Based on the WAREN Law Advocates LLP webinar “Wealth Protection Plan for Kenyans Abroad,” held on June 9, 2026, featuring Janice Wachuka, Cecilia Njeri, and Ephraim Ndegwa.

The Family Division registry in Nairobi currently holds more than 13,000 active succession cases. Some estate disputes have been in the Kenyan courts for over 40 years, long enough for the original beneficiaries to die and their own children to inherit the litigation. Every one of those cases began the same way: someone built assets in Kenya and did not put a legally enforceable plan around them.

For Kenyans living in the US, the UK, Canada, the Gulf, and elsewhere, the exposure is sharper. You are building property, shares, and businesses in a jurisdiction you do not physically occupy. If something happens to you, the people managing the outcome will be working under Kenyan succession law, in Kenyan courts, on Kenyan timelines, whether or not anyone in your family understands how that system works.

This article summarizes the legal substance of the webinar: the tools Kenyan law provides for estate planning, what makes a will valid and contestable, how the probate process actually runs, how family trusts work under the Trustee (Perpetual Succession) (Amendment) Act, 2021, and how the two instruments fit together for diaspora wealth.

What Is Estate Planning and Why Does It Matter for Kenyans Abroad?

Estate planning is the legal process of arranging how your assets, liabilities, and family values will be handled, distributed, or passed down after you die or if you become incapacitated. It removes the guessing game. Your family follows a documented plan instead of negotiating among themselves or asking a court to decide for them.

Janice Wachuka opened the webinar with a client conversation that captures the gap. A man with shares, several rental properties, and a trading business held through his company was asked one question: if you were unavailable tomorrow, who would run all of this? He had no answer. He had spent decades building the portfolio and not one day planning its continuity.

The webinar framed generational wealth as more than the balance of your accounts. It is the transfer of vision, values, and stewardship capacity alongside the assets themselves. The Chandaria family illustrates what disciplined succession produces: a small provision shop opened on Biashara Street in 1915 became Chandaria Industries, now a manufacturing group spanning consumer products, plastics, steel, and aluminium, because each generation was prepared to receive and expand what it inherited. Tuskys and Nakumatt illustrate the opposite trajectory. So does the long-running litigation over the estate of Gerishon Kirima. The difference was rarely the quality of the original business. It was the quality of the succession plan.

The speakers cited research finding that 97 percent of wealth transition failures trace to family communication breakdown and unprepared heirs rather than to financial causes. Estate planning addresses exactly that failure mode.

What Happens When a Kenyan Estate Has No Plan?

When there is no valid will or trust, the estate passes under Kenya’s intestacy rules, and the consequences described in the webinar follow a predictable pattern:

• Family disputes over who is entitled to what, often pulling in extended relatives
• Businesses collapsing after the founder’s death because no one holds the vision or the authority to continue
• Assets frozen in administration proceedings for years while legal fees consume the estate
• Heirs receiving wealth without the preparation to manage it

For a diaspora family, every one of these problems is amplified by distance. You cannot attend court mentions from Seattle or Dubai, and the relatives on the ground may be the very parties contesting the estate.

Which Estate Planning Tools Does Kenyan Law Recognize?

The webinar reviewed five instruments. Each has a defined role and defined limits.

Power of attorney. You authorize a trusted person to make legal or financial decisions on your behalf. This is the workhorse document for diaspora Kenyans managing transactions remotely. Its limit is decisive: a power of attorney ceases to operate the moment you die. It is a management tool, never a succession tool.

Gift inter vivos. You transfer property to your intended beneficiaries while you are alive. The transfer is complete and immediate, which is both its strength and its risk.

Joint tenancy. Spouses commonly hold property jointly so that when one dies, ownership passes automatically to the survivor. This only defers the problem. When the surviving spouse dies, the property still requires a succession process unless further planning is in place.

A valid will. A written declaration of who receives what after your death, executed under the Law of Succession Act.

A trust. A permanent legal structure that holds assets for your beneficiaries, registered under the Trustee (Perpetual Succession) (Amendment) Act, 2021.

The will and the trust are the two complete estate planning instruments. The sections below cover each in the depth the webinar gave them.

What Makes a Will Valid in Kenya?

Cecilia Njeri set out the validity requirements under Kenyan law.

Capacity. Any person aged 18 or above, of any gender, may make a will. The testator must be of sound mind, and Kenyan law applies a specific three-part test: you understand that you are making a will, you have memory of the property you own, and you know your beneficiaries and how the property will pass to them. A person living with dementia can still make a valid will during a lucid period if the test is satisfied. The practical advice is to make the will early, because a challenger who alleges lack of capacity forces the estate into exactly the litigation the will was meant to prevent. The contested Kirima estate is Kenya’s best-known capacity dispute.

Voluntariness. The will must be made freely. Evidence of coercion, fraud, or undue influence opens it to challenge.

