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Succession After Death - Testate Succession

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Testate succession occurs when a person makes a valid and enforceable will which ensures that upon the death of that person, his property passes to a person/s of his choice. By preparing a will, a person indicates that he is desirous of retaining absolute or limited control over his property after death and it is therefore absolutely necessary to ensure that he prepares a will that will be considered valid and enforceable in accordance with the provisions of the law. It is normally prudent to engage the services of an advocate when preparing a will to ensure it complies with the provisions of the law.

Further it is necessary to note that a will is chiefly concerned with the disposal of property, but it can be used for other purposes and for incidental matters, such as giving directions as to the manner of disposal of the deceased’s body or even appointment of persons to administer the estate of the testator – the person making the will.

The essential characteristics or elements of a will are as follows:-

  1. the wishes expressed are only intended to take effect upon death.
  2. a will only takes effect after death.
  3. a will only operates as an expression of intention.
  4. a will is ambulatory, that is, it is capable of dealing with property which is acquired after the date of the will.
  5. a will is always revocable.

As previously indicated, a will only takes effect, that is, the deceased’s property is disposed off in accordance to the provisions of the will, when it has been proved to be a valid testamentary disposition. The process of proving the formal validity of a will is referred to as propounding the will. The formal requirements of a valid will are as follows:-

  • whether the testator had capacity to make the will.

Section 5 of the Law of Succession Act provides as follows:

…any person who is of sound mind and not a minor may dispose of all or any of his free property by will…

It is necessary to note that despite being considered to have a sound mind that enables a testator to understand the nature of the act of making a will and its effects, it is also necessary for the testator to have a sound memory enabling him to have a recollection of the property of which he is disposing and further he must have a sound understanding of what he is undertaking. This includes appreciating the moral claims upon him, that is, he should be able to remember the persons he is morally bound to provide for having regard to their relationship with him. Otherwise, the omission to adequately cater for any dependant may attract an application under Section 26 of the Law of Succession Act which provides as follows:

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,… 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.

A dependant is defined at Section 29 of the Act as follows:

  1. 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.
  2. such of the deceased’s parents, step-parents, grand-parents, 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.
  3. where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

Further Section 5(2) of the Act provides as follows:-

A female person, whether married or unmarried, has the same capacity to make a will as does a male person.

In Kenyan law, more specifically, Section 5(3) of the Law of Succession Act, it is presumed that the person making a will is of sound mind unless the contrary is proved. In the Matter of the Estate of James Ngengi Muigai Nairobi High Court, Succession Cause No. 523 of 1996 (Koome J), the testator was dementing and physically incapacitated due to joint pains and hypertension at the time of making the will. The witnesses who attested the will testified that the deceased looked normal. The court was satisfied that he was of sound mind as the objectors had failed to prove unsoundness of mind at the time of the execution of the will.

  • whether the will was made voluntarily without any duress, undue influence or by mistake.

A testator must know and approve the contents of their will. A testator approves the terms of the will if he executes it in those terms on his own volition and not because of coercion or undue influence by another person. Where there is a mistake or fraud, the knowledge and approval of the testator may be considered to be absent.

Section 7 of the Law of Succession Act provides as follows:

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."

Further In John Kinuthia Githinji vs Githua Kiarie and others Nairobi Court of Appeal, Civil Appeal No. 99 of 1988 (Gicheru JA) stated that it is essential to the validity of a will that at the time of its execution, the testator should know and approve of its contents: for where a will, rational on the face of it, is shown to have been executed and attested in the manner prescribed by law it is presumed, in the absence of any evidence to the contrary, to have been made by a person of competent understanding; but if there are circumstances in evidence, which counter balance that presumption, the decree of the court must be against its validity.

A will is also void if it is forged as there is lack of knowledge and approval by the testator of the contents of the will.

Under Kenyan Law, no specific form of a will is required. Section 8 provides that a will may either be oral or written.

Section 9 provides that an oral will shall be valid in the following instances:-

  1. when it is made before / in the presence of two or more competent witnesses.
  2. when the testator dies within a period of three months from the date of making the will.

Section 11 provides that a written will shall be valid in the following instances:-

  1. where 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.
  2. 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.
  3. the will is attested by two or more competent witnesses and each witness must sign the will in the presence of the testator.

In conclusion, when a person dies testate, his property is administered and disposed off in accordance to the provisions of his will. The procedure involves having the executor obtain a Grant of Probate which ideally gives the executor the authority to deal with the property of the deceased in accordance with the provisions of the will.

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