How to write a will in Kenya is the question this guide answers end to end: who can make one, the formal rules a will must satisfy to be valid, the difference between a written will and an oral will, how you revoke or change a will, what your dependants can still claim even where you have written one, and what your family will go through at the High Court to enforce it. If you want to control what happens to your land, your business, your shares, your M-Pesa balance, your bank accounts and your personal belongings after you die, a will is the only document Kenyan law recognises for the job.

What counts as a valid will in Kenya

The Law of Succession Act, Cap. 160 is the governing statute. Two foundational rules sit at the top of it.

First, a will must reflect your free, informed wishes. Under section 7, “A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.” A will signed because a child or a spouse pressured you, or because a lawyer slid the wrong document in front of you, is unenforceable.

Second, Kenya recognises two forms of will. Section 8 states plainly: “A will may be made either orally or in writing.” Each form has its own strict requirements. Get the form wrong and the document, however clear its intentions, is not a will.

A written will that meets section 11, or an oral will that meets section 9, is what the court will admit to probate. Nothing else.

For the wider succession picture, including what happens if you do not write one, see Dying without a will in Kenya and Succession & estate planning.

Who can make a will: age and capacity

Section 5 of Cap. 160 sets out who can make a will and on what terms.

“Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.”

Three things flow from that.

One, you must not be a minor. Cap. 160 itself does not fix the numeral; the anchor sits in two other instruments. The Age of Majority Act, Cap. 33, s. 2 provides that “a person shall be of full age and cease to be under any disability by reason of age on attaining the age of eighteen years.” Section 5(1) of the same Act is the express interpretive bridge: where an earlier written law uses “minor” or “infant” or “full age” to refer to a different age, it must be read as referring to 18 years. The Constitution of Kenya, 2010 entrenches the same threshold: Article 260 defines “adult” as “an individual who has attained the age of eighteen years” and “child” as “an individual who has not attained the age of eighteen years.” Eighteen is the line.

Two, women have the same capacity to write a will as men. Section 5 puts it directly: “A female person, whether married or unmarried, has the same capacity to make a will as does a male person.” Marital status is irrelevant. A wife does not need her husband’s consent. A widow does not need her in-laws’ permission. A single woman does not need her father’s blessing.

Three, capacity is presumed. Section 5 again: “Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing. The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.”

Section 5(4) reinforces the burden: a person alleging unsoundness of mind must prove it. The default tilts toward upholding your will.

Cap. 160 does not define “sound mind” beyond that negative formulation. The practitioner test for testamentary capacity comes from case law. The Kenyan High Court has settled on the Banks v Goodfellow (1870) LR 5 QB 549 four-limb test. In In re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR), at paragraph 23, the High Court (Musyoka and Ongeri JJ, Family Division) adopted the test for Kenyan purposes. A testator must:

  1. understand the nature of the act of making a will and its effects;
  2. understand the extent of the property being disposed of;
  3. be able to comprehend and appreciate the moral claims of those who ought to benefit; and
  4. be free of any disorder of the mind, or any insane delusion, that would distort their affections, sense of right, or natural judgment.

The same four-limb formulation has been applied in In re Estate of Murimi Kennedy Njogu (Deceased) [2016] KEHC 6302 (KLR) and In re Estate of Josephat Njoka Mbiriai (Deceased) [2022] KEHC 13952 (KLR). It is settled Kenyan High Court law.

Written, oral, or privileged: the three forms

There is no third “privileged will” category in Kenya. Cap. 160 recognises written wills and oral wills, with one narrow relaxation for armed forces and merchant marine personnel on active service.

Written wills

Section 11 is the rule book.

“No written will shall be valid unless (a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator; (b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will; (c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

In plain reading:

Two competent witnesses is both the statutory floor and the practical standard. Our house recommendation tracks the statute: two carefully chosen independent witnesses, neither of whom is a beneficiary or the spouse of a beneficiary, and who can both be located when the will comes up for probate. We do not over-engineer by recommending a third witness as belt-and-braces; we get the two right.

Two important warnings sit alongside section 11.

