CHAPTER ONE
1. INTRODUCTION
1.1 Introduction
This is the branch of law that deals with inheritance.
The concept of inheritance is universal to all societies irrespective of their
legal system, ideology or religion. This
arises out of three basic philosophical considerations: that man needs to
acquire some property for his own sustenance and leading a good life. Inheritance is one of the means through which
property is acquired, the fact that man dies and leaves behind his property
that should continue to be owned by those who are left behind, and the fact
that man instinctively wants to have some control over his property even upon
his demise.
The key factors in inheritance are the death of the
property owner and the devolution of the property to the heirs and
beneficiaries. The law of succession provides the mechanism by which property
devolves from its deceased owner to the people who are left behind by him. In
all societies, the law of succession seeks to ensure that the rightful
claimants inherit the property of a deceased person. It also provides for the procedure by which
such rightful claimants accede to the estate of the deceased person.
1.2 Background
Even though inheritance is a universal concept among
human beings, each society has come up with its own laws and guidelines to
regulate the devolution of property from a deceased person to his descendants.
In the case of Kenya,
the country consists of diverse ethnic groups, each with a different set of
rules and customs relating to succession. During the colonial period in Kenya,
each tribe and race was subject to its own peculiar system of succession law.
The advent of independence saw movement towards
achieving uniformity in the area of the law of succession. This movement had
genesis in Chapter V of the Kenya Constitution which sought to put the
interests of all the Kenyan peoples at par in the eyes of the law. It is the determination to achieve this equality,
which led to the passing of the current statute on the subject, the Law of
Succession Act.[1] The
Law of Succession Act, passed in 1972, and brought into effect on 1st July 1981,
sought, inter alia, to unify all the
succession laws obtaining in Kenya
into a uniform legislation applicable to all the people of Kenya irrespective of their ethnic,
cultural or religious backgrounds.
In most societies, the right to inheritance is
predicated upon the relation between the inheritor and the deceased. In some societies, the immediate family
members inherit, to the exclusion of all the other people. In others, like is the case in most African
societies, the property of a deceased person devolves to his ‘family’. The word ‘family’ is very widely construed in
this context to include not only the immediate family members but also distant
relations and in some cases the clan.
Yet in some societies particularly in the west, the property goes to the
persons selected by the deceased in his will, regardless of the relationship
between them and the deceased. For example, in England prior to 1938 the heirs of
a deceased person were the persons he chose in his will. However, with the passing of the Inheritance
(Family Provisions) Act 1938 the freedom to will away ones property to
strangers was taken away by statute. The
statute provided that before one could make a bequest to a stranger under his
will, he had to ensure that all the persons who he had been maintaining prior
to his death, had been adequately provided for.
The legislature felt that the burden of maintaining such persons should
not be shifted to the state by at testator.
The courts were empowered by this statute to order for a reasonable provision
for the dependants from the estate. The
same position has been adopted in Kenya under sections 26 of the Law of Succession Act.
1.3 The Relationship between Succession Law and
Other Areas of Law
There is a very close interface between the law of succession
and the areas of law: family law, law of trusts and property law.
(a) Family law
Family law and succession law are interdependent. In
many respects the law of succession is seen as part of family law, in the sense
that following the demise of a family member his property is usually shared out
among the members of his family who survive him. The heirs or beneficiaries of the estate of the deceased, in most jurisdictions, are family members. In testate succession there is a moral
obligation on the part of the testator, while disposing of his property in
total freedom of testation, to provide for his family. The law usually inserts
provisions in the law allowing family members to move the court to challenge a
testament which does not provide for them and the court is vested with power to
interfere where there is inadequate provision for a family member. For these
reasons family law has a strong bearing on succession law. Most of the
succession disputes turn on family law questions, such as whether a person
claiming to be a heir or dependant of
the deceased or to be beneficially interested in the estate of the deceased was
a spouse or child of the deceased.
(b) Law of Trusts
In administration of estates of deceased persons the
issue of trusts inevitably arises. The property of the deceased vests in the
personal representative who holds the real and personal property of the
deceased for the benefit of others, and not his own. In the circumstances the
personal representative holds the property in trust for all the creditors and
beneficiaries who are entitled to the estate of the deceased. He stands in a
fiduciary position with regard to the property and in his relationship with the
creditors and beneficiaries. Under the Trustee Act[2]
the definition of trustee includes a personal representative, although the true
relationship of the two offices is not exactly the same, but the personal
representative may become a trustee in the full sense.
(c) Property law
Law of succession is concerned with devolution of
property rights upon death from the dead person
to those who survive him. Naturally property law is of consequence. This
is particularly important at the administration stage. Property vests in
personal representatives upon the making of the grant of representation. The
personal representatives have the obligation to collect the property making up
the estate and preserve it. They are given wide powers regarding the management
of the property, which includes the power to sell and invest the same. The distribution
of assets to creditors and beneficiaries almost always involves the transfer of
title in the property.
CHAPTER TWO
2. HISTORY OF THE LAW OF SUCCESSION IN KENYA
2.1 Introduction
The period prior to 1st July 1981, when the Law of
Succession Act came into force, was characterised by a plural application of
succession laws in Kenya.
Each socio-cultural group had its own body of succession law. This scenario
obtained because of historical reasons.
2.2 The Law applying to Africans
For a long time before the statutory law of succession
came into force, the law of succession governing indigenous Kenyans was
customary. Each tribe had its own customary law of succession, which meant that
there were numerous customary laws of inheritance applying in Kenya.
The advent of colonialism saw the introduction of
other systems of succession law, some of
which were progressively made applicable to Africans. The East Africa Order
in Council, 1897 for example, introduced
the Indian Succession Act, 1865[i]
as the general law of succession applicable to all in the territory, including
Africans. The Native Courts Regulations, 1897, in article 64 provided that the
African Christians were to be governed by the law that governed Indian
Christians on matters affecting personal status. The Native Estates
Administration Rules and Orders, 1899[ii]
regulated the administration of estates of such Africans, and vested
jurisdiction on native courts with respect to the estates. For those Africans
who professed neither the Christian or
Islamic faiths, the law of their tribe relating to personal status applied, so
far as it could be ascertained and was not repugnant to natural morality.
In 1902 the East African Marriage Ordinance, 1902 was passed, section 39 of which provided
that the English law of succession would apply to the intestate estates of Africans who contracted a statutory
marriage. The English law primarily covered personal property and any real
property which the intestate might have disposed by will. Customary law on the
other hand covered real property the succession to which could not be affected
by testamentary disposition. In 1903 the
Indian Succession Act, 1865 was disapplied to Africans by virtue of section 2 of the Application to
Natives of Indian Acts Ordinance, 1903.[iii]
In 1904, the Native Christian Marriage Ordinance,
1904[iv]
repealed section 39 of the 1902 Ordinance and thereby subjected the African
customary law of succession to the estates of all native Africans irrespective
of their marriage law system. The decision of the court in the case of Benjawa Jembe
vs. Priscilla Nyondo(1912) 4 EALR 160
was founded on the Native Christian Marriage Ordinance, 1904. In the
matter, Barth J held that succession of an African Christian’s estate followed
the law of the tribe to which such African Christian belonged. The judge said:
The fact that the deceased married a wife according to
the rules of the Anglican Church does not affect the succession to his
property. Such succession must be
regulated by native law or custom[v]
This remained the position until 1961 when the African
Wills Ordinance was passed to enable the Africans make written wills. Testate
succession became subject to this statute while intestate succession continued
being governed by the respective customary law of the deceased. The African
Wills Ordinance originated from the recommendations made by Arthur Phillips in his Report on Native Tribunals.[vi]
In the chapter dealing with succession, Phillips underscored the then urgent need to provide the African with a suitable
legal machinery through which he could dispose of his modern property, which
may not be adequately disposed of under customary law. He argued that
colonialism had brought with it new forms of market economy and property
ownership modes which were unknown to African customary law and which that law
could not be adjusted to deal with, for example, shares in companies, insurance
policies, premium bonds, bank accounts and so on[vii]. He recommended that a law similar to the
English Inheritance (Family
Provisions) Act of 1938 be passed to
enable the westernized African to deal with such property. Most of the above
provisions were incorporated in the 1961 Ordinance, which remained in force
until 1981 when it was repealed upon the coming into operation of the Law of Succession
Act.
In the 1960s there were some developments regarding
Africans who died intestate , or made wills only in the customary form.
Previously there was no statutory provision for control of administration of
their estates, and the whole process was therefore subject to the customs and
traditions of the relevant tribe. This included the settling of disputes that arose regarding the
administration of the estate,
particularly with regard to distribution of the assets. The enactment of the
Magistrates’ Court’s Act[viii]
in 1967 vested the said courts with jurisdiction to settle any disputes arising
in the law of succession. Towards the end of the 1960s the High Court began to
bring estates of African intestates within the ambit of statute, especially on
matters relating to administration. In Re
Maangi (1968) E.A 337, Farrell J applied the Indian Probate and
Administration Act 1881[ix]
to Africans in relation to administration of estates of deceased African
intestates. The court held that the administration of estates is a matter of
general law and was therefore not subject to the constitutional provisions[x]
allowing the application of discriminatory laws. A similar finding was made by
Madan J in Re Kibiego (1972) E.A 129.
2.3 The Law applying to Muslims
Article 11(b) of the East Africa Order in Council,
1897 applied the Indian Succession Act, 1865 as the general law of succession.
All the Act was applied except for section 331 which excluded Muslims, among
other residents of India,
from the scope of the Act. The disapplication of section 331 to Kenya meant that the Act applied to Muslims
resident in Kenya.
This did not obtain for long as section 331 of the Act was applied in 1898[xi]
effectively removing Muslims from the ambit of the Act.
The Probate and Administration Act, 1881 of India
was applied to Kenya,
to govern probate and administration of the estates of Muslims. At the same time the Native Courts
Regulations, 1897, at articles 57 and 59, applied Islamic law to Muslims on
matters relating to personal status. These regulations were re-enacted in
Ordinance No. 13 of 1907 which established the cadis courts and vested them with full jurisdiction over Muslims in
all matters relating to personal status, marriage, inheritance and divorce.[xii]
This remained the position until independence when the
government reaffirmed the position to the Muslims as part of a constitutional
bargain to counter their threat to secede from Kenya. The government assured them
that under the new constitutional order, they would be allowed to keep their
own personal law. This guarantee was given constitutional backing by section 66
of the Constitution, which provided for the establishment of the Kadhi’s
courts. These courts were mandated to decide matters arising out of Islamic law
where such matters related to personal law. That remained the position until
1981 when the Law of Succession Act became operational. This Act repealed all
the then existing laws on succession and became applicable to all persons
domiciled in Kenya
regardless of their religion. Section 99
of the Law of Succession Act repealed, among other laws, section 4 of the Mohammedan Marriage, Divorce and
Succession Act,[xiii]
which dealt with succession.
Between 1981 and 1990, there was intense agitation by
the Muslims who regarded the government’s act of passing the Law of Succession
Act as a repudiation of the assurance given to them at independence.[xiv]Their
case was that the Quran, or a statute embodying the Quranic principles must govern matters of personal law for
Muslims. They asked to be exempted from
the provisions of the Act as some of its provisions were in direct conflict
with the Quran. They were particularly unhappy with section 5 of the Law of
Succession Act, which embodies the doctrine of freedom of testation, a doctrine
which is not recognised in Islamic law. Under Islamic law only a third of the
deceased’s estate can pass by will Section 5 would allow a Muslim to will away
the entire estate. The other provision was section 29 which defines dependants
to include illegitimate children, yet under Islamic law such children have no
right of inheritance. The Muslims were also of the view that the provisions of
the Law of Succession Act contravened the Constitution of Kenya, particularly
those provisions of the Constitution touching on the freedom of conscience or
religion and the jurisdiction of the kadhi’s courts.[xv]
The government in 1990, keen to have the Muslim
support in view of the clamour at the time for
the return to the multi-party system of government, gave in to the
pressure mounted by the Muslims. The Law of Succession Act was amended by the Statute
Law (Miscellaneous Amendment) Act,[xvi]
which disapplied the Act to persons who, at the time of their death were
Muslims.[xvii] Instead, Islamic law would govern the estates
of such persons.[xviii]
The Amendment Act also re-affirmed the position of the Kadhi’s courts by
stating that these courts will continue to have jurisdiction to decide on
succession matters relating to Muslims in accordance with Islamic law.[xix]
2.4 The Law applying to Hindus
The East Africa Order in Council 1897,
through article 11(b), applied the Indian Succession Act, 1865 to Kenya
excluding section 331, which disapplied the Act to Hindus, Muslims and
Buddhists of India. The effect of the non-application of section 331 to Kenya meant
that the Hindus domiciled in Kenya
were brought under the ambit of the Indian Succession Act, 1865. In 1898
section 331 of the Indian Succession Act was applied to Kenya vide Order
No. 22 of 1898, which meant that the Act was no longer applicable to Hindus
resident in the country. By the same
Order the Hindu Wills Act, 1870 of India[xx]and the Probate and Administration Act, 1881 of India[xxi]
were applied to Kenya.
The Hindu Wills Act 1870 was a mere adaptation
of the Indian Succession Act, 1865 of India. It was applied to Kenya
to provide for testate succession for the Hindus living in Kenya,[xxii]subject
to certain limitations. The Probate and Administration Act 1881 contained
provisions relating to probate and administration and applied to Asians,
excluding Goans and Parsees.
With regard to intestate succession, no law had been
specified as being applicable to the Kenyan Hindus. The Hindu customary law that governed the
subject until 1946 automatically filled this vacuum. In 1946 the colonial
government applied the Hindu (Marriage, Divorce and Succession) Ordinance 1946.[xxiii]Its
effect was to confirm, in section 9, that matters of intestate succession for
the Hindus resident in Kenya were to
be governed by the Hindu customary law. The 1946 legislation applied to those
Hindus who had died domiciled in Kenya, but was silent on which law
applied to those who died in Kenya
but whose domicile was elsewhere. The
scope of the legislation was therefore restricted. Another restriction in the scope of the
ordinance was that it only applied to the Hindus whose marriages had been
contracted in the colony. In Bessan Kaur v. Rattan Singh (1952) 25 KLR
24 the plaintiff, who was a widow, sued the defendant who, as the deceased’s
only son had inherited his father’s entire estate. She claimed for maintenance under the above
legislation. It was held that she could not establish any right of succession
under the Hindu (Marriage, Divorce and Succession) Ordinance since her marriage
with the deceased was contracted outside the colony and section 3(1) of the Hindu
(Marriage, Divorce and Succession) Ordinance restricted the scope of the
statute to persons married in Kenya.
In 1961, the 1946 Ordinance was amended by being split
into two statutes: the Hindu Succession Ordinance and the Hindu Marriage and
Divorce Ordinance. The Hindu Succession Ordinance provided for intestate
succession while the Hindu Wills Act 1870 provided for testate succession. These
two statutes remained in force until 1981 when the Law of Succession Act
repealed them both.
2.5 The Law applying to the Europeans
The Europeans who had settled in Kenya and
acquired a Kenyan domicile needed a law to govern their succession
matters. They could not obviously be
governed by African customary law, Hindu or Islamic laws of succession and needed
a law a kin to that applicable to their brethren in other British colonies. The
law applicable to British settlers in the colonies was English law with slight
adaptations to suit conditions prevailing in the colonies.
Article 11 (b) of the East Africa Order in Council,1897
applied to the Protectorate several Indian Acts, among them being the Indian
Succession Act, 1865. The Indian Succession Act, 1865 was passed in India to govern
succession matters for Europeans, Goans and Parsees in India. It was felt that the same law could govern
the settlers in Kenya.
The 1865 Act reflected the position of succession laws in England at that
time. It was a comprehensive code of the
law of succession providing for both testate and intestate succession and
administration of estates It contained the doctrine of testamentary freedom
that allowed a testator to will away all his property to whomever he felt like
without necessarily leaving anything for his dependants. The Act provided that
in the case of testate succession, the estate of the testator devolved to the
persons named by him in the will regardless of his relationship with them. It was therefore possible for a testator to
leave his entire estate to a charitable organization without providing for even
his immediate dependants.
The Indian
Succession Act was amended several times in Kenya. The first such amendment was
through Order No. 12 of 1932 that repealed section 105 of the Act. This section
had imposed a restriction on the doctrine of testament of freedom by providing
that any gift made in a will for a charitable purpose had to be made at least
12 months prior to the testator’s death.
The provision was meant to take care of those situations where a
testator sought to make peace with his maker in his deathbed by bequeathing all
his estate to charitable organizations at the expense of his dependants. The section ensured that the period of 12
months enabled the testate to improve on his condition and make a sober
decision.
The Kenyan settlers felt that this restriction on
testamentary freedom was unnecessary and initiated the 1932 amendment that
removed the restriction. A testator was
then enabled to leave his estate to whomever he felt like without limitation on
time. This amendment reflected the
developments in the English law of succession between 1888 and 1889 that had
not been incorporated in the 1865 Act. The other major amendment to the 1865
Act was through Order No. 48 of 1956, which resulted in the present day Law
Reform Act.[xxiv]With
respect to succession, this amendment provided that where a person died leaving
a cause of action in existence at the time of his death, the cause of action
survived his death and could proceed against or on behalf of his estate.
The above amendments did not, however, fully harmonize
the Indian Succession Act with the English law of succession in force in England at the
time. A number of changes in the English
law were not incorporated into the Act. One of these amendments is the English
law of succession in 1938 that removed the doctrine of testamentary freedom
from the statutes. The 1938 amendment
required that a testator should provide for his immediate family members and
every other dependant of his before giving out any part of his estate to strangers.
This amendment also gave dependants the right to challenge a will on grounds
that they had not been adequately provided for in the will or that they had
effectively been disinherited.
Another change that was not reflected in Kenya was the
passing of the Intestate Estates Act of 1952.
This Act provided that in the case of intestacy the persons who should
inherit from the estate of the deceased were his immediate family members in
the first instance and where there were none, his parents, brothers and
sisters.
CHAPTER THREE
3. THE LAW OF SUCCESSION APPLYING IN KENYA AFTER
1981
3.1 Introduction
Until 1st
July 1981, there were four systems of law of succession in Kenya applying
to the four different socio-ethnic groups of people in Kenya. These were (a) English law which was applied
through several statutes, namely; the Indian Succession Act 1865, the Hindu
Wills Act 1870 of India, the Probate and Administration Act 1881, the African
Wills Act 1961, the Administration of Estates by Corporations Act, the
Commonwealth Probate Act and the Colonial Probate Act 1892, (b) the African
customary law, (c) Islamic law and (d) the Hindu customary law. The Law of Succession Act was passed with the
intention of merging and consolidating all the four systems of law of
succession and their support legislation into one comprehensive statute in
order to give Kenya
a uniform law of succession applicable to all sections of the Kenyan
population.
3.2 The Law of Succession Act
The Law of Succession Act came about because of a
report compiled by a commission appointed by the late President Kenyatta in
1967,[3]
to look into the problems concerning the succession regime in Kenya. The
purpose and scope of the Act is stated in its preamble. It is an Act of Parliament to define and
consolidate the law relating to intestate and testamentary succession and the
administration of estates of persons and for connected purposes. Section 2(1)
of the Act states that the Act constitutes the law of Kenya in
respect of and is of universal application to all cases of intestate or
testamentary succession to the estates of deceased persons dying after the
commencement of the Act.
Section 99 of the Act repeals all the statutes on the
law of succession in force before 1st July 1981, and these are listed in the 8th
schedule to the Act. They are as
follows: the Succession Act 1865, the
Hindu Wills Act 1870, the Probate and Administration Act 1881, the Hindu Succession
Act, the African Wills Act 1961, the Administration of Estates by Corporations Act,
the Commonwealth Probate Act and the Colonial Probate Act 1892. Section 100
provides for the amendment of the other existing statutes, among them being the
Mohammedan Marriage, Divorce and Succession Act (Cap. 156), which was
harmonized with the Law of Succession Act by the deletion of its section 4,
which dealt with matters of succession.
The Law of Succession Act is the general law of succession
in Kenya.
Section 2(1) of the Act applies the Law of Succession Act universally to all in
Kenya,
except for those cases where different laws are applied by the Act itself or
through any other written law. Although the Law of Succession Act constitutes
the law of succession in Kenya
and is supposed to apply uniformly to the estates of persons domiciled or dying
in Kenya,
it is not the only body of law governing succession in the country. Other
systems of laws of succession apply, but
as exceptions to the Law of Succession Act.
Due to the contradictions inherent in a multi-cultural
society such as is found in Kenya, there has been a great deal of conflict in
the application of the Law of Succession Act to some people and areas and as a result, exceptions have had to be
made in order to give way to the application of other laws. The ultimate aim in
passing the legislation was to provide a universal law of succession applicable
to all persons resident in Kenya,
this ideal has not been fully achieved.
There remain certain situations to which the Act does not apply.
The Law of Succession Act also embodies the African
customary law of succession. The intention being to provide the Kenyan with a
statute that translates his customary beliefs and practices into law. The Act
embraces certain concepts which are purely African in nature and which are
meant to reflect the ‘Kenyan-ness’ of the statute. There is, for example, reference
to ‘wives’ and ‘co-wives’ and distant relatives in relation to the provisions
pertaining to dependants.[xxv]
This is recognition of the concepts of polygamy and the extended family
respectively, all common in traditional African communities.
The law was meant to be passed simultaneously with the
Law of Matrimony Act, a bill of which was debated in parliament in 1971 but was
never passed. The bill was meant to come
up with a law which would have repealed and replaced the existing marriage
statutes, namely: the Marriage Act,[xxvi]
the African Christian Marriage and Divorce Act[xxvii] and the Matrimonial Causes Act,[xxviii]and
replaced them with one comprehensive statute governing marriage, divorce and
related matters. All these family law statutes embody the English law on
marriage and divorce and were introduced in Kenya during the colonial period. The
fact that the marriage statutes remain in force alongside the Law of Succession
Act creates the untidy situation where there are constant conflicts of
interpretation and application of the two sets of laws. For example, under the
marriage statutes a woman married under a system of law allowing polygamy to
man who had previously contracted a marriage under statute is not a wife for
any purpose,[xxix]
but under the Law of Succession Act she is
entitled to inherit from the estate of the deceased.[xxx]The
result is that a woman who is not a wife under the marriage statutes will be
regarded as a wife for the purpose of succession.
3.3 The Application of African Customary Law
The Judicature Act[xxxi]
at section 3 lists African customary law as one of the sources of law in Kenya.
Section 3(2) of the Judicature Act provides that the High Court and all
subordinate courts are to be guided by African customary law in all civil
cases. It applies for as long as it is applicable and not repugnant to justice
and morality or inconsistent with any written law.[xxxii]The
Court of Appeal, in Wambugi w/o Gatimu
vs. Stephen Nyaga Kimani (1992) 2 KAR 292 (Hancox CJ, Masime and Kwach
JJA), held that, under section 3(2) of the Judicature Act, the court has to be
satisfied that the custom if proved, is not repugnant to justice or morality, On
the facts of the case a custom which was discriminatory in its effect, so as to
bar women from inheritance, was found to
be repugnant to ordinary notions of justice. In Kamete Ene Ateti Marine vs. Mosupai ole Ateti Nairobi HCCA No. 224
of 1995, Amin J frowned upon the declaration of customary law as repugnant to
justice and morality. He took the view that customs and traditions are time
tested and based on wisdom and experience hence they should not be brushed aside
lightly, however tempting it might be to do so, unless there are sound reasons
for it that have to be deliberated upon and determined judicially.
Jurisdiction over customary law matters is
specifically vested in the magistrate’s court by sections 5(2) and 9(a) of the
Magistrates’ Courts Act.[xxxiii]
Under these provisions the magistrate’s court has powers to exercise
jurisdiction in proceedings of a civil nature where the proceedings concern a
claim under customary law. A ‘claim under customary law’ is defined in section
2 of the Magistrates’ Courts Act to include a claim concerning, intestate
succession and administration of intestate estates, but only to the extent that
such matters are not governed by any written law, such as the Law of Succession
Act..
The customary law claims as set out in section 2 of
the Magistrates’ Courts Act relate mainly to personal law matters. The Constitution
of Kenya
at section 82 allows the application of different personal laws, regardless of
whether such laws are discriminatory or not[xxxiv].
Section 82(4) of the Constitution enables the enactment of discriminatory
legislation on devolution of property. In Mukindia
Kimuru and another vs. Margaret Kanario Nyeri CACA No. 19 of 1999, Shah JA
said, while dealing with a matter touching on inheritance by daughters, that
section 82 of the Constitution sanctions exclusion of daughters from
inheritance by the court applying customary law concerning devolution of
property on the death of the owner of that property.
3.4 African Customary Law and the Law of Succession
Act
Section 2(1) of the Law of Succession Act states that
the Law of Succession Act, unless provided otherwise by the Act itself or any
other written law, constitutes the law in Kenya on succession matters (In the Matter of the Estate of Mwangi Giture
(deceased) Nairobi HCSC No. 1033 of 1996 (Koome J). In Rono vs. Rono and another (2005) 1 EA 363 Waki JA stated that the application of
African customary law is expressly excluded by section 2(1) of the Law of
Succession Act, unless the Act itself makes provision for it. Kamau J in Francis Njoroge Muigai and others vs. John
Njoroge Muigai HCCA No. 18 of 2001 held that the decision of a magistrate
distributing the estate of a person who died in 1997 in accordance with Kikuyu
customary law was inconsistent with section 2(1) of the Act and set it aside.
