When I'm gone... Why that Christmas family inheritance talk may not stand in law

It feels like a sacred moment. The children, sensing the gravity, pull out their smartphones to hit ‘record.’ Someone – perhaps the organised cousin - volunteers to take minutes. When Dad points a finger and announces that Joe gets the prime plot in Kasarani while the girls share the village acreage, everyone nods. It feels official, it feels binding.

They record every word. They have witnesses. They have minutes signed by Mzee himself.

Then, months or years later, they discover a cold, hard statutory truth: good intentions, clear audio, and signed minutes do not equal a legal will. In the eyes of the law, that "sacred" family meeting might be worth exactly nothing.

The 90-day time bomb

Consider the story of a typical Kenyan family. The father, battling a terminal illness, is discharged from the hospital. The family throws a homecoming party - a celebration of life in the shadow of death.

During the family meeting, surrounded by his wife, children, and brothers, the father makes his wishes crystal clear: "Joe inherits the commercial plots. The rest of you share the farm."

Joe records this declaration. An uncle writes the minutes. The father signs them. Nobody questions the validity of a dying man’s wish. Joe, confident in his inheritance, starts building immediately, sinking millions into foundations and walls.

The father dies seven months later.

At the funeral, the unity cracks. Siblings sue, and the court journeys begin. Finally, after years, comes the judgment that leaves Joe standing in the rubble of his investment: the father’s clear, witnessed, recorded wishes were invalid.

Why? Because they constituted an oral will, and the father had the ‘misfortune’ of living four months too long.

Under the Law of Succession Act, an oral will is a valid concept, but it has strict requirements. For an oral will to be valid, it must be made before at least two competent witnesses, and the testator (the maker of the will) must die within three months of making it. Ninety days. No extensions.

If the testator outlives the 90 days, you can’t say "but he meant it." Unless you are in the armed forces or merchant marines on active service, if you survive to day 91, your oral will evaporates. The law views oral wills not as estate planning tools, but as emergency tools for people facing imminent death who physically cannot write.

"But we have a video!" you say. "We have him on camera saying it!"

This is the modern trap. In the age of smartphones and TikTok and Zoom, we assume a video is the ultimate proof. Our courts disagree.

The issue was settled tragically in the landmark case of In re Estate of Kevin John Ombajo (2021). Kevin Ombajo ("Big Kev"), gravely ill with a brain tumor and having lost his sight, recorded audio-visual statements on his phone in 2016. He had a previous written will from 2015, but these new recordings contradicted it, representing his updated wishes.

He died seven months after making the recordings. His widow argued that these recordings were his true final wishes. The court’s answer was a firm "No." Justice Achode held that a video recording is not a written will because it lacks a physical signature and proper attestation on the document itself. Instead, the court treated the video as an oral will captured electronically.

Because Ombajo survived more than three months after recording the video, the "oral will" had expired. The 2016 video was tossed out, and the 2015 written will governed the estate.

The lesson? Technology has not updated the Law of Succession Act. A video recording, no matter how high-definition, is just evidence of an oral will. It expires in 90 days.

The supremacy of written wills

This brings us to the "Gold Standard": the Written Will.

For a written will to be valid, it must be signed by the testator (or by someone in their presence and direction).

Read: How taboos hold back Kenyans from planning for succession

Crucially, this signature must be made, or acknowledged, in the simultaneous presence of two competent witnesses, who must then sign the will themselves.

This is where family meeting "minutes" fail. Even if Dad signs the minutes, did the witnesses sign them as a will? Were they present at the same time with the testator? Usually, minutes are just a record of a discussion. Without the specific formalities of the law, those minutes are just pieces of paper.

Conflict between oral and written wills

There’s also a hierarchy that surprises many people: a written will cannot be revoked by an oral will.

If your mother executed a formal written will in 2010, and then in December 2024 gathers the family to say, "I've changed my mind, I want everything to go to the last born," those words are legally hollow.

Even if she dies the next day (satisfying the 3-month rule), the oral declaration cannot overturn the written document.

The law assumes that written documents, created when a person was likely healthier and had legal counsel, reflect their true intent better than deathbed declarations, which can be influenced by pain, confusion, or the pressure of weeping relatives.

The witness trap: The "poisoned gift"

Let’s say you decide to do it right. You write it down. You need witnesses. Who do you call? Naturally, you call your children—the beneficiaries. Don't.

This is a classic legal trap. If a beneficiary (or their spouse) witnesses a written will, the will remains valid, but their gift becomes void. They technically inherit nothing.

For oral wills, the risk is even messier. The law requires that if there is a conflict in testimony, the contents must be proved by a "competent independent witness". An "independent" witness is defined as someone who is not a beneficiary. If your only witnesses to your oral will are your heirs, and a dispute arises, you have no valid witnesses.

Therefore, for a witness to a will, ask the neighbour, the doctor, or the lawyer.

The nightmare of intestacy

What happens when the oral will expires, or the minutes are rejected by the court? You hit intestacy. This is the legal term for dying without a valid will.

The default rules of the Law of Succession Act take over, and they are rigid. A surviving spouse generally receives a life interest in the property. She can live in the house and farm the land for the rest of her life, but she cannot sell it or divide it among the children without a complex court process.

The property enters a state of legal limbo. Development stalls. You cannot use the title deed for a loan, for instance, without a court’s approval. The family land becomes a museum: you can visit it, but you can’t leverage it.

How to fix it (The action plan)

So, this festive period and you are at that family meeting. The nyama choma is finished, and Mzee has just declared his wishes. The phone is recording. First, record it, but don't trust it. Treat the recording and the minutes as rough drafts, not the final product.

Secondly, act fast. You are on a 90-day clock, and you cannot revoke an old written will with this talk. The next is to get a lawyer who is well versed in estate planning and succession matters. Take the recording or minutes to him promptly.

You will then have the lawyer transcribe the minutes, and draft a formal written will based on those wishes.

The final main action will be to execute the will properly. Have Mzee review and approve it, then sign it in the presence of two independent witnesses (not you), who also sign immediately.

Kenyan law allows for oral wills, but it treats them with deep suspicion. They are temporary, fragile, and easily defeated by a piece of paper from a decade ago.

As you gather this holiday season, by all means, have the conversation. Record the memories. But if you want those wishes to survive longer than the Christmas leftovers, put them in ink. A written will is the only legacy that doesn't have an expiration date.

The writer is an Advocate and a partner in Muri Mwaniki Thige & Kageni LLP advocates. He can be reached on [email protected]