THE QUESTION

Mpaka (one of Remmy’s sons), having seen the kind of problems his father’s estate has brought
into the family, decides to write a will for his estate. He goes to a lawyer who draws a will
dividing his property. One day while talking to his friends, he told them about the will he had
written. The friends laughed at him and told him that having written a will, he had invited death
to himself. On hearing this, he crumples the will and throws it into the waste paper basket. He
later came to your office and told you the story. He needs your advice.

INTRODUCTION

This section discusses the issue of revocation of wills. Under this section, we will deal with the
following matters; the law governing revocation of wills- where we will discuss the statutory
provisions and case law providing for revocation of wills, the conditions necessary to be met for
a will to be considered as revoked, the various forms or modes of revocation of the wills, who
bears the burden of proof in proving revocation of a will and the section will be concluded by the
remedies available for a revoked will. The section will also discuss the importance of will-
making and some of the misconceptions associated with will-making.

General issues

1. What is the purpose of a will and what are the advantages of will-making?
2. What are the misconceptions of will making?
3. What is revocation of a will and how can a will be revoked?

Legal issues

1. Whether the actions by Mpaka amount to revocation of the will.

2. Whether Mpaka had the intention to revoke his will.
3. Whether crumpling and disposing can be construed as revocation by destruction.
4. What remedies are available to Mpaka.
MISCONCEPTIONS ABOUT A WILL

In Kenya, there are several common misconceptions about wills that often stem from a lack of
legal awareness and can lead to unintended consequences including disputes, invalid
distributions and prolonged probate processes. These misconceptions include;

1) Discussing or writing a will invites death

In many Kenyan communities, discussions about death are considered taboo or inauspicious.
This cultural aversion often leads to the erroneous belief that preparing a will might hasten one’s
death. This misconception is reinforced by superstitions and a lack of awareness about the legal
and practical benefits of wills.

From a legal standpoint, the act of writing a will has no causal relationship with death. A will is a
legal instrument designed to address the distribution of an estate after death, not to influence the
timing of death.

2) Wills are only for the wealthy

The Law of Succession Act applies to all individuals who have the capacity to make a will,
regardless of the size of their estate. 1 A will ensures that assets are distributed as per the deceased
wishes. Without one, intestacy laws will determine asset distribution, which may not align with
the deceased intentions.

3) Assets automatically transfer to a spouse or children.

While the Law of Succession Act prioritizes the surviving spouse and children, the distribution is
not automatic and follows a specific statutory procedure.

For instance, where an intestate is survived by a spouse and children, the spouse is entitled to the
personal and household effects of the deceased absolutely; and a life interest in the whole residue
of the net intestate estate. The surviving spouse shall have a power of appointment of all or any
part of the capital of the net intestate estate by way of gift taking immediate effect among the
surviving child or children, but that power shall not be exercised by will nor in such manner as to
take effect at any future date.2

1
Law of Succession Act (Cap. 160), s 5.
2
Section 35.
 4) Only older individuals need a will

According to the law of succession act, any person of sound mind and who is not a minor may
dispose of all or any of his free property by will.3 Given the unpredictability of life, a will
ensures that even young individuals can provide for their dependents and distribute their assets as
per their wishes.

5) Once a will is written, no further action is required

Wills should be reviewed and updated periodically, especially following major life events such
as marriage, divorce, childbirth, or significant financial changes. An outdated will may not
reflect the deceased’s current wishes.

Despite the aforementioned misconceptions, there are immense benefits to writing a will.

BENEFITS OF WRITING A WILL

1. Ensures the writer of the will maintains control over their estate

When preparing a will, one includes information on the intended beneficiaries and the portion
that each beneficiary receives. The will also includes, the name of the intended executor. This
ensures that the person appointed to administer the will understands the testator's desires, which
may not be the case if the executor is appointed by the courts. By writing a will, a testator
endeavors to ensure that their property is administered according to their wishes.

2. Reduced family disputes

Without a will, the estates of the deceased are distributed according to the rules of intestacy. This
predisposes the administration of the estate to legal complexities, outside influence, mistrust and
suspicion as well as cultural and traditional factors that may lead someone to conclude that the
distributions were unequal. With the existence of a will, the testator leaves behind clear
instructions that are easily accepted and fulfilled.

3. Ensures quick administration of the estate

3
The rules of intestacy subject the administration of the estate to the back-logged court system.
With testate succession, the administration of the estate is quickened for the executors are able to
commence the process almost immediately without requiring external influence.