Beneficiaries should never be your witnesses. Section 13: “A bequest to an attesting witness (including any direction as to payment of costs or charges) or a bequest to his or her spouse shall be void, unless the will is also attested by at least two additional competent and independent witnesses, in which case the bequest shall be valid.” If your son witnesses your will and you have left him land, the land gift is void unless two other independent witnesses also signed. The will itself does not fall, but your son loses what you intended him to receive.

The executor you appoint can witness. Section 14: “No person, by reason of his being an executor of a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.”

Oral wills

Section 9 governs oral wills.

“No oral will shall be valid unless (a) it is made before two or more competent witnesses; and (b) the testator dies within a period of three months from the date of making the will: Provided that an oral will made by a member of the armed forces or merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he died more than three months after the date of making the will. No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by sections 18 and 19.”

Three rules to internalise:

The narrow relaxation: members of the armed forces or merchant marine on active service get an extended window. The three-month rule does not bind them so long as they die during the same period of active service. This is the closest Kenya comes to a “privileged” will, and it is restricted to those two categories of person on active service.

Oral wills are evidentially fragile. Section 10: “If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except so far as its contents are proved by a competent independent witness.” If the two witnesses disagree about what you said, the will fails unless a separate independent witness can confirm the contents. In practice, this is why almost every estate planning lawyer in Kenya pushes clients to a written will.

How to write a will, step by step

If you are writing a will in Kenya, the following sequence captures both the statutory rules and the practical safeguards.

  1. Inventory your assets. Land titles, share certificates, sacco balances, bank accounts, mobile money, vehicles, business interests, household goods. You cannot leave what you have not identified.
  2. Identify your dependants. Spouse or spouses, children, parents, anyone you maintain. This matters because section 26 (covered below) allows them to challenge an inadequate will.
  3. Choose your executors. These are the people who will administer the estate after you die. You can appoint one or several. They can also be witnesses (section 14).
  4. Draft the will. The will should be in writing, ideally typed, in language the testator understands. It should identify you clearly, state that it is your will, list the gifts you are making, name your executors, and revoke any earlier wills.
  5. Draft the memorandum of wishes alongside it. Our default at Muthomi Mutiga & Co Advocates is to prepare a memorandum of wishes for every will we draft. It captures the things you do not want frozen in the will itself: funeral arrangements, guidance to guardians on raising minor children, the reasons behind a particular distribution, the trustees’ priorities. Section 12 of Cap. 160 lets us incorporate that memorandum by reference so it is treated as forming part of the will for evidential purposes.
  6. Schedule the signing. Two competent witnesses must be available. Neither they nor their spouses should be beneficiaries.
  7. Sign in front of the witnesses, or affix your mark, or instruct another person to sign for you in your presence. Make sure the signature appears at the end of the document, intended to give it force as a will.
  8. The witnesses then each sign in your presence, attesting that they saw you sign or that you acknowledged your signature to them. They do not need to be present at the same time, but each must sign in your presence.
  9. Store the original safely with us. Our default is to take safe custody of the original at the firm under a written deposit acknowledgement. It is the easiest path to retrieval at probate, the hardest to lose, and the cleanest chain of evidence for the registry. Alternative options (registry deposit under Rule 6, or a fireproof safe at home) are covered in the FAQ below.

If you are blind or illiterate, or the will is in a language you do not fully speak, an additional safeguard applies at the probate stage. Under Rule 54(3) of the Probate and Administration Rules, the court will require an affidavit confirming that the contents were “read over to, and explained to, and appeared to be understood by, the testator immediately before the execution of the will.” Plan for this when drafting: have the will read aloud to you in front of the witnesses and record that fact.

What to include

A will should cover the following at a minimum.

Section 12 of Cap. 160 also lets you incorporate other documents by reference: “If a testator, in a will or codicil, refers to another document then actually written, and expressing any part of his intentions, that document, where it is clearly identified as the document to which the will refers, shall be considered as forming part of the will or codicil in which it is referred to.” This is the statutory basis for the memorandum of wishes we draft alongside the will, for a schedule of assets, and for any side letter to executors, so long as the document already exists and is clearly identified in the will.

