Testamentary Freedom and Dependants’ Rights Clarified Under Kenyan Succession Law
On 2 May 2025, the Court of Appeal in Nairobi issued a landmark judgment in the case of Harvinder Kaur Dadhialla v. Mohamed Munir Chaudri & Others. This decision sheds light on how courts interpret Wills made by spouses, especially where a testator’s intentions appear to conflict with legal obligations under Kenyan law.
The ruling strongly reinforces principles CMS Kenya has long applied when advising clients on the preparation of wills.
Under the Law of Succession Act (the “Act”), a person has the legal freedom to distribute their estate as they wish through a Will. However, this freedom is subject to legal limits, particularly the duty to provide adequately for dependants.
As outlined in Section 29 of the Act, dependants include a spouse, former spouse, and children, whether or not they were being supported by the deceased before death. The law requires that these individuals be considered and reasonably provided for in the Will.
If you wish to exclude a dependant, you must clearly explain why. Providing valid reasons reduces the risk of future disputes and helps ensure that your intentions are upheld. Your Will should also clearly describe the nature and value of any gifts or lifetime transfers to avoid any ambiguity.
Importantly, the Court of Appeal also stated that even though spouses may create Wills at the same time or with similar terms, each spouse is legally treated as a separate person. This means each Will is treated independently. The intentions in one spouse’s Will do not automatically apply to the other. Therefore, it is crucial to review and update your Will following major life events such as marriage, divorce, the birth or death of a family member, or significant changes in your financial situation. This helps ensure your Will accurately reflects your current intentions.
Even when a couple passes away at the same time, their estates are handled separately under the law.
Finally, Section 26 of the Act gives the court the power to intervene where a Will fails to provide for dependants, and to make reasonable provisions on their behalf. This underscores the importance of drafting your Will in strict compliance with Kenyan succession law to reduce the chances of your wishes being challenged or reinterpreted by the courts after your death.
This alert serves the purpose of general guidance and is not intended to constitute specific legal advice. For legal advice concerning this alert, please contact our Partner Nishit.Maru@CMS-DI.com.
*Contributors
• Nabila Said, Senior Associate
• Laura Lwigado, Associate
• Keren Manaly, Associate
• Peter Munyao, Associate
