Written wills - introducing judicial dispensing power in Kenya
Date
2025
Authors
Maina, J.
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Publisher
Strathmore University
Abstract
This research examines the need for introducing a judicial dispensing power in Kenya’s succession law to address the rigid formalities that often invalidate written wills due to minor technical defects. The study aims to assess the challenges posed by Kenya’s strict compliance with will execution requirements under the Law of Succession Act, which frequently frustrates testamentary intention, and explores the potential adoption of a judicial dispensing power to mitigate these issues. The central research question investigates how Kenya can reform its succession law to balance procedural safeguards with the validation of wills reflecting genuine testator intent. Guided by John H. Langbein’s substantial compliance theory, the research critiques the strict compliance approach, advocating for judicial discretion to validate defective wills where intent is clear.
A desktop doctrinal methodology is employed, analyzing primary legal sources from Kenya and comparative jurisdiction with South Africa, alongside secondary literature. Key findings reveal that Kenya’s rigid adherence to formalities leads to unjust outcomes, increased litigation, and gender disparities, particularly disadvantaged marginalized groups. In contrast, jurisdictions with dispensing powers, such as South Africa, demonstrate how judicial discretion can uphold testamentary freedom while minimizing fraud risks.
Keywords: Judicial dispensing power, Written wills, Testamentary freedom, Substantial compliance theory, Testamentary intent, Kenya, South Africa.
Description
Full - text undergraduate research project
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Citation
Maina, J. (2025). Written wills—Introducing judicial dispensing power in Kenya [Strathmore University]. http://hdl.handle.net/11071/16103