Contentious Probate and Succession Disputes in Kenya: Key Issues, Remedies and the Proper Forum

When an estate is disputed, the question is rarely simply, “Who should inherit?”

A succession dispute may involve the validity of a Will, the circumstances in which it was made, whether a person is entitled to reasonable provision, who qualifies as a beneficiary or dependant, whether an executor or administrator has properly performed their duties, or whether a particular asset actually belonged to the deceased.

These questions can become complex because different disputes may call for different remedies and, in some circumstances, may fall within the jurisdiction of different courts.

In Kenya, contentious probate and succession disputes are principally governed by the Law of Succession Act, Cap. 160, together with the Probate and Administration Rules and the constitutional and statutory provisions governing the jurisdiction of the courts.

The starting point in any contested estate should therefore be to identify the real dispute, the appropriate remedy, and the correct forum before substantial litigation costs are incurred.

1. Challenging the validity of a Will

A Will is an important expression of a person's testamentary wishes, but its existence does not necessarily make it valid or enforceable.

Section 5 of the Law of Succession Act permits a person of sound mind who is not a minor to dispose of their free property by Will. The Act, however, imposes important limitations on testamentary freedom and provides circumstances in which a Will or part of it may be rendered invalid.

Testamentary capacity

One of the most common challenges concerns the testator's mental capacity.

Section 5(3) of the Law of Succession Act provides that a person making a Will is presumed to be of sound mind unless, at the time of executing the Will, they were in such a state of mind—whether because of mental or physical illness, drunkenness or another cause—as not to know what they were doing. The burden of proving lack of testamentary capacity rests upon the person alleging it.

The fact that a testator was elderly, ill or receiving medical treatment does not, by itself, establish lack of testamentary capacity. The relevant question is the testator's state of mind at the time the Will was made.

The courts have consistently treated testamentary capacity as a question of fact to be determined from the evidence. In In re Estate of G.K. (Deceased) [2017] eKLR, the court considered the requirements surrounding testamentary capacity and the circumstances in which a Will may properly be challenged.

Evidence may include medical records, evidence from the advocate who prepared the Will, the attesting witnesses, persons who interacted with the testator around the relevant period, and evidence concerning the testator's conduct and understanding.

Fraud, coercion, undue influence and mistake

Section 7 of the Law of Succession Act provides that a Will, or part of a Will, is void where its making was caused by fraud or coercion, or by such importunity as deprived the testator of free agency, or by mistake.

The circumstances surrounding the preparation and execution of a Will can therefore become highly significant.

Questions may arise where:

• a beneficiary was closely involved in preparing the Will;
• the testator was dependent upon or vulnerable to another person;
• the Will substantially departs from previous testamentary wishes;
• the testator was allegedly pressured to exclude particular family members;
• the signature or thumbprint is disputed;
• the contents of the Will were allegedly not explained to an illiterate testator; or
• there are other suspicious circumstances surrounding its preparation or execution.

However, suspicion alone is not necessarily sufficient to invalidate a Will. The party challenging the Will must establish the legal ground relied upon with sufficient evidence.

Formal validity and execution

Section 11 of the Law of Succession Act sets out the formal requirements for a written Will. Among other requirements, the testator must sign or affix their mark to the Will, and the Will must be attested by at least two competent witnesses in the manner prescribed by the Act.

Accordingly, where execution is disputed, evidence from the attesting witnesses and the advocate or other person who prepared or supervised execution of the Will may become particularly important.

A challenge may therefore concern not only what the Will says, but also whether it was properly made and executed.

2. Reasonable provision for dependants

A valid Will does not necessarily end every succession claim.

Kenyan law recognises testamentary freedom while also protecting certain dependants who have not been adequately provided for.

Section 26 of the Law of Succession Act empowers the court, upon an appropriate application, to make reasonable provision from the deceased's net estate where the disposition made by Will, by gift in contemplation of death, under the law of intestacy, or through a combination of these, has not made reasonable provision for a dependant.

This is an important distinction.