4. Protection of all assets

Wills include information as to the testator's list of assets; bank accounts, life insurance policies,
pension plans, businesses, jewelry, and personal assets of sentimental value. This could also
include intellectual property and digital assets that include photographs and password-protected
documents. Some of this information may not be known to the deceased’s potential beneficiaries
at the time of their death. With the existence of a will, that includes all this information, the
testator is assured that all their property is taken care of with finality.

MODES OF REVOCATION OF A WILL IN KENYA

Wills in Kenya are revocable. This position is expressed by the testamentary freedom of the
maker to create and revoke a will as they deem fit provided that at the time they are competent to
do so. This is captured in Section 17 of the Law of Succession. 4 There are two ways to revoke a
will through voluntary revocation and involuntary revocation.

1. Voluntary Revocation.

Here, there are three ways in which a testator can revoke a will voluntarily. These include
express revocation, implied revocation and revocation by destruction. 5 The Law of Succession
Act in Section 18(1) provides these three ways in which a testator can revoke a will. The section
states as follows:

I. Save as provided by section 19 , no will or codicil, or any part thereof, shall be

revoked otherwise than by another will or codicil declaring an intention to revoke
it, or by the burning, tearing or otherwise destroying of the will with the intention
of revoking it by the testator, or by some other person at his direction.

a) Express Revocation

4
Cap 160, Laws of Kenya
5
Musyoka, W. 2006. Law of Succession.
Express Revocation is provided for under Section 18(1) of the Law of Succession Act Cap 160,
Laws of Kenya. This section states that no will or codicil, or any part thereof, shall be revoked
otherwise than by another will or codicil declaring an intention to revoke it.6

It is worth noting, through the wording in the Act, that the will or codicil must ‘declare an
intention to revoke a will.’ Simply put, the testator must ensure that his or her will contains a
provision or clause that states that the will has revoked all previous wills and, or codicils if any.

In the case of Re Hawksley’s Settlement (1934) Ch 384, it was held that a testator describing a
will as the last will is not sufficient to amount to an express revocation of all previous wills. The
court opined that for a will to expressly revoke previous wills, the testator must be provide a
clause for the same and clearly state that the previous will is revoked. Further, the testatrix in this
case had referred to her previous will a the ‘cancelled will’ however, the court held that this did
not meet sufficient requisite to qualify as an express revocation and as such concluded that it was
an implied revocation owing to inconsistencies that arose from the two wills.7

Similarly, codicils must expressly provide which part of the will they intend to revoke. Failure to
provide this will result in the courts not admitting the will as validly revoked having met the
requirements under Section 18(1) of the Law of Succession Act.

In re Estate of Gitau Njoroge ‘B’ (Deceased) [2018] KEHC 5952 (KLR), the court held that a
will with an express revocation clause will revoke all prior written will made by the testator. The
court held that the 1995 will was valid, having been properly executed in accordance with the
Section 11 of the Law of Succession Act. The court reiterated that the will contained a clear and
unequivocal revocation clause, which stated: “I revoke all my former wills and other
testamentary dispositions hitherto made by me and declare this to be my last will.” The court
affirmed that the legal effect of such a clause is absolute, meaning that as of the deceased’s death
in 1997, the 1993 will was no longer valid. Since the 1995 will met all the legal requirements of
a valid will, it was upheld as the deceased’s final testamentary instrument. The court went ahead
and revoked the grant issued based on the 1993 will and further ordered that the estate be
distributed by the will dated 1995.

6
Section 18, Law of Succession Act.
7
Dls, “In Re Hawksley’s Settlement; Black v Tidy: 1934 - Swarb.Co.Uk” (swarb.co.uk, May 4,
2022)<https://swarb.co.uk/in-re-hawksleys-settlement-black-v-tidy-1934/ > accessed 7/03/2025
 b) Implied Revocation

Unlike express, implied revocation is not expressly provided in law. However, Section 18(2) of
the LSA8 is widely construed to encompass implied revocation of a will. The Section provides
that a written will may not be revoked by an oral will. Based on the rule of contextual
interpretation, this provision gives power to succeeding written wills and codicils prepared after
their predecessors to revoke part or all of the provisions of the old document, replacing them
with the new provisions contained in the novel legal draft.

Importantly, the main difference between express and implied revocation is the absence of a
revocation clause in the latter. In such cases, revocation is determined through construction of
the latter will or codicil. For instance, a car that was initially bequeathed to Beneficiary A in the
former will is, instead, bequeathed to Beneficiary B. This revokes the initial clause and gives
effect to the new one, even though the new document makes no declaratory remarks referencing
the initial bequeathing. This rule was established in the case of Birks v Birks (1865) 164 ER
1423, where the Court held that the latter will revokes the former will to the extent of the
inconsistencies.