Revoking, altering, or replacing your will

A will is not frozen. Section 17 of Cap. 160: “A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will.” So long as you still have capacity, you can change your mind.

Sections 18 and 19 set out the revocation routes.

Section 18 covers two of them:

Section 18 also closes one route off entirely: “A written will shall not be revoked by an oral will.” You cannot undo a written will by speaking a new one.

Section 19 adds a third revocation event: marriage. “A will shall be revoked by the marriage of the maker; but where a will is expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated.” So if you wrote a will before your wedding and the will was not expressed to be made in contemplation of that specific marriage, the wedding wipes the will out.

Alterations come with their own trap. Section 20: “No obliteration, interlineation or other alteration made in a written will after the execution thereof shall have any effect unless the alteration is signed and attested as a written will is required to be under section 11.” Scratching out a clause and writing a new one in pen is not enough. The alteration itself must be re-signed by you and re-witnessed by two competent witnesses, either next to the alteration or in a memorandum referring to it. Most lawyers will tell clients not to alter a will at all. Either execute a codicil that meets section 11, or rewrite the will from scratch.

A wholly revoked will cannot be informally revived. Section 21: “No will which has been in any manner wholly revoked shall be revived otherwise than by the re-execution thereof. Where only part of a will has been revoked, that part shall not be revived otherwise than by the re-execution thereof or by a subsequent will or codicil showing an intention to revive it.” If you tore up your 2018 will and now want it back, you cannot tape it together. You re-execute it, complying with section 11 all over again.

Dependants’ provision: when a will can be challenged even when valid

A Kenyan will is not absolute. Even a perfectly executed will can be opened up under Part III of Cap. 160 where it fails to make reasonable provision for a dependant.

Section 26: “Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.”

The court’s discretion is wide. Section 27: “In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.”

The factors the court weighs are listed in section 28: “(a) the nature and amount of the deceased’s property; (b) any past, present or future capital or income from any source of the dependant; (c) the existing and future means and needs of the dependant; (d) whether the deceased had made any advancement or other gift to the dependant during his lifetime; (e) the conduct of the dependant in relation to the deceased; (f) the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will; (g) the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.”

Who counts as a dependant is statutory. Section 29: “(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; (b) such of the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

Wives, former wives, and children always count, whether or not you maintained them. Extended family members count only if you were maintaining them at the time of your death.

There is a hard deadline. Section 30: “No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.” Once the grant is confirmed, the dependant-provision door closes.

The practical implication for will writing: if you intend to exclude or under-provide for someone who falls within section 29, do not stay silent about it. Document your reasons, in writing, contemporaneously. Section 28(g) directs the court to consider “the testator’s reasons for not making provision for the dependant.” Recorded reasons are evidence. Silence is an invitation to dispute.

What happens after you die: probate of a will

A will only takes legal effect once the High Court issues a grant. Until then, the executors cannot deal with the estate.

Section 45 of Cap. 160 makes the point sharp: “Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.” Intermeddling is a criminal offence. The section continues: “Any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment.”

The grant where there is a valid will is called probate. Section 53: where “a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will,” the court grants “probate of the will to one or more of the executors named therein; or if there is no proving executor, letters of administration with the will annexed.”

The petition for probate is filed under Rule 7 of the Probate and Administration Rules (Legal Notice 104 of 1980) in Form 78, supported by an affidavit in Form 3. The petition must include, under section 51 of the Act, the full names of the deceased, the date and place of death, the last known place of residence, the relationship of the applicant to the deceased, whether there is a valid will, the addresses of any executors, and “a full inventory of all the assets and liabilities of the deceased.” Where the will is written, the original is annexed to the petition. Where the original is alleged to have been lost or destroyed otherwise than by revocation, an authenticated copy is annexed under Rule 7(5).

Section 52 backs that up with a criminal sanction for false statements in the petition: “Any person who, in an application for representation, wilfully or recklessly makes a statement which is false in any material particular shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment.”

