What makes a written or oral will legally valid in Kenya?

Both written and oral wills are recognized by law in Kenya. Validity of a will depends on the legal capacity of maker, absence of undue influence or fraud, and the particular formalities for the type of will.

Under sections 5 and section 7 of the Law of Succession Act (Cap. 160), the person making the will needs to be an adult of sound mind. He/she must also understand what they are doing. Soundness of the mind is presumed unless challenged with evidence.

For a written will, section 11 requires:

1. The maker to sign or mark it. They can also direct another person to sign in their presence;

2. The signature/mark to show an intention to give effect to the document as a will; and

3. at least two competent witnesses. Each witness must see the signature or receive the maker’s personal acknowledgement of it, then sign in the maker’s presence. The two witnesses need not be present at the same time.

A witness may attest the will, but a gift to that witness or their spouse is generally void unless there are at least two additional competent and independent witnesses.

For an oral will, section 9 requires two or more competent witnesses and death within three months after the will was made.