The effect of section 2(1) of the Law of Succession Act is to oust the
application of African customary law in succession matters, except in such
circumstances as may be allowed by the Law of Succession Act itself.
The application of Nandi customary law, by Nambuye J in In the Matter of the Estate of Chumo Arusei Eldoret
HCP&A No. 26 of 1998, to the estate of a person who died in 1997 who did
not fall under any exception to the provisions of the Act was wrongful and a
misdirection. Nambuye J similarly misdirected herself in In the Matter of the Estate of Sila Kibiwott Rono Eldoret HCP&A
No. 130 of 2000 by applying Nandi customary law to the estate of the deceased
who died in 2000, yet his estate was not exempt from the provisions of the Law
of Succession Act.
Akiwumi JA, in John
Gitata Mwangi vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213
of 1997, stated that section 3(2) of the Judicature Act does not grant
unassailable status to customary law to the extent of the same being regarded
as relevant to any issue arising under the provisions of the Law of Succession
Act. Although section 33 does allow the application of customary law that
provision is limited to the special circumstances stated in sections 32 and 33
of the Act. No similar provisions have been made to apply African customary law
to other parts of the Act. The omission to make such provisions should be an
indication that the other parts of the Act are to be interpreted without being
subject to the customary law of the deceased. In his dissenting judgment,
Bosire JA was of the opinion that by dint of section 3(2) of Judicature Act the
personal laws and customary practices, in so far as they are relevant, have a bearing
in determining issues touching on the estate of a deceased African, unless such
laws and practices are disqualified on account of repugnancy.
The Law of Succession Act allows the application of
African customary law in a number of instances.
(a) Estates of persons dying before the
application of the Law of Succession Act
Section 2(2) of the Law of Succession Act provides
that the estates of persons dying before the commencement of the Act are
subject to the written laws and customs applying at the date of death.[xxxv]
Prior to 1981, the intestate estates of deceased Africans were exclusively
subject to African customary law, except for estates of those Africans who had
made wills under the African Wills Act. In In
the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias
Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003, Kamau Ag. J held that
where the deceased died prior to the commencement of the Law of Succession Act
the distribution of his estate is strictly governed by the applicable customary
law, however, the provisions of the Law of Succession Act as provided under
section 2(2) govern the administration of the said estate. In In the Matter of the Estate of Kiiru Muhia
‘A’ (deceased) Nairobi HCSC No. 2487 of 1996 Rawal J held that the Law of
Succession Act did not apply to the estate of a person who died in 1953. The
administration though of such estates should be in accordance with the
provisions of the Act relating to administration of estates.
The application of section 40 of the Act, by the Court
of Appeal in Cleophas Simiyu and another
vs. Maurise Barasa Watambamala and others Nairobi CACA No. 34 of 1984
(Hancox JA Nyarangi and Platt Ag. JJA), to the estate of a person dying in 1980
was obviously a misdirection. The decision of Koome J in In the Matter of the Estate of Grace Nguhi Michobo (deceased) Nairobi
HCSC No. 1978 of 2000 was obviously made in per
incuriam. The court stated that the deceased passed away on 12th April 1981
when the Act was in operation. The correct position is that the deceased died
before the commencement of the Act on 1st July 1981 and the court should have shared
out her estate in accordance with the law then applying to the intestate
estates of deceased Africans: customary law.
(b) Testamentary dispositions in accordance with
African customary law
The Law of Succession Act allows, at section 5(1), the
testator to dispose of his property by reference to any secular or religious
law. This would allow the testator to make a will, which provides that the
estate should devolve in accordance with a particular customary law. For example, he may provide for devolution
according to Kamba customary law. In such case, the court has to ascertain the
requirements of the particular customary law.
(c) The application of African customary law by
section 33 in the event of intestacy
Section 32 of the Law of Succession Act exempts
certain classes of property from the intestacy provisions in the Act, and
section 33 of the Act applies African customary law to such property. The
administration of estates, which are the subject of sections 32 and 33, is not
under Part VII of the Law of Succession Act, relating to administration of
estates, since section 44(1) of the Law of Succession Act provides that Part
VII of the Act does not apply to intestate estates the subject of section 32 of
the Act. The provisions of the Magistrates’ Courts Act fill the gap. The
estates so exempted from the provisions of the Law of
Succession Act are administered in accordance with African customary law. Waki
JA in Mary Rono vs. Jane Rono and
another Eldoret CACA No. 66 of
2002 said that sections 32 and 33 of the
Law of Succession Act make provision for the application of customary law in
respect of agricultural land and the crops on such land. The application of the
law or custom is, however, limited to such areas as the Minister may by gazette
specify. By Legal Notice No. 94 of 1981 the Minister specified the various
districts to which African customary law should apply. Similarly Rawal J in In the Matter of the Estate of Mwaura
Gathari (deceased) Nairobi HCSC No. 1678 of 1999 found that the Law of
Succession Act applies customary law to the intestate estate through section
33.[xxxvi]
The courts in Kenya, both out of ignorance or
deliberate disregard of the provisions of the Act or a blind effort to elevate
customary law above the statute, often overlook the Act and apply customary law
although the Act is clear on the circumstances under which customary law may
apply to the estate of a deceased intestate. The Court of Appeal in Mwathi vs. Mwathi and another (1995-1998)
1 EA 229 (Gicheru, Kwach and Shah JJA), for example, overlooked Part V of the
Act and applied Kikuyu customary law to the estate of an intestate who died in
1987. The opinion of the highest court in Kenya, which was inconsistent with
Part V of the Act, was that ‘the intestate succession of a deceased Kikuyu is
governed by Kikuyu customary law’.[xxxvii]
Mwera J in Estate of Mutio Ikonyo
(deceased) Machakos HCP&A No. 203 of 1996, decided that a married
daughter was not entitled to inherit from her father’s estate, despite the
deceased having died after the Law of Succession Act came into force. The Law
of Succession Act does not discriminate between male and female children
whether married or not.[xxxviii]
3.5 The Application of Islamic Law
Islamic law is a source of law in Kenya. The root
of the application of Islamic law in Kenya is the Constitution of Kenya.
Section 82 of the Constitution allows the application of different personal
laws. In Chelang’a vs. Juma (2002) 1 KLR 339 Etyang J stated that a person,
particularly a non-Muslim, cannot be heard to say that the application of
Islamic law governing intestate succession of a deceased Muslim’s estate is
discriminatory against them because section 82(2) of the Constitution allows
it.
Section 66 of the Constitution provides for the
existence of Kadhi’s courts, which
are established by the Kadhis’ Courts Act.[xxxix]
Section 5 of the Kadhis’ Courts Act vests jurisdiction on the kadhi’s court to determine questions of
Muslim law relating to personal status, marriage, divorce or inheritance.
Islamic law is considered a limited source of law since it only applies when
all the parties profess the Islamic religion.[xl]
The provision, however, does not give exclusive jurisdiction over succession
matters to the Kadhi’s court, the
High Court and the magistrates court also have jurisdiction. The former Court
of Appeal for Eastern Africa in Khatijabai vs. Kassam Sunderji Samji and
others (1955) 22 EACA 301 (Sir Barclay Nihill P, Sir Newnham Worley VP and
Sir Hugh Holmes J) held that the application of Islamic law on personal matters
is subject to the general law on other matters such as land.
3.6 Islamic Law and the Law of Succession Act
When the Law of Succession Act came into force in 1981
it was meant to replace the Islamic law of succession, since it sought to
consolidate the law in Kenya
relating to both intestate and testamentary succession by virtue of section
2(1) of the Law of Succession Act. The Act was also meant to apply universally,
that is to all persons resident in Kenya,
including Muslims.
The objective, however, was not attained, since
Muslims were in 1990 exempted from the substantive provisions of the Law of
Succession Act, through an amendment inserted into the Act to introduce section
2(3) and (4) of the Law of Succession Act. Section 2(3) disapplies the
substantive provisions of the Act, those relating to testamentary or intestate
succession, to the estate of a deceased Muslim, and instead subjects the estate
exclusively to Islamic law. This is reiterated in section 48(2) of the Law of
Succession Act, which states that the Kadhis’
courts exercise jurisdiction for the determination of questions relating to
inheritance in accordance with Islamic law. In light of this, the decision of
Ang’awa J in In the Matter of the Estate
of Benjamin Mugunyu Kiyo (deceased) Nairobi HCSC No. 2678 of 2001, where
she stated that with respect to the estate of a Muslim apportionment is done
where questions arise according to Islamic law while the rest of the intestate
estate is apportioned according to Part V of the Act, is not a true reflection
of the actual legal position.
The exemption, however, only covers substantive law.
Section 2(4) of the Law of Succession Act applies the procedural aspects of the
Act, principally Part VII relating to the administration of estates, to the
estate of a deceased Muslim so long as the said provisions are not inconsistent
with Islamic law. Etyang J in Chelang’a
vs. Juma (2002) 1 KLR 339 specifically held that section 2(3) (4) of the
Law of Succession Act is not inconsistent with the provisions of the
Constitution in so far as it exempts Muslims from the substantive provisions of
the Act on distribution of estates.
Under section 5(1) of the Law of Succession Act it
would appear that a Muslim could still make a will, provided that the will
disposes of his property by reference to Islamic law. If the will disposes the
estate in accord with the principles set out in the Quran, it would be acceptable
to members of the faith.
3.7 The Application of the Statutes repealed by
Section 99 of the Law of Succession Act
By virtue of section 2(2) of the Act, some of the
statutes deleted by section 99 of the Act are
still of application, but only to the estates of persons dying before
the commencement of the Act on 1st July 1981 where the estates fall
for administration after 1st July 1981. However, the applicable
statutes are those on substantive succession law (that is the substance of
testate and intestate succession), not the procedural law (that is on
administration of estates). Administration of estates of persons dying before 1st July 1981 is
subject to the Law of Succession Act. The relevant statutes are the Succession
Act, 1865, the Hindu Wills Act, 1870, and the African Wills Act.
3.8 The Application of the Trustee Act, the Trusts
of Land Act[xli],
the Public Trustee Act[xlii]
and the
Armed
Forces Act[xliii]
Section 101 of the Law of Succession Act refers to the
continuation of the application of the Trustee Act, the Public Trustee Act, the
Trusts of Land Act and sections 219 and 220 of the Armed Forces Act. These
statutes were in place before the Law of Succession Act came into force and they
cover various aspects of succession.
The Law of Succession Act does not have elaborate provisions on some aspects of
administration of estates of deceased persons, especially those relating to
investment and other application of the capital money of an estate, indemnities
of personal representatives, powers of personal representatives where personal
representatives refuse to exercise their powers of sale, the modes of exercise
of powers of sale by personal representatives, among others. The omission was deliberate,
as these powers exercisable by personal representatives had already been set
out in legislative framework in a number of statutes, particularly the Trustee
Act and the Trusts of Land Act. On these matters, the provisions of the Law of
Succession Act have to be read together with those of the Trustee Act and the
Trusts of Land Act.
The Public Trustee Act provides for the appointment of
the Public Trustee and defines his powers and duties. Under the Act, the Public
Trustee may be appointed personal representative of a deceased person under
certain conditions and in respect of a defined class of estates. Section 4 of
the Public Trustee Act gives the statute supremacy over the Law of Succession
Act, unless it is expressly provided to the contrary in the Law of Succession
Act itself. Sections 219 and 220 of the Armed Forces Act concern the estates of
deceased soldiers. The provisions are principally about execution of soldiers’
wills and the administration of the estates of soldiers.
3.9 Exemption Relating to Movable Property
By virtue of section 4(1)(b) of the Law of Succession
Act, the law of succession that applies with regard to moveable property is the
law of the country where the deceased is domiciled. Waki J in In Re Estate of Naftali (deceased) (2002)
2 KLR 684, held that for the purpose of the distribution of such property the
grant of representation ought to be
obtained from the domicile of the deceased at the time of his death.
Conversely, by dint of section 4(1)(a), succession to immovable property in Kenya
of a deceased is regulated by the law of Kenya regardless of the domicile of
the deceased at the time of his death.
Kuria and another vs. Kuria (2004) eKLR
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PART TWO: TESTATE SUCCESSION
==================================================================
CHAPTER FOUR
4. WILLS
4.1 Introduction
Testate succession occurs where a person, desirous of
retaining absolute or limited control over his property after death, arranges
to ensure that upon his death the property passes to a person or persons of his
choice. These arrangements are made
through a valid will.
4.2 Nature and Function of Wills
The word will refers to all that a person wishes to
happen on their death. In the context of
the law of succession, it refers to the document or documents in which a person
expresses their wishes on death. It
means therefore a will is a record of a deceased person’s wishes and intentions
pertaining to the devolution of his property upon his death. It is defined
under section 3(1) as the legal declaration by a person of his intentions or
wishes regarding the disposition of his property after his death duly made and
executed in accordance with Act. According to Sir J.P. Wilde in Lemage vs. Goodban (1865) LR 1 P&D
57:
The will of a man is the aggregate of his testamentary
intentions, so far as they are manifested in writing, duly executed according
to the statute.
A will is chiefly concerned with disposing of
property, but it can be used for other purposes and for incidental matters,
such as: the appointment of persons to administer the estate of the testator
(i.e. personal representatives/executors), the appointment of the trustees to
administer trusts set up under will, the appointment of guardians for children
of the testator who are minors at the date of the testator’s death, making
directions as to payment of taxes and other liabilities of the dead person, and
giving directions as to the manner of disposal of the deceased’s body or that
the deceased’s body or part of it be donated for medical or scientific
purposes.
4.3 Characteristics of a Will
A will being a testamentary document has no legal
effect until the maker dies. While he is
alive, it neither limits his rights of ownership nor confers any benefits to
anyone. Before the testator’s death, the
document is a mere declaration of intention with no legal effect whatsoever. A
will has five essential characteristics/elements: the wishes expressed are intended
to take effect upon death, the will only takes effect on death, a will can only
operate as a declaration of intention, a will is ambulatory, and a will is
always revocable.
(a) The wishes expressed are only intended to take
effect on death
Any document made or executed in accordance with the
law, may take effect as a will if the intention was that it should not operate until
after the death of the maker. Where there
is nothing in the instrument or document showing that it has reference to the
death of the person executing it cannot take effect as a will. Even if a document is described as being a will,
it does not follow that it is in fact a will.
If the provisions of the document are to take effect sometime before the
death of the person drawing up the document, it is not a will. The test is the time the gift takes effect.
(b) A will only takes effect after death
The wishes expressed in a will are intended to take
effect upon or after death. A will
therefore only takes effect upon death. Beneficiaries under a will do not
acquire an interest in the property before the testator’s death – so that a
gift to a beneficiary who dies between the making of the will and the death of
the testator elapses.
(c) A will only operates as an expression of
intention
The execution (making) of a will does not affect the
way in which the testator deals with his property during their lifetime. A testator is free to dispose of the property
given in the will by sale or gift during their lifetime. It is not a fetter to the testator’s freedom
to deal with their property as they please during their lifetime. The testator cannot be certain that a
beneficiary will receive a particular asset, which is given to them by
will. The personal
representatives/executors are under a duty to settle all debts and liabilities
of the deceased (see section 83 (a), (b), (c) and (d) of the Law of Succession Act.
Section 99 of the Act vests the property of the deceased in the personal
representative or executor while section 82
of the Act gives them a general power of sale. If the debts of the estate are large, the
gifts, including gifts of a specific asset, may be absorbed in the payment of
debts. A will therefore is a mere
declaration of intention, there is no guarantee that the wishes expressed in it
would be carried to effect.
(d) A will is ambulatory
The fact that a will takes effect upon death makes it
ambulatory. It is capable of dealing
with property which is acquired after the date of the will. For example, if
Onyango executed a will in 1997 containing a clause to the effect that all the
testator’s land was to pass to Owiti, this would include any land acquired by
Onyango after 1997.
(e) A will is
always revocable
Because a will takes effect upon death and because it
is a mere declaration of intention it is always revocable. It may be revoked even where it expressly
states that it is not revocable.
4.4 The Advantages of Making a Will
Majority of people die without having made a will for
various reasons: reluctance to contemplate their own death, belief that a will
is pointless in their case, and ignorance as to the possibilities open to them.
There are advantages to be gained from making a will.
(a) Maintaining control over property
The making of a
will enables the testator to maintain control over property. This is especially important for a person
with a spouse and children. For example, if a wife makes a will leaving the
entire estate to her husband, she loses control over the ultimate destination
of the property on the death of her husband if she dies first. She simply has to hope that he will dispose
of what was originally her estate to the children of the marriage rather than
marrying someone else after her death and leaving the combined estate to his
second wife. She could achieve control
by giving her husband simply a life interest in her estate with the remainder
passing on his death to the children. A
life interest only entitles the husband the income for the estate.
(b) Avoiding the rules of intestacy
The decision to make, change or revoke a will gives
the testator an opportunity to consider his own affairs and to decide with a
sober mind who should inherit what from his estate, instead of leaving this
important decision to be made by other people after his death. The making of a
will avoids the rules of intestacy. The
intestacy provisions ensure that the next of kin of the deceased benefit from
his estate, but the shares of the estate which the next of kin receive are
arbitrary and they are often unsuitable in the circumstances. A will is a
personal document and it is preferable to use it as a last beneficial act
rather than to allow the impersonal provisions of intestacy to take effect.
(c) Enabling the deceased to appoint personal representatives of his
own choice
The making of a will entitles the testator to appoint
personal representatives of his own choice to administer his estate. Since
these are personally appointed by the testator he would be reasonably sure that
his estate will be well administered after his death by persons in whom he has
confidence and who probably are already acquainted with the estate during his
lifetime. If a person dies intestate the
persons who administer the estate (personal representatives) are appointed by
the court and the deceased will have no choice in the matter.
(d) Administrative convenience
Administrators of estates derive their authority to
administer the estate from the grant of letters of administration while the
executors derive their authority from the will.
As they derive their authority from the will executors can begin to
administer the estate from the date of the deceased’s death. The grant of probate merely confirms their
authority. The grant of letters of
administration takes time which means thee is always a considerable lapse of
time between the death of the deceased and the grant of letters. The estate of an intestate cannot be
administered until after the grant of letters has been obtained. The dependants of an intestate are therefore
exposed to inconvenience. Thus through a
will a testator ensures that their estate may be dealt with immediately upon
his death. A further aspect of
administrative convenience in executing a will is that it is possible to give
many useful and desirable powers of administration to the executors under the
will. The powers of the administrator of
an intestate’s estate are limited by statute – the Law of Succession Act – they
are statutory.
(e) Full disclosure of the deceased’s property
The making of a will enables the testator to make a
full disclosure of all the property they own or die possessed of, which is not
possible in case of intestacy where a lot of the undisclosed property or assets
may be lost.
(f) Avoiding disputes over the estate
In the first place, by providing how and to whom
property is to pass upon the testator’s death making a will avoids squabbles
between heirs and survivors over the estate.
(g) Benefiting persons outside the immediate family
The rules of intestacy only make provision for the
deceased’s next of kin. It is only by
making a will that a testator can benefit persons outside the immediate family
circle.
(h) Appointment of testamentary guardians
A will enables a parent who has minor children, if
they so wish, to appoint a guardian or guardians to take parental responsibility
for the children should he or she die while the children are minors. This is
important where the parent is single.
(i) Directions regarding disposal of deceased’s
body
A will may also be used to give directions regarding
the disposal of the dead person’s body.
This could be in terms of the precise method by which their body is to
be disposed of (i.e. burial where and how, cremation etc) or they may wish that
their body or a part of it be donated to medical education, research or
treatment of patients. Such provisions
or directions have no binding legal effect as the law recognizes no property in
the dead body of a human being. This
would mean that the testator cannot by will dispose of his dead body. Such provisions amount to a mere request to
executors to comply with the testator’s wishes. Kwach J stated in Pauline Ndete Kinyota Maingi vs. Rael
Kinyota Maingi Nairobi CACA No. 66 of 1984, there is no property in a
corpse which a testator can validly dispose of by his will, the executor’s
obligation is to give effect to the deceased’s wishes in relation to the
disposition of his corpse as far as practicable. The executor is not bound to
give effect to those wishes if they are either impracticable or in conflict
with the personal law of the deceased. Similar remarks were made by Law JA in James Apeli and another vs. Prisca Buluku
(Mrs) Kisumu CACA No. 12 of 1979, where it was said that there can be no
property in a dead body and a person cannot dispose of his body by will. The wishes of the deceased,
though not binding must, so far as possible, be given effect, so long as they
are not contrary to custom nor contrary to the general law or public policy or
safety.
4.5 Property passing on Death other than by Will
Property is capable of passing on death other than by
will. It may pass by: survivorship, under
a nomination and as a donatio mortis
causa.
(a) Survivorship
This applies in cases of joint tenancies, that is
where property is jointly owned. Where a
co-owner of property is a beneficial joint-tenant of the property, whether real
or personal, their interest will automatically pass to the surviving joint
tenant(s) on their death by virtue of that principle of survivorship – the
principle of jus accrescendi. Upon
the demise of one of the tenants, that tenant’s interest would merge with that
of the surviving tenant. For example, where the matrimonial home is held by a
husband and wife as joint tenants and the husband predeceases the wife, the
house will pass to the wife by reason of the survivorship.
The principle of survivorship operates to remove
jointly owned property from the operation of the law of succession, upon the
death of a spouse who jointly owns property with the other spouse their
interests unite and the property passes to the surviving spouse. It does not
form part of the deceased spouse’s estate a d it cannot pass by that deceased spouse’s
will. This contrasts with the operation of the principle of tenancy in
common. The interests of common tenants
are clear and distinct. The interests
are not united. In the event of the
death of the one tenant, there is no merger or union of interests. The beneficial share of a common tenant who
is deceased can pass under their will.
The Law Succession Act at section 43 provides that for
the purposes of determining survivorship in the event of two or more persons
dying simultaneously it shall be presumed that the deaths occurred in order of
seniority with the younger person surviving the older person, but in the cases
of spouses, it shall be presumed that they died simultaneously. Such property in
the case on non-spouses should devolve to different people upon the tenant’s
death, it is therefore necessary to determine who died first. In the case of spouses, the property should
pass to their children or to the same dependants it would not matter therefore
who between husband and wife died first.
The Registered Land Act (Cap. 300) deals with joint
ownership. Section 101(1) of the Registered
Land Act stipulates that in an instrument made in favour of two or more persons
the registration shall show whether such persons are joint proprietors or proprietors
in common. Under section 102 (1) of the Registered
Land Act it is stated that where
land, lease etc. is owned jointly no proprietor is entitled to any separate
share on the land, and consequently: a disposition may be made only by all the
joint proprietors and on the death of a joint proprietor his interest shall
vest in the surviving proprietors jointly. The Indian Transfer of Property Act
(Group 8 statute) does not make a reference to joint tenancies but sections 44,
45 and 46 deal with comparable situations.
(b) Nomination
A nomination is a direction by a person, called the nominator,
to another who is holding investment on their behalf, to pay the funds on the
nominator’s death to a third party, called the nominee, nominated by the
nominator during the nominator’s lifetime. The direction is made by the nominator
during the nominator’s lifetime, but like a will, the gift only takes effect
upon the death of the nominator. Nominations operate under the rules of a
particular scheme and although it does dispose of property upon death, it does
not comply with the formalities of the Law of Succession Act. Nominations are
classified into statutory nominations and nominations under a discretionary
pension scheme.
The property the subject of a statutory nomination does not form part of the
nominator’s estate, and it cannot therefore pass under a will. It does not vest in the personal
representatives of the deceased, as it does not form part of the nominator’s
estate. Consequently, the payer (the person having the investment) does not
require a grant (of probate or letters of administration) before paying the
funds to the nominee. The direction is
to pay only on death and therefore the payer will want to see the nominator’s
death certificate before making payment. As with the beneficiary under a will,
the nominee does not have an interest in the nominated funds during the
lifetime of the nominator, who may deal freely with the property at any time
during their life. A nomination may be revoked by: a later nomination; the
subsequent marriage of the nominator; and the death of the nominee prior to the
death of the nominator. A nomination cannot be revoked by a subsequent will or
codicil.
In Kenya,
nominations are made mainly with respect to savings and investments in co-operative
societies and provident or pension schemes.
The nominations under the Co-operative Societies Act 1997[xliv]are
statutory. Section 39(1) of the Co-operative
Societies Act 1997 provides that on the death of a member, a co-operative
society may transfer the share or interest of the deceased member to: a person
nominated in accordance with the Act or the rules made under it; or if, no
person has been nominated, to such person as may appear to be the personal representative
of the deceased member. The shares can only be transferred to the personal
representative of the deceased member where there is no valid nomination in
place. The nomination under the discretionary pension schemes are not binding
on the trustees of the scheme since the trustees are usually given discretion
under the rules of the scheme to exercise
their discretion in favour of the
nominated person or pay disregard the nomination altogether and make payment to
the dependants of the deceased.
Under rule 19 of the Retirement Benefits (Individual
Retirement Benefits Schemes) Regulations 2000,[xlv]
the scheme rules should provide that on the death of a member the benefits
payable from the scheme should be paid to the nominated beneficiary, and if the
deceased had not named a beneficiary then the trustees should exercise their
discretion in the distribution of the benefits to the dependants of the
deceased. There is a proviso that the trustees may refuse the nominated
beneficiary for stated reasons. Rule 23 of the Retirement Benefits
(Occupational Retirement Benefits Schemes) Regulations 2000[xlvi]
is in similar terms.[xlvii]
(c) Donatio mortis causa or gift in
contemplation of death
A donatio mortis
causa is a gift made by a person
during their lifetime that is conditional upon their death. It is neither an inter vivos gift nor a
testamentary gift. Buckley L.J. in Re: Beaumont (1902) 1 Ch. 889 at page 892 said of donatio mortis causa:
It may be said to be of amphibious nature being a gift
which is neither entirely inter vivos
nor testamentary.
