It is also referred to as the law of inheritance i.e. transmission of property rights from the dead to the living. Most of the dependants are family members but this is not an aspect of family law. This area of law deals with the transmission of property from the dead to the living. Inheritance is common in all human societies and is a concept of universal application. It is driven by the desire to acquire property. It is one of the ways of acquiring property because when a person dies, the right to enjoy property dies with him.
Control is another aspect such as giving instructions on how the property will be divested after their death. Most people exercise this control. Philosophical decisions behind succession are the right of the owner to control that property even after death and he can do so through a will. The main function of succession is to provide mechanisms for the transmission of property from the deceased to those who survive him. It involves:
(a) Identifying the legal claimants who can claim the property i.e. who are the rightful claimants
(b) The procedures of which such rightful claimants or dependants succeed to the property of the deceased i.e. what steps they need to take so as to acquire the property of the deceased.
(c) Mechanisms for dispute resolution are provided so as to resolve any conflicts between persons who claim to be rightful claimants.
Each community or society has its own set of rules though inheritance is a universal concept. In Kenya, we have the Law of Succession Act (LSA), which is of general application, but other laws do apply such as Islamic law and customary law, which have been exempted by the Act. Although the Hindu law has not been exempted by the Act, it still applies informally in practice. A uniform law has not been achieved because of the diversity of Kenyans.
During the colonial period different laws applied. Various statutes applied to the various communities at that time such as to the Europeans, Africans, Hindus and Muslims. The advent of independence saw an attempt at moving towards uniformity i.e. an attempt to consolidate the laws of succession into one statute catering for the various peoples of Kenya. This culminated in the enactment of the LSA in 1972. This was an attempt to bring to an end differential treatment of people carried out during the colonial period. After independence, emphasis was on equality and enactment of the LSA was an attempt at this equality. It was brought into effect in 1981. The Marriage Bill was not accepted.
As for the LSA, the Bill was passed in 1972 but because some of its provisions were dependent on the Marriage Act it had to wait until the Marriage Bill was passed e.g. customary law is recognized which is a concept alien to English Law. The law on the matrimonial bill introduced concepts that would have harmonized it with the LSA e.g. provisions in the Matrimonial Bill allowed a statutory monogamous marriage to be converted to a polygamous marriage. This was not allowed by S 37 of the Marriage Act.
The LSA was intended to protect such wives who were married under customary law by husbands already married under statutory law like the cases of Re Ruenji’s Estate[1]and Re Ogola’s Estate[2]. Section 3(5) of the LSA states that such wives can be said to be wives of succession irrespective of what section 37 of the Marriage Act states.
The Affiliation Act was repealed in the 1960s as it was to cater for children born out of wedlock. The failure to pass the law on the Matrimonial Bill has rather caused an untidy situation as the current Marriage Act and Matrimonial Causes Act are not in harmony with the LSA i.e. are inconsistent. This is based on the fact that most dependants are family members, the Act should be in harmony. Inconsistency is evident in S 3(5) LSA, S 37 Marriage Act, and ACMDA. The statutes deny men the right to contract other marriages by virtue of the interpretation in Re Ogolla’s Estate and Re Ruenji’s Estate. This means that once they marry under the statute, they cannot contract marriage under customary law.
Under S 3(5) of the LSA, it states that during the lifetime of the deceased, they are not considered as wives but once he dies then they are considered as wives for purposes of succession. The statutory wives are put at a disadvantage because the woman who is not recognized as a wife during the lifetime of her husband is given recognition as a wife after his death. This situation would have been avoided had the Matrimonial Bill passed. The Bill states that before a husband takes a second wife he would need the consent of the first wife.
See: Muigai v Muigai[3] - S 3(5) LSA was interpreted as circumventing S 37 Marriage Act and S 4. It was held S. 37 Marriage Act only bars the husband from subsequently contracting other marriages but does not bar wives subsequently married from inheriting from the deceased’s estate.