Witnesses. A written will requires two competent witnesses: adults of sound mind who see the testator sign or receive the testator’s personal acknowledgement of the signature. Avoid witnesses who are intoxicated, of unsound mind, blind, or illiterate, since their evidence may be unreliable if the will is contested. A beneficiary may witness a will without invalidating the will itself, but any gift to that witnessing beneficiary becomes invalid. If a beneficiary must witness, add two independent witnesses so the gift survives.

Executors. You may appoint up to four executors to carry out the will: family members, professionals, or any combination. If you appoint none, the will remains valid and the court appoints an administrator instead.

Kenyan law also recognizes oral wills, spoken before two competent witnesses. An oral will is valid only if the testator dies within three months of making it, a limit designed to keep the witnesses’ recollection reliable. Members of the armed forces and merchant marine in active service are exempt from the three-month rule. If you survive the emergency that prompted an oral will, put it in writing.

A will is never locked. A codicil amends specific provisions without redrafting the whole document. A new will revokes the old one. Physical destruction revokes a will if the destruction is complete enough to show intent; burning the edges proves nothing. Marriage automatically revokes any prior will unless that will was made in contemplation of the marriage. This last rule catches many diaspora Kenyans who marry abroad after making a Kenyan will.

Who Qualifies as a Dependant Under Kenya’s Law of Succession Act?

This is where many wills made by Kenyans abroad fail. Kenyan law identifies people you have a legal obligation to provide for, and a will that omits them invites a court application against the estate.

Dependants fall into two classes. The first class is your spouse and your children. They do not need to prove you were maintaining them before your death; the relationship alone entitles them to apply if the will leaves them out. The second class covers parents, siblings, stepchildren, grandchildren, and grandparents, who must prove you were maintaining them, for example through school fees or regular upkeep, immediately before your death.

The court weighs the size of the estate, lifetime gifts to the claimant, and the nature of your relationship before deciding whether to carve out a provision. The protective drafting practice is direct: provide for your dependants, and where you deliberately exclude one, state the reason in the will, such as an inheritance already given during your lifetime. A documented reason removes the court’s need to guess and substantially reduces contest risk.

Is a Will Written Abroad Valid in Kenya?

Yes, with a significant caution. A will made in the US, the UK, or elsewhere can validly dispose of Kenyan property if it was executed in accordance with the law of the country where it was made. Kenyan courts will recognize the foreign formalities.

The caution is that formal validity and substantive effect are different questions. The contents still operate against Kenyan law. A US state may permit you to disinherit dependants entirely; Kenyan law does not, and your Kenyan dependants can apply against the Kenyan estate regardless of what the foreign will says. WAREN’s working advice from the webinar: keep a Kenyan will for your Kenyan property, drafted against the Law of Succession Act, alongside whatever instrument governs your assets abroad.

How Does Probate Work in Kenya?

A will does not execute itself. After death, the executors or beneficiaries must take it through the probate process in the Kenyan courts. There is no route around this for a will. The webinar walked through the sequence:

1. Petition for a grant of probate. Filed in court with a supporting affidavit identifying the deceased, the place of death, the beneficiaries, the will, and the named executors.
2. Gazettement for 30 days. The court registrar publishes the petition, inviting objections from anyone who believes the grant should not issue, or who wishes to file a cross-petition claiming the grant themselves. The court hears and determines any objections.
3. Issuance of the grant. Once objections are resolved or the 30 days pass without any, the grant of probate issues. The executor can now gather the estate: call in debts, collect rent, and compile a full inventory of assets and liabilities.
4. Confirmation of grant after six months. The executor returns to court with the list of beneficiaries, the assets, and the proposed distribution. Only after confirmation can capital assets such as houses, vehicles, and shares be transferred to beneficiaries. The court may abridge the six-month period on application where justified.

A well-drafted, compliant will with beneficiaries in agreement moves through this process quickly. A contested will can stall at every stage, which is how estates end up in the 13,000-case backlog. The two structural answers to contest risk are careful drafting against the statutory requirements, and, where the objective justifies it, moving assets outside the probate process altogether through a trust.

How Does a Family Trust Work Under Kenyan Law?

Ephraim Ndegwa presented the trust as the most powerful instrument available for long-term legacy planning, with an immediate qualification: a trust does not serve everyone. The right structure depends on your family, your assets, and the legacy objective. If your goal is simply to pass property to your children in one step, a will does the job at lower cost.

A trust is a legal arrangement in which a settlor transfers ownership of assets to a trustee, who manages them for the benefit of beneficiaries. The webinar’s working image is useful: a trust is an immortal legal person. It does not die with the settlor. It can own, buy, and sell assets across generations, which removes the estate from the standard inheritance process entirely.

The parties. The settlor establishes the trust and contributes the property. The trustee manages it. The beneficiaries take the benefit. An optional fourth party, the enforcer, oversees the trustee’s compliance with the trust terms. Kenyan law permits you to be settlor, trustee, and beneficiary simultaneously, which is how a living trust serves you during your own lifetime. You cannot be the sole settlor, sole trustee, and sole beneficiary; that is a sham trust. Other beneficiaries, typically children and grandchildren, must exist alongside you.

