In an era where nearly every aspect of life is going digital, the age-old practice of estate planning is also undergoing a quiet transformation. Traditionally, a will in Kenya has always been tied to the tangible: ink on paper and signed before witnesses. But as technology continues to redefine how we document, communicate and preserve information, the question grows louder: is there space for electronic and audio-visual wills in Kenya’s succession landscape?
The traditional standard
The Law of Succession Act sets out strict requirements for a valid will: it must be in writing, signed by the testator and witnessed by at least two people who are capable of understanding what they are witnessing. This framework, designed to prevent fraud and uncertainty, has for decades safeguarded the wishes of the deceased. Yet, as society becomes increasingly digital, these formalities are arguably rigid in a world where electronic records and digital signatures are often regarded as binding as wet ink ones.
In re Estate of Kevin John Ombajo (Deceased) (Succession Cause 555 of 2018) [2021] KEHC 459 (KLR) (7 July 2021) (Judgment)the legal status of audio-visual recordings that were intended to be converted into a written will was determined by the court. The deceased had left a written will but later sought to vary its terms through audio-visual recordings. Seven months later, he passed away before the recordings could be reduced into writing. The court treated the recording as an oral will which failed because oral wills under Kenyan law only remain valid for three months unless made by a member of the armed forces in active service. The prior written will prevailed.
The global shift to digital wills
There is growing discourse around modernizing the law to permit electronic wills, especially in light of the COVID-19 pandemic which exposed limitations of physical witnessing. Countries like Australia have the COVID-19 Omnibus (Emergency Measures) Act 2020 which introduced provisions for electronic execution and remote witnessing. In addition, the United Kingdom, the United States of America and South Africa have seen cases where “unconventional” wills such as a typed note on a smartphone or a voice recording have been admitted in probate. This shift signals a growing recognition that digital tools can serve the same function as pen and paper.
Risks, concerns and reforms
While digital wills present exciting opportunities, they also raise serious concerns. Kenyan judges caution that electronic records may be susceptible to fraud, manipulation or even deepfakes and that without formal safeguards it becomes difficult to assess a testator’s capacity or protect them from undue influence. The absence of traditional witnessing also complicates authentication, placing a heavy burden on the courts. Even so, the case for reform remains strong. Electronic and audio-visual wills could make succession planning more accessible by allowing people to draft and update wills remotely, more secure through tamper-proof digital storage and more inclusive by enabling individuals who are illiterate or physically impaired to clearly communicate their wishes.
Conclusion
The conversation on the place of electronic and audio-visual wills in Kenya is no longer a matter of “if” but “when.” With the justice system already embracing innovations like e-filing, virtual hearings and electronic land registries, it seems only a matter of time before succession law follows suit. But until then, the written and witnessed will remains the only surefire way to securely express one’s posthumous wishes in Kenya.
The future of estate planning in Kenya may not be written in ink alone—it could very well be spoken into a camera, typed on a screen or stored in the cloud.