A dependant may not necessarily be asking the court to declare the Will invalid. Instead, the complaint may be that even though the Will is valid, the provision made for the dependant is inadequate.

In determining whether to make an order for reasonable provision, the court exercises a statutory discretion. Section 27 permits the court to order a specific share of the estate, a lump sum, periodic payments or another appropriate form of provision.

Who is a dependant?

Section 29 defines the persons who qualify as dependants for purposes of Part III of the Law of Succession Act.

The first category includes the spouse or spouses and children of the deceased, whether or not they were maintained by the deceased immediately before death. The second category includes specified relatives and other persons who were being maintained by the deceased immediately before death.

The distinction is important because persons falling within the second category may have to establish actual maintenance or dependency.

In Okello v Onyango (Succession Appeal E002 of 2022) [2023] KEHC 22828 (KLR), the High Court emphasised that an application for reasonable provision under section 26 is available only to persons who fall within the statutory definition of a dependant under section 29. The court distinguished spouses and children, who fall within the first category, from other relatives who must establish dependency.

Similarly, in In re Estate of Stanley Paul Buliba (Deceased) [2023] KEHC 2702 (KLR), the court emphasised that “dependant” is a technical statutory term in the context of Part III of the Law of Succession Act and should not simply be equated with everyone who may, in an ordinary sense, have depended upon the deceased during their lifetime.

A reasonable-provision claim should therefore be approached as an evidence-based statutory claim rather than merely an assertion that the claimant was a member of the deceased's extended family.

3. Disputes over beneficiaries, spouses and dependants

Succession disputes frequently arise because parties disagree about who is entitled to participate in the estate.

Questions may include:

• Was the claimant legally married to the deceased?
• Was there more than one recognised spouse?
• Is a particular person a child of the deceased?
• Was a child adopted or otherwise taken into the deceased's family?
• Was a relative being maintained by the deceased?
• Is a person claiming under the Will actually entitled to the property in question?
• Has a beneficiary been deliberately or inadvertently left out of the proceedings?

These questions are significant because the identity of the beneficiaries determines the manner in which an estate may ultimately be administered and distributed.

Evidence may include marriage records, birth certificates, adoption documents, identity records, correspondence, financial records and testimony from persons familiar with the family circumstances.

Where dependency is disputed, evidence of financial or other support provided by the deceased before death may become critical.

4. Disputes concerning estate assets

Another major category of contentious succession litigation concerns the assets said to form part of the deceased's estate.

The succession court must establish the property available for administration and distribution. But not every dispute concerning property associated with a deceased person is necessarily a succession dispute.

For example, there may be a dispute as to whether:

• land registered in another person's name was actually beneficially owned by the deceased;
• property was held on trust;
• the deceased had already transferred an asset during their lifetime;
• a third party purchased property from the deceased;
• property was jointly owned;
• property was unlawfully transferred before or after death; or
• a third party has an independent proprietary claim.

The distinction between succession and ownership can therefore be decisive.

In Isaya Masira Momanyi v Daniel Omwoyo & Another [2017] eKLR, the court recognised that disputes concerning ownership of land between an estate and third parties are matters for determination in the appropriate land forum rather than matters to be conclusively determined through succession proceedings.

Similarly, in In re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, the High Court explained the distinction between the probate court's mandate to administer and distribute an estate and disputes concerning proprietary rights in land.

More recently, in Njuguna (Suing in his own capacity and in his capacity as the personal representative of the Estate of Monicah Wanjiku Thuo (Deceased)) & another v Mwaura (Sued as the personal representative/administrator of the Estate of the Late Paul Mwaura Thuo (Deceased)) [2024] KEELC 3772 (KLR), the Environment and Land Court considered the relationship between succession jurisdiction and disputes concerning land, noting the statutory and procedural distinction between inheritance and distribution of land under succession law and independent disputes concerning land rights.

The practical lesson is that a party should not assume that every dispute concerning property forming part of an estate belongs before the probate court.

5. Identifying the correct forum

This is one of the most important considerations in contentious succession litigation.

