A will lets you decide who inherits your property, who manages your estate and who looks after your young children. Without one, your family must apply for letters of administration and share your estate according to the rules in the Law of Succession Act (Cap. 160), which may not match your wishes. (We explain that process in our guide to succession without a will.) This guide explains what makes a will valid in Kenya and the mistakes that most often lead to disputes.
Who can make a will
Under section 5 of the Act, any person of sound mind who is not a minor may dispose of their “free property” by will. A woman, married or unmarried, has the same capacity as a man. A person is presumed to be of sound mind, and anyone who claims otherwise must prove it.
“Free property” is property you are legally free to dispose of. It does not include:
- property you hold on trust for someone else; or
- property you own as a joint tenant, which passes automatically to the surviving co-owner when you die, whatever your will says.
Check how your land, accounts and investments are held before you rely on your will to deal with them.
The formal requirements for a written will
Section 11 sets out the requirements. A written will is valid only if:
- it is signed by you, or you make your mark on it, or someone else signs it in your presence and at your direction;
- the signature or mark is placed so that it is clear you intended the document to take effect as your will; and
- it is attested by at least two competent witnesses, each of whom saw you sign (or received your personal acknowledgement of your signature) and signed the will in your presence.
The Act does not require the two witnesses to be present at the same time. In practice, however, it is far better to sign in front of both witnesses together and to include an attestation clause recording that. A properly executed will is much easier to prove when the time comes.
No particular form of words is required. A well-drafted will normally:
- revokes all earlier wills;
- appoints one or more executors;
- appoints guardians for any minor children;
- makes specific gifts clearly, describing land by its title number;
- deals with the “residue”, meaning everything not specifically given away; and
- is dated.
Choose your witnesses carefully
Under section 13, a gift to an attesting witness, or to the spouse of a witness, is void unless the will is also attested by at least two other competent and independent witnesses. The will itself remains valid, but that person loses their gift.
The safest choice is two adults who receive nothing under the will and are not married to anyone who does.
Oral wills
The Act recognises oral wills, but only within narrow limits. Under section 9, an oral will is valid only if it was made before two or more competent witnesses and the person died within three months of making it. (There is a limited exception for members of the armed forces or merchant marine who die during the same period of active service.) An oral will cannot override a written will that has not been revoked.
Oral wills are frequently disputed. If you want your wishes to be respected, put them in writing.
When a will can be challenged
A will may be set aside if:
- the person making it lacked capacity at the time;
- its making was caused by fraud, coercion or undue pressure, or it was induced by mistake (section 7);
- it was not signed and witnessed as section 11 requires; or
- it had been revoked.
Disputes often arise where a will was made during a serious illness, where a beneficiary arranged the will, or where it departs sharply from an earlier will without explanation. Careful drafting and record-keeping reduce these risks.
Changing or revoking your will
You may revoke or change your will at any time while you have capacity (section 17). Under section 18, a will may be revoked only by:
- a later will or codicil that declares the intention to revoke it; or
- burning, tearing or otherwise destroying it with the intention of revoking it.
A written will cannot be revoked orally.
Marriage revokes a will. Under section 19, a will is automatically revoked when the person who made it marries. The only exception is a will made in contemplation of marriage to a specified person. If you marry, make a new will.
It is also wise to review your will after a divorce, the birth of a child, a major purchase or sale of property, or the death of an executor or beneficiary.
Your dependants can still go to court
A will does not give you unlimited freedom. Under section 26, if a will does not make reasonable provision for a dependant, the court may order reasonable provision out of the estate.
Under section 29, dependants include:
- the deceased’s spouse or spouses, former spouses and children, whether or not the deceased was maintaining them; and
- certain other relatives, such as parents, step-children, grandchildren and siblings, if the deceased was maintaining them immediately before death.
If you choose to leave a spouse or child out, or to give them less, set out your reasons clearly. The court will take your reasons into account, together with factors such as the size of the estate and the dependant’s needs.
Muslims
Under section 2(3), the Act does not govern the estate of a person who was a Muslim at death. That estate devolves according to Muslim law, and disputes are commonly heard by the Kadhi’s Courts. Islamic law generally limits bequests by will to one-third of the estate. The administration provisions of the Act still apply where they are consistent with Muslim law.
Keeping your will safe
The court will normally need the original will before it issues a grant of probate. A copy is much harder to prove. Keep the original with your advocate or in another secure place, and tell your executor where it is.
Frequently asked questions
Do I need a lawyer to make a will?
The law does not require one. However, homemade wills often contain errors that defeat the testator’s wishes: a beneficiary acting as a witness, unclear descriptions of property, no residue clause, or gifts of property held jointly. Professional drafting costs far less than a dispute.
Is a typed will valid?
Yes. A typed and printed will is valid, provided it is signed and witnessed as described above. An unsigned note, a message on your phone or a recording is very unlikely to meet the requirements for a written will.
Can I leave everything to one child?
You can, but your other dependants may apply to the court for reasonable provision. Explaining your reasons in the will, or making some provision for each dependant, reduces the risk of a successful challenge.
How we can help
We draft and review wills, advise and act for executors, and handle probate applications and will disputes. To put your affairs in order, contact Odek Law Advocates.
This article provides general information on Kenyan law as at October 2026 and is not legal advice. Please seek advice on your specific situation.