Therefore, whereas the LSA is ready to embrace the traditional African principles the Marriage statutes remain as they were during the colonial period espousing English principles of Marriage and Divorce. In practice, courts tend to resolve such conflicts in favour of customary law.
Irene Njeri Macharia v Margaret Wairimu Njogu and Anor[4] Court of Appeal held: An earlier decision by the High Court in the case of the estate of Reuben Nzioka Mutua was bad law.
See: HC Probate & Administration No. 843/1986 The deceased had contracted a statutory marriage in 1961. In 1980, he purported to contract another marriage during the subsistence of an earlier marriage. He left a will giving his entire estate to his statutory wife and left out his latter wife. His second wife challenged this under S 3(5) LSA arguing she was a wife.
Held: By virtue of S 37 Marriage Act and S 4 Cap 151, the deceased had no capacity to marry a second wife under customary law and therefore she was not a wife, following the decision i.e. for purposes of succession.
The inconsistency remains because the Marriage statutes have not been amended to bring them in line with the Succession Act. Areas closely related to Succession Law are Property Law, Family Law etc. The relationship of the deceased and the person claiming to be a dependant are relevant e.g. if a wife or a child, you have to look at the system of Marriage if any or whether the child is a dependant under the Children’s Act.
Trust law is also relevant especially when it comes to the Administration/Management of deceased’s property. It entails 1) the collection of assets 2) settling debts and 3) settling the estate/distribution to dependants. The administrator stands in a fiduciary relationship in carrying out his functions therefore he is a trustee. The Trustee Act covers both administrators and trustees, so does the Trust for Land Act. Equitable remedies e.g. Tracing are often used by administrators and beneficiaries to recover property of the estate that may have been paid out wrongly i.e. to people who are not beneficiaries of the deceased.
TECHNICAL TERMS USED IN SUCCESSION LAW
Succession may be by will or if there is no valid will under the law of intestacy. The process of disposal of property when there is a valid will is known as testate succession. The person making the will is called the testator if male and the testatrix if female and the instrument called a will is referred to as a testament.
Intestacy refers to a situation of dying without having made a will or having made a will which is subsequently rendered void or invalid. Intestacy leads to intestate succession and the rules of intestacy are intended to determine the relatives of the deceased who are entitled to inherit his property. Here only blood relatives inherit apart from the spouse. The person who dies intestate is known as an intestate.
Administration of the estate refers to:
(a) collection and presentation of assets
(b) management
(c) distribution
An administrator is the person appointed by the court in intestacy or in a will to manage the estate of a deceased person. Representation refers to the role of a person who is authorized in law to dispose off the property of the deceased. This is the role of an administrator and the two terms are used interchangeably.
The administrator is said to represent the deceased. The assets of the deceased vest in the administrator. He acquires legal title to the property and can do anything the deceased would have done e.g. sue, mortgage, sell etc The person who represents the deceased and acts as the administrator is also referred to as the personal representative of the deceased. However, the term administrator is usually confined to the person appointed in the event of intestacy. The administrator appointed under the terms of the will is referred to as the executor as he executes the wishes of the deceased as set out in the will.
A beneficiary is the person who is to benefit by receiving a gift under the will or testament. It is used in connection with testate succession. A person who inherits in intestacy is known as an heir.
Estate: means the total property both real and personal owned by someone and therefore, the property available for distribution upon death.
Dependant this is a technical term employed in circumstances where an heir or beneficiary has not been adequately provided for and makes an application to court. S 29 defines dependant but does not necessarily mean an heir or beneficiary it is limited by section 2 of the Act. Only those persons who fall under this definition can take advantage of this provision.
Bequest: gift of personal property in a will. The gift is named i.e. ‘specific bequest’. It can also be residual if it refers to the estate of the giver. It is not specific, it is a general gift of what remains. Legacy: another term that refers to a bequest. The beneficiary of a legacy normally called a legatee.
Grants of Representation: Issued by the courts to the administrator or personal representative of deceased. Take form of an order that a particular person is to act as the personal representative of the dead person.