Section 47 of the Law of Succession Act gives the High Court jurisdiction to entertain applications and determine disputes under the Act. Magistrates' courts may also exercise succession jurisdiction where authorised by law and within their jurisdictional limits.

The Constitution, however, separately establishes the Environment and Land Court to determine disputes relating to the environment and the use and occupation of, and title to, land.

The distinction becomes particularly important where an estate dispute involves land.

A dispute between beneficiaries concerning the inheritance or distribution of land forming part of the deceased's estate will generally be dealt with through the succession process.

An independent dispute concerning title, ownership, use or occupation may, however, fall within the jurisdiction of the Environment and Land Court.

The courts have repeatedly emphasised this distinction.

In Njoroge v Njoroge & another (Environment & Land Case 36 of 2023) [2023] KEELC 21808 (KLR), the Environment and Land Court held that a dispute concerning the mode of distribution of a deceased person's estate was properly a succession matter and not a dispute concerning the use, occupation or title to land falling within the ELC's jurisdiction.

Similarly, in Muriu & 3 others v Onesmus & 2 others (Environment & Land Case E061 of 2022) [2023] KEELC 22230 (KLR), the court recognised the separate legal regimes governing succession and land disputes and referred to the applicable practice directions, which provide that cases concerning inheritance, succession and distribution of land under the Law of Succession Act should continue to be filed and heard by the High Court or competent Magistrates' Courts.

The position is therefore not that the ELC has no connection whatsoever with estate-related land disputes. Rather, the critical question is what the dispute is actually about.

In Njoroge & another v Kinuthia (Environment and Land Case E126 of 2025) [2026] KEELC 185 (KLR), the court considered the interaction between section 47 of the Law of Succession Act and the jurisdiction of the Environment and Land Court. The decision illustrates the importance of identifying whether the dispute concerns succession and distribution or an independent proprietary dispute concerning land.

The same issue was considered in In re Estate of Marko Mukhweso Muidakho (Deceased) [2026] KEHC 1702 (KLR), where the High Court emphasised that the fact that a dispute touches upon land does not automatically remove it from the jurisdiction of the succession court where the substance of the dispute concerns administration of the deceased's estate.

The question is therefore not simply whether the property is land. It is what legal issue the court is being asked to determine.

6. Challenging a grant of representation

A further source of contentious litigation is the grant of representation itself.

A grant may be challenged where, for example, the person who obtained it allegedly concealed material information, made a false statement, failed to disclose beneficiaries, or otherwise obtained the grant through defective or improper proceedings.

Section 76 of the Law of Succession Act provides the principal statutory grounds for revocation or annulment of a grant.

These include circumstances where:

• the proceedings to obtain the grant were defective in substance;
• the grant was obtained fraudulently by making a false statement or concealing something material;
• an essential allegation was made falsely;
• the person to whom the grant was made has failed to administer the estate diligently;
• the administrator has failed to produce inventories or accounts when required; or
• the grant has become useless or inoperative.

In In re Estate of the Late Kimeu Muthembwa Mbithi (Deceased) [2025] KEHC 17270 (KLR), the High Court reiterated the distinct role of the succession court in identifying the free property of the deceased, ascertaining beneficiaries and supervising distribution.

Revocation is therefore not simply a mechanism for correcting an unpopular distribution. The applicant should identify and prove a statutory ground under section 76.

7. Challenges to executors and administrators

Personal representatives occupy a position of significant responsibility.

Their statutory duties include collecting the deceased's free property, paying debts and expenses, preparing inventories and accounts, and distributing the remaining estate in accordance with the Will or applicable law.

Section 83 of the Law of Succession Act sets out the duties of personal representatives.

Disputes may therefore arise where an administrator or executor is alleged to have:

• failed to disclose estate assets;
• sold or transferred estate property improperly;
• failed to account for estate income;
• failed to pay legitimate debts;
• distributed assets contrary to the confirmed grant or Will;
• delayed administration without justification; or
• mixed estate property with personal property.

Where such conduct is established, the court may require accounts, issue directions concerning administration or, where the statutory requirements are met, revoke the grant.