Where the petition can be filed is set out in Rule 7(3). It “may be filed in the principal registry or a High Court district registry or, in the case of a deceased the gross value of whose estate does not exceed one hundred thousand shillings, in a resident magistrate’s registry.”

Once filed, the registrar must advertise the petition. Section 67: “No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication.” Rule 7(4) operationalises this through Form 60, published in the Kenya Gazette at the petitioner’s cost, with the option of a daily newspaper, and exhibited at the courthouse. The objection window is at least 30 days.

If no objection is filed, the court can issue the grant. Rule 25(4): “Except with the leave of the court given for reasons to be recorded, no grant shall be made within fifteen days of the death of the deceased.” So the very earliest moment a grant can issue is 15 days from death, plus the 30-day objection period after publication.

Probate, unlike letters of administration, relates back to the date of death. Section 80: “A grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such. A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.” This is one of the practical advantages of writing a will: actions your executor took between your death and the grant being issued are validated retrospectively.

A grant alone does not authorise distribution. Section 55(1): “No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by section 71.” This is the confirmation stage. Section 71 sets the timing: “After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.”

Two pre-conditions must be cleared before confirmation. Section 72: “No grant of representation shall be confirmed until the court (a) is satisfied that no application under Part III of this Act is pending; and (b) has received a certificate from the Estate Duty Commissioner that he is satisfied that all estate duty payable in respect of the estate concerned has been or will be paid, or that no estate duty is payable in respect thereof; or (c) is itself satisfied that no estate duty is payable in respect of the estate concerned.”

There is a narrow early-confirmation route. Section 71(3) allows the court to confirm the grant before the six months expire if “there is no dependant, as defined by section 29, of the deceased or that the only dependants are of full age and consent to the application” and it is “expedient in all the circumstances of the case so to direct.”

Once the grant is confirmed, the executors can finally distribute the estate. Their duties under section 83 include providing a reasonable funeral, getting in all the deceased’s free property, paying debts, producing a full inventory to the court within six months of the grant, and, “within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate.”

The grant can be revoked at any time on the grounds listed in section 76, including that “the proceedings to obtain the grant were defective in substance,” that “the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case,” or that the holder “has failed, after due notice and without reasonable cause” to apply for confirmation within one year, or to proceed diligently with the administration. Diligence is not optional.

For the asset-by-asset mechanics, see Transfer land after death in Kenya.

Family trust vs will

A will and a family trust answer different questions.

A will is post-death. It only takes effect when you die. Until probate is granted and confirmed, nobody can deal with your estate. The wait for confirmation is six months minimum from the date of the grant. The grant itself takes weeks to months to issue, depending on the registry, objections, and the 30-day public notice. Your estate is fully exposed to public petition under section 67, the statutory register of grants under Rule 5 of the Probate and Administration Rules, and potential dependant claims under section 26.

A family trust is lifetime. You transfer assets into the trust while you are alive. The trust is registered. The trustees manage the assets according to your written instructions. When you die, the assets are already in the trust, not in your estate. There is no probate process, no 30-day Gazette advertisement, no six-month wait.

Trusts also handle scenarios that wills cannot:

Most established families in Kenya use both. The trust holds the assets you want shielded from the probate process. The will catches everything outside the trust and ratifies your choice of guardians and executors.

Read the full comparison at How to set up a family trust in Kenya and the wider planning context at Business succession in Kenya.

What it costs

There are two costs to think about when you write a will. The statutory cost (court fees and stamp duty) is fixed. The professional cost (our fee) depends on how much of the journey we handle.

Statutory costs

Writing the will itself attracts no stamp duty. Section 117(h) of the Stamp Duty Act, Cap. 480 exempts “a will, codicil, registered family trust or other testamentary disposition.” Drafting, signing, witnessing, and storing your will are all duty-free.

There is no inheritance tax or estate duty in Kenya. The Estate Duty (Abolition) Act, Act No. 10 of 1982 (commenced 28 June 1982) abolished estate duty more than 40 years ago. The First Schedule to the Estate Duty Act, Cap. 483 records that “no estate duty shall be levied or paid on property which passes on the death of any person.” Whatever you leave passes to your beneficiaries without a death tax.