A donatio mortis
causa is similar to a lifetime gift in that the subject matter of the gift
is delivered to the donee during the donor’s lifetime, but the gift takes place
upon the death of the donor. A donatio
mortis causa cannot be revoked by a subsequent will. It cannot be given away as a gift under a
will to someone else. It is not free property
it cannot therefore be the subject of a will.
This means that if a donor delivers property during their lifetime, with
the intention of making the gift conditional on death, and then thereafter
makes a gift of the same property by will to another person, the beneficiary
named in the will receives nothing. As donatio
mortis causa is not a testamentary gift the subject matter cannot form part
of the deceased’s estate upon death, but if the estate proves insufficient to
pay the deceased’s debt(s) the subject matter of a donatio mortis causa may be used.[xlviii]
Lord Russell in the case of Cain vs. Moon (1896) 2 Q. B. 283 set down the conditions which need
to be satisfied for a valid donatio
mortis causa or gift in contemplation of death: namely: the gift must be .made
by the donor in the contemplation of death; the gift must be conditional on the
donor’s death; the subject – matter of the gift must be declared to the donee;
and the property must be capable of forming the subject-matter of a donatio mortis causa. The burden of
proving that all four conditions have been met lies with the donee. Donatio mortis causa or gifts in
contemplation of death are dealt with by section 31 of the Law of Succession Act,
which incorporates the conditions set out in Cain vs. Moon(1896) 2 Q.
B. 283.
(i) it must be a gift in contemplation of death
Section 31(a) provides that a gift in contemplation would
be valid if the person making the gift is at the time contemplating the
possibility of his death because of a present illness or present or imminent
danger. The death of a donor need not be imminent, but the donor must believe
that they are dying or they are likely to die in a particular way e.g. they may believe that they are dying from a
terminal disease or at risk of dying from a dangerous expedition.
It is generally irrelevant that the donor dies from
some cause other than the one within their contemplation so long as the
condition from which the deceased thought he was dying continued up to the date
of the donor’s death. Section 31(e) provides that the gift would be
valid if the person making the gift dies from any cause without having survived
the illness or danger. Wilkes vs.
Allington (1931) 2 Ch.
104 This condition was deemed not even though the deceased thought he was going
to die of cancer but in fact died of double pneumonia. The gift would fail if the donor survives the
contemplated illness or danger but dies of a different cause.
The condition that the gift be made in contemplation
of death cannot be satisfied where the donor contemplates their own death by
suicide, section 31(c) provides that no gift made in contemplation of death
shall be valid if the death is caused by suicide. Agnew vs. Belfast Banking Co.
(1896) 2 IR 204 Held it was
against public policy to uphold a gift which was intended to take effect by
means of suicide. Re: Dudman (1925) 1Ch. 553 Donor committed suicide,
as he could not cope with his terminal illness.
The court followed Agnew vs.
Belfast Banking Co and in addition, held that the donation failed on the
ground of public policy. The legal portion stated in these two cases is no
longer valid in England
following the enactment of the Suicide Act, 1961 that decriminalized
suicide. The Pre-1961 position in England is
still the law in Kenya
by virtue of section 31(i) of Law of Succession Act.
The contemplation of death may be expressed or implied
from the circumstances. In Lillingston
(1952) 2 All E. R. 184 the donor expressed opinion that she was “done for” and
the court inferred that the gift was made in contemplation of her death.
(ii) it must be conditional on donor’s death
If the donor does not die, the gift will not take
effect and the donor will be entitled to recover possession of the property
from the donee as the gift must be conditional upon the death of the
donor. A gift can expressly be stated by
the donor to be conditional upon death.
It may also be implied from the circumstances. The courts are likely to imply that the gift
is conditional on death if it is made in the last few days of the donor’s final
illness. However, where a gift in these
circumstances is made in writing as opposed to orally it is presumed by the
court that the gift is not a donatio
mortis causa, but either an attempted lifetime gift or a failed
testamentary gift. (See Edward vs. Jones
(1836) 1 MY & CN 226).
A gift in contemplation of death should be
distinguished from an oral will in that an oral will is usually not made in
contemplation of death. The failure of the contemplated death to occur leads to
the termination of the gift in contemplation of death, the same does not apply
to an oral will. In In the Matter of the
Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A No. 157 of
2001, Kimaru J appeared to use oral will and gift in contemplation of death
interchangeably, yet the two are separate and distinct.
For the gift to be said to have been made conditional
upon death, the death of the donor should not be a certainty, as there is a
possibility that the gift can be revoked by the recovery of the donor. (See Lord Advocate vs. M’Court (1893) 20 R 488) The Kenyan law on this
condition is section 31(d) and (ii). Section 31(d) provides that a gift in contemplation of death would be valid if
the donor makes the gift in such circumstances as to show that he intended it
to revert to him should he survive the contemplated illness or danger. A donatio mortis causa is revocable and section
31(ii) states that the donor may at
any time before his death lawfully request the donee to return the gift.
(iii) it must be delivered to the donee
The donor must have handed over to the donee or his
agent the subject matter of the gift or the means of controlling it. The donor must have parted possession with or
parted with dominion over the subject matter of the gift. Section 31(c) of the
Act states that a gift in contemplation of death would be valid if there is
delivery to the intended beneficiary of the possession of the property or of
the documents or other evidence of title of the party.
In Wildish vs. Fowler
(1892) 8 T.L.R 457 a landlady was handed property by her sick tenant with
instructions “take care of this”. It was
held there had been no donatio mortis causa
of the property as the donor had not parted with dominion over the
property. The property was delivered
merely for the purpose of safe custody. In Cain
vs. Moon (1896) 2 QB 283 the
donor originally delivered a deposit note to her mother for safe custody. She later became very ill and at a time when
it was likely that she was going to die she told her mother that the deposit
note along with other property was to be the mother’s should she die. It was held that there was effective delivery
of the property. In Woodward
vs. Woodward (1992) RTR 35 (Court of Appeal) a father handed over keys to his car to his son at a time when he
was seriously ill, but the father kept a duplicate set. It was held that the father had effectively
parted with dominion over the car because in the circumstances he was so ill
only the son had access to the car.
(iv) it must be capable of making the subject
matter of a donatio mortis causa
The property the subject of the gift should be capable
of being the subject matter of such a gift.
It should be capable of being donated. Section 31(b) of the Act provides
that a gift in contemplation of death would be valid if a person gives movable property
that he could otherwise dispose of by will. Property that cannot be disposed of
by will cannot be donated. A testator
can only dispose of free property by will, therefore only free property can be
subject of donation. Cheques and promissory notes drawn by the donor cannot be
a donatio mortis causa. It was held in Re Beaumont (1902) 1 Ch. 889 that a cheque cannot form
the subject of a donatio mortis causa
as it is not enforceable without consideration. It was held similarly in Leaper (1916) 1 Ch. 579 with respect to a
promissory note.
It was suggested obiter
dicta in by the House of Laws in Duffield
vs. Elwes 1827 Bli NS 497 that the land either freehold or leasehold could
not form the subject matter of a donatio
mortis causa. The Law of Succession Act appears to imply that this dicta is the law in Kenya as section
31 only covers moveable property. Section 31(b) provides that a gift in contemplation
of death would be valid if a person gives movable property (not immovable)
which he could otherwise dispose of by will. The most recent English decisions
however suggest that unregistered freehold property could form the subject
matter of a donatio mortis causa.[xlix]
(v) donee must survive the donor
The gift is not be effective where the donee
predeceases the donor. Section 31(f) provides that the gift would
be valid if the donee survives the person who made the gift to him. If the
intended donee predeceases the donor, his estate would have no cause of action
against the estate of the donor.
4.6 Conditional and Joint Wills
The Law of Succession Act does not cover these. They are rare. In the event of a local court being
confronted with such wills, the English Law on the matter would be persuasive.
(a) Conditional wills
This refers to a will intended to operate only upon
the happening of some event unspecified in the will. If the event fails to occur the will would be
ineffective, e.g. a testator providing that his will is to operate only if the
wife predeceases him. For example, a testator providing that his will will
operate only if he dies on a dangerous trip which he about to undertake.
It is sometimes difficult to decide whether the danger
to be faced is merely the motive for making the will or whether death in the envisaged
circumstances is the pre-condition for the operation of the will. If it is a motive the will would be
effective, but if it is a pre-condition it would be ineffective.
In Re Spratt’s Goods
(1897) P. 28 an army officer
serving in the New Zealand
during the Maori War made a privileged will.
The same took the form of a letter to his son leaving everything to him
should anything happen to the officer.
He did not die in the war but he lived on for 32 years without making a
new will or revoking the privileged will.
It was held that the privileged will was admissible to probate and the
son was entitled to take all of his father’s estate. In In the Goods of Dobson
(1866) LR 1 P & M 88 the testator’s will commenced with the words “in case
of any fatal accident happening to me being about to travel by railway, I leave
…” It was held not be a conditional will.
His belief that he might die in the course of the journey was merely the
motive in making the will, it was not a precondition that he died on the
journey before the will operated.
Whether a will is conditional or not is purely a
matter of construction. In Lindsay
vs. Lindsay (1872) 27 L.T. 322 a
will commenced “if I should die at sea or abroad …” It was held, as matter of
construction, to be conditional. When the testator died in England, i.e. while
not at sea or abroad, it was held to have no effect as the pre-condition of
dying at sea or abroad was not satisfied.
(b) Joint wills
A joint will is created where two or more persons
express then wishes on death in one document. The joint will takes effect as
the separate wills of the parties who made it.
For example, a husband and wife could make a joint will. If wife dies first it would be admitted to
probate as the wife’s will in the first instance, then when the husband dies,
it would be admitted to probate as the will of the husband.
CHAPTER FIVE
5. THE CREATION OF A VALID WILL
5.1 Introduction
A will is only valid if a person of sufficient age and
of sound mind makes it in the proper form.
Before a will can take effect, it must first be proved
a valid testamentary disposition. The
process of proving the formal validity of a will is referred to as propounding
the will. Here it is necessary to consider the form of the will and determine
whether the formal requirements have been complied with; whether the testator
had capacity to make the will and whether the will was made voluntarily without
any duress, undue influence or by mistake. It may also be necessary to consider
whether the testator in fact revoked the document alleged to be a will before
his death.
The validity of a will is predicated upon capacity and
form.
5.2 Capacity
At common law, a will is invalid unless made by a
person who at the time of making it has the capacity to do so. As a rule
infants and persons of unsound mind are incapable of making a valid will. The
common law position regarding testamentary capacity is reflected in section 5
of the Law of Succession Act. Section 5(1) essentially embodies the principle
of testamentary freedom; by providing that any person is capable of disposing
of all or any of his free property by will so long as he is of sound mind and
not a minor. The testator may make any disposition by reference to any secular
or religious law that he chooses.[l]
(a) Age
A will made during infancy is invalid unless the
testator upon reaching the age of majority re-executes it r makes a new will or
codicil confirming it. When a minor dies, his estate should pass in accordance
with the rules of intestacy.
(b) Mental or testamentary capacity
Persons of unsound mind are incapacitated from making
a valid, although this does not mean that such persons are destined to die intestate.
If such a person makes a will before his mind becomes afflicted or makes, it
during a lucid interval such a will is valid. In Vijay Chandrakant Shah vs. The Public Trustee Nairobi CACA No. 63 of 1984 (Kneller JA,
Platt and Gachuhi Ag. JJA), the deceased was very sick from syphilis and
diabetes at the time he executed his will, but it was held by the Court of
Appeal, on the evidence, that he executed the same during a lucid moment and
therefore the will was valid.
The test of mental capacity to make a will is not
directly linked to mental disorder. Cockburn C.J. set the test in Banks vs. Goodfellow (1870) L.R. 5 Q.B. 549 in the following terms:-
“he must…have a sound and disposing mind and memory .
In other words, he ought to be capable of making his will with an understanding
of the nature of the business in which he is engaged, a recollection of the
property he means to dispose of, and of the persons who are the objects of his
bounty and the manner it is to be distributed between them.”[li]
The test stated
in Banks vs. Goodfellow (1870) L.R. 5
Q.B. 549 was cited and applied with approval by the
Tanzanian Court of Appeal in Vaghella vs.
Vaghella (1999) 2 EA 351 (Mfalila, Samatta and Lugakingira JJA), where it
was stated that the validity of a will derives from the testamentary capacity
of the testator and from the circumstances attending its making.
This test requires three things of the testator: One,
he must have a sound mind enabling him to understand the nature of the act of
making a will and its effects. He would lack a sound mind if he does not
understand what he is precisely doing, either because he is of low mentality or
is under the influence of drink or drugs. Two, he must have a sound memory
enabling him to have a recollection of the property of which he is disposing.
Three, he must have a sound understanding. He should appreciate the moral
claims upon him. He should be able to remember the persons he is morally to
provide for having regard to their relationship him.
In Harwood vs. Baker
(1840) 3 Moo PC 282 a testator
executed his will on his death bed and left al his estate to his second wife to
the exclusion of other family members. He was at the time suffering from a
disease that affected his brain. It was held that based on the evidence, he did
not have sufficient recollection of his other family members.
At the common law the burden of proving testamentary
capacity is on the executors. In the event of the validity of a will is
questioned or contested on grounds of alleged mental incapacity, the executors
must prove that at the time the will was made the testator was having a lucid
moment and that his mind was sufficiently clear about what he was doing: that
is that he knew the property he had, the names of his dependants, and so on.[lii]
The Law of Succession Act takes a different position form the common law. The
burden of proof is shifted under section 5(3)(4) to the person alleging that
the testator was not of testamentary capacity or was of unsound mind at the
time of making the will.
Section 5(3) of the Law of Succession Act creates the
presumption that a person making a will is of sound mind unless the contrary is
proved. In In the Matter of the Estate of
James Ngengi Muigai Nairobi HCSC No. 523 of 1996 (Koome J), the testator
was dementing and physically incapacitated due to joint pains and hypertension
at the time of making the will The witnesses
who attested the will testified that the deceased looked normal. The
court was satisfied that he was of sound mind as the objectors had failed to
prove unsoundness of mind at the time of the execution of the will. That is
unless it is proved that at the time of executing the will he is of unsound
mind occasioned by mental or physical illness, drunkenness or other cause to
make him not know what he is doing. In Mbugua
vs. Mbugua Nairobi CACA No. 23 of 1982, Chesoni Ag. JA emphasised that a
testator must be of sound mind and he must not at the time of giving his
instructions be drunk or insane or otherwise incapable of making a valid will.
In John Kinuthia
Githinji vs. Githua Kiarie and others Nairobi CACA No. 99 of 1988 (Gachuhi,
Gicheru and Muli JJA), the deceased, who was admitted in hospital seriously ill
with cancer of the duodenum, sent for her advocate whom she gave instructions
to draw a will the details of which comprised of how she wished her property to
be disposed of. The advocate drew the will in accordance with the instructions
and thereafter explained its contents to the testator in the hearing of a nurse
on duty. At the time of execution she was said to be mentally alert and
appeared to understand the advocate’s explanations of what was contained in the
will. Consciously and knowing what she was doing the testator executed the will
by signing it. It was held that in the absence of evidence that the illness had
affected her mind so as not to know what she was doing when she signed the
will, the subject will was valid.
(c) Insane delusions
The fact that the testator is labouring under insane
delusions is not necessarily fatal to the validity of a will so long as the
delusions leave the testator’s power of understanding unimpaired. According to the
court in the case of Dew vs. Clark
(1826) 3 Add 79 a person suffers from an insane delusion if he holds a belief
of a particular matter which no rational person could hold and the belief
cannot be eradicated from his mind by reasoning with him.
An insane delusion will only affect the testator’s
capacity to make a will if it in some way affects the way he disposes of his
property.[liii] According to the Tanzanian Court of Appeal in Vaghella vs. Vaghella (1999) 2 EA 351 (Mfalila, Samatta and
Lugakingira JJA), for delusions to be material in the testamentary context,
there must be a connection between the will and the delusions, the poisoning of
affections and the perversion of the sense of right. In Dew vs. Clark
(1826) 3 Add 79 the testator made
a will which was rational superficially, but which excluded his daughter from benefit.
The daughter showed by way of extrinsic evidence that the testator had an
insane aversion of her. He had refused to see her for the first three years of
her life and he had made her sleep with an insane woman.[liv] In Re
Nightingale (1974) 119 Sol. Jo. 189 lack
of mental capacity was shown when a son was excluded from his father’s will because
the father wrongly and insanely believed that the son was trying to kill him by
reason of the fact that the son had on two occasions pushed him back on the
pillow as the father was struggling for breathe in a hospital after an
operation on his lungs. In Banks vs. Goodfellow
(1870) LR 5 QB 549 the testator
believed that evil spirits and a person who was already dead were pursuing
him. The court found that although the
testator suffered from an insane delusion the same did not affect his
testamentary capacity as the delusion did not affect the way in which he
disposed of his property by will. The
will was held to be valid.
Sometimes the delusion may only affect the validity of
part of a will. In such a case probate
will be granted to such parts of the will as are not affected by the delusion.
In In Re Bohrmann’s Estate (1938) 1
All ER 24 a testator made three codicils to his will all giving substantial
gifts to various charities. He later
began to suffer from an insane delusion that the London County Council was
persecuting him. The insane belief arose
out of the council’s attempt to acquire part of his land to build a hospital on
it. As a result of the delusion the
testator executed a fourth codicil of which one clause provided that all
references to English charities should be read as referring to corresponding
American charities. Probate was granted
of the will and the four codicils excluding only the clause in the fourth
codicil on the American charities, which was declared invalid for lack of
testamentary capacity on part of the testator.
5.3 Knowledge and Approval
In addition to having testamentary capacity, a testator
must know and approve the contents of their will. A testator knows the contents
of the will if he is aware and understands the terms of the will. He need not
understand the precise legal effect of the terms. A testator approves the terms
of the will if he executes it in those terms on his own volition and not because
of coercion or undue influence of another. The knowledge and approval of the
testator may also be absent because of mistake or fraud. This requirement is of
particular significance when the will is drawn up for the testator by a third
party e.g. a friend, a relative or a professional person such as an advocate.
Gicheru JA stated in John Kinuthia Githinji vs. Githua Kiarie and others Nairobi CACA
No. 99 of 1988 that it is essential to the validity of a will that at the time
of its execution the testator should know and approve of its contents: for
where a will, rational on the face of it, is shown to have been executed and
attested in the manner prescribed by law it is presumed, in the absence of any
evidence to the contrary, to have been
made by a person of competent understanding; but if there are circumstances in
evidence, which counterbalance that presumption, the decree of the court must
be against its validity.
Section 7 of the Law of Succession Act provides that a
will caused by fraud, coercion, importunity or mistake is void (the Kenya law).
(a) Time of knowledge and approval
The point at which the testator must know and approve
the contents of their will is at the time of execution. There is an exception to this general rule
set out in the cases of Parker vs. Felgate
(1883) 89 PD 171 and In
the Estate of Wallace (1952) 2
TLR 925 that a will may be valid despite lack of knowledge and approval at the
time of execution so long as: one, he testator knew and approved the contents
of the will at the time at which he gave instructions to the advocate to draft
their will; two, the will was prepared in accordance with his instructions;
and, at the time the will was executed the testator understood that he was
executing a will for which he had earlier given instructions;
In In the Estate
of Wallace (1952) 2 TLR 925 the
testator who was seriously ill had written and signed a document entitled “last
wish”. At the time of execution, he knew
and approved the contents of the document.
A solicitor then prepared his will in accordance with the document. At the time when the testator executed the
will, a day before he died, he did not know and approve the contents of the will
that were not read over to him. It was
held that the will was valid.
(b) Burden of proof
The Law of Succession Act is silent on the issue of
burden of proof to establish knowledge and approval, the common law position is
that the onus lies on the propounder of the will.[lv]
A presumption of knowledge and approval
arises once it is established that the testator had testamentary capacity and
that the proper formalities for the execution of the will have been complied
with. The evidential burden shifts to the person attacking the will to provide
evidence to rebut the presumption. The presumption of knowledge and approval
will not arise where: the testator is blind, dumb or illiterate or the will is
signed on behalf of the testator and where are suspicious circumstances.
The Kenyan law on knowledge and approval is
section 11(a) of the Law of Succession Act and Rule 54(3) of the Probate and Administration
Rules. Section 11(a) of the Act provides that for a will to be valid and
properly executed it must be signed by the testator or by someone else in the
presence of and by the direction of the testator. Rule 54 (3) of the Probate
and Administration Rules provides that where the testator is blind or
illiterate or where a will is signed by another person by the direction of the
testator or where it appears to be written in a language with which the
testator is not familiar evidence is required before the will is admitted to
probate. Rule 54 (3) makes it mandatory for the court to satisfy itself that
the testator had knowledge, by requiring an affidavit showing that the contents
of the will had been read over and explained to and appeared to be understood
by the testator immediately before the execution of the will.
In Karanja
and another vs. Karanja (2002) 2 KLR 22, Githinji J stated that the burden
of proving that a will was caused by fraud or coercion or importunity was on
the person alleging the same.[lvi]In
In the Matter of the Estate of Jefferson
Gathecha (deceased) Nyeri HCSC No. 75 of 1995 (Juma J), the deceased died
testate. His will was challenged on the grounds that he was too ill to have
written and executed it. In upholding the will the court held that the burden
of proving that the deceased lacked capacity to make the will or that the same
was a forgery lay with the those making those allegations, and in this
particular case they had failed to prove those allegations to the required
standard
To ease the matter it would be prudent at the time of
drafting the will to include as part of the attestation clause words to the
effect that the will was read over to the testator and that they thoroughly
understood and approved the contents.
(c) Suspicious
circumstances
Where a person who writes or prepares the will takes a
substantial benefit under the will, this will be regarded as a suspicious
circumstance. In Vijay Chandrakant Shah
vs. The Public Trustee Nairobi
CACA No. 63 of 1984, Platt JA stated that where the propounder of the will is
the principal beneficiary under it, it is the duty of the court to scrutinise
the evidence of the propounder vigilantly and jealously. Similarly, where a
person suggested the terms of the will is the testator, that is other than
writing the will himself, and takes that testator along to the advocate of that
person’s choice the circumstances will be regarded as suspicious.[lvii]
In Tyrell vs. Painton (1894) P 151, it
was held that it would be a suspicious circumstance if the will is written or
prepared by a close relative of a substantial beneficiary. In Wintle vs. Nye (1959) 1 All ER 552 the
testatrix was an elderly woman who had no experience of dealing with
money. She placed heavy reliance on the
family solicitor. She left most of her
sizeable estate to him. It was held that
the circumstances were suspicious. Lord
Reid at page 561 quoted Sir, J. P. Wilde in Atter
vs. Atkinson (1869) LR 1 P & D 665 where it was said;
The proportion however is undoubted that if you have to
deal with a will in which a person who made it himself takes a large benefit, you ought to be satisfied, from
evidence calculated to exclude all doubt that the testator not only signed it, but that he
knew and approved of its contents.
In Barry vs. Bultin (1838) 2 Moo PC 480 a testator made a will at the home of his solicitor, in the solicitor’s handwriting and left a ¼ of the estate to the solicitor and the rest to friends. The testator’s son challenged the will on the grounds of (among others) suspicious circumstances. It was held that the circumstances were on the face of it suspicious, but the suspicion was dispelled by two factors: the fact that the will was executed before two independent witnesses and the fact that the testator’s son was excluded from the will because of his criminal conduct.
In Mwathi vs. Mwathi
and another (1995-1998) 1 EA 229 (Gicheru, Kwach and Shah JJA), the deceased
died 1965 at 65. He never married and
left behind no wife or children. A
brother and two sisters survived him. He
owned real property. Two days before his
death, he made a will under the terms of which he bequeathed the property to
the brother. According to the brother,
the deceased dictated his wishes and the brother reduced them into
writing. The will was then thumb-printed
by the deceased and witnessed by, among others, the brother and his wife. Following the death of the deceased the brother
applied for grant of probate of the will of the deceased and letters of
administration were issued to him. The
sisters sought a revocation of the grant on the grounds of suspicious
circumstances. It emerged that shortly
before the execution of the alleged will; the brother had removed the deceased
from their mother’s house to his (the brother’s) house for baptism and then
shifted him back. It also emerged that
when he (the brother) wanted the deceased to dictate and execute the alleged
will he moved the deceased again from their mother’s house to his own
house. At the same time, the brother
exhibited considerable animosity towards the sisters whom he prevented from
entering his house. At the time, the
deceased allegedly dictated the will he was quite ill and could not walk
without support. It was held by the High
Court that the circumstances excited suspicion and that the will was therefore
invalid. The grant was revoked. An appeal to the Court of Appeal on this
aspect of the High Court decision was rejected, with the Court of Appeal
stating that the brother was not only the author of the will but also the sole
beneficiary under it he had a duty to do everything above board.[lviii]
(d) Mistake
The knowledge
and approval of the testator may be absent because of a mistake on the part of
the testator or of a person employed by him to draft the will. The mistake may relate to part or whole of
the will. A mistake relating to the
whole will renders it invalid, while a partial mistake may be corrected or otherwise
that portion of the will revoked. In In
the Goods of Hunt (1875) LR P
& D 250 the mistake related to
the whole will. A woman living with the
sister prepared two wills in similar terms for their respective execution. By mistake, she executed the will of the
sister rather than the will she had prepared for her own. Probate of the will was not granted on the
grounds that the woman would not have executed the will had she known it had
the content of the will she had drawn up to her sister.
