The thought of writing a Will often bring to mind a stuffy lawyer’s office, complex legal jargon, and high fees. For many Kenyans, this perception is enough to postpone estate planning indefinitely, leaving their family’s future to chance.

But is a lawyer always required to write a valid Will in Kenya?

The simple, and somewhat surprising, answer is No, you do not always need a lawyer to write a legally valid Will in Kenya.

Kenyan law allows for a Will to be self-made. However, the path of a self-drafted Will is fraught with specific legal requirements and potential pitfalls that make professional guidance highly recommended.

Here is what you need to know about making a Will under the Law of Succession Act, Cap 160 of the Laws of Kenya.

The Legal Requirements for a Valid Will (With or Without a Lawyer)

Whether you hire a top advocate or write it yourself, your Will must meet the following mandatory legal standards to be considered valid by the Kenyan courts:

1. Testamentary Capacity:

   • You must be at least 18 years old.

   • You must be of sound mind—meaning you understand the nature of the act (making a Will), the extent of your property, and the people who have a claim on your estate.

2. In Writing:

   • The Will must be in writing (this can be typed or handwritten). Note: Oral Wills are recognized but have extremely strict conditions, including the testator dying within three months of making the Will, and are only valid for simple estates.

3. Proper Execution (Signing):

   • The Will must be signed or marked by the person making it (the Testator).

   • The Testator’s signature must be placed in a way that shows it was intended to give effect to the document as a Will.

   • The Testator must sign the Will in the presence of at least two competent witnesses.

   • The two witnesses must also sign the Will in the presence of the Testator.

4. Witness Qualification:

   • The witnesses must be competent (i.e., adults of sound mind).

   • Crucially: A witness (or their spouse) who is also a beneficiary of the Will will have their gift/bequest voided (cancelled), though the rest of the Will may remain valid.

When You Might NOT Need a Lawyer (The DIY Route)

If your estate is very simple, you may choose to draft your own Will using a template, provided you are meticulous about the legal requirements:

• Simple Estate: Your assets are straightforward (e.g., a single bank account and one piece of jointly owned property) and your distribution wishes are simple and non-controversial (e.g., everything goes to your spouse).

• Clear Relationships: You have a straightforward family structure with no blended families, estranged dependents, or potential claimants not immediately apparent.

• Willingness to Research: You are comfortable thoroughly researching the Law of Succession Act and ensuring your document’s language is precise and meets all execution requirements (especially the signing and witnessing rules).

When a Lawyer is Highly Recommended (The Prudent Route)

For nearly everyone else, hiring a lawyer is not just about convenience; it is a vital safeguard that ensures your wishes are not thwarted by legal challenges after you are gone.

You should strongly consider hiring an advocate if you have:

1. Complex Assets or Structures

• Real Estate: You own multiple properties, properties in different counties, or properties whose titles require special attention (e.g., leasehold, sectional titles, or undeveloped land).

• Business Interests: You own shares in a company, a partnership, or an established business.

• Financial Assets: You have extensive investments, multiple bank accounts, shares, or digital assets (like cryptocurrency).

• Foreign Property: You own property outside Kenya (you may need a Will in that jurisdiction too).

2. Complex Family Dynamics

• Blended Families: You have children from previous marriages or relationships.

• Disinheritance: You intend to leave out a person who is legally defined as a ‘dependent’ under the Law of Succession Act (this is a major legal risk that requires expert drafting).

• Special Needs: You have beneficiaries with special needs for whom you want to create a trust.

• Conditions: You wish to place conditions on an inheritance (e.g., “this property is bequeathed to my son when he attains the age of 25”).

3. Avoiding Invalidation or Disputes

• Clarity and Precision: A lawyer ensures the language is unambiguous, legally precise, and clearly reflects your intent, preventing costly misinterpretations and court battles.

• Witnessing Protocol: A lawyer will supervise the signing process to ensure the crucial witnessing requirements are met (especially that the witnesses are not beneficiaries).

• Dependent Provisions: They will advise you on the legal requirement to provide for all your dependents, reducing the risk of a successful challenge to your Will under Section 26 of the Law of Succession Act.

• Tax Planning: While not subject to inheritance tax, a lawyer can provide advice on overall estate structuring and capital gains tax implications for beneficiaries.

Final Take: DIY is Possible, but Professionalism is Peace of Mind

While the law permits you to write your own Will in Kenya, the risks associated with a self-made Will are substantial. A single error—such as an improperly qualified witness, vague language, or failure to adequately provide for a dependent—can lead to your Will being declared partially or wholly invalid (intestate).

When you hire a lawyer, you are not paying for the paper; you are paying for the expertise that guarantees the document will stand up in court, bringing peace of mind and ensuring your life’s assets are distributed exactly as you intended.

Don’t let a small saving today cost your family their inheritance tomorrow. If in doubt, invest in legal counsel to secure your legacy.

Disclaimer:

This article is intended for informational purposes only and does not constitute legal advice. Laws and procedures may change, and individual cases vary. If you are facing legal issues or have been arrested, consult a qualified advocate or legal aid organization in Mombasa for professional legal guidance.