In testate succession it is called a Grant of probate. In Intestacy there are Letters of Administration (grant of letters of administration)
The distinction is that in testate succession, the executor derives his authority from the will. Grant Of Probate is not the source of the Executor’s authority. It merely confers or authenticates the authority of the executor, thus it is merely evidence. In intestacy: the Grant of letters of administration is the source of the administrator’s authority. The “administrator” is appointed by the grant. His power to act derives from the grant itself, without which there would be no power for him to represent the deceased.
Executors can take up their responsibilities immediately after death of the deceased BUT in intestacy the administrator cannot act till he acquires a Grant of Letters of Administration (disadvantage since process of obtaining Grant of Letters of Administration takes about two months). The terms probate refers to the process through which a will is proved to be genuine and by which the executors are authorized to dispose off the estate of the deceased.
HISTORICAL ACCOUNT OF THE LAW OF SUCCESSION IN KENYA
History of law of succession in Kenya
Law of succession before 1981
Appling to Africans
The 1897 Order-in-Council provided under article 52 that African customary law was to apply to Africans as long as it was not repugnant to justice or morality. Matters of succession were therefore to be governed by African customary law. The above legislation did not, however, provide for the law applicable to the so called ‘westernized’ Africans who had converted to Christianity, got western way of life, seeking to divorce themselves from the operation of African customary law. Such converts felt that western law should govern their personal matters such as marriage and succession.
An attempt to address the problem presented by these Africans was made through the passing of the 1897 Native Courts Regulations, Article 64 of which provided that the African Christians were governed by the law that governed Indian Christians. Interestingly, the regulations did not say what law this was i.e. whether it was the Indian law of succession or the English Law of succession since both of these two laws applied to Christians in India. The position was clarified in 1902 with the passing of the African Christian Marriage and Divorce Ordinance, section 39 of which provided that the English law of succession would apply to Christian Africans because after contracting a statutory marriage, the African was presumed to have discarded the African way of life and thereby ceased being governed by African customary law.
The ‘up-grading’ of the African by the above legislation was short lived for in 1904, the Native Christian Marriage and Divorce Act Order No. 9 was passed, providing that the African customary law of succession applied to all Africans irrespective of their religion. The argument being that land tenure is still communal and since the Act envisaged individual land ownership it cannot apply in such places. The matter of these Africans with regard to the applicable personal law came up for judicial determination in the case of Benjawa Jembe vs. Priscilla Nyondo 4 EALR 160 (1912) where Barth J held that succession of a native Christian’s estate followed the law of the tribe to which such Christian native 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”
This remained the position until 1961 when the African Wills Ordinance was passed to enable the Africans to 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 Act originated from the recommendations made by one Dr. Arthur Phillips in his Report on Native Tribunals. In the chapter dealing with succession, Phillips underscored the then urgent need to provide the African with 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 e.g. shares in companies, insurance policies, premium bonds, bank accounts etc. 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 Act that remained in force until 1981 when it was repealed upon the coming into operation of the LSA. Intestate succession continued being governed by African customary law provided it was not inconsistent with justice, morality, and the statutes of general application e.g. the Probate and Administration of Estates Act of 1898 as in Re Maangi (1968) E.A 337. In the 1960’s the High Court held that even where Africans died intestate, customary law could be avoided if it was inconsistent with justice and morality. In Re Kibiego (1977) E.A 129 an estate was contested between deceased’s widows and his brothers. The brothers said women had no right in administration of estate. It was held that customary law denying women rights to administer the property of the deceased husband was repugnant to justice and morality and found that the Probate and Administration Act was to apply.
Applying to Muslims
There was no specific mention of the Muslims in the 1897 Order in Council and it was assumed that reference to ‘natives’ also included the Muslims. The problem was that many Muslims were Arabs who did not consider themselves as ‘natives’. The position was clarified in the 1897 Native Courts Regulations Ordinance. Article 57 of this ordinance provided that the law of succession for Muslims was the law contained in the Quran. These regulations were re-enacted in the 1907 Native Courts Ordinance, which established the liwali courts. These had jurisdiction to hear and determine matters arising out of Islamic law, including succession.
