Testate succession occurs when a valid will made by a person of sound mind ensures their property passes to those they choose after death. A will must meet formal requirements including being made voluntarily without influence, and being properly executed with witnesses. The will can be revoked but a later marriage does not revoke it if contemplating that marriage. If dependents are not provided for reasonably, the court can order provision from the estate based on the deceased's property, the dependents' means and needs, any gifts made, conduct, and reasons for exclusion.

1. TESTATE SUCCESSION
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.
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.
The formal requirements of a valid will are as follows:-
• whether the person making had capacity to make the will.
Section 5 of the Law of Succession Act provides as follows:

2. “…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.
Any person making or purporting to make a will shall be deemed to be of sound mind for
purposes of the Act unless he is, at the time of executing the will, in such a state of mind,
whether arising from mental or physical illness, drunkenness, or from any other cause , as not to
know what he is doing.
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

3. 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.
The burden of proof that a testator was at the time he made the will, not of sound mind, shall be
upon the person alleging.
A person may by will, appoint an executor or executors.
• 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.
Formalities
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.
In relation to armed forces, an oral will made by a member of the armed forces or merchant
marine during a period of active service is valid if the testator dies during the same period of
active service notwithstanding the fact that he died more than three months after the date of
making the will.

4. The Act provides that no oral will shall be valid if, and so far as, it is contrary to any written will
which the testator has made, whether before or after the date of the oral will and which has not
been revoked as provided in the Act (sections 18/19)
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.
• the will is attested by two or more competent witnesses and each witness must sign the
will in the presence of the testator.
If a testator, in a will or codicil, refers to another document then actually written, and expressing
any part of his intentions, that document, where it is clearly identified as the document to which
the will refers, shall be considered as forming part of the will or codicil in which it is referred
to.A will shall not be considered as insufficiently attested by reason of any benefit thereby given,
either by way of bequest or by way of appointment to any person attesting it, or to his or her
spouse.
A bequest to an attesting witness (including any direction as to payment of costs or charges) or a
bequest to his or her spouse shall be void unless the will is also attested by at least two additional
competent and independent witnesses, in which case the bequest shall be valid.
No person, by reason of his being an executor of a will, shall be disqualified as a witness to
prove the execution of the will or to prove the validity or invalidity thereof.
Every will, whether of movable or immovable property, and whether executed before or after the
commencement of CAP 160, is be treated as properly executed if its execution conformed,
either at the time of execution or at the time of the testator’s death, to the law in force-
(a) in the state where it was executed; or
(b) in the state where the property is situated; or
(c) in the state where, at the time of its execution or the testator’s death, he was domiciled; or
(d) in a state of which the testator was a national either at the time of its execution or on his
death.
Revocation, Alteration and Revival
Section 17 provides that a will may be revoked or altered by the maker of it at any time when he
is competent to dispose of his free property by will.

5. Save as provided by section 19 of the Act, no will or codicil, or any part thereof, shall be revoked
otherwise than by another will or codicil declaring an intention to revoke it, or by the burning,
tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by
some other person at his direction.
Section 19 thus provides that, a swill shall be revoked by the marriage of the maker; but where a
will is expressed to be made in contemplation of marriage with a specified person, it shall not be
revoked by the marriage so contemplated.
No obliteration, interlineation or other alteration made in a written will after the execution
thereof shall have any effect unless the alteration is signed and attested as a written will is
required to be under section 11: Provided that a will as so altered shall be deemed to be duly
executed if the signature of the testator and the subscription of the witnesses is made in the
margin or on some other part of the will opposite or near to the alteration, or is referred to in a
memorandum written at the end or some other part of the will and so signed and attested.
Where a typewritten or printed will purports to have been executed by the filling in of any blank
spaces, there shall be a presumption that the will has been duly executed.
Section 21 deals with revival of will and provides that, no will which has been in any manner
wholly revoked shall be revived otherwise than by the re-execution thereof. Where only part of a
will has been revoked, that part shall not be revived otherwise than by the re-execution thereof or
by a subsequent will or codicil showing an intention to revive it.
The wills shall be construed in accordance with provisions of the first schedule.
Provision for Dependants
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, or by gift in contemplation of death, or
the law relating to intestacy, or the combination of the will, gift and law, 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. In making provision for a
dependant the court shall have complete discretion to order a specific share of the estate to be
given to the dependant, or to make such other provision for him by way of periodical payments
or a lump sum, and to impose such conditions, as it thinks fit.
Sec 28 provides that, in considering whether any order should be made under this
Part, and if so what order, the court shall have regard to- (a) the nature and amount of the
deceased’s property;
(b) any past, present or future capital or income from any source
of the dependant;

6. (c) the existing and future means and needs of the dependant;
(d) whether the deceased had made any advancement or other gift
to the dependant during his lifetime
(e) the conduct of the dependant in relation to the deceased;
(f) the situation and circumstances of the deceased’s other dependants
and the beneficiaries under any will
(g) the general circumstances of the case, including, so far as can be ascertained, the testator’s
reasons for not making provision for the dependant.

7. (c) the existing and future means and needs of the dependant;
(d) whether the deceased had made any advancement or other gift
to the dependant during his lifetime
(e) the conduct of the dependant in relation to the deceased;
(f) the situation and circumstances of the deceased’s other dependants
and the beneficiaries under any will
(g) the general circumstances of the case, including, so far as can be ascertained, the testator’s
reasons for not making provision for the dependant.