In Re Morris (1970) 2 W.L.R 805 the testatrix made a will, but after
sometime decided to alter some of its provisions. She instructed a solicitor to prepare a
codicil to effect the changes. The
solicitor made a mistake while drafting and inserted an erroneous figure. The testatrix executed the codicil upon
merely passing a glance through it but without reading the contents. The executors brought an action asking to be
allowed to use the right figure instead of the erroneous one. The court allowed them to do so. In Re
Phelan (1972) Fam 33 the testator
bought some pre-printed forms from a stationer. He thought that each gift had
to be put on a separate form. He made
four separate gifts on four forms. Each
form had a standard revocation clause at the top. He then executed the forms each after the
other on the same day. It was argued
that only the gift on the last form to be executed was admissible to probate as
the revocation clause on each form revoked the precious form executed, which
meant that the testator died intestate in respect of the other gifts. It was held that the testator did not know or
approve the contents of the wills as far as they related to the revocation
clauses in each of the three wills. The court admitted all four wills to
probate without the revocation clauses.
If the testator
does know and approve the contents but is mistaken as to the legal effects of
the words the will be considered valid and admissible for probate. In Collins vs. Elstone (1893) P.1 the
testatrix was given incorrect information as to the extent to which a
revocation clause in her will operated but she executed the will. It was held that the will was valid and
admissible to probate, as she knew about and had approved the contents the
words notwithstanding.
(e) Coercion or undue influence
The knowledge or
approval may be absent owing to coercion or undue influence being exercised on
the testator. Undue influence occurs when a testator is coerced into making a
will or some part of it that he does not want to make. Undue influence is
proved if it can be shown that the testator was induced or coerced into making dispositions
that he did not really intend to make.[lix]
It is common where the testator is of weak or impaired mental capacity or in
failing health. The circumstances in the case of Mwathi vs. Mwathi and another (1995-1998) 1 EA 229 (Gicheru, Kwach
and Shah JJA), demonstrate the exercise of undue influence or coercion on a
deceased person. At the High Court
Bosire J (as he then was) said:
The petitioner
was obliged but did not demonstrate that the deceased freely and consciously dictated and executed the alleged will. He did not call evidence to exclude the
possibility of having unduly influenced the deceased to will his property to
him.
A distinction
should be drawn between undue influence and persuasion In the Matter of the Estate of James Ngengi Muigai Nairobi HCSC
No. 523 of 1996 (Koome J),n. Lord
Penzance in Hall vs. Hall (1869) LR 1
P & D 481 brought out the distinction as follows: -
Persuasion is not
unlawful, but pressure of whatever character if so exerted as to overpower the volition
without convincing the judgement of the testator will constitute undue influence though no force is either
used or threatened.[lx]
Persuasion is
lawful, that is where a person is pressurized through persuasion to dispose of
and disposes of property in a particular way.
In Wingrove vs. Wingrove (1885)
11 PD 81 it was remarked that if a young man became caught in the toils of a
harlot who was able to exert much influence over him and induced him to make a
will in her favour to the exclusion of his wife and children, this would not
amount to undue influence. In Wingrove
vs. Wingrove (1885) 11 P. D 81 Sir James Hannen said at Page 83
To make a good
will a man must be a free agent. But all
influences are not unlawful. Persuasion
appeals to the affections or ties of kindred, to a sentiment of gratitude for
past services or pity for future destitution or the like – these are all
legitimate and may fairly be pressed on a testator. On the other hand, pressure
of whatever character whether acting on the fears or hopes if so exerted as to
overpower the volition without convincing the judgement is a species of
restraint under which no valid will can be made. Importunity or threats such as the testator
has no courage to resist, moral command asserted and yielded to for the sake of
peace and quiet, or of escaping from distress of mind or social discomfort,
these if carried to a degree in which the free play of the testator’s
judgement, discretion or wishes is overborne will constitute undue influence
though no force is either used or threatened.
In a word a testator may be led but not driven and his will must be the
offspring of his own volition and not the record of someone else’s.
In Wambui and another vs. Gikonyo
and others (1988) KLR 445 (Gachuhi,
Apaloo JJA and Masime Ag. JA) the deceased who was illiterate gave instructions
regarding the disposal of his assets upon death, which instructions were
reduced into writing by one of the people present. He distributed his land to his wife and
children including the appellant, a married daughter. The document was thumb printed by the
deceased in the presence of two witnesses who did not however sign it. When the appellant was told by the father of
the gift, she said she would not believe it unless another document was made to
show her father’s good faith. The
deceased caused another document to be prepared which he thumb printed after it
was signed by the attesting witnesses; the appellant sought a grant of probate
on both documents. The other
beneficiaries alleged that the same was not valid, as coercion had been
exercised on the deceased to make a will in the appellant favour. It was held that there was no coercion. The evidence suggested persuasion only, yet
persuasion is not unlawful. The Court of
Appeal said that in the second document the deceased only confirmed the earlier
document as he distributed his estate in the second document as per the terms
of the first.[lxi]
Coercion amounting
to undue influence can take various forms – actual physical force or the incessant
talking to a sick, frail or elderly testator.
The burden of proof lies with the person alleging coercion or undue
influence. In In the Matter of Philly
Nyarangi Otundo (deceased) Nairobi HCSC No. 2078 of 1997 (Aluoch J), a will
was challenged on the grounds that it was a forgery and the executors named in
the will were strangers to the family of the deceased. The will had been
executed by the deceased while on her sick bed. The court found that the
deceased had made the will freely, and that the applicants had not proved their
case. In In the Matter of the Estate of James Ngengi
Muigai Nbi HCSC No. 523 of 1996 (Koome J), undue influence was alleged in
the matter because it was the eldest son of the deceased who suggested that he
should write a will and got the family priest to convince the deceased to make
the will. The objectors also pointed out that the deceased was living in the
house of the said eldest son and therefore the eldest son must have driven the
deceased into making the will in the manner he made it. The court was not
convinced that the eldest son had exercised undue influence on the deceased as
the deceased had previously donated a power of attorney to the son to act on
his behalf during his lifetime, the deceased was convinced a respected citizen
a family priest to write the will, the
advocate who drafted the will visited the deceased three times to discuss the
will, and that it was normal for an elderly person to live with their eldest
son.
Undue influence
is common in confidential relationships, particularly those of a religious
nature. In Parfitt vs. Lawless (1872)
LR 2 P & D 462 the testatrix left
her residuary estate to a Roman Catholic priest who was her confessor and who
lived with her and her husband. It was
alleged that the confidential relationship between them gave rise to a
presumption of undue influence. It was held however that there was no positive
evidence of undue influence. In Re Harden
(1959 CYLB) 3448, The Times 30th June 1959 a testatrix left property
to a spiritualist medium after he allegedly transmitted messages ‘from the
other side’ to her as to what she should do with her property on death. The messages were dictated to her and resulted
in her executing two wills that made the medium a substantial beneficiary of
her estate. It was held that the medium had taken control of the testator’s
mind to the extent that she had written what he wanted rather than the record
of her mind. The will was invalidated on the ground of undue influence.
(f) Fraud
Knowledge and
approval will also be absent if the testator makes a gift by will or excludes a
person from benefit as a result of false statements which have been made about
an intended beneficiary’s character or conduct. In In the Estate of Posner (1953) P. 557 a gift made to a beneficiary
who fraudulently misrepresented herself to be the testator’s wife was
invalidated. In Pauline Ndete Kinyota
Maingi vs. Rael Kinyota Maingi Nairobi CACA No. 66 of 1984 (Nyarangi, Platt
and Kwach JJA), the deceased appointed a woman he described as his wife the
executrix and trustee of his will. He
had married the woman under statute while still married under customary law to
the first wife. He also stated falsely that he was divorced from his first wife
and purported to disinherit her completely. The Court of Appeal held that the
purported statutory marriage was null and void by virtue of the Marriage Act
and the African Christian Marriage and Divorce Act, because the deceased was
already married under customary law, he could only lawfully contract another
marriage according to customary law under whose procedure a marriage is
potentially polygamous. It was further held that the appointment of the said
woman as an executrix was both fraudulent and illegal in the circumstances, as
the testator relied on deliberate falsehood. The appointment of the executrix and trustee was
therefore void for fraud and illegality rendering the executorship impossible[lxii].
(g) Forgery
A will will also
be void if it is forged. In such case there is lack of knowledge and approval
by the testator of the contents of the will. The forged will is not the will of
the testator. The burden of proving forgery lies with the person alleging it.
In Elizabeth Kamene Ndolo vs. George
Matata Ndolo Nairobi
CACA No. 128 of 1995 (Gicheru, Omolo and Tunoi JJA)), the Court of Appeal
stated that the charge of forgery or fraud is a serious one, the standard of
proof required of the alleger is higher than that required in ordinary civil
cases, that is proof upon a balance of probabilities, but certainly not beyond
a reasonable doubt as in criminal cases.
In that matter the Court of Appeal held that the eyewitness evidence of
attesting witnesses was preferable to that of the handwriting experts, which is
really is only opinion evidence.
In In the Matter of the Estate of James Ngengi
Muigai Nairobi HCSC No. 523 of 1996 (Koome J), the allegedly forged will
was submitted to the Criminal Investigations Department at the request of the
objectors following a criminal complaint. The document was subjected to to
examination and the alleged forged
signature of the deceased was compared with the deceased’s known signatures. The
expert document examiner concluded that the signature on the document was that
of the deceased. The court held that the will was not a forgery.
5.5 Married
Women
Section 5 (2) of
the Law of Succession Act addresses the case of married women and adopts the
position under the Married Women’s Property Act, 1882 by providing that any
female, whether married or unmarried, is capable of making a valid will.
At common law,
married women suffered a disability similar to that of infants and idiots,
chiefly because upon marriage the husband automatically acquired rights over her
property. This position changed with the
enactment of the Married Women’s Property Act, 1882, which enabled women to own
property in their own right and thus conferring upon them the right to dispose
of such property by will.
5.6 Form
Under Kenyan law,
no specific form of a will is required.
Section 8 provides that a will may either be oral or in writing and may
thus take any form provided it satisfies the laid down requirements of formal
validity. Section 9 provides the formal
requirements for an oral will, while section 11 deals with written wills.
(a) Oral will
In the case of
an oral will, according to section 9, it must be made in the presence of two or
more competent witnesses and it cannot be valid unless the testator dies within
three months after it is made (In the
Matter of the Estate of Nduva Mailu (deceased) Machakos HCP&A No. 110
of 1994 (Mwera J) and Wambui and another vs.
Gikonyo and others (1988)
KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA) [lxiii].
The rationale behind the provision in section 9(b), the time stipulation, is
that being oral there is a danger that some details may be forgotten or
misreported where a longer period is allowed.
The other reason is that such wills are usually made in a state of panic,
fear, or anxiety e.g. when the testator is very ill or in a state of imminent
danger. People in such state have a
tendency to be irrational in their decisions and to express intentions that
they might never had if they had a free thought. The three-month period is intended to allow
them time to reconsider the terms of the will and, if possible, reduce the same
to writing.
A proviso to
section 9(1) provides an exception to these requirements. The exception covers persons in active
service in the armed forces or merchant marine.
An oral will made by such persons is valid if the persons die in active
service notwithstanding that the will was made more than three months before
their death. Such wills, which do not comply
with the formal requirements, are called privileged wills.
Kenyan courts
have held that where a deceased person gives instructions regarding the
disposal of his assets and the instructions are reduced into writing by the
persons recording them such written instructions amount to an oral will,
provided the instructions are given in the presence of two or more persons. In Re Rufus Ngethe Munyua (Deceased) Public
Trustee vs. Wambui (1977) KLR
137 (Harris J) the deceased gave
instructions on the disposal of his properties to his wives and children. The persons receiving the instructions wrote
the instructions on a piece of paper.
The deceased died a few days later.
It was held that the writing disposing the property was an oral will.
In Wambui and another vs.
Gikonyo and others (1988)
KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA), the deceased who was
illiterate called two people to his home and requested them to write down his
wishes. The wishes were taken down in Kikuyu.
The person who took the instructions had the document typed the
following day. He read it back to the
deceased who then thumb printed it; the witnesses did not countersign it. The Court of Appeal, relying on Re Rufus Ngethe Munyua (supra) and
Sections 8 and 9 the Law of Succession Act on oral wills, held that the document
was capable of being construed as an oral will.
Section 10
provides that where a conflict arises between the contents of a written will
and an oral will the contents of the written will shall prevail.
(b) Written
will
Section 11
provides that no written will shall be valid unless: it is signed by the
testator or he affixes his mark to the will or it has been signed by some other
person in the presence of and by the direction of the testator; it appears that
the testator intended by his signature or mark or signature of the person
signing for him to give effect to the will; the signature is made or
acknowledged by the testator in the presence of two or more competent witnesses
present at the same time; and each witness must attest and sign the will in the
presence of the testator but not necessarily in the presence of the other
witnesses (Wambui and another vs.
Gikonyo and others (1988)
KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA) [lxiv].
No form of attestation is necessary.
(i) writing
Since the Law of
Succession Act does not prescribe a particular form of the written will it is
presumed that the will maybe handwritten, typed, printed or in lithographed
form. The writing may be that of the
testator or of any other person. It may be in any language. This is clearly implied by Rules 52 (2) and
54 (3) of Probate and Administration Rules.
Rule 52 (2) provides for the translation into English of a will written
in a language other than English, while Rule 54 (3) addresses the case of a
will written in a language with which the testator was not wholly familiar, an
affidavit is required to show that the testator was aware of its contents and
appeared to understand them.
Case law shows
that it may even be in a code so long as the code can be deciphered. In the case of Kell vs. Charmer (1856) 23 Beav
195, a will written in a jeweller’s code was admitted to probate. It may be
written on any material provided the material produces a visible form. In Hodson
vs. Barnes (1926) 43 TLR 71 a will written on an eggshell and in Murray
(1963) CLY 3621 (Canadian) a will written on a cigarette packet were admitted
to probate.
(ii) signature
The term
“signature” is not defined in the Act, but the courts have widely interpreted
it to cover any mark of the testator which is intended as a signature e.g.
thumb print, initials, assumed name, mark by a rubber stamp with the testator’s
name have all been held to amount to valid signatures. It need not even consist of a name at all. In Re Cook’s
Estate (1960) 1 All ER 639 the words
“your loving mother” placed at the end of the document were held to be a valid
signature. Part of a signature may in some cases be sufficient to validate a
signature. In Re Chalcraft’s Goods 1948
P. 222. A testatrix, on a point of
death, started to sign her normal signature “E. Chalcraft” but after writing
“E. Chal”, she became too weak to continue.
It was held that the signature ways valid. It was the best she could in her weak
condition.
Where the will
is signed by another person this should be done in the testator’s presence and
under his direction. The concept of “presence” has a physical and mental
dimension. Since the signature has to be
made under the testator’s direction, the testator’s physical and mental
condition must be such that he could either object to or assent to the
signature made on his behalf. A will will normally be signed on behalf of a
testator in circumstances where he is too weak through illness to sign for
himself. The person who signs on behalf of the testator may sign his or her own
name or in the testator’s name (see case of In
the Goods of Clark (1958) 1 Sw. & Tr. 22). The person may be one of the
witnesses to the will (see case of Smith
vs. Harris (1845) 1 Rob Ecc 262) It would be more prudent for the person
signing on behalf of the testator to sign his own name and to state that he is
signing on behalf of the testator, in the testator’s presence and under his
direction. This would obviate any uncertainty as to whether the person is
signing for the testator or as an attesting witness.
Section 11 (b)
states that the signature or mark should be so placed as to make it appear that
he intended by the signature or mark to give effect to the will. Under this provision the signature can
theoretically be placed anywhere on the document so long as it is apparent from
the position that it is intended to give effect to the will (Karanja and another vs. Karanja (2002) 2
KLR 22 (Githinji J)).
The
Administration of Justice Act, 1982 of England carries a similar provision
at section 17 and recent U.K.
decisions on the point could be a guideline. In Weatherall vs. Pearce (1994) The Times 7th November a testator made a will on a
printed form purchased from the stationers.
She signed her name in the middle of the attestation clause, but not at
the end of the will. The issue was
whether this constituted a signature for the purpose of section 17 of the U.K Act. It was held that since she had intended her
name as signed to be her signature the will was property signed. In Wood vs. Smith (1991) 3 WLR 514 a testator
wrote in his own handwriting at the top of his will and before writing the rest
of the will “My will by Percy Winterborne”.
He did not sign his name at the foot of the document. Evidence was adduced that the testator
regarded his name at the top to be his signature. It was held that by writing his name and the
dispositive provisions in one single operation the deceased had provided clear
evidence that the intended to give effect to the provisions. The will was held to have been duly executed.
The point was addressed
in the Kenyan case of Wambui and another vs.
Gikonyo and others (1988)
KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA) where the court found that the
fact that the deceased thumb printed last the witnesses having signed first did
not invalidate the will as the testator does not necessarily have to sign the
will it could be signed on his behalf and still be valid.
Sometimes a
testator may place his signature on a separate piece of paper or on an envelope
containing the otherwise unsigned will.
In such situations, whether the will is validly signed or not will
depend on the intention of the testator.
If the intention is to ratify the will, it should be valid. If the intention is to identify the will the
same would be invalid. The intention of
the testator is a question of fact to be gauged from the evidence adduced.
In In the Estate of Bean (1944) P. 83 a
testator forgot to sign his will but wrote his name and address on the
envelope. It was held that the will was
not valid. He had written his name on
the envelope to identify rather than ratify the will. Probate of the will was refused. In Re Mann’s Goods (1942) P. 146 a
testatrix forgot to sign her will, but put it in an envelope and wrote on the
envelope, “Last will and testament of J. C. Mann”, signed the envelope and had
it witnessed. The envelope was then
placed in a larger envelope. It was held
that the testatrix intended the signature to give effect to the will, which was
therefore admissible to probate.
(iii) witnesses
Section 11 (c)
of the Law of Succession Act provides that the testator’s signature must be
made in the presence of two witnesses who need not be present at the same time.
In In the Matter of the Estate of James
Ngengi Muigai (deceased) Nairobi HCSC No. 523 of 1996 Koome J stated that
the law allows the will to be witnessed by two or more witnesses at different
times , but each should sign in the presence of the testator.. The provision is
unhelpfully drafted. It requires that the will be attested by two or more
witnesses each of whom must have seen the testator sign or affix his mark to
the will, and at the same time say that it shall not be necessary that more
than one witness be present at the same time. It is not conceivable how the
witnesses can each see the testator sign the will if both are not present at the same time , unless the
will is signed twice by the testator. A will
signed by one witness, as was the case in In
the Matter of the Estate of Susan Kanini Kilonzo (deceased) Nairobi HCSC
No. 2669 of 2002), would be in contravention of section 11(c) and therefore
null and void. To be present at signing means the witnesses must be capable of seeing
the testator sign. The witnessing is of
the signature, that is the fact of signing.
The witnesses need not look at the signature or even know that the
document is a will.[lxv]
If the witness
is present but unaware of what the testator is doing, the attestation will be
invalid. In Brown vs. Skirrow (1902)
P 3 a testatrix took her will to a grocer’s to be executed. She asked two shop
assistants to act as witnesses. As she was signing the document, one of the
assistants was busy serving a customer. The will was held invalid. In Re Colling
(1972) 1 WLR 1440 it was stated obiter
that if a witness left the room before the testator completed his signature,
the attestation will also be invalid.
Section 11(c) of
the Law of Succession Act refers to the acknowledgement of a signature. Instead
of being present when the testator is executing the document, the witnesses may
be called after he has signed the document, in which event the testator should
acknowledge his signature or mark or the signature of the person signing on his
behalf and at his direction, to the witnesses. The witnesses need not be present at the
acknowledgement at the same time. Acknowledgement may be by words or by
conduct. It is however preferable that the acknowledgement be express. Older
English decisions show that the witnesses need not even see the signature being
acknowledged. In Daintree vs. Butcher
(1888) 13 PD 102 a testatrix simply said she had a document which she needed
two witnesses to sign and the court found that the acknowledgment was
sufficient.
The importance
of the requirement regarding witnesses is that evidence can be obtained after
the testator’s death as to actually what happened. It is advisable to select
persons who are younger than the testator as these are more likely to survive
him. It is also advisable to choose persons who can easily be traced in preference
to a total stranger or someone of no fixed address or some one who is likely to
be far away at the time of the testator’s death.
Section 11(c) is not specific on who may be a
witness save that the witnesses be present at the time the testator signs or
acknowledges his signature. Section 11
(c) however requires that the witnesses must be capable of seeing the signature
and understanding about what they are doing.
This provision therefore makes the blind and the illiterate unsafe
witnesses. Minors, drunks and insane persons should not be chosen. A witness
competent to attest a will is defined in
section 3(1) as a person of sound mind and full age.[lxvi]
By virtue of
section 14 of the Law of Succession Act, the fact that a person has been named
in the will as an executor does not disqualify him from signing the will as a
witness.
(iv) attestation
Section 11 (c)
provides that each witness must sign the will in the presence of the
testator. They need not necessarily sign
in the presence of each other. Attesting the will requires that the witnesses
put their signatures in the will with the intention of validating the
testator’s signature.[lxvii]Under
section 11 (c) no particular form of attestation is necessary. The witnesses’ signatures need not be in a
particular place in the will, but it should be so placed or positioned as to show
the intention to ratify the testator’s signature. In Re Beadle (1974) 1 All
ER 493 witnesses signed the envelope
containing a will but the will itself was unattested. It was held that the will
was invalidly attested.
The term
signature is widely interpreted to mean any mark intended by the witness to be
their signature. In In the Goods of
Sperling (1863) 3 Sw & Tr. 272 a witness attested by writing “servant
to Mr. Sperling”. It was held that the
same was a signature as it was intended to identify the witness as the person
attesting. The witness must sign the will for themselves rather than have a
third party sign on their behalf.
Under Section 54
of the Indian Succession Act, 1865 a beneficiary under a will cannot attest the
execution of a will. If he so does he loses
his bequest and the will is deemed to be improperly attested. This is also the common law position. In In the Estate of Bravda (1968) 1 WLR 479 testator made a will leaving his estate to
his two daughters. He signed the will in
the presence of the two daughters and two other witnesses. He explained the reason of making the will as
being that he wished to see his daughters provided for. After the two witnesses had signed the will after
the testator, the testator out of sheer enthusiasm asked the daughters to also sign,
“to make it stronger”. They signed. It was held that since the daughters put
their signatures under the words “witnessed by” they had signed as witnesses. It
was held that the will was invalid.
The Law of Succession
Act at section 13 takes a slightly different position. Under section 13 a will should not be
considered as insufficiently attested merely by the fact that it is attested by
a beneficiary or spouse of such beneficiary provided that where that is done
the signatures of such beneficiaries are further attested by at least two
additional competent and independent witnesses.
Section 13(2) makes a bequest to an attesting witness void where the signature
of such witness is not attested. In In
the Matter of the Estate of George Mbugua Ngare (deceased) Nairobi
HCP&A No. 855 of 1995 (Rawal J) the court held that the will in dispute was
properly attested as per section 13, although a beneficiary had signed it as an
attesting witness, since his signature was further attested by two other
attesting witnesses who were independent and competent.
(v) presumption
of due execution
According to
Githinji J in Karanja and another vs.
Karanja (2002) 2 KLR 22 where a will is regular on the face of it with an
attesting clause and the signature of the testator there is a rebuttable
presumption of due execution (omnia esse
riteatta). The wills and codicils appeared ex facie to be properly executed, in such manner as to show that
they were intended to give effect to the document as wills and codicils. In the instant case the court was
satisfied that the presumption applied to the wills and codicils the subject of
the suit, but the presumption was not rebutted by the objectors through
concrete evidence. The court was convinced that the deceased made the wills and
codicils and duly executed them in accordance with the provisions of section 11
of the Law of Succession Act; and there were no circumstances which disturbed the
conscience of the court about the same.
5.7 The
Doctrine of Incorporation by Reference
Section 12 of
the Act provides for incorporation of papers by reference. The section embodies the doctrine of
incorporation by reference that allows documents that satisfy certain
conditions to be regarded as part of a will even though the documents
themselves are not executed. Such
documents if incorporated into a will are admissible to probate as part of the will.
For the incorporation to be effective the document must be in existence at the date
on which the will is executed, referred to in the will as being in existence
and clearly identified.
This criteria is
discussed in a number of English cases, including but not limited to Re Keen
(1937) Ch. 236, In The Goods Of Lady
Truro (1866) LR 1 P & D 201, University
of North Wales vs. Taylor (1908) P. 140, Re Batemans’ Will Trusts (1970)
1 All ER 817, In the Goods of Smart (1902)
P. 238, Allen vs. Maddock (1858) 11
Moo 427 and In the Goods of Heathcote
(1881) 6 P D 30.
5.8 Validity
of Wills Outside the Scope of the Law of Succession Act
The Law of Succession
Act also provides for the validity of wills made outside the scope of the Law
of Succession Act. Section 15 deals with wills made before the commencement of
the Act while section 16 deals with wills made outside of the jurisdiction.