The importance of the personal representative's duty to account was underscored in In re Estate of Patrick Mwangi Githinji (Deceased) [2025] KEHC 6867 (KLR), where the High Court considered questions concerning the administration of an estate and the court's jurisdiction over disputes arising within succession proceedings.

8. The importance of identifying the real dispute

A common mistake in estate litigation is to begin with the remedy rather than the underlying dispute.

For example, a party may seek revocation of a grant when the real dispute concerns ownership of land. Another may challenge a Will when the real complaint is that a dependant was inadequately provided for.

These are not necessarily the same claims and may require different evidence, procedures and remedies.

The principle that jurisdiction flows from the Constitution or statute is well established. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court held that a court's jurisdiction flows from either the Constitution or legislation, or both, and a court cannot arrogate to itself jurisdiction beyond what the law permits.

Accordingly, a succession court should not be invited to determine an issue that properly belongs to another specialised forum merely because that issue arises in the broader context of an estate.

The courts have stressed that jurisdiction is determined by the nature and substance of the dispute, rather than merely by the labels placed upon the pleadings.

Early legal analysis can therefore help determine:

1.       What exactly is being disputed?

2.       Is the dispute about succession, administration or proprietary ownership?

3.       What statutory remedy is available?

4.       Who bears the burden of proof?

5.       What evidence is required?

6.       Which court has jurisdiction?

7.       Can the issue be determined within the existing succession cause, or is separate litigation necessary?

9. Evidence is often decisive

Contentious probate matters are rarely determined by allegations alone.

Where a Will is challenged, relevant evidence may include the original Will, evidence from attesting witnesses, the advocate who prepared the Will, medical records, handwriting or signature evidence, previous Wills, correspondence and evidence concerning the circumstances surrounding execution.

In reasonable-provision claims, evidence concerning the claimant's relationship with and dependency upon the deceased, the deceased's assets and liabilities, the claimant's financial circumstances and the reasons for the provision made under the Will may become relevant.

In disputes over estate assets, title documents, sale agreements, bank records, company records, trust documents and evidence of possession or beneficial ownership may be critical.

The earlier the evidence is preserved and evaluated, the easier it may be to identify the strongest legal route.

10. A practical approach to contentious estates

When an estate becomes disputed, parties should consider taking a structured approach rather than immediately commencing multiple proceedings.

First, identify the estate

Determine what property, liabilities, interests and obligations actually belonged to the deceased at death.

Second, establish the parties

Identify the executors or administrators, beneficiaries, dependants and any third parties asserting an interest.

Third, identify the precise dispute

Is the challenge directed at the Will, the beneficiaries, the grant, the administration of the estate, or ownership of a particular asset?

Fourth, determine the appropriate remedy

Depending on the circumstances, the appropriate application may involve an objection to a grant, revocation or annulment, an application for reasonable provision, directions concerning administration, an objection to confirmation, or separate civil or land proceedings.

Fifth, confirm jurisdiction before filing

A claim filed in the wrong forum can result in delay, additional costs and potentially significant procedural complications.

This is particularly important where succession proceedings overlap with disputes concerning land or proprietary rights.

Conclusion

Contentious probate and succession disputes in Kenya involve much more than determining who receives an inheritance.

A disputed estate may require the court to determine whether a Will is valid, whether a testator had testamentary capacity, whether a Will was procured through fraud or undue influence, whether a dependant has been adequately provided for, whether a claimant qualifies as a beneficiary, whether an administrator has properly discharged their duties, or whether a disputed asset actually forms part of the deceased's estate.

Most importantly, not every dispute involving an estate is necessarily a succession dispute for determination within the probate court.

The proper approach is to identify the real issue, determine the applicable legal remedy, assess the evidence required, and establish the appropriate forum at the earliest possible stage.

Early and accurate identification of these issues can prevent unnecessary litigation, reduce procedural delays and help protect the value of the estate for those ultimately entitled to it.

This article is intended for general information only and does not constitute legal advice. The appropriate legal strategy will depend on the facts and circumstances of each estate.