In re Estate of Caxton Mukiri Muchene (Deceased) [2019] KEHC 11725 (KLR) the court
had to determine whether a subsequent will revoked a previous will even where the subsequent
will did not have an express revocation clause. The issue before the court was whether the
subsequent will implicitly revoked the 2004 will since it was a drawn and executed later. The
court had to determine whether the two wills met the measure set in Section 18(1) of the Law of
Succession Act, which provides that a subsequent will revokes all earlier wills to the extent of
any inconsistency. In determining the case, the court held that the 2006 will revoked the 2004
will, citing the Section 18(1) of the Law of Succession Act. The judge stated:

“On the issue as to whether the Will dated 18.1.2006 revoked the first Will, I find that
although it is not expressly stated a subsequent Will revokes all earlier Wills to the
extent of any inconsistency. Although, pursuant to the provisions of Section 18(1) of
the Law of Succession Act, a second or subsequent Will revokes all former Wills.”

8
Cap 160, Laws of Kenya
Inconsistencies noted between the two wills were that the 2004 will distributed the entire estate,
while the 2006 will altered some of the dispositions, particularly in relation to the suit property,
Dagoretti/Uthiru/451/48. The 2004 will had appointed the 1st respondent as an administrator and
bequeathed her certain rights, whereas the 2006 will made alternative provisions that conflicted
with these previous arrangements. The court held that the inconsistencies between the two wills
were sufficient to establish revocation, making the 2006 will the deceased’s valid last testament,
while the earlier will was nullified to the extent of any contradictions.

Revocation by destruction

Section 18 of the Law of Succession Act provides for revocation by burning, tearing or otherwise
destroying the will- with the intention of revoking it- by the testator or by someone else at his
direction.9 The elements present include actual destruction and intention to revoke the will.

i. Actual destruction

Actual destruction is the physical act of burning, tearing or otherwise destroying the will. The
term otherwise destroying has been construed as any act of destruction of the same kind as
burning and tearing.10 In Cheese vs Lovejoy (1877), the testator cancelled his will by striking out
its clauses and his signature with a pen and then writing at the back of the will ‘all these are
revoked’. He then threw the will in a pile of waste paper in the corner of the room where his
house cleaner retrieved and kept it in the kitchen drawer until the testator’s death eight years
later. The court held that he did not amount to ‘otherwise destroying’. Although he intended to
revoke the will it had not been destroyed and it was admitted to probate.11

Whether the actual destruction will result in revocation of the whole or part of the will depends
on the part that was actually destroyed. The extent of the act of destruction shows whether the
intention to revoke existed. Destruction of the will on the part containing the signature will result
in the entire revocation of the will. 12 This is seen in Re Morton’s Goods (1887), the testator’s
signature was completely scratched out.13 It was held that it amounted to otherwise destroying.

9
Section 18(1), Law of Succession
10
Willliam Musyoka, Law of Succession (law Africa 2006) 70.
11
Cheese v Lovejoy (1877) 2PD 251.
12
In the Goods of Lewis (1858) 1 SW and TR 31.
13
Re Morton goods (1887) 12 PD 14.
In Re Everest (1975), the testator cut off part of his will that contained the trusts of the residue. It
was held that the parts cut off were revoked but the rest of the will remained intact.

ii. Intention to revoke the will

The testator must have the capacity to revoke the will. This is the same capacity as it is
necessary to execute a valid will. In Doe D. Perkes v Perkes (1820), the testator tore his will in
four pieces in a rage with one of the beneficiaries named in the will. He later put the pieces
together. The court held that there was no actual destruction as the testator had not completed all
that he intended to do by way of destruction.14

In Re Aynsley (1873), the testatrix, who was old and confused, tore her will into forty pieces.
The judge put the pieces back together and stated that the will was valid because the testatrix
lacked the mental capacity to revoke the will.

The destruction must not be accidental. For example, if there was a fire and the will was
destroyed it would not amount to revocation of the will. 15 The occurrence of the accident negates
the intention on the part testator to revoke the will by destruction. If a testator is under some
mistaken belief, a destruction of the will would not result in revocation as there would be no
intention to revoke.

In Re Southerden’s Estate (1925), a testator revoked his will by destruction under the mistaken
belief that under rules of intestacy his widow would acquire the whole of his estate. The will was
held to be valid.16

iii. Destruction must be by the testator or by somebody else in his presence and by
his direction

The act of destruction must be completed by the testator. However, if the destruction is done by
another person, it must be done in the presence of the testator and at his directions.