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 break away or secede from the rest of 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 Act repealed, among other laws, the Mohammedan Marriage, Divorce and Succession Act (Cap.156) section 4 that dealt with succession. Note: Not the whole Act was repealed, only sec. 4 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 at independence. Their case was that the Quran or a statute embodying the provisions of the Quran must govern matters of personal law for Muslims. They sought to be exempted from the LSA which conflicted with the Koranic principles e.g.
~ S 5 of the LSA on Freedom of Testation i.e. discretion of Testator to dispose off property as one wishes to persons he wishes. No obligation to provide for dependants BUT under Islam, only 1/3 of the Muslim’s estate can be disposed off by will. 2/3 should be dealt with according to Koranic principles i.e. shares were fixed for particular heirs.
~ S 3(2), which defines children, and S 29, which defines dependants, were contentious. S 3(2) defines a child to include adopted and illegitimate children. Also S 29 includes adopted and illegitimate children, also step children BUT under Islam, stepchildren have no right of inheritance from their deceased father. They can only inherit through their mothers. Illegitimate children cannot inherit through their biological fathers.
The government gave in to the pressure mounted by the Muslims in 1990 when government keen to have the Muslim support in view of the clamour for multi-partyism and the Law of Succession Act was amended by Statute Law (Misc. Amendment) Act No. 2 of 1990, which disapplied the Act to persons who, at the time of their death were Muslims. Instead, Islamic law as contained in the Quran would govern such persons and it introduced S 2(3) and (4) & S 48(2)
S 2(3) disapplies the substantive provisions of the Act to the estate of a deceased Muslim (both testate and intestate). The estate of a deceased Muslim is exclusively subject to Muslim law. S 2(4) applies the procedural aspects of the Act, i.e. the provisions relating to the administration of the estate of a deceased Muslim as long as the provisions are not inconsistent with Islamic law.
S 48(2) confers the Kadhi’s Court with jurisdiction to determine questions relating to succession in accordance with Islamic law. In effect, S 5 of the LSA no longer applied to Islam BUT the act applies with respect to management of the estate i.e. a Muslim can take out letters of administration.
Applying to Hindus
The 1897 Order-In-Council was silent on which law applied to the estate of deceased Hindus. Order No. 22 of 1898 that applied to Kenya the Hindu Wills Act that was a mere adaptation of the 1865 Indian Succession Act clarified the position. The Hindu Wills Act was applied to Kenya to provide for testate succession for the Hindus living in Kenya. 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 Hindu Marriage, Divorce and Succession Ordinance No. 43 was passed. Its effect was to confirm the matters of intestate succession for the Kenyan Hindus 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 what law applied to those who died in Kenya but domiciled elsewhere. Another restriction in the scope of the ordinance was that it only applied to the Hindus whose marriages had been contracted in the colony as in Bessan Kaur v. Rattan Singh 25 KLR 24. 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 provided in testate succession. These two statutes remained in force until 1981 when the LSA repealed them making Hindus in Kenya exclusively subject to LSA.
Applying to Europeans
Article 11 (b) of the 1897 Order in Council provided that for the European settlers in Kenya, the law to govern the succession to their estates was the Indian Succession Act, 1865. This statute was primarily passed in India to govern succession matters for British settlers in India. It provided for both testate and intestate succession and dealt with substantive matters. It also introduced the Probate Administration Act in Kenya. The 1865 Act reflected the position of succession laws in England at that time. It provided for both testate and intestate succession. The 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 restricting testamentary freedom but this was re-amended. A testator was then enabled to leave his estate to whomever he felt like without limitation on time.
The other major amendment to the 1865 Act was through Order No. 48 of 1956, which resulted in the present day Law Reform Act Cap 26. 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.
Law of succession after 1 July 1981
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. 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 the country a uniform law of succession applicable to all sections of the Kenyan population.
The Law of Succession Act came about because of a report compiled by a commission appointed by the late President Kenyatta in 1967, 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.
