When a loved one passes away, the distribution of their estate is typically governed by the terms outlined in their will. However, there are times when the validity or fairness of the will is questioned. In Kenya, contesting a will is a legal process that can be initiated if you believe the will does not accurately reflect the intentions of the deceased or if you think there has been some form of wrongdoing.
In this article, we’ll explore how do I contest a will in Kenya, including the legal grounds, steps involved, and possible outcomes. If you feel you are unfairly excluded or believe the will may have been drafted under duress, understanding the process of contesting a will is crucial.
Why Would Someone Contest a Will in Kenya?
Before diving into the specifics of how do I contest a will in Kenya, it is important to understand the reasons why people challenge a will. There are several valid grounds under Kenyan law for contesting a will, such as:
- Fraud or Forgery: If you believe the will was forged or the deceased was tricked into signing it.
- Undue Influence: If you suspect that someone pressured or manipulated the deceased into creating or altering the will.
- Lack of Mental Capacity: If the deceased did not have the mental capacity to make decisions when drafting the will.
- Improper Execution: If the will was not properly signed or witnessed as required by Kenyan law.
- Revocation: If the deceased revoked or changed the will without proper procedure.
Understanding these reasons will help you assess whether contesting the will is a viable option for you.
How Do I Contest a Will in Kenya? The Legal Process
How do I contest a will in Kenya? The process can be complex, requiring careful consideration and legal guidance. If you are considering contesting a will, it’s important to seek professional advice from a lawyer specializing in succession law. Here’s a step-by-step guide to contesting a will in Kenya.
1. Determine the Grounds for Contesting the Will
The first step in how do I contest a will in Kenya is to establish the grounds for the challenge. As mentioned earlier, the grounds for contesting a will could include allegations of fraud, undue influence, lack of mental capacity, improper execution, or revocation.
You must have valid reasons for contesting the will; mere dissatisfaction with the terms of the will is not enough. If you are challenging the will based on undue influence, you must provide evidence that the deceased was coerced into changing their will or made to draft it in a way that doesn’t reflect their true wishes.
2. Consult a Lawyer
Once you have identified the grounds for contesting the will, it is essential to seek legal advice. How do I contest a will in Kenya without expert guidance? A family lawyer or a lawyer specializing in succession law can help you assess the strength of your case and advise you on the best course of action.
Your lawyer will guide you through the legal process and help you gather the necessary evidence to support your claim. In some cases, they may advise you to gather witness testimony, medical records, or other documentation that proves the deceased lacked mental capacity or was under undue influence at the time of drafting the will.
3. File a Caveat in the Probate Court
The next step in how do I contest a will in Kenya is to file a caveat with the High Court. A caveat is a formal notice that prevents the administration of the deceased’s estate until the dispute over the will is resolved. This prevents the executor from distributing the estate while the case is ongoing.
The caveat must be filed within 14 days of receiving notice of the probate application. If the caveat is filed, the executor must notify the court of the intention to proceed with the grant of probate, and a hearing will be scheduled.
4. Initiate a Probate Action
After filing a caveat, the next step in how do I contest a will in Kenya is to initiate a probate action. This involves formally challenging the validity of the will in court. During this process, the court will review the evidence presented, including witness statements, medical reports, and any other documentation that supports the claim of fraud, undue influence, or lack of capacity.
The court will also examine whether the will was properly executed according to Kenyan law. If it was not properly executed (e.g., if it lacked proper witnesses or was not signed in the presence of witnesses), the court may decide that the will is invalid.
5. Court Hearing and Decision
Once the probate action is filed, the matter will be heard in court. Both parties (the claimant and the executor) will present their arguments and evidence. The court may hear testimony from witnesses, such as medical professionals or individuals who were close to the deceased at the time of the will’s creation.
After the hearing, the court will make a decision regarding the validity of the will. If the court determines that the will is valid, it will grant probate, and the executor can proceed with administering the estate. If the court finds that the will is invalid, it may declare the will void and order the distribution of the estate according to the laws of intestacy (if no valid will exists).
6. Possible Outcomes of Contesting a Will
The outcome of how do I contest a will in Kenya depends on the evidence presented. There are several possible outcomes:
- The Will Is Upheld: If the court finds that the will was valid and legally executed, the executor will proceed with the distribution of the estate as outlined in the will.
- The Will Is Invalid: If the court finds that the will was invalid due to fraud, lack of mental capacity, or improper execution, it may be declared void.
- Partial Invalidity: In some cases, only certain parts of the will may be invalidated, and the rest of the will may remain enforceable. For example, if a portion of the will was influenced by undue pressure but other parts of the will reflect the deceased’s true wishes, the court may only invalidate the affected portion.
Time Limit for Contesting a Will in Kenya
It’s important to note that there are time limits for contesting a will in Kenya. Generally, you have six months from the date of the grant of probate to contest a will. If you fail to file a challenge within this period, you may lose the right to contest the will.
Challenges in Contesting a Will in Kenya
While how do I contest a will in Kenya is a legitimate question for those who believe they have been unfairly excluded or wronged by a will, it’s important to understand that contesting a will can be a lengthy and costly process. The chances of success depend largely on the strength of the evidence presented.
Additionally, the legal costs and time spent on a contest can be considerable, so it’s important to carefully weigh whether contesting a will is in your best interest.
Conclusion
If you are asking yourself “how do I contest a will in Kenya”, it’s essential to understand the legal grounds, steps involved, and potential outcomes. Contesting a will can be complex and emotionally charged, but if you have valid reasons, such as fraud, undue influence, or lack of mental capacity, the law provides a process for challenging a will.
Remember, seeking the assistance of a qualified lawyer who specializes in succession law is the best way to ensure your case is handled properly. Whether you are contesting a will due to unfair treatment or suspecting foul play, knowing your rights and the proper legal procedures is key to navigating the process.