Section 15
provides that written wills executed prior to the commencement of the Act,
regardless of whether the testator died before or after the commencement of the
Act are to be treated as properly executed if they were executed according to
the requirements of the law then in force at the time of execution. Under
section 16 the will of a foreigner or alien is treated as properly executed if
its execution conformed, either at the time of execution or of the testator’s
death, to the law in force of the state of execution or of the state where the
property is situated or of the state where the testator was domiciled or of the state of which the testator was a national at the time of execution or
death.
5.9 Privileged
Wills
A privileged
will is one that is deemed valid notwithstanding the failure to comply with the
strict legal formalities required of a will. Privileged wills are made in circumstances
that by their very nature do not allow the opportunity of making a normal will.
The Law of Succession Act provides for the making of oral or nuncupative
privileged wills. The statute makes no
provision for written privileged wills. Written privileged wills are provided
for in the Armed Forces Act (Cap 199 Laws of Kenya).
Section 9 of the
Law of Succession Act provides that an oral will made by a member of armed
forces and merchant marine during a period of active service shall be valid if
the testator dies during the same period of active service notwithstanding the
fact that he dies more than three (3) months after the date of the making of
the will. The term “active service” is defined in section 3 of the Act to mean service
with respect to the armed forces on a field of military operations or under
orders to proceed to a field of operations; while in respect of the merchant
marine it refers to being at sea or under orders to proceed to sea. The equivalent
English statute, Wills Act, 1837, at section 11 uses the term “actual military service”.
The term was given judicial interpretation in Re Wingham (1949) P. 187
where it was said to be referring to a situation of a soldier serving in
the armed forces in connection with military operations which are or have been
taking place or are believed to be imminent.
In this case, a pilot who died in a training exercise in Canada during
the Second World War was held to be on actual military service.[lxviii]
The term ‘member
of the armed forces’ is not defined in the Law of Succession Act (look up its definition
in the Armed Forces Act (Cap. 199 Law of Kenya)). There is no reported Kenyan
case yet on a soldier’s privileged oral will.
The English case of Re: Stable (1919) P. 7 is relevant. The
deceased, a lieutenant, said to a woman to whom he was engaged, “if I stop a
bullet everything of mine will be yours”.
This was said in the presence of a person who was called as a witness. Probate
of the deceased’s words was granted.[lxix]
The Presidential
Commission on the Law of Succession did not see the need for a written
privileged will as the Law of Succession Act had already provided for an oral will
as an alternative to a written will. In Recommendation
No 13 in its Report the Commission saw no reason why soldiers and sailors
should be in a special category as they can avail themselves of the simpler
methods open to other persons.
The soldiers are
also catered for adequately in the Armed Forces Act (Cap 199 Laws of Kenya) at
section 219 under which a soldier can make a written will if it is attested by
one witness only, an officer of the regiment.
CHAPTER SIX
6. REVOCATION, ALTERATION, AND REVIVAL OF
WILLS
6.1 Introduction
Wills once made
are liable to change by their maker either through alteration, revocation or revival in cases where there has been
revocation.
6.2 Revocation
All wills are
revocable. This is an expression of the freedom
of testation. The freedom to make a will
extends to cover the freedom to revoke it. A will can be revoked voluntarily or
involuntarily. There are three (3)
methods of voluntary revocation, namely: express revocation, implied revocation
and revocation by destruction. These three methods require mental capacity to
the same degree as for the creator of a will and the intention to revoke. Under
Kenyan law, there is only one involuntary method of revocation, namely-revocation
by marriage. This arises by operation of the law and it therefore does not
require that the testator had mental capacity or intention to revoke.
Section 17 of the
Law of Succession Act provides that its maker may revoke a will at any time
when he is competent to dispose of his free property by will.
6.3 Express
Revocation
Section 18 (1)
provides for the revocation of a will or codicil by another will or codicil
declaring an intention to revoke it. Read together with Section 17 this
provision enables testators to revoke their wills so long as they have the
capacity to do so.
Professionally
drawn wills invariably contain an express revocation clause taking this form: “I
revoke all former wills and testamentary dispositions heretofore made by me”. It
is not be sufficient to say, “This is the last will and testament made by me”. This would not be an express revocation
clause. It was held in Re Hawksley’s
Settlement (1934) Ch.
384 that the description of the will as the testator’s ‘last will’ was not
sufficient for an express revocation clause. Revocation may be of whole or part
of the will or codicil. A codicil is
often used when only parts of the will are to be revoked. Express revocation
requires an intention to revoke on the part of the testator.
6.4 Implied
Revocation
The wording of
section 18 (2) is wide enough to cover the possibility of implied
revocation. A will or codicil is impliedly
revoked by a later will or codicil to the extent that the latter is inconsistent
with the earlier will or codicil.[lxx]
It is a matter of construction of the will or codicil to decide whether and to
what extent a later will impliedly revokes an earlier will. Extrinsic evidence
is admissible for establishing implied revocation.[lxxi]
6.5 Revocation by Destruction
Section 18(1) provides for revocation by the burning, tearing or otherwise destroying
of the will with the intention of revoking it by the testator or by some one
else at his direction. Revocation by destruction involves two distinct
elements: the actual destruction of the will and an intention to revoke the will. Both
elements must be present. The actual
destruction must be by burning, tearing or otherwise destroying the will. ‘Otherwise destroying’ has been construed
using the ejusdem generis rule to
require that the acts of destruction are of the same kind as burning and
tearing.
In Cheese vs.
Lovejoy (1877) 2 PD 251 A 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 threw the will in a pile of waste paper in
the corner of the room where his house cleaner retrieved it and kept it in a
kitchen drawer until the testator’s death eight years later. It was held that what 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. In Re: Morton’s Goods (1887) 12 PD 14 the testator’s signature was
completely scratched out. It held that
the same amounted to otherwise destroying. In Re Adams (1990) 134 Sol. Jol. 518
parts of a will were heavily scored through with a ballpoint pen. The relevant parts were held to have been
actually destroyed. In Hobbs vs. Knight
(1836) 1 Curt 768 it was held that “tearing” include cutting.
Whether the actual destruction of part of a will
results in the revocation of a whole or part of the will depends on the part
actually destroyed. If the destroyed
part impinges on the whole will the whole will will be revoked, for example the
destruction of the part of the will containing the signature. If the parts are less important, only those
parts will be revoked. In Re Everest (1975) Fam 44 the testator cut off
the part of his will that contained the trusts of the residue. It was held that the parts cut off were
revoked but that the rest of the will remained intact.
To establish actual destruction it must be proved that
the acts of destruction were completed by the testator. In Doe D. Perkes vs. Perkes (1820) 3 B & Ald 489 the testator tore
his will into four (4) pieces in a rage with one of the beneficiaries named in
the will. He thereafter became calmer
and put the pieces together. 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. The acts of destruction must be by
the testator or by some other person in the testator’s presence and under his
direction. In Re: Dadd’s Goods (1857)
Dea & Sw. 290 a testator on her deathbed expressed a wish to revoke a codicil. Her executor and a neighbour went out of her
presence into the kitchen and burnt the codicil. It was held that there was no
actual destruction.
If destruction is done by some other person, it must
be done in the presence of the testator and by his direction. In Gill vs. Gill (1909) P. 157 the testator’s
wife tore up his will in a fit of temper and it was held that there was no
actual destruction as the will was not destroyed by the testator’s direction. A
destruction of a will by someone else must be done in the presence of the
testator. Where instructions are given to an advocate by a client asking the
advocate to destroy the client’s will in his possession and then the advocate destroys
the same in the absence of the client the act of destruction in such a case does not amount to the actual
destruction of the will and there would be no revocation of the subject will.
If, however, the letter or document containing the instructions
to destroy is signed by the testator and attested by two witnesses the
destruction would effectively revoke the will. In Re: Durance (1872) LR 2 P & D 406 a testator wrote to his
brother who had custody of his will asking him to destroy the will that the
brother did. The letter was signed and
witnessed by two persons. It was held
that there was actual destruction and that the will had been revoked.
With respect to intention to revoke, the testator must
have the same capacity to revoke as is necessary to execute a valid will. In Re Aynsley (1973) 1 Ch. 172 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 mental capacity to revoke and the will was therefore still valid.
The destruction must not be accidental. If a will were
destroyed by a fire at home, the same would not amount to revocation by destruction,
as there would be no intention on the part of the testator to revoke the will
by destruction. If a testator is under
some mistaken belief, for example that the will is invalid, a destruction of
the will in the circumstances would not lead to revocation, as there would be
no intention to revoke.
6.6 Presumption concerning Revocation by Destruction.
In some cases, a will may be lost or found torn or
mutilated after the testator’s death. In
such cases, the will is presumed to have been destroyed by the testator with
the intention of revoking it where the will was last known to be in his
possession. The presumption can be rebutted by evidence to the contrary.
In Re Jones (1976)
1 All ER 593 the appellants challenged a will made by the testatrix who was
their aunt in which she had left a bequest to the respondents who were her favourite
nieces. At the time the will was made, the respondents used to visit and help
the testatrix. In appreciation, the aunt left her house and land to them under
the will. On learning of the contents of the will, the respondents stopped
visiting her and giving her any support. The testatrix, apparently in
retaliation, decided to revoke her will to disinherit them of the bequest. She
informed her lawyer and someone else about the intention, but she died before
her instructions could be carried out. After her death, a copy of the will was
found in her house mutilated at the part in which she had bequeathed the house
and land to the respondents. She had also cut out her signature from the will.
It was held that the actions of the testatrix indicated an absolute intention
to revoke the will and the same was effectively carried out as characterised by
the act of destruction. The effect was that the deceased died intestate.
6.7 Doctrine
of Conditional Revocation
Once an intention to revoke is established, it is
necessary to decide whether the intention is absolute or conditional. It is a question of fact in the case of
actual destruction but a matter of construction in the case of express
revocation. Doctrine is also known as dependent relative revocation. If the intention is absolute, the revocation
does not have effect until the condition is fulfilled. This effectively means
that where a testator revokes his will with the intention of making a new one
and for some reason fails to make a new one, the original remains valid. The doctrine only applies where the court is
satisfied that the testator did not intend to revoke the will absolutely, but
merely revoked it as a first step towards making a new will. If the intention
is absolute, the revocation takes effect immediately. If it is conditional, the
revocation does not effect until the condition is fulfilled.
In Dixon vs.
Treasury Solicitor (1905) P 42
(CA) a testator instructed a
solicitor to draw up a will for him. Before this had been done he cut off the signature
from his old will as he mistakenly believed that the new will could not be made
until the old will was revoked. The
action of cutting off the signature amounted to revocation by destruction. The testator died before he could sign the
new will. It was held that because of
his mistaken belief the revocation of the old will was conditional on the new
will being effective. The old will was
admitted to probate. In Re Carey (1925)
L.S.Gaz R. 189 a testator revoked his will by destruction because he thought he
no longer had property that could pass by his will. He had forgotten that he might inherit some
property from his sister’s estate, which he in fact did. It was held that the
revocation was conditional on the testator having nothing to leave. As he in fact had property to leave, the
condition was not fulfilled and the will remained valid. In Re Southerden’s Estate (1925) P. 177 a testator
revoked his will by destruction under the mistaken belief that under the rules
of intestacy his widow would acquire the whole of his estate. The will was made
just before the couple embarked on a voyage to America. When they safely made it back to England they
regarded the will as unnecessary and destroyed it. It was known in fact that the deceased had
always intended his wife to be the sole beneficiary of his estate. It was held
that the revocation was conditional on the widow taking the whole estate upon
intestacy, as she was not entitled to the whole estate the condition had not
been fulfilled and the will remained valid.
6.8 Revocation by Marriage
Generally, the marriage of the testator automatically
revokes any will or codicil made prior to the marriage. Section 19 of the Law
of Succession Act provides that the marriage of the testator will automatically
revoke a will subject to one exception, where the will is expressed to be made
in contemplation of marriage with a specified person.
The reason for this rule is that marriage and the
birth of issue to the testator constitutes an important change of the circumstances
of the testator and it is equitable in the event for the person’s estate to
devolve on an intestacy rather than under a will made before marriage and the
birth of the children.[lxxii]Although,
in the absence of the rule, the person married subsequent to the execution of
the will and any children born thereafter may avail themselves of the
protection afforded by section 26 of the Law of Succession Act, this approach
would invite unnecessary litigation. The common sense approach is that where a
person fails to alter their will as a result of marriage, the interests of the
heirs would be served by the devolution of the property in intestacy.
6.9 Revocation
by Divorce
Kenyan law does not recognize revocation by divorce,
indeed the definition of dependant in section 29 includes former wife or wives
of the deceased. In Re Bird Deceased (1970)
EA 289, Platt J stated that divorce does not ipso facto revoke a will. The court found that the divorced woman
was the person named in the will as the person entitled to the property of the
testator.
6.10 Revocation of Written Will by Oral Will
Under section 18(2) a written will cannot be revoked
by an oral will.
6.11 Alteration of Wills and Codicils
Where the words of a will are obliterated or altered
in some way or interlineations are made, the effect of these changes depends on
whether the alterations were made before the execution of the will or after.
An alteration made before the execution of the will is
valid so long as it is final rather than deliberate. According to the court in Re Bellamy’s Goods (1866) 14 WR 501, if
it is in pencil it is presumed to be merely deliberative, and without evidence
to the contrary it would not therefore be valid. It was stated in Cooper vs. Bockett (1846) 4 Moo PCC 320,
that with respect to alterations made before the execution of the will there is
a presumption that they have been made after execution unless the alteration is
to fill in a blank space in the will (Either extrinsic evidence or evidence
from the will itself is admissible to rebut the presumption. Alterations made
after executions of the will are invalid unless they have been executed. In
view of the presumption, it is advisable in practice to execute an alteration
even if it has been made before the execution of the will. In Kell vs. Charmer (1856) 23 Beav. 195, it
was held that where the alteration is made to fill a blank space in the will,
the presumption is that the alteration was made before execution of the will.
Where a codicil to a will is subsequently executed,
even though a codicil has the effect of republishing the will this will not
itself validate an alteration by making it as though done before the execution
of the will. An alteration will only be made valid by a codicil if the codicil
refers in some way to the alteration.
Under section 20(1)
of the Law of Succession Act, if the alterations are made after the
execution of the will they would be invalid unless they have been duly executed
in accordance with the formalities required for the execution of the will. The
formalities are complied with if the testator and the witnesses place their
initials in the margin next to the alteration or if the signature of the
witnesses and the testator is put at the end of a memorandum which is contained
in the will, and which refers to the alteration.[lxxiii]
In Re Horsford’s
Goods (1874) LR 3 P&D 221 and Re
Itter (1950) P 130 it was said that where an unattested alteration has been
made after the execution of the will the precise effect depends on whether the
original wording is apparent or not apparent. The original wording will be
apparent for this purpose if the original words can be deciphered by an expert
by natural means. This means that the original words can be ascertained from
the face of the will without physically interfering with the will. According to
the decision in the case of Re Hamer’s
Estate (1943) 113 LJP 31), where an unattested alteration has been made and
the words are apparent, the will is admitted to probate with the original
wording ignoring the alteration. Where an unattested alteration has been made
and the original words are not apparent the general rule is that probate of the
will is granted with a blank space.
6.12 Revival of Wills
Under section 21 of the Law of Succession Act, a
testator may revive a will, codicil or any one of them that has been revoked,
provided that it has not been destroyed. Revival usually involves the
re-execution of the will with proper formalities or a duly executed codicil. There
should be in either case an intention to revive the revoked document.[lxxiv]
A codicil is used to revive part of a revoked will, while a will which has been
totally revoked can be revived only by re-execution. It was stated in Re Hardyman (1925) Ch 287, that the
effect of a revival of a will or codicil is to make the same speak from the
date on which it was revived. As it speaks from the date of the revival,
references to persons in the will or codicil are to persons at the date of
revival. According to the court in Re Revees (1928) Ch 351, the fact that the revival of the will
speaks from the date of revival also affects references to property.
CHAPTER SEVEN
7. GIFTS BY WILL AND THEIR FAILURE
7.1 Introduction
A will disposes of property in the form gifts to the
beneficiaries. There are various forms or classes of gifts, and doctrines
governing them.
7.2 Types of Gifts
A gift by will may be of immovable (realty) or movable
(personalty) property. In the past a gift of immovable property was called a
devise, while that of movable property was termed a legacy. The modern approach
is to use the term legacy to refer to both classes of gifts.
There are four main types of gifts, namely: specific
gifts, general gifts, demonstrative gifts, pecuniary gifts, and residuary
gifts.
(a) Specific gifts
A specific gift is a gift of property forming part of
the testator’s estate that is distinguished in the will from other property of
the same kind. In Bothamley vs. Sherson (1875)
LR 20 Eq, a specific gift was described as being a severed or distinguished
part of the estate. Eg a gift of a Lamu bed. In Re Rose (1949) Ch 499, it was said that the court leans against
specific legacies and is inclined to construe a legacy as general. The
explanation for this is that specific gifts tend to fail for ademption.
(b) General gifts
A general gift is a gift that is not in any way
distinguished from property of the same kind. It covers a gift of the entire
testator’s property or the entire testator’s property of a particular type. As
a general gift is one which is to be provided out of the testator’s estate, it
does not matter that the property of that description does not form part of the
deceased’s at the time of his death (Bothamley
vs. Sherson (supra) Jessel MR). General gifts tend to be pecuniary
legacies, although they do not have to be.
(c) Demonstrative gifts
A demonstrative gift is a gift that is expressed as
payable out of a particular fund or property. As a demonstrative gift is
general in nature, rather than specific, the gift does not fail for ademption
even if the particular fund or property does not form part of the testator’s
estate at the time of the testator’s death. The money to settle the gift has to
be raised by the executors or the property acquired.
If the gift is directed to be satisfied only out of a
particular fund, it will not be a demonstrative gift at all, but instead a
specific gift. The demonstrative gift should operate as a general gift in that
it cannot be satisfied out of the specified fund or property.
(d) Pecuniary legacies
This is a gift of money, whether general or
demonstrative. Usually a pecuniary legacy is a general gift, but it could be
specific or demonstrative, where money is instructed to be paid out of a
particular fund.
(e) Residuary gifts
A residuary gift is a gift of a testator’s residuary
estate. The residuary estate is all that is left in the testator’s estate after
all valid specific gifts have been paid. The residuary gift is usually made
subject to the payment of pecuniary legacies, all debts and other liabilities
of the deceased, and payment of funeral and administration expenses.
7.3 The Doctrine of Ademption
The doctrine of ademption is provided for in section
23 of the Law of Succession Act, and it operates in the circumstances, manner
and extent provided by the 2nd Schedule to the Act.
Under paragraph 8(1) of the 2nd Schedule, where
a specific gift is made, the gift will fail for ademption if the subject matter
of the gift does not form part of the testator’s estate at the date of his death.
Ademption is likely to occur because the property has been sold, given away or
destroyed during the testator’s lifetime. According to the court in Durrant vs. Friend (1852) 5 De G &
Sm 343, where it is unclear which happens first, the death of the testator or
the destruction of the property, the property is deemed to have perished before
the testator so that the gift is adeemed. Under paragraph 8(2) there must be a
substantial change in the subject matter to cause ademption, mere nominal
change is not sufficient.
Sometimes, where property has changed in nature it is
difficult to decide whether ademption has occurred. In Re Slater (1907) 1Ch 665 CA, Cozens-Hardy MR said that ademption
would not occur if the asset in question had changed in nature or form only,
but remained substantially the same thing. Change in the nature of the asset
has been a particular problem in relation to company shares. It was held in Re Slate, Re Leeming (1912) 1 Ch 828, that if the company in which the
testator held shares has been taken over since the execution of the will, it
must be decided whether there has been a change in form or a change in
substance. In the case of change of substance, ademption will occur.
A contract to sell the subject matter of a specific
gift will cause a gift to fail for ademption even though the contract is not
completed until after the testator’s death. According to Re Calow (1928) Ch 710, this will not be the case where the
testator has made a contract to sell the subject matter of the gift before the
will was executed. In this case, the beneficiary will be entitled to the
proceeds of sale. Under the rule in Lawes
vs. Bennett (1785) 1 Cox 167,
where a testator during his lifetime grants to a third party an option to
purchase property which is the subject matter of a specific gift, the gift will
adeem whether or not the option is exercised. It was stated in Drant vs. Vause (1842) 1 Y & CC 580,
that if the option was granted to the third party before the will was executed,
the gift will adeem and the beneficiary will be entitled to the proceeds of the
sale if the option is exercised.
Although the authorities are not entirely clear on the
point, it seems that a gift will fail for ademption if between the execution of
the will and the date of its republication the testator acquires another asset
of the same description.[lxxv]
It is always possible for the testator to express a contrary intention to the
operation of the doctrine of ademption.
7.4 Doctrine of Lapse
The doctrine of lapse is provided under section 23 of
the Law of Succession Act, and its application is as set out in the 2nd
Schedule to the Act.
As a general rule, stated in paragraph 1(1) of the 2nd
Schedule, if a beneficiary under a will predeceases the testator their gift
will lapse. Under paragraph 7 of the 2nd Schedule, if the gift is
not a residuary gift, the property will fall into residue. If the gift is a
residuary gift, the property will pass according to the rules of intestacy
unless there is substitutional gift of the residue. A gift will not lapse if it
can be shown that the beneficiary survived the testator for even a very short
period. Where the circumstances of death make it uncertain whether the
beneficiary survived the testator, the beneficiary may be deemed to have either
survived or predeceased the testator under the doctrine of commorientes.
Under paragraph 1(2) of the 2nd Schedule, the
doctrine of lapse cannot be excluded by stating in the will that a gift is not
made subject to it. According to Re Ladd (1932)
2 Ch 219 it is possible to make an express gift to the estate of a deceased
beneficiary.
It was stated in Morley
vs. Bird (1798) 3 Ves 696, that if a gift is made to beneficiaries as joint
tenants, the gift will not lapse unless all the joint tenants predeceased the testator,
as the surviving joint tenant(s) take(s) the share of a deceased joint tenant
by survivorship.[lxxvi]
According to the court in Page vs. Page (1728)
2 P Wms 489, the converse is that if a gift is made to beneficiaries as tenants
in common, the share of a beneficiary who predeceases will lapse.[lxxvii]
This is because tenants in common have a distinct share in the property and the
rule of survivorship does not apply. For a tenancy in common there must be
words to the effect that the each beneficiary is to have a distinct share or
that the property is to be shared equally or divided between them.
Where a class gift is made, the gift will not lapse
unless all the members of the class predecease the testator. A class gift is
one where the beneficiaries fit a certain description, and the amount that each
beneficiary receives depends on the number of people in the class.
There are a number of exceptions to the doctrine of
lapse. The exceptions are set out in the 2nd Schedule to the Law of
Succession Act. One exception to the
doctrine of lapse is gifts made in the discharge of a moral obligation
(paragraph 2(1) (a) of the Second Schedule). The extent of the exception is not
fully clear, but it was explained in Stevens
vs. King (1904) 2 Ch 30 that the doctrine of lapse does not apply to a gift
made to discharge a moral obligation, as the court will imply that the gift is
intended by the testator to pass into the beneficiary to whom the testator owes
a moral obligation. Possibly, the exception only extends to debts owed by the
testator to a beneficiary.
Paragraph 2(1) (b) of the 2nd Schedule makes
an exception for gifts to children or other issue of the testator. It provides
that gifts to such persons will not lapse so long as the will contains a gift
to a child or children or other issue of the deceased, and the intended
beneficiary dies before the testator leaving issue and the issue of that member
is living at the death of the child. Under the circumstances, the gift takes
effect as a gift to the issue living or en
ventre sa mere at the time of the testator’s death or as if the class
includes the issue of the deceased member who are living at the date of the
testator’s death. The issue takes the share of their deceased parent would have
taken, if issue are more than one then they should take in equal shares.
Paragraph 2(2) of the 2nd Schedule deals with class gifts, and provides
that the gift would not lapse so long as there is a surviving member or
surviving members of the class, who should take as a whole.
7.5 Commorientes
If the death of a beneficiary under a will and that of
the testator occur close together, it will be necessary for the executors to
try to establish who died first. It may be that the testator and beneficiary
have died in a common accident. If evidence exists that the beneficiary
predeceased the testator, however close the deaths, the doctrine of lapse
applies and the gift to the beneficiary will fail. Under section 43 of the Law
of Succession Act, where there is no evidence as to the order of deaths, as
where persons die in a common accident, for the purpose of succession the
deaths are presumed to have occurred in order of seniority. The elder person is
presumed to have died first. This provision, however, does not apply to
spouses, who are presumed to have died simultaneously.
7.6 Mistake, Fraud and Undue Influence
The validity of a will is predicated on, among other
factors, the testator’s knowledge and approval of its contents, and the
testator is said to not to know or approve the contents because of a mistake,
fraud and undue influence. The presence of a mistake, fraud and undue influence
may lead to the lapse of one or more gifts made in the will.[lxxviii]
7.7 Uncertainty
It was said in Palmer
vs. Simmonds (1854) 2 Drew 221 and Re
Golay (1965) 1 WLR 969, that a gift will fail for uncertainty unless the
subject matter of the gift and the beneficiaries can be identified with
sufficient certainty. A gift may fail for uncertainty where the beneficiary is
described in terms that are uncertain. For example, a gift to friends may fail
for uncertainty. In In the Matter of
George Percy Smithson, Deceased (1942) 22 EACA 14 (Lucie-Smith J) a gift of
the residue of the estate to ‘African Leper Missionaries and Leper Hospitals at
present and to be established in Africa only’ was found to be a good charitable
bequest which was void for uncertainty and impossibility of performance.