S 2(1) of the Act states that the Act constitutes the law of Kenya in respect of and shall have universal application to all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of the Act. S 2(1) however also allows for application of other laws (Except as otherwise expressly provided in this Act or any other written law)
S 99 of the Act repeals all the then existing statutes on the law of succession and these are listed in the 8th schedules. They are as follows:-
1) The Indian Succession Act of India 1865.
2) The Hindu Wills Act of India, 1870.
3) The Probate and Administration Act,1888.
4) The Hindu Succession Act.
5) The African Wills Act, 1961.
6) The Administration of Estates by Corporations Act.
7) The Commonwealth Probate Act.
8) 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, which was harmonized with the LSA by the deletion of its S 4, which dealt with matters of succession.
With respect to African customary law, the Act allows its application in sections 2(2), 5(1) and 33. S 2(2) applies customary law to persons dying before commencement of the Act i.e. before 1981. Applicable law is the law that was in force at the time of death.
S 5(1) allows a testator to dispose of his property by reference to any secular or religious law. This would allow the testator to provide that his estate should devolve in accordance with a particular law in which event the requirements of that customary law will be determined. This is a general law and the testator has not specifically divided his property but directs an administrator to do so. S 32 exempts certain classes of property from intestacy provisions of the Act e.g. agricultural land, crops on such land and livestock as per gazette notice specified by the Minister. The following areas were specified by the gazette notice No.94/1981 Marsabit, Narok, Tana River, Samburu, West Pokot, Turkana, Isiolo, Mandera, Wajir and Kajiado The property listed in those areas was exempted from the intestacy provisions pursuant to S 32 where the property owners died intestate. S 32 only covers land in the designated areas. S 33 applies customary law to such property. The administration of such estates does not fall under LSA. Since S 44(1) of the Act provides that part 7 of the Act does not apply to the intestate estate subject to S32 of the Act. Such estates are to be administered in accordance with the provisions of the Magistrates Courts Act (Cap 10). S 5& 9 of this Act give power to the court to exercise jurisdiction in proceedings of a civil nature where the proceedings are of a claim under customary law. S 2 of this Act defines a claim under customary law to include a claim concerning intestate succession and a claim for administration of intestate estates.
Sections 32 and 33 do not provide a blanket exemption covering all African intestates. However, the CA has interpreted sections 32 and 33 to mean that all Africans intestates are exempt from the intestacy provisions of the LSA. In Mwathi vs. Mwathi and another (1995-1998) 1 EA 229, the deceased died in 1987 and was unmarried. A brother (the appellant) and two sisters (the respondents) survived him. He hailed from Kiambu District. His will was declared invalid by the High Court, which ordered the estate to be shared equally between the appellant and the respondents in terms of Part V of the Act. The appellant aggrieved by the order appealed to the Court of Appeal, which upheld the High Court decision with respect to the invalidity of the will and confirmed that the appellant had died intestate. It, however, differed with the High Court by holding that the applicable law was customary law and not the intestacy provisions in Part V of the Act. A portion of the Court of Appeal judgement asserts- “….the intestate succession of a deceased Kikuyu is governed by the Kikuyu Customary Law. The asset involved is a piece of land and the matter must therefore be determined by Kikuyu Customary Law relating to land inheritance…..”
There is no basis at all in law for the CAs decision in Mwathi vs. Mwathi. The deceased died after the Act came into force and customary law was not applicable since it was excluded from operation by S 2(1) of the LSA, unless allowed by the minister through sections 32 and 33 of the LSA. Besides, the property in question was situate in Kiambu district, which is not one of the districts specified in Legal Notice No. 94 of 1981. It is regrettable that such an erroneous decision came from the highest court in the land. It is binding on the High Court and the subordinate co’urts: it has not been overruled to date.
