By AMOS MUOKI 

Most people avoid thinking about death. It is an uncomfortable subject, often tangled with superstition, procrastination, or the vague belief that a will is only for the wealthy or the elderly.

Yet, as the law of succession makes clear, dying without a will—intestate—means losing all control over who inherits your property, who cares for your minor children, and who administers your estate. 

The single most powerful legal tool you possess to change this outcome is a valid, properly executed will. This article explains the true nature and function of a will, its essential characteristics, and the compelling advantages that should persuade every Kenyan to make one today.

What a Will Really Is

At its simplest, a will is a record of your wishes and intentions regarding the devolution of your property after your death. Section 3(1) of the Law of Succession Act defines it as “the legal declaration by a person of his intentions or wishes regarding the disposition of his property after his death duly made and executed in accordance with the Act.” 

As one court put it long ago, a will is the aggregate of a person’s testamentary intentions, manifested in writing and duly executed. But a will is not merely about property. It serves several other vital functions: you can use it to appoint personal representatives (executors) to administer your estate, to appoint trustees for any trusts you create, to name guardians for your children who are still minors at the time of your death, to give directions on the payment of your taxes and liabilities, and even to express your wishes regarding the disposal of your body or the donation of your organs for medical or scientific purposes. In short, a will is your final voice. Without one, you are silent, and the law speaks for you in ways you may never have intended.

The Defining Characteristics of a Will

To understand why a will is such a flexible and useful instrument, you must grasp its  essential characteristics.

First, the wishes expressed in a will are intended to take effect only upon death. If a document is meant to operate during your lifetime, it is not a will, no matter what you call it. 

Second, and following from this, a will only takes effect after you die. This means that beneficiaries acquire no interest in your property before your death. If a beneficiary dies between the time you make your will and the time you die, that gift lapses. It becomes null and void. 

Additionally, a will only operates as an expression of intention, not a fetter on your lifetime freedom. While you are alive, you remain free to sell or give away any asset, even one specifically mentioned in your will. Moreover, your personal representatives must first settle all your debts and liabilities from the estate. If those debts are large, even specific gifts may be absorbed. So a will is not a guarantee, but it is your best possible instruction.

Furthermore, a will is ambulatory. Because it takes effect only at death, it automatically captures property you acquire after making the will. If you executed a will in 2010 leaving “all my land” to a named person, that gift will include any land you buy in 2025. This makes the will a living document that keeps pace with your growing assets.

Fifth, and perhaps most importantly for your peace of mind, a will is always revocable. As long as you are alive and of sound mind, you can change or cancel your will at any time. Even if your will declares itself irrevocable, the law says otherwise. You are never trapped. This freedom to revise, update, or revoke gives you continuous control.

The Overwhelming Advantages of Making a Will

Given these characteristics, the advantages of making a will are enormous. Yet the sad reality is that most people die without one. They are reluctant to contemplate their own death, superstitiously fearing that a will might hasten it. They believe a will is pointless in their circumstances, or they fear it will generate controversy. They may simply be ignorant of the possibilities open to them. Do not let that be you. Let me emphasise clearly: making a will is one of the most responsible and caring acts you can perform for your loved ones.

First, a will allows you to maintain control over your property after you are gone. This is especially critical for married people with children. Imagine a wife who dies without a will, or with a will that leaves everything outright to her husband. She then has no control over what happens after her husband’s subsequent death. He might remarry and leave the combined estate to his second wife, leaving nothing for the children of the first marriage. A will avoids this entirely. You can give your spouse simply a life interest the right to income from the estate for life with the remainder passing directly to your children upon your spouse’s death. That is control.

Additionally, a will avoids the rigid, arbitrary rules of intestacy. If you die without a will, the law decides who inherits what. Those shares are fixed by statute and are often completely unsuitable for your family’s actual needs. A will is a personal document, your last beneficent act. Why would you abandon that power to impersonal provisions that may frustrate your unexpressed intentions? Do not leave your family to the mercy of a formula.

Third, a will enables you to appoint personal representatives of your own choice. You can name executors you trust, people who already know your affairs and will administer your estate efficiently. If you die intestate, the court appoints administrators for you. You have no say. That is a risk you need not take.

Moreover, there is an enormous administrative convenience in having a will. Executors derive their authority from the will itself, so they can begin administering your estate immediately upon your death. A grant of probate merely confirms their authority. But for an intestate estate, no one can act until a grant of letters of administration is obtained, a process that takes considerable time. Your dependants face unnecessary delay and inconvenience. A will spares them that.

Fifth, a will forces full disclosure of all your property. You list what you own, leaving no hidden assets to be lost or forgotten. In intestacy, valuable property may simply disappear because no one knew it existed.

Moreover, a will prevents disputes. By clearly stating how and to whom your property passes, you remove the grounds for squabbles, bitterness, and litigation among your survivors. Do you want your children fighting in court over your possessions? Of course not. A will is the cheapest peace you can buy for your family.

Further to the above, only a will allows you to benefit people outside your immediate family. Intestacy rules only favour next of kin. But what about a dear friend, a loyal employee, a charity you support, or a stepchild you love as your own? Without a will, they receive nothing. With a will, you can bless anyone you choose.

In conclusion, if you have minor children, a will lets you appoint testamentary guardians. This is vital, especially if you are a single parent. You can decide who will take parental responsibility for your children if you die while they are still young. Otherwise, the court will decide, and the result may not be what you would have wanted.

Finally, a will allows you to give directions about your body—whether you wish to be buried or cremated, and where, or whether you wish to donate your body or organs for medical education, scientific research, or patient treatment. I must emphasise, however, that such directions are not strictly binding. The law recognises no property in a dead human body, so a testator cannot legally dispose of his corpse. As the Court of Appeal stated in Pauline Ndete Kinyota Maingi v Rael Kinyota Maingi, these provisions amount merely to a request to your executors. But even a request, expressed in a formal will, carries great moral weight and is usually honoured.

A Final, Urgent Appeal

Please understand this clearly: a will is not a document for the dying. It is a document for the living who care about the future. It does not hasten death, it does not create controversy, and it is never a waste of time. On the contrary, it preserves your legacy, protects your children, honours your loved ones, and spares your family from unnecessary pain, delay, and expense. The law gives you the freedom to decide what happens to everything you have worked for. Do not surrender that freedom by default. Do not let the state write your last will for you. Sit down today, consult a qualified legal professional, and make your will. It is the final, greatest gift you will ever give to those you leave behind.

The writer is a legal commentator specializing in Succession Law, and this article is intended for public education only and does not constitute legal advice.