The appropriate test of certainty of objects for a
class gift, according to the court in McPhail
vs. Doulton (1971) AC 424 and Chichester
Diocesan Board of Finance vs. Simpson (1944) AC 341, is one of whether it can be said of any given
individual, that they either are or are not a member of the class.
7.8 Beneficiary or Spouse of Beneficiary Witnessing
the Will
The validity of a will is not affected where a
beneficiary or a spouse of a beneficiary acts as an attesting witness, but
section 13 of the Law of Succession Act provides that a gift will fail if the
beneficiary or their spouse has witnessed the will. Unless section 13(2) of the
Law of Succession Act is complied with by having their signatures further
attested by independent witnesses.[lxxix]
This provision is not limited to dependent beneficiaries, it includes any
person who is entitled to costs or charges out of the estate or incurred in the
course of preparing the will. A professional executor who is appointed under
the will witnesses the will; he will lose his entitlement to his fees or
charges.
7.9 Forfeiture
Under section 96 of the Law of Succession Act, a
beneficiary who is convicted of the murder of the testator is prevented on the
basis of public policy from benefiting under the testator’s will.
7.10 Perpetuity
The rules relating to perpetuity affect gifts by will
in several ways, and apply by virtue of section 25 of the Law of Succession Act
and the Perpetuities and Accumulations Act (Cap
Laws of Kenya). Section 25 of the Law of Succession Act provides that
testamentary gifts or dispositions are void if they offend the rules against
perpetuities, remoteness or accumulations set out in the 4th
Schedule to the Act.
In the first place, they apply to contingent gifts and
require that it must be possible within a certain period of time, usually
called the perpetuity period, to say who is entitled to the gift. If the gift
does not vest within the perpetuity period, it is void. The rationale for the
rules against perpetuity is to ensure that property, which makes up the
country’s wealth, is not used for the benefit of anyone for very long periods
Secondly, property once vested in trustees must not be
rendered inalienable. If a charitable gift is inalienable, it is void. A gift is said to be inalienable if some
provision or the terms of the gift prevent the property from being disposed of
within a certain period of time. This aspect of the rule of perpetuity is
particularly relevant where property is left by will for a purpose or cause
which is not charitable. The reason behind the principle is that it is against
public interest for property to be tied up indefinitely for a purpose that is
not of general benefit to the community. Charitable gifts are excluded from the
rule because they are by definition of public benefit. Without the rule, land
or funds could be tied up for very unproductive purposes.
7.11 Private Purpose Trusts
A purpose trust arises where a testator wishes to
benefit a cause or a purpose as opposed to benefiting a person or persons. In Brown vs. Burdett (1882) 21 Ch 667 a
testator left a fund of money to keep a house maintained with all but four of
its rooms blocked up. Generally, unless the purpose is charitable, the gift
will be void because of the beneficiary principle and the perpetuity rule. The
beneficiary principle was explained in
Morice vs. Bishop of Durham (1804) 9 Ves. where it was stated that the
objection to a gift for a private purpose is that there is no one capable of
enforcing the payment of the gift.
There are, however, exceptions to the rule that
private purpose trusts are void. An important exception is trusts known as
trusts of imperfect obligation. These have been described, by Roxburgh J in Re Endacott (1960) Ch 232, as
concessions to human weakness or sentiment. If a gift falls within one of the
categories of trusts of imperfect obligation, it will be valid, but the
executors will not be bound to give effect to the gift- though they may if they
wish, provided that the gift is limited to the perpetuity period. Trusts of
imperfect obligation fall into three categories, namely; trusts for maintenance
of a particular or grave, saying of masses for the dead and maintenance of one
of more specific animals.
CHAPTER EIGHT
8. CONSTRUCTION OF WILLS
8.1 Introduction
It sometimes becomes necessary for the court not only
to determine whether or not the document alleged to be a will is a valid will,
but also what the meaning and effect of the words and phrases used by the
testator in the will are. First, it must emerge from the words, phrases and
expressions used that the document was made in contemplation of death i.e. that
it is testamentary. The role of the court is therefore, to decide what meaning
should be attributed to any disputed clauses in a will.
Issues relating to construction of wills arise out of
poor drafting. The main objective of the construction of a will is to ascertain
the testator’s intentions as expressed in the will. In Perrin vs. Morgan (1943) AC 399 Lord Simon LC said that ‘the
question is not, of course, what the testator meant to do when he made his
will, but what the written words he uses mean in the particular case- what are
the “expressed intentions” of the testator’. (National Society for the Prevention of Cruelty to Children vs. Scottish
National Society for the Prevention of Cruelty to Children (1915) AC 207).
Where a will uses words and phrases which are capable
of two or more meanings and does not show in which sense the testator intended
to use them, the court is faced with two alternatives either to declare the
will void for uncertainty or decide on which of the available interpretations
is to be given to the disputed clause.
The latter course is known as the benevolent approach to the
construction of wills. This approach has
given rise to the so-called rules of construction of wills.
Under section 22 of the Law of Succession Act wills
are construed according to the rules made under the 1st Schedule to the Act. There
are 78 rules of construction under the 1st Schedule. These rules are based on
some basic general principles of construction of wills.
8.2 The Court construes Wills, it does not Remake Them.
The duty of the court is to interpret the words as
used by the testator in the will regardless of whether they produce an unfair
result, provided that was the intention of the testator. Even where a testator has not made a
provision for his lawful dependants it is not for the court in interpreting the
will to seek to make provision for these survivors. The court interprets the
will as it stands and pronounces that the survivors are not provided for. Thereafter the survivors may, if they so wish, file the necessary application under
section 26 asking the court to make a reasonable provision for them out of the
estate. Thus the court’s business is to
construe the testator’s will, not to make a new will for him.
Note, however, that a mechanical application of this
principle can sometimes produce absurd results and obvious injustice. In Scale
vs. Rawlings (1892) A.C. 342 a
testator devised three of his houses to A (his niece) for life and provided
that should A die leaving no children, those houses were to go to his
nephews. “A” died leaving some children
surviving her. It was argued on behalf of A’s children that the testator
intended, although his will did not expressly say so that the testator
intended, although his will did not expressly say so, that if A died leaving
children, the houses should go to them. Interestingly, both the Court of Appeal
and House of Lords decided that the will clearly gave A no more than a life
interest in the houses and gave nothing to her children. Consequently, when A
died leaving children, the houses devolved upon the testator’s residuary devisees
i.e. the nephews. Both courts held that
if the testator had desired A’s children to benefit he would have said so.
Despite the obvious injustice that can
result from such mechanical application of the principle the rationale behind
it is to guard against the tendency to impute a meaning to a will that was
never intended by the testator and thereby defeat his intentions. It also acts as a caveat against sloppy drafters,
who must be warned against using words and phrases carelessly without
considering whether they express the testator’s true intentions.
8.3 Words are Construed in their Ordinary Natural Sense.
Words in a will are attributed their primary meaning,
regardless of whether the construction will produce a capricious meaning (see
Rule 9)( Rashida Begum vs. Administrator
General and another (1951) 18 EACA 102 (Sir Barclay Nihill P, Sir Newnham Worley
VP and Pearson Ag. CJ)). In Gorringe vs.
Mahlstedt (1907) AC 225, it was said that there is a presumption in
construing a will that the ‘ordinary and usual meaning of the words’ should be
applied. In Re Raphael Public Trustee vs.
Raphael (1972) EA 522 (Simpson J) the court was asked to construe two wills
containing the phrase ‘or of us dying
together’. Both testators were found dead in a locked room with bullet wounds,
the pathologist was unable to determine who died first. It was held that the
testators did not mean dying at precisely the same instant. The court concluded
that the testators died together within the meaning of the phrase in their
will.
In Anarali
Museraza (a minor by his next friend) Mohamedtaki A. P. Champsi vs. Mohamedali
Nazerali Jiwa and others (1966) EA 117 (Wicks J) the court was called upon to
construe the clause ‘in addition to this will’ in a codicil to an earlier will.
It was contended that the testator was attempting to make further dispositions
‘in addition’ to the one-third willable property under Islamic law and as this
exceeds that one-third the codicil was therefore void. The court held that
looking at the codicil as a whole by the words ‘in addition to this will’ the
testator intended that the codicil was to be read with the earlier will and by
the words ‘the following addition to it‘ the testator intended to add to the
provisions of the prior will.
However, if on reading the will as a whole or on
investigating the habits and circumstances of the testator, it is evident that
he used a particular word or phrase in some special sense of his own, the court
may interpret it in this special or secondary sense provided that the word or
phrase is capable of carrying such a meaning. There are two ways in which the
general principle may be departed from, through the application of the ‘dictionary
principle’ and the use of a secondary meaning where the ordinary meaning does
not make sense.
The dictionary principle applies in circumstances
where the testator has set up his own dictionary in the will by defining words
he uses in a particular way. The principle would apply if the testator has a
definition clause saying how particular words are used in the will.
Where the ordinary meaning does not make sense, a
secondary meaning which makes sense can be applied. In Re Smalley (1929) 2 Ch.
112 which illustrates the power of the court to interpret a word in a secondary
sense when the surrounding circumstances of the testator show that he used it
with that particular meaning. In this
case a testator bequeathed all his property to ‘my wife E. A. S’. The woman named believed herself to be his
wife and was generally reputed as such but in fact, he had commuted bigamy in
marrying her, for he was already married to another woman. On evidence of these
surrounding circumstances, the Court of Appeal construed the word “wife” to
mean “reputed” as opposed to “lawful” wife, for the circumstances showed that
he had used the words in this secondary sense. In Thorn vs. Dickens (1906) WN 54, evidence of surrounding
circumstances showed that the testator referred to his wife as “mother” so that
a bequest to ‘mother’ in his will was taken to be a bequest to her.
Where a word has more than one meaning the general
rule, that words are given their ordinary meaning, cannot be applied. (Re Everett (1944) 176, Re Barnes’ Will Trust (1972) 1 WLR 587, ,
Re Mellor (1929) 1 Ch 446). Where
special or technical words are used in a will, they are presumed to be employed
in their technical sense, unless the context clearly indicates the contrary (see
rule 8) (Re Cook (1948) Ch. 212). Such technical words may also be construed in
a secondary sense if the will provides sufficient evidence that this is the
sense in which the testator used them.
8.4 The Will must be Read as a Whole
The meaning of clauses is to be collected from the
entire will (Rashida Begum vs.
Administrator General and another (1951) 18 EACA 102 (Sir Barclay Nihill P,
Sir Newnham Worley VP and Pearson Ag. CJ)).
Since the paramount purpose of construction is to give effect to the
testator’s intention as expressed in the will, the meaning of any clause in a
will is to be ascertained from the entire document and not in isolation (Abdulla Rehemtulla Walje vs. Alibhai Haji
and another (1943) 10 EACA 6 (Sir Norman Whitley CJ, Mark-Wilson Ag. CJ and
Hayden J). The provisions of the will
must be construed in relation to each other.
However, where two clauses or provisions are irreconcilable
or mutually inconsistent to the extent that they cannot possibly stand together
the last one prevails (see rule 2) (Re
Hammond (1938) 3 All ER 308). The rationale for this rule lies in the
notion that the later clause in the last expression of the testator. The rule
has been described by Lord Greene MR in Re
Potter’s Will Trust (1944) Ch 70 as a ‘rule of despair’. Case law shows that
the courts try not to apply the rule at all (Re Alexander’s Will Trusts (1948) 2 All ER 111).
Apparently a rule has developed to the effect that
where, looking at the will as a whole, it looks like that the testator intended
the first clause to apply, the presumption that the latter clause prevails
should not be applied (Re Bywater (1881)
18 Ch 17).
8.5 The Will must Speak for Itself.
As general rule, courts must ascertain the testator’s
intention from the words of the will itself (Colclough vs. Cocker (1917) 7 EALR 120 (Hamilton CJ, Murison CJ and
Pickering J), Rustomji Kersasji Khursedji
Sidhwa vs. Dinshwa Ruttonji Mehta and others (1934) 1 EACA 38 (Abrahams CJ,
Lucie-Smith Ag. CJ and Horne J)). This is because the construction of wills is
about ascertaining the testator’s intention, as expressed in the will. In Perrin vs. Morgan (1943) AC 399, Lord
Atkin remarked that ‘the sole object is…to ascertain from the will the
testator’s intentions’. In
Re Raphael, Public Trustee
vs. Raphael (1972) EA 522 (Simpson
J), the court was asked to construe the phrase ‘or of us dying together’
contained in the wills of two testators who were found together in a locked
room and who had died from bullet wounds. The court found that the deceased
died together within the meaning of that phrase in their wills. In the opinion
of the court, the phrase ‘dying together’ did not mean dying precisely at the
same instant of time, what the deceased had in mind was death in the same air
crash, road accident, ship collision or similar calamity.
It is not about
what the testator intended to do when they made their will. Where there is an
ambiguity or a deficiency on the face of the will, no extrinsic evidence as to
the intentions of the testator may be admitted e.g. of the description of a
person or property in the will is so vague that there is no person or property
to whom it can apply, the bequest will be void for uncertainty (see Rule 25).
In Re Feather
(1945) Ch 343, a testator bequeathed $2000 to his servant “if still in my employ”. The servant was conscripted into the army and
was still serving when the testator died.
Evidence was adduced that shortly before he died, the testator had affirmed
to one of his executors that he wished this legacy to stand and regarded the
servant as still in his employment. It
was held that such evidence was not admissible to prove that the testator
intended the servant to have the legacy whether still in his employment or not.
There are, however, circumstances where extrinsic
evidence of the testator’s intention is admissible in construing wills. These
circumstances are where the armchair rule applies, the words are ambiguous on
the face of the will, there is latent ambiguity or any part of the will is
meaningless.
In addition to ascertaining the intention of the
testator from the will, the court also has to see whether the will can be
carried into effect consistently with the rules of law. In Wakf Commissioner of the Colony and Protectorate of Kenya vs. Alimohamed Ali Nahdi
Executor of the Will of Aisha binti
Shafi, deceased (1951) 18 EACA 86 (Sir Newnham Worley VP, Lockhart-Smith JA
and De Lestang J) the testatrix, a Muslim woman, gave a house by her will to a
mosque apart from the land on which it stood.. It was held that although
Islamic law permits house and the land it stands on to be legally in different
ownership, the same was inconsistent with the Land Titles Ordinance. The
disposition of the house alone was found to be invalid and intestacy resulted.
It was further found that the express provisions of the Land Titles Ordinance
had ousted the Islamic position on the matter[lxxx].
(a) The armchair rule
In construing the will the court can put itself in the
testator’s position at the time he or she made their will, in order to
understand the words of the will itself (Boyes
vs. Cook (1880) 14 Ch D 53). The objective of the exercise is so that the
court can make itself aware of the facts that were known to the testator at the
time of the execution of the will.
The armchair rule is used most commonly to identify
the beneficiary or the subject matter of the gift. It is applied by the courts
by construing the will without reference to the surrounding circumstances and
applying the apparent effect of the will to the surrounding circumstances to ascertain
that the will is being construed in accordance with the circumstances which
prevailed at the time when the will was made.
This rule can only be used to confirm the apparent
effect of a will or to shed light on vague terms. It cannot be used to alter
the effect of the words used in the will if those words are clear and
unambiguous. The armchair rule could be used to explain an unclear term (Ricketts vs. Turquand (1848) 1 HL Cas
472). (Kell vs. Charmer (1856) 23
Beav. 195, National Society for the Prevention of Cruelty to Children vs. Scottish National Society for the
Prevention of Cruelty for the
Prevention of Cruelty to Children).
(b) Ambiguous words
Where words are ambiguous on the face of the will,
either direct or circumstantial evidence is admissible to explain the words
used. Words are said to be ambiguous on the face of the will where the words
used have more than one normal meaning, as in the terms ‘money’ and ‘my
effects’, or where the words used are equally applicable to two or more persons
or items of property.
(c) Latent ambiguity
A latent ambiguity occurs where a will is ambiguous
not on its face, but only in the light of the surrounding circumstances, for
example where a testator gives property to ‘my nephew Onyango’, and the
testator had several nephews by that name. Another example is where he testator
leaves his ‘Volkswagen beetle to my daughter’, and the testator had more than
one Volkswagen beetle. This type of ambiguity is also called equivocation.
Equivocation not only occurs where the description fits two persons or things
exactly, but also where the description is not in all respects totally accurate
(Bennett vs. Marshall (1856) 2 K
& J 740). If equivocation cannot be solved with the aid of extrinsic
evidence, the gift will fail for uncertainty.
(d) Meaningless provisions
A meaningless provision is one where the court cannot
without extrinsic evidence give any meaning to the word or phrase (Kell vs. Charmer).
A provision of a will cannot be said to be
meaningless, simply because the provision seems pointless, in the sense that it
has no effect. So if a testator was to provide ‘ I give nothing to my son’, the
clause would not be meaningless and extrinsic evidence would not be admissible
to suggest that the testator meant anything other than to make no provision in
her will for his son.
Extrinsic evidence is not admissible on the basis that
a provision is meaningless, in order to complete a blank space in a will. For
instance, if a legacy provided ‘I give my son Kamau…’ The rationale for the
rule is that the purpose of admitting extrinsic evidence is to assist in the
interpretation of the will, and arguably one cannot interpret a blank space.
Interpretation should be of a phrase as a whole.
(The only exception to this principle is that evidence
may be led as to the circumstances in which the testator was situated at the
time he made a will, so as to help the court to ascertain the meaning he
intended to impute to his chosen wording e.g. it is admissible to adduce
evidence as to the state of his property at the time he made the will or at his
death in order to ascertain to what property the will refers e.g. if he refers to this house No. 029 in Langata
estate but there is a clear evidence that the only house he had in Nairobi is number 092 in
Langata estate, this evidence is admissible – Ref: Re Smalley Supra).
8.6 Ascertaining the Subject Matter of Gifts
Paragraph 3 of the First Schedule provides that, as
regards property, a will speaks from the date of death unless a contrary intention
appears by the will. A gift of ‘all my shares’ would be taken to refer to all
the shares owned by a testator at the date of his death, rather than being
confined to the shares which he owned at the date on which he executed his
will. Paragraph 3, however, states that with reference to specific gifts or
legacies, the presumption is that the will speaks as at the date of its actual
execution.
In In the Matter
of the Estate of Ivo Murray Murton, Deceased (1938) 18 (1) KLR 65 (Sir
Joseph Sheridan CJ)) where the testator directed the trustees to hold property
upon trust for his son until the son attained majority age, it was held that
the son took a vested or contingent interest in the property at the testator’s
death and on attaining majority age was entitled to a conveyance and transfer
of the property to his name.
A contrary intention refers to where the property is
described in a very specific way (Re
Gibson (1866) LR 2 Eq 669, Re Sikes (1927)
1 Ch 364). In deciding whether there is a contrary intention to Paragraph 3,
difficulties occur where the testator uses terms such as ‘now’ and ‘at
present’. Whether such words amount to a contrary intention to the operation of
Paragraph 3 depends on whether the reference to the present time is construed as
an essential part of the description of the subject matter of the specific
gift. If it is, this will operate as a contrary intention to Paragraph 3. (Re Fowler (1915) 139 LT Jo 183, Re Willis (1911) 2 Ch 263, Hepburn vs. Skirving (1858) 32 LTOS 26).
The fact that the testator, after the execution of the
will, acquires a different interest in the property that forms the subject
matter of a gift does not necessarily prevent the court from finding that
Paragraph 3 operates to make the will speak from the date of death (Saxton vs. Saxton (1879) 13 Ch D 359).
The effects of the republication of a will need to be
considered in the light of Paragraph 3. If Paragraph 3 operates to make the
will speak as to the property from the date of the testator’s death, obviously
the republication of the will has no effect. If Paragraph 3 does not apply
because a contrary intention is in operation, the will is generally taken to
speak from the date of the codicil. (Re
Reeves).
In In the Matter
of the Estate of Ivo Murray Murton, Deceased (1938) 18 (1) KLR 65 (Sir
Joseph Sheridan CJ)) it was stated that where property is given to several
persons concurrently the question whether these persons take as joint tenants
or tenants in common depends on the context of the whole will; they prima facie take as joint tenants.
8.7 Ascertaining the Beneficiaries
Paragraph 3 only applies to property. References to
people are as a general rule construed to refer to people at the date the will
was made, unless there is a contrary intention. A gift to ‘my shamba boy’ would refer to the
testator’s shamba boy at the date of
the will. A gift to the ‘youngest child of my niece Kanini’, and the youngest
child of Kanini alive at the date of the will was Wayua, but Wayua had died by
the date of the testator’s death. The consequences of the general rule that a
will is construed referring to people at the date of the will, is that the gift
to Kanini’s youngest child will lapse, even if Kanini has other children alive
at the testator’s death. (Re Whorwood (1887)
34 Ch D 446).
It is, however, possible to have a contrary intention
to the general rule that, as regards reference to people, a will speaks from
the date of the will. (Re Daniels (1918)
87 LJ Ch 661, Radford vs. Willis (1871)
Ch App 7).
Where no person fulfils the description at the date of
the will needs to be distinguished from that where a person fulfils the
description at the date of the will, but by the date of the testator’s death,
that description has become inoperative to them (Radford vs. Willis).
A number of difficulties in construction of a will
occur in relation to gifts where the relationship is specified. This is
particularly so where a gift is made to children or remoter issue. Regarding
relationships referred to in the making of gifts generally, there is a
presumption that the only persons to take are blood relatives, and not
relatives by affinity or marriage. A gift to ‘all my nieces’, does not include
any females born to a brother or sister of his wife. In Rashida
Begum vs. Administrator General and another (1951) 18 EACA 102 (Sir Barclay
Nihill P, Sir Newnham Worley VP and Pearson Ag. CJ) the clause ‘other
relations’ was construed to exclude the testator’s adopted daughter. It was
stated that the ordinary meaning of the word ‘relation’ does not include an
adopted child. The presumption can be rebutted by evidence of a contrary
intention. The position regarding
relatives of half-blood is unclear. It was, however, suggested in Re Reed (1888) 57 LJ 790, that there is
a presumption that relatives of half- blood are included.
Difficulties often occur over the use of the word
‘children’ or the term ‘issue’. Children includes children en ventre sa mere (Villar vs.
Gilbey (1907) AC 139), and there is a presumption that the term ‘children’
refers to immediate children. The presumption may be rebutted by evidence that
grandchildren and remoter issue were intended (Loring vs. Thomas (1861) 1 Drew & Sm 497). ‘Issue’ technically
means children, grandchildren and remoter descendants, but in some matters, the
courts have construed the term to refer only to the children of the testator (Re Noad (1951) Ch 553).
8.8 The Class Closing Rules
A class gift is a gift to be divided amongst
individuals who fulfil a general description, where the amount that each
individual gets depends on the number of beneficiaries falling within the
class. A gift of Kshs. 400,000.00 to Mureithi’s children is a class gift. How
much each child of Mureithi receives depends on the number of children that
Mureithi has.
Class gifts could (if it were not for class
closing rules) make it difficult for the personal representatives of an estate
to make an early distribution of the property to be given to the class. Class
closing rules are rules of convenience, designed to allow personal
representatives to distribute the estate at the earliest opportunity. The rule
frowns on keeping property out of circulation or use for a long period of time.
The rationale behind the class-closing rule is similar to the rationale for the
perpetuity principle. It is, however, often argued that the rules frequently
act against the intentions of a testator, as they have the effect of excluding
from the class beneficiaries whom the deceased intended to benefit.
The class closing rules originate from the case of Andrews vs. Partington (1791) 3 Bro CC
401. The rules only apply to gifts made by will and operate so that the class
closes at the date on which the first member of the class becomes entitled.
Precisely how the rules operate depends on the nature of the gift.
There are four types of class gifts.
(a) Immediate class gift
This usually takes the form of a gift say ‘to the
children of Akinyi’. If Akinyi has a child who is living at the testator’s
death, the class closes at the testator’s death and includes all the children
of Akinyi alive at that date (In the
Matter of the Estate of W. J. Bellasis, deceased (1919-21) 8 EALR 142
(Barth J). In Rustomji Kersasji Khursedji
Sidhwa vs. Dinshaw Ruttonji Mehta and others (1934) 1 EACA 38 (Abrahams CJ,
Lucie-Smith Ag. CJ and Horne J)) a direction in the will that a share be paid
to ‘to Rustomji’s children during their lifetime’ was construed as meaning both
those children who were living at the testator’s death and those born
subsequent to that event.
In In the Matter
of the Estate of W.J. Bellasis, deceased (1919-21) 8 EALR 142 (Barth CJ), a
gift to husband and wife ‘and their family’ was construed as giving an
immediate life interest in the gift to the husband and wife with a remainder to
any children of the marriage born before or after the death of the testator.
(b) Deferred class gift
This would take the form of a gift say ‘to Kwamboka
for life with remainder to the children of Nyakenyanya’. If Nyakenyanya has no
children at the testator’s death, the class remains open until Nyakenyanya
dies, and includes all children subsequently born to Nyakenyanya. If
Nyakenyanya has a child before the death of Kwamboka, the class closes at
Kwamboka’s death, and includes all the children of Nyakenyanya who are alive at
that date. It, however, will close at the testator’s death if Kwamboka
predeceases the testator. If Nyakenyanya has no children at Kwamboka’s death or
the testator’s death, the class remains open until Nyakenyanya dies. (See In the Matter of the Estate of W.J.