In Re Dadds Goods (1857), a testator on her deathbed expressed a wish to revoke a codicil. Her
executor and neighbor went out of her presence into the kitchen to burn the codicil. It was held
there was no actual destruction.

14
Doe D Perkes v Perkes (1820)
15
Brunt v Brunt (1873) LR 3P and D 37.
16
Willliam Musyoka, Law of Succession (law Africa 2006) 72.
In Gill v Gill (1909), the testator’s wife tore up his will and it was held that there was no actual
destruction as the will was not destroyed under the testator’s direction. If a client directs their
advocate to destroy their will in the advocate’s possession, such destruction without the presence
of the client shall not amount to destruction of the will. However, a letter or document containing
the instructions to destroy is signed by the testator and attested by two witnesses the destruction
shall revoke the will.

In Re Durance (1872), a testator wrote to his brother who had custody of his will asking him to
destroy the will that the brother had. The letter was signed and witnessed by two persons. It was
held there was actual destruction and the will was revoked.17

Presumption concerning revocation by destruction

A will is presumed to have been destroyed by the testator with the intentions of revoking it in
cases where the will was last known to be in his possession. The presumption can be rebutted by
evidence to the contrary.18

Involuntary Revocation.

Revocation by Marriage.

A will made prior to a marriage can be automatically revoked when the testator gets married.
This is provided under Section 19 of the Law of Succession Act19 where it states:

A will shall be revoked by the marriage of the maker; but where a will is expressed to
be made in contemplation of marriage with a specified person, it shall not be revoked
by the marriage so contemplated.

However, an exception to this rule is also provided under the same section where the law of
succession act provides where the maker of a will made the will in contemplation of marriage to
specific person, then the will shall not be revoked and will still remain enforceable even after
marriage to the person specified in the will.

17
Re Durance (1872) LR 2 P&D 406
18
Willliam Musyoka, Law of Succession (law Africa 2006) 73.
19
Cap 160, Laws of Kenya
 APPLICATION AND LEGAL ADVICE TO MPAKA

In order to determine whether Mpaka revoked his will, two essential legal requirements must be
met. The first requirement is proof of actual destruction and the second test is animus revocandi
(intention to revoke). This analysis will explore these criteria in detail to determine the validity
of the revocation. In Banks v Goodfellow the court gave that the test for capacity to make a will
also applies to a testator’s capacity to revoke a will.

Did Mpaka actually destroy the will?

Section 17 of the Law of Succession Act states that:

“a will may be revoked or altered by the maker at any time when he is competent to dispose of
his free property by will.”

This provision sets out that any individual who has made a will provided is competent, can
revoke a will at any time.

Section 18 of the Act goes ahead to provide that:

“No will or codicil shall be revoked otherwise than by another will or codicil declaring
intention to revoke it, or by burning, tearing or otherwise destroying of the will with intention
of revoking it by the testator, or by some other person at his direction.”

It further provides that a written will shall not be revoked by an oral will. The wording of the
Section moreover is broad enough to encompass implied revocation, where a later will or codicil
revokes an earlier one to the extent of any inconsistencies.

Determining the extent of implied revocation requires careful construction of the documents, and
extrinsic evidence may be admitted to clarify the testator’s intention. However, Section 18(2)
explicitly prohibits the revocation of a written will by an oral will, emphasizing the necessity of
written formalities. This means that even if a testator verbally expresses an intention to revoke,
such an act will not suffice unless formalized in writing or through an act of destruction.
This balance between implied revocation and the prohibition on oral revocation ensures
flexibility in interpreting a testator’s intentions while maintaining legal certainty and preventing
informal or ambiguous revocations.

The law requires that for a will to be successfully revoked there must be actual destruction either
by burning or tearing or otherwise destroying with an intention to destroy the will. In the case of
Cheese v Lovejoy (1877) the court’s stand was that “a mere act of striking our certain clauses
with a pen and then writing at the back of the will “All these are revoked” and disposing it off in
a bin in the house did not amount to sufficient grounds for revocation” as the will was later
retrieved by the house help and kept safely in a drawer until his death. The will was admitted at
probate.

Similarly, in the case of Doe D Perkes v Perkes (1820) the testator tore his will into four pieces
in rage with one of his beneficiaries named in the will but pieced it back together once he was
calm. It was held that there was no actual destruction as the testator had not completed all that he
had intended to do by way of destruction.

In this case, Mpaka only crumpled up his will and threw it in his dustbin. Since he did not
physically destroy the will by way of burning or tearing it is our submission that destruction did
not occur hence the will can be admitted to probate in the event of his death.