The Court of Appeal’s decision in Mary Rono vs. Jane Rono and another Nairobi CACA No. 66 of 2002 is the first by that court where Ss 32 and 33 of the Act were correctly applied and interpreted. The land in dispute was situated in Uasin Gishu district in the Rift Valley province. The court found that section 2(1) LSA excludes the application of African customary law unless the Act makes provision for it. It does so under sections 32 and 33, but the exclusion is limited to property exempted for Part V of the Act by virtue of S 32. LN No. 94 of 1981 does not exclude property in Uasin Gishu district and therefore Keiyo customary law could not apply to the intestate of a resident of Uasin Gishu district.
Unfortunately, some of the male members of the High Court bench still apply customary law in determining questions of distribution of estates as between male and female children, in spite of the very clear provisions in sections 35 and 38 of the Act. In In the Matter of the Estate of Mutio Ikonyo (deceased) Machakos HCP&A No. 203 of 1996, the deceased had died in 1988, and the court held that a married daughter of the deceased was not entitled to a share of the estate. According to Mwera J the married daughter, being a Mkamba, ought to have known that under Kamba customary law only unmarried daughters or those divorced (and dowry returned) can claim to inherit. With respect, customary law is of no application at all; its application having been ousted by sections 2(1), 35 and 38 of the Act.
With respect to Islam, S 2(3) and 2(4) allows the application of Islamic law to the estate of a deceased Muslim i.e. it effectively disapplies the LSA to the estate of a Muslim. The only applicable provisions are those in Part 7 dealing with administration of the estate. In Chelang’a vs. Juma (2002) 1 KLR 339 (Etyang J) it was held that under Islamic law a non-Muslim cannot inherit the estate of Muslim. In that matter a daughter and siblings of the deceased Muslim, who confessed to be Christians, were excluded from benefit by reason of their being non-Muslims. It was, however, held that the mother of the deceased who was a non-Muslim was nevertheless entitled to a share of the estate under Islamic law as a dependant. It is, however, permissible for a Muslim to benefit a non-Muslim by will.
Other statutes apart from African customary law and Islam are applied to succession matters. S 101 refers to statutes in force before 1981 that are applicable:
1) Trustee Act
2) Public Trustee Act
3) Trust of Land Act Cap 290
4) S.218 – 222 Armed Forces Act Cap 199
The Trustees Act deals with powers and duties of a Trustee. The Personal representative defined in the LSA includes a Trustee. Part 7 of the LSA deals with the powers and duties of personal representatives i.e. S 82 & 83 of the LSA. These provisions are not exhaustive because there are other provisions that deal with these duties extensively. A personal representative exercises powers under Cap 160 and 167 and therefore should read the LSA in conjunction with the Trustees Act. So where the LSA is silent on a matter, The Trustees Act will apply e.g. Cap 160 does not deal with investments of funds as extensively as Cap 167.
The Public Trustee Act on the other hand deals with the administration of estates by the Public Trustee. The Public Trustee is an office in the AG’s office to deal with administration of estates. The Public Trustee acts as a personal representative in cases where he has been appointed by the court as such OR where the deceased does not have relatives OR where no one has applied for administration of the estate, OR where the will does not appoint an Executor OR where the executor appointed under will is unwilling to act OR where the court feels that the appointed executor is not suitable.
The Public Trustee is usually appointed where a family cannot agree on who to apply to be administrator. Under this Act, the Public Trustee may apply for representation in respect of any estate brought to his attention e.g. traditionally he administers estates of deceased civil servants i.e. if government notifies the public trustee that they had the deceased civil servants terminal benefits and no grant of letters of administration has been taken out.
Trust of Land Act has similar provisions to the Trustee Act. It deals with powers and duties of a Trustee. It gives powers relating to investments and related matters.
Ss 218 – 222 of the Armed Forces Act deals with estates of deceased soldiers i.e. who is to be paid, how a soldier should make his will e.g. a will made by a soldier in the presence of one witness (instead of 2) who is an officer is a valid will.
ADDITIONAL NOTES:
LAW OF SUCCESSION LECTURES
Succession Laws before 1991
Before 1 July 1991 matters of succession were governed by three different systems of succession law and these different systems conformed to the cultural groups resident at the time.