When the time comes for probate, High Court filing fees for probate and succession matters are set by the Court Fees Assessment Schedule issued by the Hon. Lady Justice Martha Koome, Chief Justice, gazetted in Kenya Gazette Vol. CXXIII-No. 144 of 9 July 2021, effective 1 July 2021. The items most directly relevant to a will:

A grant of probate, unlike letters of administration, attracts no stamp duty under the Schedule to Cap. 480. The Sh. 200 stamp duty on the administration bond bites only on the intestate route, which is one of the quiet financial reasons to write a will rather than leave the family to take out letters of administration.

Our professional fee

A wills engagement at Muthomi Mutiga & Co Advocates breaks into four scope-defined stages. We scope and quote each stage separately so you can take only the stage you need, and we confirm the fee at the consultation once we see the shape of the work.

You can engage us for one stage or all four. Many clients write the will with us, leave the original in our custody, and only bring the firm back in at the probate stage. Others want the full lifecycle handled. We confirm the fee for each engaged stage at the diagnostic consultation. Book a consultation →

See also Cost of succession in Kenya for the wider statutory cost picture across testate and intestate routes.

How long it takes

Writing the will itself is a matter of meetings, drafting cycles, and one signing session. Most clients move from first consultation to signed will in two to four weeks, faster if the asset picture is simple.

The probate side is slower and largely in the court’s hands. The fixed checkpoints are:

In practical terms: months rather than weeks. The exact window depends on the registry and any objections. A contested probate, where an objection is lodged under section 68 and the objector files an answer and a cross-application under Rule 17, becomes contested litigation and runs materially longer.

Mistakes that get a will challenged

Some failures are statutory. Others are evidentiary. All of them are avoidable.

Frequently asked questions

Do I need a lawyer to write a will in Kenya?

The Law of Succession Act does not require it. A will that meets section 11 is valid whether or not a lawyer drafted it. In practice, the most common reason wills fail at the probate stage is technical non-compliance with section 11 (one witness instead of two, beneficiaries as witnesses, signatures in the wrong place). A lawyer’s role is to keep your will out of that failure zone, to make sure your asset schedule, dependant analysis and executor appointments hold up, and to draft the memorandum of wishes alongside the will so the things you do not want frozen in the document still speak.

Can my spouse write a joint will with me?

Cap. 160 uses singular testator language throughout. Kenyan estate-planning practice is to draft two separate, parallel wills (commonly called mirror wills) rather than a single joint instrument. We discuss the approach with each couple at the consultation: some structures suit two coordinated wills with reciprocal terms; others call for fully independent drafting. We do not recommend a single joint will, because section 17 lets each spouse revoke or alter their own will at a different time, and that is harder to do with a shared document than with two separate ones.

Can I leave everything to one child and disinherit the rest?

You can dispose of your free property as you wish under section 5, but a disinherited child is a dependant under section 29 and can apply under section 26 for reasonable provision. The court has wide discretion under section 27. If you intend to do this, document your reasons in the will, or in the memorandum of wishes incorporated under section 12, so that section 28(g) works in your favour.

Does marriage automatically cancel my will?

Yes. Section 19: “A will shall be revoked by the marriage of the maker.” The only carve-out is where the will is “expressed to be made in contemplation of marriage with a specified person,” in which case the contemplated marriage does not revoke it. If you wrote a will before your wedding and want it to survive, that wording must already be in the document.

What if my will is lost or destroyed?

If it is lost or destroyed otherwise than by your own act of revocation, the petitioner can annex an authenticated copy to the application under Rule 7(5), or alternatively apply for a limited grant of probate of a copy. Section 51 requires the petition to state the names and addresses of all persons who can prove its contents. The evidentiary burden is real, which is why our default is safe custody at the firm.

Can my executor also be a beneficiary?