Did Mpaka intend to revoke the will?

As stipulated earlier, Section 18 of the Law of Succession Act states that for revocation to take
place, the testator must intend to do so. The aspect of clear intention in this case is referred to as
animus revocandi. To revoke a will, a testator must have the same capacity as one execution a
will.

For example, in Re Ansley (1973) a testatrix who was old and confused tore her will into forty
pieces. The judge put the pieces together in a one-hour operation. It was held that the testatrix
lacked the mental capacity to revoke and the will was therefore still valid.

In this case, Mpaka only crumpled up his will and threw it in a bin because his friends laughed at
him and told him that he was inviting death on his door. It is our submission that Mpaka was
acting out of undue influence as his friends supplanted their superstitious beliefs that writing a
will equates to inviting death on one’s door. Due to this fact, one can conclude that the intention
of Mpaka revoking his will was questionable as his actions were driven by his friends’
superstitious beliefs rather than conscious and cautious reasons.

Legal Advice to Mpaka

The legal way forward for Mpaka would either be to revoke the will in a proper manner laid out
by the law, opt to keep the will valid or in the instance where he revokes his will in a valid
manner he can revive his will under the doctrine of revival of wills.

Revoking the will.

As mentioned earlier, there are various ways of revoking a will. As per section 18 (1) of the Law
of Succession Act, there are various ways of revoking a will. This can be either through express
revocation where a Testator by way of a will or codicil declares his/her intention to revoke the
old will. Implied revocation where a Testator writes a will or codicil that is inconsistent with the
provisions of the earlier will or codicil thereby revoking the previous will. Revocation by
destruction where a Testator by his own action or by some other person at his direction burns,
tears or otherwise destroys the will.

Section 19 of the Law of Succession Act, also provides for revocation of wills by marriage.
However, such will or codicil shall not be revoked where it is expressed that will made in
contemplation of marriage with specified persons.

Revival of wills

If Mpaka validly revokes his will and later wishes to revive it, the Law of Succession Act
provides in section 21 that:

“(1) No will which has been in any manner wholly revoked shall be revived otherwise
than by the re-execution thereof.
 (2) Where only part of a will has been revoked, that part shall not be revived otherwise
than by the re-execution thereof or by a subsequent will or codicil showing an
intention to revive it.”

This provision emphasizes that if a will is wholly revoked, the only way to revive it is through
re-execution. In cases where only part of the will is revoked, that specific portion can be revived
either by re-executing the will or by creating a subsequent will or codicil that clearly
demonstrates an intention to revive the revoked part.

It is important to note that in re-execution of wills due process of execution of wills, that is,
execution by testator in the presence of two witnesses and attestation of the will by two or more
competent witnesses as provided in Section 11 of the Act. In the case of Re Hardyman [1925]
Ch 287 it was stated that the effect of revival of a will or codicil is that it takes effect as though it
was created on the date of revival, rather than the original date it was first written

CONCLUSION

This case illustrates the woeful impacts of misconceptions around the making of wills among
African communities. The entrenchment of toxic cultural beliefs on death, causing many people
in these societies to hold strong, misguided superstitions. These strongholds interfere with sound
reason and therefore lead to poor estate planning decisions. Resultantly, a lot of avoidable
challenges are experienced by families around estates of the deceased, commonly characterized
by lengthy and expensive legal processes and degradation of relationships.

Revocation of wills is governed by Section 18 of the Law of Succession Act. According to the
Act, revocation by destruction is only valid if both the action as well as intention align. There
must be actual destruction of the document, either by burning, tearing, or any such means, and
the testator must have a clear intention to revoke the will. Mpaka’s action of crumpling his will
and throwing it in the waste does not meet the threshold stipulated in law, and as established in
the cases of Cheese v Lovejoy and Doe D Perkes v Perkes. The crumpling did not cause
significant or irrecoverable damage to the document, and his intentions were convoluted by
Mpaka’s friends’ cultural beliefs and superstitions. Therefore, the will remains valid.

As such, we advise Mpaka to retrieve the will from the disposal. From that point, if he certainly
wishes to revoke it, he may follow either one of the following legal steps; he may create a new
will with an express revocation clause for clarity of intent, or may destroy the document through
burning, shredding, or any other irreversible method, with clear intent. On the other hand, if he
desires to maintain the dispositions provided for in the will, he should secure the will effectively.
By ensuring that the will remains valid, Mpaka retains control over the disposition of his estate,
securing the interests of his family and avoiding the kind of disputes that arose over the estate of
his father before him.