator must sign or affix a mark, or another person must sign in the testator’s presence and at their direction. The signature must be placed so that it appears intended to give effect to the writing as a will. The will must be attested by two or more competent witnesses, each of whom saw the testator sign, or received a personal acknowledgement of the signature, and each must sign in the testator’s presence. No particular form of attestation is needed. Section 13 deals with gifts to attesting witnesses and their spouses, so use independent witnesses rather than beneficiaries.

Revoking or Changing a Will

Section 17 allows a will to be revoked or altered. Section 19 provides that a will is revoked by the maker’s marriage, unless it was expressly made in contemplation of marriage to a specified person. A person who is about to marry should review any existing will and, if appropriate, state in the new one that it is made in contemplation of that marriage.

Dying Without a Will

If there is no valid will, the estate is distributed under the intestacy provisions of the Act. Where an intestate leaves one surviving spouse and children, section 35 gives the spouse the personal and household effects absolutely and a life interest in the residue of the net intestate estate, with a power to appoint capital among the children by way of gift. Other sections deal with a spouse and no children (section 36), children and no spouse (section 38) and polygamous households (section 40). The rules are detailed, so take advice on how they apply to your family.

Dependants Can Challenge the Distribution

Under section 26, a dependant can apply to the court if the will, a gift in contemplation of death, or the law of intestacy does not make reasonable provision for them. The court may order that reasonable provision be made. Section 29 defines a dependant. It includes the wife or wives, former wives and children of the deceased whether or not they were being maintained, and certain other relatives, such as parents, grandchildren, step-children and siblings, who were being maintained by the deceased immediately before death. A will therefore does not guarantee that the estate will be shared as written. Testators with several families should address provision expressly rather than leave it to a later dispute.

Obtaining a Grant of Representation

A grant of representation is the court document that lets an executor or administrator deal with the estate. Section 51 requires every application to be made in the prescribed form, signed by the applicant and witnessed in the prescribed manner. The application must include prescribed information such as the full names of the deceased, the date and place of death and the last known place of residence. A grant of probate is issued to an executor named in a will, and a grant of letters of administration is issued where there is no will or no executor able to act.

Confirmation of the Grant

A grant alone does not allow the capital assets to be shared. Under section 55, no grant confers power to distribute capital assets until it is confirmed. Section 71(1) requires the holder to apply for confirmation after six months from the date of the grant, or such shorter period as the court directs, and the court confirms the grant if it is satisfied that the grant was rightly made and that the estate is being administered according to law. Plan on at least six months from the grant before any transfer of land or shares.

Do Not Intermeddle

Section 45 prohibits any person from taking possession of, disposing of or otherwise intermeddling with the free property of a deceased person, unless authorised by the Act, another written law or a grant. A person who contravenes it commits an offence punishable by a fine not exceeding KES 10,000 or imprisonment for up to one year, or both, and is answerable to the rightful executor or administrator for the assets they dealt with. Family members who sell a vehicle, collect rent or empty a bank account before a grant is issued can therefore expose themselves personally.

Practical Steps

Make a written will and keep the original somewhere your executor can reach. Name an executor, and a substitute. List assets and the documents of title for each. Review the will after any marriage, birth or major purchase. If a relative has died, collect the death certificate and the asset records and avoid moving estate property until a grant is issued.