Yes. The Act does not bar a beneficiary from being an executor. Section 14 expressly says an executor is not disqualified as a witness either. The combined effect: your spouse or adult child can be your executor and a beneficiary, but they should not be the attesting witnesses if they are receiving a gift, because of section 13.

How many witnesses do I need?

At least two competent witnesses for a written will (section 11). At least two competent witnesses for an oral will (section 9). Neither type of will is valid with only one witness. Our house recommendation tracks the statute exactly: two carefully chosen independent witnesses, no over-engineering.

Can I record a video will?

Cap. 160 recognises written wills (section 11) and oral wills (section 9). A video recording is neither. It is not a written instrument signed by the testator and attested by two witnesses, and it is not an oral declaration made before two competent witnesses in the section 9 sense, although it may have evidentiary value as a record of an oral will if the section 9 conditions are independently met (two competent witnesses, death within three months). A video by itself is not a will. Do not rely on one.

Does a will cover my pension and life insurance?

In most cases, no, and that is the point of the distinct nomination regimes.

Pension. The Retirement Benefits Act, Cap. 197, s. 36A is unhedged: “Upon the death of a member of a scheme, the benefit payable from the scheme shall not form part of the estate of the member for the purpose of administration and shall be paid out by the trustees in accordance with the scheme rules.” Statute, not contract, takes pension benefits outside the estate. The Retirement Benefits (Occupational Retirement Benefits Schemes) Regulations, Legal Notice 119 of 2000, regs 22, 23 and 26 govern the trustees’ distribution mechanics. Your scheme rules will tell you how to nominate, and how to update.

Life insurance. The Insurance Act, Cap. 487 splits two regimes. Section 100 creates a statutory trust where a policy is expressed to be for the benefit of the policyholder’s spouse, children or stepchildren: the proceeds bypass the estate. Section 111 governs nomination of beneficiaries on policies; subsection (7) is the textual hinge for how nominated proceeds pass. The cleanest bypass route is a section 100 statutory trust; a bare nomination under section 111 is procedural, and depending on the policy wording the proceeds may still touch the estate before payment.

Practical action: review your scheme nominations and policy nominations whenever you write or update a will, and confirm with your scheme administrator or insurer that the documents speak with one voice. Where you want belt-and-braces protection on a life policy, ask the insurer to record it as a section 100 statutory trust policy from the outset.

Where should I keep my will?

Three workable options.

  1. Safe custody at Muthomi Mutiga & Co Advocates is our default. We take the original under a written deposit acknowledgement, log it in the firm’s wills register, and release it on your written instructions during your lifetime, or to your executor on production of the death certificate and ID. Easiest retrieval at probate, hardest to lose, cleanest chain of evidence for the registry.
  2. Deposit at the High Court registry under Rule 6 of the Probate and Administration Rules. Maximum institutional protection; slower for retrieval and for any updates.
  3. Fireproof safe at home, with your executor told exactly where it is and how to access it. Most flexible during your lifetime; highest risk that the original is mislaid, damaged or contested.

The worst option is “somewhere safe” that only you know.

Is there inheritance tax in Kenya?

No. The Estate Duty (Abolition) Act, Act No. 10 of 1982 abolished estate duty in Kenya effective 28 June 1982. The First Schedule to the Estate Duty Act, Cap. 483 records that “no estate duty shall be levied or paid on property which passes on the death of any person.” Kenya has had no inheritance tax for more than four decades.

What if a dependant was left out of the will?

They can apply to the High Court under section 26 of Cap. 160 for reasonable provision out of the net estate. The court weighs the factors in section 28, including the size of the estate, the dependant’s needs, conduct, and your reasons (if any) for excluding them. The application must be filed before the grant is confirmed under section 71; section 30 closes the door once confirmation occurs.

If you want a will that holds up, an estate that does not get stuck in a contested probate, and a plan that fits the rest of your life (the family trust, the business succession, the land you still need to transfer), book a consultation.

Book a consultation →

Related reading: How to set up a family trust in Kenya · Dying without a will in Kenya · Transfer land after death in Kenya · Cost of succession in Kenya · Business succession in Kenya · Succession & estate planning.