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Faith Musyoka, Adv. April 8, 2025Succession & Probate

Contesting a Will in Kenya

Legal grounds for challenging a lopsided inheritance

Will document with gavel

Not every will is valid. If you believe a loved one's will was made under pressure, while mentally incapacitated, or through fraud, you have the right to challenge it in court. Kenyan law strikes a balance between "testamentary freedom" (the right to leave property to anyone) and the protection of dependants. This article explains the key legal grounds to contest a will and the procedure to follow.

Important: A will cannot be challenged simply because you received less than you expected – you must prove a legal flaw under the Law of Succession Act.

Ground 1: Lack of Testamentary Capacity

Under Section 5 of the Law of Succession Act, the testator (will-maker) must be of sound mind. The court uses the Banks v Goodfellow test: the testator must understand the nature of making a will, the extent of their property, and the claims of those who might expect to benefit. Medical records, witness testimony, and expert psychiatric reports can prove incapacity.

Ground 2: Undue Influence or Coercion

If someone forced the testator to make or change a will against their free will, the will is void. Signs include: a sudden change in favour of a non‑relative who isolated the testator, the testator being in a vulnerable state (illness, advanced age), or threats. The burden of proof is high – you need clear evidence.

Fraud or Forgery: A will signed with a fake signature, or where the testator was tricked into signing something they thought was a different document, is invalid.

Ground 3: Lack of Proper Formalities

For a will to be valid, it must be in writing, signed by the testator, and attested by at least two competent witnesses who sign in the testator's presence. If any of these formalities are missing, the will is void. However, minor clerical errors that don't affect intention may be overlooked.

Ground 4: Reasonable Provision for Dependants

Even if a will is formally valid, certain dependants (current spouse, children, parents, and other dependants such as elderly relatives) can apply under Section 26 of the Law of Succession Act for "reasonable provision". The court may vary the will to provide maintenance, even if the testator intentionally excluded them. This is not an automatic right – you must show financial need.

"A will that disinherits a surviving spouse or minor children without justification is like a ticking time bomb. The court has power to rewrite it to ensure dependants are not left destitute." — Faith Musyoka, Family & Succession Advocate

Procedure to Contest a Will

  1. File a Citation to require the will's executor to prove the will.
  2. Lodge a Summons for revocation of grant (if probate already issued).
  3. File a cross‑petition or objection within 6 months of the grant being advertised.
  4. Attend mediation (mandatory in Machakos High Court) before trial.

Contesting a will is complex and time‑sensitive. You typically have 6 months from the date the grant was published to object. Act quickly. Musyoka & Mutinda has successfully challenged unfair wills and recovered rightful shares for dependants.