One of the most frequently asked questions in succession law is whether a parent can completely disinherit a child by simply excluding them from a Will.

The answer under Kenyan law is nuanced. While every adult of sound mind enjoys the freedom to determine how his or her property should devolve upon death, that freedom is not absolute. The Law of Succession Act recognizes that certain family members deserve legal protection where a Will fails to make reasonable provision for them.

This balance between testamentary freedom and family responsibility has shaped Kenyan succession jurisprudence for decades.

The Principle of Testamentary Freedom

Section 5 of the Law of Succession Act gives every competent adult the freedom to dispose of his or her free property by Will.

This principle allows an individual to decide:

1. Who should inherit;
2. What each beneficiary should receive;
3. Whether property should be gifted to charities, friends or institutions; and how family businesses and investments should pass to future generations

For many years, there was a misconception that courts could simply rewrite a Will whenever beneficiaries complained about its contents. That has never been the law

The Hallmark Court of Appeal Decision

The leading authority remains Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR, where the Court of Appeal drew an important distinction between freedom and responsibility.

The Court recognised that every Kenyan has broad testamentary freedom. However, it also held that a testator must exercise that freedom responsibly and cannot ignore the statutory protection afforded to dependants under the Law of Succession Act.

The Court observed, in substance, that while an individual is free to distribute property by Will, that freedom does not extend to leaving those whom the deceased had a legal responsibility to maintain without reasonable provision. The Court therefore affirmed that section 26 empowers the courts to intervene where justice requires it. This principle remains the cornerstone of Kenyan succession law.

When Will the Court Intervene?

Contrary to popular belief, the Court does not rewrite every Will.

Intervention is exceptional.

Under section 26 of the Law of Succession Act, the Court may order reasonable provision only where:

1. The applicant qualifies as a dependant under the Act;
2. The Will (or intestacy) fails to make reasonable provision for that dependant; and
3. Justice requires judicial intervention after considering all the surrounding circumstances.

The burden rests on the dependant to demonstrate why the Court should exercise its discretion.

What Factors Does the Court Consider?

Section 28 of the Law of Succession Act requires the Court to evaluate several factors before interfering with a Will, including:

1. The size and nature of the estate;
2. The financial circumstances and needs of the dependant;
3. Any gifts or benefits previously received during the deceased’s lifetime;
4. The needs of other beneficiaries;
5. The relationship between the deceased and the dependant; and
6. The reasons, if known, why the deceased excluded the dependant.

The Court’s objective is not equality for its own sake but fairness in the particular circumstances of the estate.

Recent Confirmation by the Court of Appeal

Nearly three decades after Elizabeth Kamene Ndolo, the Court of Appeal reaffirmed the same principle in Musela v Wambui & 3 Others [2024] KECA 679 (KLR).

The Court confirmed that a valid Will is not invalid merely because it excludes a dependant. Instead, where a dependant has not been adequately provided for, the proper remedy is an application under section 26 of the Law of Succession Act seeking reasonable provision from the estate. The Court further recognised that Kenyan courts have consistently intervened to protect dependants who would otherwise suffer hardship through exclusion from a Will.

Conclution

For individuals preparing Wills, the lesson is straightforward: testamentary freedom should be exercised with careful legal advice. Excluding a spouse, child or other dependant without considering the statutory framework may expose the estate to litigation after death.

For beneficiaries, exclusion from a Will does not necessarily mean the end of the matter. Where the law recognises a person as a dependant and the Will fails to make reasonable provision, the Court retains jurisdiction to protect that dependant through an appropriate order.

The law in Kenya strikes a careful balance between respecting the wishes of the deceased and protecting vulnerable family members.

A Will remains one of the most powerful estate planning tools available. However, it should be drafted with a full appreciation of the statutory rights of dependants and the principles developed by the courts over many years.

At MASTA Advocates LLP, we advise clients on estate planning, preparation of Wills, probate administration, succession disputes and applications for reasonable provision under the Law of Succession Act. Thoughtful planning today is often the best safeguard against costly family disputes tomorrow.