Bellasis, deceased (1919-21) 8 EALR 142 (Barth CJ)).
In Latif Suleman
Mohamed vs. K..J. Pandya and others (1963) EA 416 (Sir Ronald Sinclair P,
Sir Trevor Gould Ag. VP and Newbold JA)
(c) Contingent class gift
This would be a gift say ‘to the children of Kimathi
who attain 21 years’. If Kimathi has a child who reaches 21 years before the
testator’s death, the class closes at the testator’s death and includes all
children of Kimathi alive at that date who subsequently reach 21 years. If
Kimathi has no child who has reached 21 years by the date of the testator’s
death, then the class only closes when the first child of Kimathi reaches 21
years and includes all children alive at that date.
(d) Contingent and deferred class gift
This would be both a contingent and a deferred gift.
It could take the form of a gift; say ‘to Mulusa for life with remainder to the
children of Luvaga who attain 21 years’. If Luvaga has a child who has reached
21 years by the date of Mulusa’s death, or the testator’s death if this is
later, the class closes at this date. The class will then include all children
alive at the date the first child reaches 21 years who subsequently reach 21
years. If no child of Luvaga has reached 21 years by the date of Mulusa’s death
or that of the testator if later, then the class remains open until the first
child reaches 21 years and all children alive at that date who subsequently
reach 21 years.
[2] Cap. 167 Laws of Kenya.
[3] The members of the
commission were H. Slade (Chairman), Chanan Singh, C.B. Ngala-Abok, B.M Gecaga,
P. Le Pelley, S.M. Akram, G. Waddell, T.A Watts, D.J. Coward, W.K. Martin and
E. Cotran (Secretary). Waddell and Gecaga later resigned and were replaced with
A.A. Kneller and Margaret Mugo, respectively. The commission reported in 1968.
A bill based on the report was presented in parliament, debated and passed in
1972.
[6] The disturbing thing
about Re Katumo and another is that
the court took conflicting positions, that is it appeared to be taking two
mutually conflicting positions. On the one hand the court appeared to be saying
that section 47 allows the court to hear and determine all manner and nature of
applications, while on the other hand the court appeared to saying that the
provision is not broad.
[8] See In the Matter of the
Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of 1994
(Kuloba J) and In the Matter of the
Estate of Benjamin Ngumba Gachanja (deceased) Nairobi HCSC No. 2172 of 1994
(Etyang J).[8]
[9] The limitation of the freedom of testation
goes back to 1938 when the Inheritance (Family Provisions) Act of the United Kingdom
was passed empowering the court to interfere with freedom of testation at the
instance of persons who had not been adequately provided for. Prior to that
date testators in England
enjoyed absolute freedom of testation. They could will away their property to
persons of their own choice without making provision for persons who were
dependent on them during their lifetime or who they were morally bound to
provide for. This limitation, although introduced into English law in 1938, did
not become law in Kenya
until the Law of Succession Act came into force in 1981.
[v] See also Miney Frances vs. Kuri
24 (2) KLR I.
[vi] Nairobi, Government Printer, 1945.
[vii] Page 307 paragraph 927.
[xiii] Cap.156 Laws of Kenya.
[xiv] See Kamau Article in Weekly
Review 18th February 1983 for the arguments used by the Muslims
to oppose the Law of Succession Act
[xv] See Republic of Kenya, Report
of the Commission on the Law of Succession, 1968, Government Printer,
Nairobi, pp. 4 and 5.
[xvi] No. 2 of 1990
[xix] Section 48(2) of the Law of Succession Act.
[xxii] See Charan Singh Chadha and another vs. Mohinder
Singh Chadha and others (1961) EA 637 (Sir Kenneth O’Connor P, Crawshaw and
Newbold JJA).
[xxiii] Ordinance No. XLIII of 1946
[xxiv] Cap 26.Laws of Kenya.
[xxv] See section 29 of the Law of Succession Act
[xxix] Section 37 of the
Marriage Act declares that a person who marries under statute loses capacity to
contract another marriage under
customary during the subsistence of the statutory marriage. The courts have
ruled that marriages contracted customary law, subsequent to a statutory
marriage, are null and void. See Re Ruenji’s Estate (1977) EA 21, Re Ogola’s Estate (1978) EA 18 and In the Matter of the Estate of Reuben
Nzioka Mutua HCP&A No. 843 of 1986 (unreported).
[xxx] See section 3(5) of
the Law of Succession Act. In Irene Njeri
Macharia vs. Margaret Wairimu Njomo & Another CACA No. 139 of 1994
(unreported) and Muigai vs. Muigai (1995-1998)
EA 206 it was held that section 37 of
the Marriage Act only bars the husband from subsequently contracting other
marriages, it does not bar wives who are
so subsequently married from inheriting from the deceased husband’s estate.
[xxxi] Cap 8 Laws of Kenya.
[xxxii] See Otieno vs. Ougo and
another (1987) KLR 407 (Nyarangi,
Platt and Gachuhi JJA) and Otiato vs. Otieno (1990)
KLR 721 (Mango J)
[xxxiii] Cap 10 Laws of Kenya.
[xxxv] See In the Matter of the Estate of Gathererie
Muturi (deceased) Nairobi HCSC No. 2170 of 1999 (Koome J) and Mbuthi vs. Mbuthi ((1976) KLR 120 (Harris J).
[xxxvi] See also In the Matter of the
Estate of Benson Ndirangu Mathenge (deceased) Nakuru HCSC No. 231 of 1998
(Ondeyo J).
[xxxviii] See also In the Matter of the Estate of Kamau Mwangi
(deceased) Nairobi HCSC No. 1579 of 1994 (Osiemo J).and In
the Matter of the Estate of Joseph Muchiri Komu (deceased) Nakuru HCSC No.
441 of 1998 (Ondeyo J).
[xli] Cap 290 Laws of Kenya
[xlii] Cap 168 Laws of Kenya.
[xliii] Cap. 199 Laws of Kenya
[xliv] Act No. 12 of 1997.
[xlv] Made under section 55
of the Retirement Benefits Act (Act No.
3 of 1997), and gazetted as Legal Notice No. 118 of 2000 in Kenya
Subsidiary Legislation, 2000 p. 313.
[xlix] See Sen vs. Headley (1991)
2 All E.R 636 (CA)
[l] See John Gitata Mwangi and others vs. Jonathan Njuguna
Mwangi and others Nairobi
CACA No. 213 of 1997 (Bosire JA) and In
the Matter of the Estate of Abdehusein Ebrahimji Nurbhai alias Abdehusein
Ebrahimji Nurbhai Adamji (deceased) Mombasa HCSC No. 91 of 2001 (Khaminwa
J).
[lvi] See also In the Matter of the
Estate of James Ngengi Muigai Nbi HCSC No. 523 of 1996 (Koome J),
[lvii] See Fulton
vs. Andrew (1875) LR 7 HL.
[lviii] See also In the Matter of the Estate of Naomi Wanjiku
Mwangi (deceased) Nairobi HCSC No. 1781 of 2001 (Koome J).
[lix] See Wambui and another vs.
Gikonyo and others (1988) KLR 445 (Gachuhi, Apaloo JJA and
Masime Ag. JA)
[lxiii] See also In the Matter of the Estate of Amos Koprono
Sirma Nakuru HCSC No. 231 of 1994 (Rimita J).
[lxiv] See also In the Matter of the Estate of Humphrey
Edward Githuru Kamuyu (deceased) Nairobi HCP&A No. 2322 of 1995 (Visram
J) and In the Matter of the Estate of
Naomi Wanjiku Mwangi (deceased) Nairobi HCSC No. 1781 of 2001 (Koome J).
[lxv] See
In The Case of Benjamin (1934)
150 LT 417.
[lxvi] See John
Kinuthia Githinji vs. Githua Kiarie and others Nairobi CACA No. 99 of 1988
(Gicheru JA).
[lxvii] See In the Matter of the Estate of Susan Kanini
Kilonzo (deceased) Nairobi
HCSC No. 2669 of 2002 Koome J).
[lxviii] See also Re: Jones (1981) 1 All E.R. 1.
[lxix] English cases on
written privileged wills are good illustrations of privileged wills. In the Estate of Ada Stanley (1916) P 192 a
nurse employed under a contract by the war office on hospital ships wrote a
letter giving the addressee full liberty to deal with her affairs and giving
directions as to the manner in which her property was to be disposed of after
her death. The letter was written during an interval shortly after the writer
received instructions to go to war. It was held that the letter though
unattested as required of wills was soldier’s will within the meaning of the
Will’s Act, 1887 and that the person to whom it was addressed was an executor
according to the document. In In
the Goods of Hale (1950) 2 Irish Reports 362 the court held that typist
working with the marines on a ship was entitled to make a privileged will. In Gattward vs. Knee (1920) P 99 the
deceased, a battalion soldier, after receiving instructions to go to war, wrote
an undated letter which was received by the plaintiff in England. The writer died in the
war. The letter contained expressions such as: ‘if you have a letter to say
that I am killed, then the lot is for you’ and ‘you will receive the lot if I
am killed in action, for I shall make out my will in your favour’. No other
document in the nature of a will was eve received or discovered and the father
of the deceased took out a grant of letters of administration since the
deceased was single. The plaintiff propounded the letter as a will and applied
for the revocation of the grant of letters of administration made to deceased’s
father on the grounds that the deceased had not died intestate. It was held
that letter constituted a testamentary document capable of taking effect as a
soldier’s will within the meaning of the Will’s Act. The letter was a
privileged will and therefore admissible to probate.
[lxxiv] See Marsh
vs. Marsh (1860) 1 Sw & Tr 528, Re
Steele’s Goods (1868) LR 1 P & D 575, Re Hodgkinson’s Goods (1893) P 339.
[lxxix] See In the Matter of the Estate
of George Mbugua Ngare (deceased) Nairobi HCP&A
No. 855 of 1995 (Rawal J)
[lxxx] See also Khatijabai vs. Kassam Sunderji Samji and
others (1955) 22 EACA 301 (Sir Barclay Nihill P, Sir Newnham Worley VP and Sir Hugh Holmes J)
[lxxxi] See Ang’awa J’s
analysis of Part V in In the Matter of
the Estate of Benjamin Mugunyu Kiyo (deceased) Nairobi HCSC No. 2678 of
2001.
[lxxxii] See In the Matter of the Estate of Kiiru Muhia
‘A’ (deceased) Nairobi HCSC No. 2487 of 1996 (Rawal J).
[lxxxiii] By Legal Notice No. 94 of 1981.
[lxxxvi] See also In the Matter of the Estate of Mwaura
Gathari (deceased) Nairobi HCSC No. 1678 of 1999 (Rawal J), In the
Matter of the Estate of Gathima Chege (deceased) Nairobi HCSC No. 1955 of
1996 (Kamau J) and In the Matter of the
Estate of Benson Ndirangu Mathenge (deceased) Nakuru HCSC No. 231 of 1998 (Ondeyo J).
[lxxxvii] The
application of Part V of the Law of Succession Act by the court was only
partial so long as the court provided for unmarried daughters only. What the
court did was to apply the Kikuyu custom which allows unmarried daughters to
have a life interest in a portion of the estate rather than the provisions of
the Act. Part V anticipates equal distribution among all the children including
married daughters. The approach adopted by Githinji J is the same as that taken
by the Court of Appeal in providing for an unmarried daughter under customary in
Kanyi vs. Muthiora
(1984) KLR 712 (Kneller JA Chesoni and Nyarangi
Ag. JJA).
[lxxxviii] See In re estate of Ng’etich (2003) KLR 84
(Nambuye J) and In the Matter of the Estate of Tabutany
Cherono Kiget (deceased) Kericho HCP&A NO. 157 of 2001 (Kimaru J) and In the Matter of the Estate of Naomi Wanjiku
Mwangi (deceased) Nairobi HCSC No. 1781 of 2001 (Koome J).
[lxxxix] See section 35(5) and In the
Matter of the Estate of Gathima Chege (deceased) Nairobi HCSC No. 1955 of
1996 (Kamau J).
[xc] In the Matter of the Estate of the late Wanjihia
Njuguna (deceased) Nairobi
HCSC. No. 533 of 2002 (Ang’awa J) and In
the Matter of the Estate of Grace Nguhi Macho (deceased) Nairobi HCSC No.
1978 of 2002 (Koome J).
[xci] See In
the Matter of the Estate of Elijah Mbondo Ntheketha (deceased) Nairobi HCSC
No. 193 of 1997 (Koome J))
[xcii] What is disturbing
about this decision is that although there were two daughters they were not
provided for, and it is not clear whether they had disclaimed their share.
[xciii] See In the Matter of the Estate of Fatuma binti
Mwanzi Umri (deceased) Mombasa HCP&A 21 of 1994.
[xciv] See In the Matter of the
Estate of Patrick Mungai Kugega (deceased) Nairobi HCSC No. 1374 of 2000
(Koome J).
[xcv] Republic of Kenya, Report of the Commission on the Law of
Succession, Government Printer, Nairobi,
1968, page 43.
[xcvi] See also Mary
Rono vs. Jane Rono and another Eldoret CACA No. 66 of 2002 (Omolo, O’Kubasu
and Waki JJA), In the Matter of the
Estate of Benson Kagunda Ngururi (deceased) Nakuru HCSC No. 341 of 1993
(Ondeyo J), In the Matter of the Estate of Gathima Chege
(deceased) Nairobi HCSC
No. 1955 of 1996 (Kamau J), In the Matter
of the Estate of Joseph Muchiri Komu (deceased) Nakuru HCSC No. 441 of 1998
(Ondeyo J) and In the Matter of the
Estate of Elijah Mbondo Ntheketha (deceased) Nairobi HCSC No. 193 of 1997
(Koome J))
[xcvii] See In Matheka and another vs. Matheka Nairobi (2005) 1 EA 251
(Omolo, O’Kubasu and Onyango Otieno JJA), In the Matter of the Estate of Stephen Wanyoike
Muhia (deceased) Nairobi HCCA
No. 6 of 2002 (Koome J) and
[xcviii] See In the Matter of the Estate of Elijah Mbondo
Ntheketha (deceased) Nairobi HCSC No. 193 of 1997 (Koome J).
[xcix] See In the Matter of the Estate of Isaac Kireru Njuguna
(deceased) Nairobi HCSC No. 1064 of 1994 (Aluoch J).
[c] See also In the Matter of the Estate of Benson Kagunda Ngururi (deceased)
Nakuru HCSC No. 341 of 1993 (Ondeyo J).
[ci] See also In
the Matter of the
Estate of Erastus Gakobo Chege (deceased) Nairobi HCSC No. 711 of 1998
(Waweru J),. In the Matter of the Estate
of Joseph Kimemia Gichuhi (deceased) Nairobi HCSC No. 1072 of 2002 (Koome
J), In the Matter of the Estate
of Waruru Kairu Nairobi HCSC No. 2525 of 1997 (Koome J), In the
Matter of the Estate of Macharia Ngugi Gaturu
(deceased) Nairobi HCSC No. 708 of 2000 (Waweru J), In the Matter of the Estate of Mariko Marumbi Kiuru (deceased) Nairobi
HCSC No. 2011 of 1997 (Ang’awa J). Francis
Njoroge Muigai and another vs. Johnson Njoroge Muigai Nairobi
HCCA No. 18 of 2001 (Kamau J) and Teresia
Wambui Maruhi vs. Onesmus Maina Maruhi and another Nairobi HCCA No. 3 of 2002 (Kamau J)
[cii] See also In the Matter of the Estate of Serwenje
Korko (deceased) Eldoret HCP&A No. 31 of 1995 (Nambuye J).
[ciii] See also In the Matter of the Estate of Benjamin
Mutitu (deceased) Nairobi HCSC No. 2197 of 1996, where Rawal J, while
acknowledging that the applicable law was section 40 of the Law of Succession
Act and that one of the houses had more children than the other, ignored
section 40 and ordered that the estate be divided equally between the two
houses. This holding, although silent on the point, was in consonance with
African customary law on the distribution of the intestate estate of a
polygamist.
[civ] Act No. 8 of 2001.
[cv] See In
the Matter of the Estate of Elijah Mbondo Ntheketha (deceased) Nairobi HCSC
No. 193 of 1997 (Koome J))
[cvi] See The Administrator –General of Zanzibar vs. Khalfan bin
Ali bin Mohamed El-Battashy and others (1963) EA 230 (Horsfall Ag. CJ)
[cvii] See also Mary Mbeke Ngovu and another vs. Bernard
Mutinda Mutisya Machakos HCCC No. 352 of 1998 (Mwera J) and In the Matter of the Estate of Aggrey
Makanga Wamira Mombasa HCSC No. 89 of 1996 (Waki J).
[cviii] See also In the Matter of Estate of
Gerald Kuria Thiari Nakuru HCSC No. 127 of 1995
(Lessit J).
[cix] See In the Matter of the
Estate of James Ngengi Muigai Nbi HCSC No. 523 of 1996 (Koome J).
[cx] See also In the Matter of the Estate of Muriranja
Mboro Njiri Nairobi HCSC No. 890 of
2003 (Kamau Ag. J) Musa vs. Musa (2002)1
EA 182 (Ringera J), In the Matter of the Estate of Joseph
Kimemia Gichuhi (deceased) Nairobi HCSC No. 1072 of 2002 (Koome J), In the Matter of the Estate of Loice Njeri
Ngige Eldoret HCP&A No. 113 of 1994 (Nambuye) and Sewe vs. Sewe (1991) KLR 105 (Gachuhi, Gicheru JJA and Cockar Ag.
J)
[cxi] See also In the Matter of the Estate of Gichia Kabiti
(deceased) Nairobi HCSC No. 2559 of 2002 (Koome J), Musa vs Musa (2002) 1 EA 182 (Ringera J).and In the Estate of Naftali (deceased) (2002) 2 KLR 684 (Waki J).
[cxiii] See Kothari
vs. Qureshi and another (1967) EA 564 (Rudd and Mosdell JJ) and Otieno vs.Ougo and another (No 4.) (1987) KLR 407(Nyarangi, Platt and Gachuhi
JJA)
[cxiv] See In the Matter of the
Estate of Gichia Kabiti (deceased) Nairobi HCSC No. 2559 of 2002 (Koome J).
[cxv] See .In the Matter of the Estate
of Charles Muigai Ndung’u (deceased) of Karinde Kiambu District Nairobi HCP&A No. 2398 of 2002.
[cxvii] The doctrine of
relation back operates to protect the deceased’s estate from harm between the date of death and the date of the
grant. Where the doctrine applies, the grant of letters of administration
relates back to the date of the deceased’s death. It does not allow an
administrator to commence action on
behalf of the estate before obtaining a grant (Ingall vs. Moran (1944) KB 160). See also Burns vs. Campbell (1952) KB 15 and Wankford vs. Wankford ( 1703) 1 Salk 299
[cxix] Compare with the
Ugandan case of Najeno vs. Serwanga (1974)
EA 322 (Allen Ag. J) where it was held that a grant is necessary to constitute
anyone the legal or personal representative of another for the purpose of
substituting a deceased party in a suit.
[cxx] See also Mary Mbeke Ngovu and another vs. Bernard
Mutinda Mutisya Machakos HCCC No. 352 of 1998 (Mwera J).
[cxxi] A similar point was made by Tanui J in Gitau and 2 others vs. Wandai and 5 others (1989) KLR 23
[cxxiii] See also Raphael Jacob Samuel
vs. The Public Trustee and others Nairobi CACA No. 16 of 1980 (Law, Miller
and Potter JJA).
[cxxiv] See also Francis Kamau Mbugua and
another vs. James Kinyanjui Mbugua Nairobi HCCC No.
111 of 2004 (OS) (Nyamu J).
[cxxv] See also In the Matter of the Estate of Peris Wanjiku
Nduati (deceased) Nairobi HCSC No. 2349 of 2001 (Ang’awa J).
[cxxvi]See Estate
of Motichand Devji Shah Nairobi
HCP&A No. 234 of 1964.
[cxxvii] In
the Matter of the Estate of Evans Nguti Kamanda (deceased) Eldoret HCCC No.
36 of 2002 (Omondi Tunya J)
[cxxviii] See In Re Estate of Naftali
(deceased) (2002) 2 KLR 684 (Waki J).
[cxxix] See In the Matter of the Estate of Gerald Felix
Nyawira Otiso (deceased) Nairobi HCCC No. 2715 of 1996 (Ang’awa J).
[cxxxi] See also In the Matter of the Estate of Hemed Abdalla
Kaniki (deceased) Nairobi HCSC No. 1831 of 1996 (Kamau Ag. J)
[cxxxii] The figure of Kshs.
100 000.00 was proposed in 1968 by the Commission on the Law of Succession in
its report, and subsequently inserted in the law passed in 1972. The suggestion
by Ang’awa J in In the Matter of the
Estate of Morarji Bhanji Dhanak (deceased) Nairobi HCSC No. 1731 of 2000
that the figure of Kshs. 100 000.00 is meant to be applied in remote parts of
Kenya and in respect of small estates is erroneous. It applies in all cases
where there is no High Court. The figure of Kshs. 100 000.00 was a large sum of
money in 1968 when it was first floated. Indeed the figure of Kshs 100,000.00
was at the time higher than the pecuniary jurisdiction of the resident
magistrates, and its was recommended that the resident magistrates jurisdiction
be upped to Kshs 100,000.00.
[cxxxiii] See also Carmella Wathugu Karigaca vs. Mary Nyokabi
Karigaca Nbi CACA No. 30
of 1995 (Tunoi, Lakha and Pall JJA) and George
Itotia Ng’ang’a vs. Mary Wanjiku Kimaru Nairobi CACA No. NAI 115 of 2000
(Shah JJA).
[cxxxvi] See also In the Matter of the Estate of Mary Gachuru
Kabogo (deceased) Nairobi HCSC No. 2830 of 2001 (Ang’awa J).
[cxxxix] See (In the Matter of the
Estate of Ruth Wamucii (deceased) Nairobi HCP&A No. 1012 of 1992
(Ang’awa J)
[cxl] See In the Matter of the
Estate of Angeline Anyango Obanda (deceased) Nairobi HCSC No. 2747 of 1997
(Ang’awa J).
[cxli] Khamoni
J made similar orders in In the Matter of
the Estate of Ng’ang’a Kamau (deceased) Nairobi HCP&A No. 875 of 1993
and In the Matter of the Estate of Erastus Njoroge Gitau
(deceased) Nairobi HCSC
No. 1930 of 1997.
[cxlii] Koome J in In the Matter of the Estate of Hezron
Bernard Wamunga (deceased) Nairobi HCSC No. 1813 of 1999 apparently
reluctantly followed the Court of
Appeal’s decision in Makhangu vs. Kibwana (1995-1998) 1 EA 175 (Cockar CJ, Kwach and Shah JJA), but not before
stressing that the Law of Succession Act does not provide for appeals from the
High Court on succession causes to the Court of Appeal.
[cxliii] Who
have been appointed under section 47 of the Law of Succession Act to represent
the High Court.
[cxliv] See also In the Matter of the Estate of Chege Njuguna
(deceased) Nairobi HCSC No. 832 of 1993 (Koome J).
[cxlvi] See also In the Matter of the Estate of Gitau Chege
Kibera (deceased) Nairobi HCSC N. 1463 of 1991 (Aluoch J) and In the Matter of the Estate of Jonah
Karangae Nairobi HCSC No. 1360 of 1989 (Ang’awa J).
[cxlvii] See also In the Matter of the Estate of James Ngengi
Muigai (deceased) Nairobi HCSC No. 523 of 1996 (Koome J).
[cxlviii] See also In the Matter of the Estate of Jonah
Karangae (deceased) Nairobi HCSC No. 1360 of 1989 (Ang’awa J).
[cxlix] See In the Matter of the Estate of Laban
King’ori Macharia (deceased) Nairobi HCSC No. 16 of 1988 (Waweru J).
[cl] See In the Matter of the Estate of Jonah
Karangae (deceased) Nairobi HCSC No. 1360 of 1989 (Ang’awa J).
[cli] See also In the Matter of the Estate of Ngaii Gatumbi
alias James Ngaii Gatumbi (deceased) Nairobi HCSC No. 783 of 1993 (Koome
J), In the Matter of Gladwell Mumbi
Njoroge (deceased) Nairobi HCSC No.158 fo 1998 (Koome J) and In the Matter of the Estate of Mutambu
Ndekei (deceased) Nairobi HCSC No. 2688 of 2002 (Koome J) and In the Matter of the Estate
of Laban King’ori Macharia (deceased) Nairobi
HCP&A No. 16 of 1988 and In the
Matter of the Estate of Gathii Gatimu (deceased) Nairobi HCSC No. 599 of
1994 (Koome J)
[cliii] See In the Matter of the Estate of Gichia Kabiti
(deceased) Nairobi HCSC No. 2559 of 2002 (Koome J).
[cliv] See In the Matter of the Estate
of Murathe Mwaria (deceased) Nairobi HSCS No. 825
of 2003 (Koome J ), Otieno
vs. Ougo and another (No. 4) (1987)
KLR 407 (Nyarangi, Platt and Gachuhi JJA), In
Re Estate of Naftali (deceased) (2002) 2 KLR 684 (Waki J) and Musa vs. Musa (2002) 1 EA 182 Ringera J).
[clv] See also In the Matter of the Estate of Charles
Muigai Ndung’u (deceased) of Karinde Kiambu District Nairobi HCSC No. 2398 of 2002 (Kamau Ag. J), Isabella Gichugu Matheka and another vs.
