In many Kenyan households, the mere mention of writing a will is met with discomfort, uneasy laughter, or outright resistance. For some, it feels like “tempting fate”. As though putting pen to paper somehow accelerates death. Yet this belief, rooted in culture and superstition, has quietly cost families peace, wealth, and dignity.
The truth is simple: writing a will is not about death. It is about control, clarity, and care.
The Law Speaks: Your Wishes Matter
Under the Law of Succession Act, every person of sound mind and legal age has the right to determine how their estate will be distributed upon death. Section 5 enshrines testamentary freedom: the power to decide who gets what, when, and how.
Without a Will, the law applies intestacy rules. While orderly, these rules are impersonal. They do not account for unique family dynamics, vulnerable dependants, or personal intentions. In essence, silence invites the law to speak on your behalf, and it may not say what you would have wanted.
A Will is a Living Document
A common misconception is that a Will is permanent and unchangeable. In reality, it is a living document. As long as the testator is alive and mentally capable, they may amend, revoke, or replace it at any time.
Life evolves. Through marriage, children, business growth, or changing relationships, and so can your Will. Whether through a codicil or a new Will, the law preserves your flexibility. Writing a Will does not “lock in” your fate; it ensures your most current intentions are honoured.
The Cost of Silence
Kenyan courts are replete with succession disputes. Families divided, estates delayed, and resources depleted in litigation. Many of these conflicts stem from the absence of a clear Will.
In Rono v Rono & another [2005] KECA 326 (KLR), a 17-year dispute arose because the deceased died intestate. The Court of Appeal was forced to intervene where customary law sought to exclude daughters from inheritance, ultimately affirming that such discrimination is repugnant to justice and morality. Without a Will, the court had to reconstruct the deceased’s likely intentions: an imperfect exercise.
Similarly, in Re Estate of Lerionka Ole Ntutu, prolonged disputes over a vast estate underscored how unclear succession planning can escalate into costly and public conflict.
The law does respect a testator’s wishes. As stated in Robertson v Robertson’s Executors (1914), the “golden rule” is to give effect to the testator’s intentions unless prevented by law. Kenyan courts have consistently upheld this principle. In Re Estate of James Karanja alias James Kioi (Deceased) [2014] eKLR, the court declined to interfere with the clear terms of a Will, emphasizing the sanctity of testamentary freedom.
While Wills may be challenged on limited grounds, such as fraud, undue influence, or lack of capacity, such disputes are far narrower than those arising in intestacy.
Protecting Those Who Matter Most
A will is not merely about distributing wealth; it is about protecting people. It allows you to provide for dependants, appoint guardians for minor children, and safeguard vulnerable beneficiaries.
Although the court retains power under Section 26 of the Act to intervene where dependants are excluded, relying on judicial discretion is far riskier than making deliberate provision.
A well-drafted will ensures inter alia: provision for minor children and appointment of guardians; protection of vulnerable dependants; preservation of property; and minimization of family conflict.
It is, in many respects, a final act of responsibility.
Changing the Narrative
The fear surrounding Wills must be reframed. Writing a Will does not invite death; it invites order. It does not signal an ending, it reflects foresight and maturity.
Estate planning is not reserved for the wealthy or the elderly. It is for anyone who owns anything, or cares about anyone.
Conclusion: Your Voice Beyond Your Lifetime
A Will is your voice projected into the future. It speaks when you no longer can, settles disputes before they arise, and protects both your legacy and your loved ones.
The question, therefore, is not whether you should write a Will, but whether you are comfortable leaving your legacy to be decided by others.
Because in the end, failing to plan is not avoiding the conversation. It is surrendering it.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact our Litigation Department vide litigation@wamaeallen.com
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