Choosing trustees. This is the most consequential decision in the structure. Options include licensed corporate trustees regulated by the Retirement Benefits Authority, which offer professionalism and independence at higher cost; unlicensed corporate trustees; and individual trustees, whether professionals or trusted family members. The advised practice is a minimum of three trustees for checks and balances and continuity. A trustee is disqualified by death or dissolution, mental incapacity, conflict of interest, refusal to act, minority, or absence from Kenya for more than 12 months. That residence rule matters for diaspora families: a trustee living in the United States must maintain visits to Kenya frequent enough to avoid the 12-month absence threshold.

The trust deed. The deed is the rulebook and the make-or-break document. It must identify the trustees and beneficiaries, define the trustees’ powers and their limits, set out amendment procedures, distribution triggers, voting and execution rules, dispute resolution, the duration of the trust, and dissolution terms. The best trust deeds are close to self-executing, anticipating the large majority of future situations while leaving narrow, controlled room for amendment. The webinar pressed one point repeatedly: stay engaged in the drafting. Settlors who sign deeds they have never read are planting the disputes the trust was meant to prevent.

Why trusts resist challenge. A registered trust can be challenged only on narrow grounds: creation for an illegal purpose such as tax evasion or money laundering, fraud or duress in its establishment, uncertain terms, settlor incapacity, or unidentifiable beneficiaries. In the well-known Karume trust litigation, the court replaced trustees but left the trust and its terms standing, which demonstrates the resilience of the structure compared with a contested will.

A trust must be registered, first at the Ministry of Lands and then with the Business Registration Service, after which assets are formally settled into it. Asset verification comes first: many diaspora owners have sent money home for purchases over the years without conducting a recent search, and property must be confirmed against government records before it can be transferred into the trust.

Living Trust or Testamentary Trust: What Is the Difference?

Kenyan practice distinguishes two estate planning trusts. A living trust is created while the settlor is alive. Assets transfer into it immediately, the trustees begin managing, and the settlor watches the structure operate. On death, nothing changes legally; the trust continues, and there is no probate for the assets it holds.

A testamentary trust is created inside a will and only comes into effect after death. Because it is born from a will, it must pass through the probate process before it operates. That single feature gives the living trust its decisive advantage for anyone whose priority is keeping the estate out of court.

Trusts may also be discretionary, leaving trustees judgment over distributions, or fixed, with entitlements defined in advance in the deed.

How Should Income-Generating Assets Be Structured in a Trust?

Kenyan law treats a trust as a non-trading entity. This drives the structure WAREN recommends for estates that mix passive and active assets.

Passive assets, such as undeveloped land held for the next generation, can be settled directly into the trust. Active, income-generating assets, such as a supermarket, a garage, rental apartments, or any trading company, should sit inside a trading entity. The trading entity is owned 100 percent by a holding company, and the holding company is owned 100 percent by the trust. Operating accounts run at the trading level; proceeds flow up through the holding company to the trust.

This layering keeps the trust compliant with its non-trading character and insulates the legacy assets from operating risk. The webinar gave a concrete illustration of the inverse problem: put a vehicle directly into a trust, and a single road accident can drag the entire trust into litigation. Operational assets with liability exposure belong in a will or in the trading layer, never directly in the trust.

Will or Trust: Which Should Kenyans Abroad Choose?

The webinar’s answer is both, with each instrument carrying the assets it suits.

A will distributes assets after death only, must pass through public, court-supervised probate, and expresses directions you hope will be honored. A trust operates during your lifetime and after it, bypasses probate entirely, keeps your affairs private, and lets you watch the structure work while you are alive to correct it.

The allocation principle from the webinar: long-term legacy assets, land, and the holding structures above trading businesses belong in the trust. Day-to-day assets, vehicles, and operational accounts belong in the will. A trust handles continuity; a will sweeps up everything else.

Janice Wachuka closed with the reframe that answers the most common hesitation. Estate planning is preparation for continuity. You insure your car hoping never to claim. You buy health cover hoping never to need it. An estate plan works the same way, and since the Trustee (Perpetual Succession) (Amendment) Act, 2021, trusts are no longer reserved for large or politically exposed estates. The structure is available from wherever you are starting.

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This article is for general information and does not constitute legal advice. Speak with a qualified advocate about your specific circumstances.

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WAREN Law Advocates LLP advises Kenyans abroad on wills, family trusts, and succession structuring from its offices in Upper Hill, Nairobi, with a dedicated diaspora liaison.

Janice Wachuka is the Managing Partner of Waren Law and heads the firm’s Wealth Management practice, with a focus on diaspora property and succession matters. She advises Kenyan professionals across the U.S., U.K., Canada, the UAE, and Europe on protecting and structuring assets in Kenya.