Introduction

Recent media coverage surrounding disputes over the estate of the late Honourable Justice Majanja has reignited public debate on estate planning in Kenya. At the centre of this discussion is a critical question many Kenyans rarely ask early enough: Is making a will sufficient to protect one’s wishes after death?

While wills remain a common estate planning tool, experience from Kenyan courts shows that they are frequently contested. In many cases, succession disputes drag on for years, draining estates through legal fees and leaving beneficiaries frustrated and financially strained. By the time matters are concluded, very little may remain to distribute.

This reality has led many individuals and families to explore family trusts as a more effective and secure alternative to traditional wills.

Why Wills Are Frequently Challenged in Kenya

Under the Law of Succession Act, a testator enjoys what is known as testamentary freedom—the right to distribute property as they wish through a will. However, this freedom is not absolute.

Section 26 of the Act allows dependants who feel inadequately provided for to challenge a will in court. Dependants, as defined under Section 29, include spouses, former spouses, children, parents, step-children, grandchildren, and even siblings who were dependent on the deceased.

This means that even a properly written will can be set aside or altered by the court. As seen in numerous succession cases, including the Majanja matter, such disputes often delay access to inheritance for years and may defeat the very intentions the deceased sought to protect.

Family Trusts: A Smarter Estate Planning Solution

A family trust offers a more robust and forward-looking approach to estate planning in Kenya.

Family trusts are registered under the Trustees (Perpetual Succession) Act, and once incorporated, they acquire a separate legal personality. This means the trust can own property, enter into contracts, and continue to exist independently of the settlor.

When a settlor transfers assets into a family trust:

  • The assets no longer form part of the settlor’s personal estate
  • The property is not subject to succession proceedings upon death
  • Beneficiaries receive benefits according to the trust deed, without court intervention

As a result, family trusts significantly reduce the risk of disputes, delays, and costly litigation.

Key Benefits of a Family Trust Over a Will

  • Avoids succession court battles
  • Ensures privacy, unlike probate proceedings which are public
  • Provides continuity in management of family wealth
  • Protects beneficiaries, including minors and vulnerable dependants
  • Allows controlled distribution of assets over time
  • Minimises risk of will challenges

For high-value estates, business owners, professionals, and families seeking long-term wealth preservation, a family trust offers peace of mind that a will alone may not guarantee.

Conclusion

While wills still play an important role in estate planning, they are often insufficient on their own. In contrast, a properly structured family trust provides stronger protection of a person’s wishes, shields assets from prolonged litigation, and ensures beneficiaries receive their entitlements efficiently.

Estate planning should not begin with disputes—it should end them before they arise.

How We Can Help

At Wacuka Kihenjo & Company Advocates, we provide comprehensive estate planning services tailored to your unique needs, including:

  • Registration and structuring of family trusts
  • Estate planning consultations
  • Drafting of wills alongside trusts
  • Post-incorporation advisory and trust management support

We guide you through every step to ensure your assets are protected—for your benefit and that of your loved ones.

Contact us today to discuss whether a family trust is right for you.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For tailored legal guidance, consult a qualified advocate.