Eric Muthui Matheka Nairobi CACA No. 304 of
2002 (Omolo, O’Kubasu and Onyango Otieno JJA), Otieno vs. Ougo and another (No. 4) (1987) KLR 407 (Nyarangi,
Platt and Gachuhi JJA)) and In the Matter
of the Estate of Chege Njuguna (deceased) Nairobi HCSC No. 832 of 1993
(Koome J)).
[clvi] See also Swaboa Nassor Salim
Hadi vs. Swaleh Salim Hadi HCP&A No. 52 of 1990, where a brother and a
daughter of the deceased were passed over in favour of the Public Trustee.
[clvii] See In the Matter of the Estate of James Kiarie
Muiruri (deceased) Nairobi HCSC No. 2413 of 2003 (Koome J) and In the
Matter of the Estate of Ngaii Gatumbi alias James Ngaii Gatumbi (deceased) Nairobi
HCSC No. 783 of 1993 (Koome J).
[clviii] See In the Matter of the Estate of Kahuri Kimani
(deceased) Nairobi HCSC No. 358 of 1996 (Rawal J).
[clix] See In the Matter of Joseph Kimemia Gichuhi
(deceased) Nairobi HCSC No. 1072 of 2002 (Koome J).
[clx] See also In the Matter of the Estate of Mary Wanjiru
Thairu (deceased) Nairobi HCSC No. 1403 of 2002 (Ang’awa J) and In the Matter of the Estate of Mwaura
Mutungi alias Mwaura Gichigo Mbura alias
Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003 (Kamau J).
[clxi] See also In the Matter of Maria Wanja Njaungiri alias
Wakahu Muthara (deceased) Nairobi HCCC No. 2422 of 1995 (Githinji J).
[clxii] See also In the Matter of the Estate of Link Pius
Nyagwala Owiti (deceased) Nairobi
HCP&A No. 1537 of 1999 (Rawal J).
[clxiii] See also In the Matter of the
Estate of Isaac Kireru Njuguna (deceased) Nairobi HCSC No. 1064 of 1994
(Aluoch J).
[clxiv] See also In the Matter of the
Estate of Joseph Mungai Njoroge (deceased) Nakuru HCSC No. 250 of 1999
(Rimita J), In the Matter of the Estate of Julius Munyi Kaara Nairobi HCP&A
No. 1934 of 1995 (Kasanga Mulwa J)
[clxvi] See also Kisito Charles Machani vs. Rosemary Moraa Nairobi
HCMISC.C No. 364 of 1981 (Porter J). See also Christopher Nderi Githambo vs. Samuel Muthui Munene Nairobi HCCC
No. 1372 of 2001 (Hayanga J). This was a burial dispute between the father of
the deceased and the man who was cohabiting with her. The decision on who was
entitled to bury her remains turned on the determination of the question
whether a marriage could be presumed from the long cohabitation of the deceased
with the plaintiff.
[clxvii] Compare with In the Matter of the Estate of Late Evanson Kiragu Mureithi (deceased)
Nakuru HCSC No. 163 of 1995 (Ondeyo J) and In
the Matter of the Estate of Gerald Mukiri alias Mukiri Gachane Nairobi HCSC
No. 804 of 1999 (Rawal J).
[clxviii] See also In the Matter of the Esate of Wilson
Wamagata (deceased) Nairobi HCSC No. 261 of 1998 (Waweru J).
[clxx] See also In the Matter of the Estate of Mutambu
Ndekei Nairobi HCSC No. 2688 of 2002 (Koome J) and In the Matter of the Estate of Njoroge Njiu (deceased) Nairobi HCSC
No. 3005 of 2002 (Kamau J).
[clxxi] See also In the Matter of the Estate of Muriranja Mboro Njiri Nairobi HCSC
No. 890 (Kamau Ag. J). Where the court found several defects in the petition
for the grant: the applicant being a person who had equal right did not consent
to the filing of the petition by the grantee, she was served with a citation
and in view of the anticipated continuing trust, it was necessary that there be
two petitioners in the application for grant. In In the Matter of the Estate of Dorcas Njeri Githuku (deceased0 Nairobi
HCSC No. 1968 of 2002 (Koome J) the grant obtained by the stepchildren of the
deceased was revoked on the grounds that the grant had been obtained without
the consent and involvement of the sole survivor of the deceased (a married
daughter).
[clxxii] See also Richard Katiwa Muli vs. John Kisalu Nguli
Machakos HCCC No. 21 of 1998 (OS) (Mwera J).
[clxxiii] See also In the Matter of the
Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura
(deceased) Nairobi HCSC No. 935 of 2003 (Kamau J), Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA No.
of 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) In the Matter of the Estate of Rahab Kabui Ruitha (deceased) Nairobi
HCSC No. 1815 of 1997 (Visram J), Geoffrey
Ndungu Kinuthia and another vs. Mary Njoki Karanja Nairobi CACA No. 270 of
1997 (Gicheru, Tunoi and Pall JJA), In
the Matter of the Estate of Basen Chepkwony (deceased) Nairobi HCSC No. 842
of 1991 (Koome J) and In the Matter of
the Estate of Silas Ngamithi Kathei
(deceased) Nairobi HCSC No. 2766 of 2001 (Koome J).
[clxxiv] See In the Estate of Ezekiel
Mulanda Masai Eldoret HCP&A 4 of 1992 (Etyang J), In the Matter of the Estate of Basen Chepkwony (deceased) Nairobi
HCSC No. 842 of 1991 (Koome J), In the
Matter of the Estate of David Kamethu alias David Maina Kinyanjui (deceased) Nairobi
HCSC 1301 of 2002 (Koome J), In the
Matter of the Estate of Gladwell Mumbi Njoroge (deceased) Nairobi HCSC No.
158 of 1998 (Koome J) In the Matter of
the Estate of Yusuf Mohamed- deceased Mombasa HCP&A 434 of 1995 (Waki
J) and In the Matter of the Estate of Evanson
Kiragu Mureithi (deceased) Nakuru HCSC No. 163 of 1995 (Ondeyo J).
[clxxv] See also In the Matter of the Estate of Makali Nzyoka
Machakos HCP&A No. 60 of 1997 (Wendoh J)
[clxxvi] The Court of Appeal of Kenya has not had occasion to deal squarely
with the issue. Its closest decision so far is in Isabella Gichugu Matheka and another vs. Eric Muthui Matheka Nairobi
CACA No. 304 of 2002 (Omolo, O’Kubasu and Onyango Otieno JJA).
[clxxvii] See also In the Matter of the Estate of Gathera
Gathunguri alias Simeon Gathara Gathunguri (deceased) Nairobi HCSC No. 1980 of 1998 (Koome J) and In the Matter of the Estate of Chege Njuguna
(deceased) Nairobi HCSC No. 832 of 1993 (Koome J).
[clxxviii] See also Waweru J’s
decision in In the Matter of the Estate
of Laban King’ori Macharia (deceased) Nairobi HCP&A No. 16 of 1988.
[clxxix] See the ruling of
Mwera J in In the Matter of Kinungi Kimani (deceased) Machakos HCP&A No. 228 of 1995
[clxxx] See also In the Matter of the Estate of Gathima Chege
(deceased) Nairobi HCSC No. 1955 of 1996 (Kamau J)
[clxxxi] See also In the Matter of the
Estate of Yusuf Mohamed (deceased) Mombasa HCP&A 434 of 1995 (Waki J) , In
the Matter of the Estate of Lydia Karuru Ahmed (deceased) Mombasa HCP&A
122 of 2001 (Khaminwa J) and In the
Matter of the Estate of Eunice Wanjeri Kibia (deceased) Nairobi HCSC No.
926 of 1997 (Osiemo J).
[clxxxii] See also In the Matter of the Estate of Gerishon John
Mbogoh Nairobi HCSC No. 989 of 1999 (Visram J).
[clxxxiii] See also Saira Begum Mohamed Arshad Syed vs. Itlat
Syed Nairobi HCSC No. 518 of 1997 (Kamau Ag. J).
[clxxxiv] See Chapter 19 section 19.6 here below.
[clxxxvi] See also In the Matter of the Estate of Joseph
Muchiri Komu (deceased) Nakuru HCSC No. 441 of 1998 (Ondeyo J), and In the Estate of Peter Minik (deceased) Machakos
HCP&A No. 13 of 1998 (Mwera J).
[clxxxvii] Compare with Latif
Suleman Mohamed vs. K. J. Pandya and others (1963) EA 416 (Sir Ronald
Sinclair P, Sir Trevor Gould, Ag. V-P and Newbold JA).
[clxxxviii] See also In the Matter of the Estate of Joseph
Kimemia Gichuhi (deceased) Nairobi HCSC No. 1072 of 2002 (Koome J) and In the Matter of the Estate of Patrick
Mungai Kugega (deceased) Nairobi HCSC No. 1374 of 2000 (Koome J).
[clxxxix] These were objection
proceedings where the court found that the objector was a widow of the
deceased. It would have been more appropriate to order that costs be paid out
of the estate, considering that the deceased himself created the situation
which necessitated resolution by way of the litigation. See also In the Matter of the Estate of Joseph
Muchiri Komu (deceased) Nakuru HCSC No. 441 of 1998 (Ondeyo J).
[cxc] See In the
Matter of the Estate of Patrick Mungai Kugega (deceased) Nairobi HCSC No.
1374 of 2000 (Koome J).
[cxcii] See Loise Margaret Waweru vs.
Stephen Njuguna Githuri Nairobi
CACA No. 198 of 1998 (Gicheru, Kwach and Shah JJA).
[cxciv] See In the Matter of the Estate of Hemed Abdalla
Kaniki (deceased) Nairobi HCSC No. 1831 of 1996 (Kamau Ag. J).
[cxcv] See In the Matter of the Estate
of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No.
1831 of 1996.
[cxcvi] See also In the Matter of the Estate of Elizabeth
Wamaitha Ngaruiya (deceased) Nairobi HCSC No. 2499 of 2001 (Waweru J).
[cxcvii] See In the Matter of the Estate of Anthony
Gichigi Wairire (deceased) Eldoret HCP&A No. 32 of 1983 (Nambuye J).
[cxcviii] See also In the Matter of the Estate of John Ngugi
Kimani (deceased) Nairobi HCSC No. 1830 of 1999 (Koome J) and In the Estate of Lydia Karuru Ahmed
(deceased) Mombasa HP&A No 122 of 2001 (Khaminwa J).
[cxcix] See also Irene Njoki Mucheru vs. Lillian Mucheru Nairobi
CACA No. 144 of 1989 (Gachuhi, Cockar JJA and Omolo Ag. J).
[cc]See In the Matter of the Estate of David Murage Muchina (deceased)
Nairobi HCSC No. 2077 of 2002 (Kamau J).
[cci] See also In the Matter of the Estate of Kahiro
Kibunyi (deceased) Nairobi HCSC No. 467 of 1986 (Githinji J, Troustik Union
International and another vs. Mrs Jane Mbeyu and another Nairobi CACA No. 145 of 1990 (Apaloo CJ, Kwach, Cockar, Omolo and
Tunoi JJA) and Coast Bus Service Ltd vs. Samuel Mbuvi Lai Nairobi CACA No. 8 of 1998
(Gicheru, Tunoi and Shah JJA).
[cciii] See In
the Matter of Joram Waweru Mogondu (deceased) Nairobi HCSC No. 2721 of 2002
(Koome J), In the Matter of the Estate of
Joseph Mwinga Mwaganu (deceased) Nairobi HCSCS No. 1814 of 1996 (Khamoni J)
and Kangwana & Company Advocates vs.
Solomon I. Kisili Nakuru CACA No. 41
of 1984 (Platt, Apaloo JJA and Masime Ag. JA).
[cciv] See also Francis Kamau Mbugua
and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS)
(Nyamu J).
[ccxiii] See Commissioner of Stamp
Duties (Queensland) vs. Livingstone (1965) AC 694, In the Matter of the Estate of Charles Odhiambo Odiawo, deceased (Nairobi
HCSC No. 1525 of 1999 (Koome J) and Stephens
and six others vs. Stephens and another (1987) KLR 125).
[ccxiv] Catherine Rendell, Law of Succession, Macmillan, London,
1997, pages 207, 208.
[ccxv] Re Ponder (1921) 2 Ch 59,
Re Yerburgh (1928) WN 208.
[ccxvi] In the Estate of Sheikh
Mohamed bin Ali bin Saad El-Mandiry (deceased) (1938) 18(1) KLR 124 (Lucie-
Smith J).
[ccxvii] See also The Public Trustee and another vs. Kamau
Wanduru (1982-1988) 1 KAR 498 (Madan, Kneller JJA and Chesoni Ag. JA).
[ccxviii] See also In the Matter of the
Estate of Gerishon John Mbogoh Nairobi HCSC No. 989 of 1999 (Visram J)
), In
the Matter of the Estate of Chege Njuguna (deceased) Nairobi HCSC No. 832
of 1993 (Koome J), In Re Parsi Kersasji
Khursedji Sidhwa, deceased (1934) 1 EACA 38 (Abrahams CJ, Lucie-Smith Ag.
CJ and Horne J), Mbuthi vs. Mbuthi ((1976)
KLR 120(Harris J), In the Estate of Joram
Waweru Mogondu (deceased) Nairobi HCSC No. 2721 of 2002 (Koome J).and In the Matter of the Estate of James Karanja
Kioi (deceased) Nairobi HCSC No. 1366 of 1995 (Koome J).
[ccxix] See also Kulsumbhai vs. Abduhusein (1957) EA 699,
Re Giles (2) (1890) 43 Ch. D
391, Bhag Bhari vs. Mehdi Khan 1965)
EA 94 (Newbold Ag. VP, Duffus and Spry JJA),Kenya
Commercial Bank Ltd vs. James Osebe (1982-88) 1 KAR 48 (Law and Potter JJA,
and Hancox Ag. JA), Industrial and
Development Corporation vs. Kariuki & Gatheca (1977) KLR 52 (Law VP,
Mustafa and Musoke JJA) Boyes vs. Gathure
(1969) EA 385 (Sir Charles Newbold P, Sir Clement de Lestang VP and Spry
JA), Official Receiver vs. Sukhdev (1970)
EA 243 (Madan J) and Wakf Commissioners
vs. Mohamed bin Umeya bin Abdulmajid bin Mwijabu and another (1984) 2 KAR
12 (Kneller, Hancox JJA and Nyarangi Ag. JA).
[ccxxii] See Boyes vs. Gathure (1967) EA 385 (Sir Charles Newbold P, Sir
Clement de Lestang VP and Spry JA)..
[ccxxiv] This is a little curious as the limitation
period for claims in respect of land is usually longer than for
personalty. There is a possibility of
errors in sections 20(2) and 21 of the Limitation of Actions Act.
[ccxxv] See also Mukindia Kimuru and another vs. Margaret
Kanario Nyeri CACA No. 19 of 1999 (Gicheru, Shah and Owuor JJA).
[ccxxvii] This decision was
followed by the High Court in In the
Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. of
107 of 1994 (Kuloba J). See also in In
the Matter of the Estate of Ashford Njuguna Nduni (deceased) Nairobi HCSC
No. 1589 of 1994 (Waweru J).
[ccxxviii] No. 10 of 1981
[ccxxix] Proof of customary law
and related matters is dealt with in Chapter 14 section 14.2(b)(ii) and Chapter
21 section 21.7 here above.
[ccxxxi] Section 5 of the Legitimacy Act (Cap 145 Laws of Kenya).
[ccxxxii] Sections 174 and 175 of the Children Act (Act No. 8 of 2001)
[ccxxxiii] The decision by Aluoch
J in In the Matter of the Estate of
Reuben Nzioka Mutua (deceased) Nairobi HCP&A 843 of 1986 was to the same
effect.
[ccxxxiv] See also In the Matter of the Estate of Ashford
Njuguna Nduni (deceased) Nairobi HCSC No. 1589 of 1995 (Waweru J).
[ccxxxv] See also In the Matter of the Estate of Serwenje
Korko (deceased) Eldoret HCP&A No.31 of 1995 Nambuye J), In Re Estate of Kittany (2002) 2 KLR 720
(Nambuye J), Muigai vs. Muigai and another (1995-1998) 1 EA 206 (Amin J), In the Matter of the Estate of Sila Kibiwott
Rono Eldoret HCP&A 130 of 2000 (Nambuye J), In the Matter of the Estate of Chumo Arusei Eldoret HCP&A 36 of
1998 (Nambuye J), In the Matter of the
Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A 157 of 2001
(Kimaru J) and In re estate of Ng’etich (2003)
KLR 84 (Nambuye J).
[ccxxxvi] See In the Matter of the Estate of James Karanja
also known as James Kioi Karanja and also Known as James Karanja Kioi
(deceased) Nairobi HCSC No. 1366 of 1995 (A), (B) and (C) (Khamoni J).
[ccxxxvii] See the decisions in In the Matter of the Estate of Tabutany
Cherono Kiget (deceased) Kericho HCP&A 157 of 2001 (Kimaru J), In the Matter of the Estate of Sila Kibiwott
Rono Eldoret HCP&A 130 of 2000 (Nambuye J), In the Matter of the Estate of Chumo Arusei Eldoret HCP&A 26 of
1998 (Nambuye J), In Re Estate of Kittany
(2002) 2 KLR 720 (Nambuye J) and In
the Matter of the Estate of Serwenje Korko (deceased) Eldoret HCP&A No.
31 of 1995 (Nambuye J.
[ccxxxviii] See also In the Matter of the
Estate of Ashford Njuguna Nduni (deceased) Nairobi HCSC No. 1589 of 1994
(Waweru J).
[ccxxxix] The term used by
Ang’awa J in that case, and in several others, is ‘renunciation’. A distinction
should always be made between renunciation and disclaimer. Renunciation is used
with respect to the right to apply for a grant of representation, while
disclaimer is confined to a rejection by a beneficiary of their right to a
share of the estate.
[ccxl] See also In the Matter of the Estate of the Late
Wanjihia Njuguna (deceased) Nairobi HCSC No. 533 of 2002 (Ang’awa J) and In the Matter of the Estate of Mary Wanjiru
Thairu (deceased) Nairobi HCSC No. 1403 of 2002 (Ang’awa J).
[ccxli] See also In the Matter of the Estate of Wilson
Wamagata (deceased) Nairobi HCSC No. 261 of 1998 (Githinji J),
[ccxlii] See Koinange and thirteen others vs. Koinange
(1986) KLR 23 (Amin J), John Ndung’u
Mubea vs. Milka Nyambura Mubea Nairobi CACA No. 76 of 1990 (Gicheru, Kwach
and Tunoi JJA) and Maina Mwangi vs.
Gachihi Njihia Nairobi CACA No. 89 of 1998 (Gicheru, Tunoi and Owuor JJA), Mukindia Kimuru and another vs. Margaret
Kanario Nyeri CACA No. 19 of 1999 (Gicheru, Shah and Owuor JJA) and Mbuthi vs. Mbuthi ((1976) KLR 120
(Harris J)..
[ccxliii] See Mukindia and another vs. Margaret Kanario Nyeri
CACA No. 19 of 1999 (Gicheru, Shah and Owuor JJA).
[ccxliv] E. Cotran, Restatement of African Law:2 Kenya
II The Law of Succession, London,
Sweet & Maxwell, 1969 p. 133.
[ccxlv] See John Kinuthia Githinji vs. Githua Kiarie and others Nairobi CACA
No. 99 of 1988 (Gachuhi J).
[ccxlvi] Compare Z.R. Chesoni
‘Divorce and Succession in Luyia Customary Law’ in 2(3) East African Law Journal 165.
[ccxlvii] See also Mary Wanja Gichuru vs.
Esther Watu Gachuhi Nairobi CACA No. 76 of 1998
(Kwach, Shah and Pall JJA) and Wambugi
w/o Gatimu vs. Stephen Nyaga Kimani (1992) 2 KAR 292 (Hancox CJ, Masime and
Kwach JJA).
[ccl] See Main Mwangi vs. Gachihi Njihia Nairobi
CACA No. 89 of 1998 (Gicheru, Tunoi and Owuor JJA).
[ccli]See John
Ndungu Mubea vs. Milka Nyambura Mubea Nairobi CACA No. 76 of 1990 (Gicheru,
Kwach and Tunoi JJA), In the Matter of
the Estate of Kiiru Muhia ‘A’
(deceased) Nairobi HCSC No. 2487 of 1996(Rawal J) and Mbuthi vs. Mbuthi ((1976) KLR 120 (Harris J).
.
[ccliii] See Otiato vs. Otieno (1990) KLR 721 (Mango J) and Atemo vs. Imujaro (2003) KLR 435 (Omolo,
Shah and Waki JJA).
[ccliv] See also Wambugi w/o Gatimu
vs. Stephen Nyaga Kimani (1992) 2 KAR 292 (Hancox CJ, Masime and Kwach JJA).
[cclv] Wambugi w/o Gatimu vs.
Stephen Nyaga Kimani (1992) 2 KAR 292 (Hancox CJ, Masime and Kwach JJA)
[cclvi] Cotran’s Restatement
was also relied on in In the Matter
of the Estate of Naomi Wanjiku Mwangi (deceased) Nairobi HCSC No. 1781 of
2001 (Koome J), Mukindia Kimuru and another vs. Margaret Kanario Nyeri CACA No. 19 of 1999 (Gicheru, Shah
and Owuor JJA), Kanyi vs. Muthiora (1984)
KLR 712 (Kneller JA Chesoni and Nyarangi Ag. JJA), Wambugu w/o Kimani vs. Stephen
Nyaga Kimani (1988-1992) 2 KAR 292 (Hancox CJ, Masime and Kwach JJA), Mary Wanja Gichuru vs. Esther Watu Gachuhi Nairobi
CACA No. 76 of 1998 (Kwach, Shah and Pall JJA), In the Matter of the Estate of Samuel Muchiru Githuka (deceased) Nairobi
HCSC No. 1903 of 1994 (Kamau J), Karanja Kariuki vs. Kariuki and others (1983)
KLR 209 (Madan, Potter and Kneller JJA), In
the Matter of the Estate of Gathererie Muturi (deceased) Nairobi HCSC No.
2170 of 1999 (Koome J), Njuguna vs.
Njuguna (1984) KLR 527 (Madan, Law and Potter JJA), Gituanja vs. Gituanja (1983) KLR 575 (Potter, Kneller JJA and
Chesoni Ag. JA), John Ndung’u Mubea vs.
Milka Nyambura Mubea Nairobi CACA No. 76 of 1990 (Gicheru, Kwach and Tunoi
JJA), Koinange and thirteen others vs.
Koinange (1986) KLR 23 (Amin J) and Mbuthi vs. Mbuthi ((1976) KLR 120 (Harris J).
[cclvii] London, Mercury Books, 1961. See also Wambugi w/o Gatimu vs. Stephen Nyaga Kimani (1992) 2 KAR 292
(Hancox CJ, Masime and Kwach JJA)
[cclviii] Sh. S. Mahmood, Principles
and Digest of Muslim Law, Lahore,
Markazi Kutubkana, 1960 p. 220
[cclix] A. Ahmad, Islamic
Law in Theory and Practice, Lahore,
The All Pakistan Legal Decisions, 1956 p.506.
[cclx] Anarali Museraza (a minor by
his next friend) Mohamedtaki A. P. Champsi vs. Mohamedali Nazerali Jiwa and
others (1966) EA 117 (Wicks J).
[cclxii] Mahmood (ibid) pp.192-195, Ahmad (supra) p.
479
[cclxvi] The Sunni school includes in the distribution the parental
grandfather, the true grandmother and the son’s daughter.
[cclxviii] S A.
Ali, Mohammadan Law, Lahore, All Pakistan Legal Decisions, 1965
pp. 269-290; Mahmood (supra) pp. 269-290, Ahmad (supra) p. 519-630; Baillie
(supra) pp.273-275
[cclxxi] Baillie (supra) p. 267. See also Ahmed bin Abdallah vs.
Administrator of Native Estates (1924-1926) 10 KLR
(Sir T. S. Tomlinson CJ, Russell CJ and Reed J).
[cclxxiv] Baillie (supra) p. 248
[cclxxv] See also Fraankel vs. Sechele (1967) JAL 55
[cclxxvi] See also In the Matter of the Estate of Samuel
Muchiru Githuka (deceased) Nairobi HCSC No. 1903 of 1994 (Kamau J).
[cclxxvii] See also In the Matter of the Estate of Reuben Nzioka
Mutua (deceased) Nairobi HCP&A No. 843 of 1986 (Aluoch J)
[cclxxviii] Compare with the
decision in Mtoro bin Mwamba vs. The
Attorney-General (1952) 19 EACA 108 (Sir Barclay Nihill P, Sir Newnham
Worley VP and Sir Herbert Cox).
[cclxxix] See also Halimabhai vs. Abdarahim Haji Ismail Nathu (1913-1914) 5 EALR 34 (Hamilton CJ).
[cclxxx] Jafferali Bhaloo Lakha and others vs. The Standard
Bank of South Africa Ltd (1923-27) 3 ZLR 64 (Lord Cave LC) and
(1927-1928) 11 KLR 1
[cclxxxi] See In the Matter of the Estate of Kiiru Muhia
‘A’ (deceased) Nairobi HCSC No. 2487 of 1996 (Rawal J).
[cclxxxii] See also In the Matter of the Estate of Gathererie
Muturi (deceased) Nairobi HCSC No. 2170 of 1999 (Koome J).
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