Conditions of a will

A written will is not valid unless it fulfills the following conditions.

1) The testator must sign the will; or he must affix his mark to the will (i.e. affix his thumbprint or his stamp or his ring—mark); or the will must be signed by some other person in the presence and by the direction of the testator (The testator must have animus testandi i.e. the desire to make a will).

2) The signature or mark of the testator, or the signature of the person signing for him, must be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.  (Normally the signature or mark should be put at the foot of the will).

3) The will must be attested by two or more competent witnesses, each of whom must have seen (they cannot therefore be blind) the testator sign or affix his mark to the will, or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person. Each of the witnesses must sign the will in the presence of the testator. It is not necessary that more than one witness be present at the same time, and no particular form of attestation is necessary.

4) A testator may refer in a will or codicil (a codicil is a testamentary instrument made in relation to a will, explaining, altering or adding to its dispositions or appointment; it must be made in accordance with the provision laid down for a written will) to another document then actually written which expresses any part of his intention.  If this document is clearly identified as the document to which the will refers, it shall be considered as forming part of the will or codicil in which it is referred to.

5) If one of the persons attesting the will or his spouse, is also a beneficiary of the will, or is appointed executor in the will, the will is valid as to the number of witnesses. However, 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 independent witnesses, in which case the bequest shall be valid.

6) If a person is appointed an executor of a will, he is not thereby disqualified as a witness to prove the execution of the will or to prove its validity or invalidity.

7) A will, drawn up in a foreign country in accordance with the laws of the country, shall be deemed to be valid in Kenya, even though it is not drawn up as above; it is valid to property in that country; it is valid if the testator is a national of that country, either at the time the will was made, or at the time of his death.