These systems were
(i) African customary law which applied to Kenyans of African origin;
(ii) Islamic law which applied to estates of Kenyans who professed the Islamic faith; the Islamic law was based on the Koran, the principles set out in the Muslim holy book;
(iii) The Hindu Succession Act and the Indian Will Act; applied to Kenyans of Indian descent;
(iv) The Indian Succession Act of 1865 and the Indian Probate and Administration Act 1881 which applied to Kenyans of European descent; these statutes were enacted in India but made applicable to Kenya.
AFRICAN CUSTOMARY LAW
African Customary Law was the predominant law of succession in the period before the onset of colonialism. It was the law to which governed the estate of deceased Africans before the onset of colonialism. It provided for both testate and intestate succession. Other laws were introduced with colonialism to complete African customary law and Cap 160 was intended to completely replace African customary law as the law of succession.
The 1897 Order in Council is credited with establishing the modern Kenyan Legal System which provided that African Customary Law was to apply to Africans with the condition that so long as it was not repugnant to justice and morality. For this reason matters of succession were to be governed by African Customary Law. The 1897 law did not deal with the position of the Africans who were considered to be Westernised, there was a question mark as to whether this law applied to those African who had converted to Christianity and adopted western way of life. In those early days those Africans set to divorce themselves from the operation of African Customary Law and they felt that their personal matters, i.e. marriage divorce succession etc should be governed by Western Law.
There was an issue then as to whether African customary law applied to the estate of such persons as the legislation was silent on this issue. This issue was subsequently considered by the courts in the case of Jembe v Nyondo and in the case of Miney Francis v Kuri in the opinion of the court in the case of Jembe v Nyondo Succession of a native Christian’s estate followed the law of the tribe to which such Christian native belonged. Barth J. said on this “…The fact that the deceased married a wife according to the rules of the Anglican Church does not affect the Succession to his property. Succession must be regulated by native law or custom.”
What happened in these two cases is that the court applied customary law to the Westernised African. The assumptions by these Africans was that once they adopted the Western way of life their law of succession changed but the court is saying that matters of succession should be dealt with under customary law. this is because the land tenure was still subject to African Customary Law and the Western notion of property ownership had not been introduced.
An attempt was made in 1897 to address this problem through the 1897 Natives Courts Regulation. Article 64 of the regulations provided that African Christians were to be governed by the law that governed the Indian Christians in India. The regulations however did not specify however what law this was because there were two sets of law that applied to Christians in India; there was the Indian Succession Act of 1865 and the English Law of Succession. Both laws were applying in India at the time. The position was to be clarified in 1902 when the African Christian Marriage and Divorce Ordinance were passed. Section 39 of the Ordinance provided that the English Law of Succession was to apply to African Christians largely because after contracting a statutory marriage the African was presumed to have discarded the tradition African way of life thereby removing himself from the ambit of African customary law i.e. 1902 legislation created two categories of Africans, those that had changed their family law and those that were still subject to African Customary Law.
This upgrading of the westernised Africans ended in 1904 when the Native Christian Marriage and Divorce Ordinance of 1904 was passed providing that African Customary Law of Succession applied to all Africans irrespective of their religion. This remained the position until 1961 when the African Wills Ordinance of 1961 was passed. This statute originated from the recommendations made by one Dr. Arthur Philips in a report on Native Tribunals. Prior to 1961 an African could not dispose off his property by a written will, there was no law under which he could bring himself under testate succession and this statute was passed to enable the African to dispose their property by written will.
The statute had the effect of bringing Africans under testate succession. This statute dealt only with testation and therefore the intestate succession to the estate of a deceased African remained subject to African customary law. Philips in his report underlined the need to provide the African with suitable legal machinery through which he could dispose off his modern property that could not adequately be disposed off under African customary law. He argued in his report that colonialism had brought with it new forms of property ownership which were unknown to African Customary law. He further argued that customary law could not be adjusted to deal with such property. He was referring specifically to property such as shares in limited liability companies, insurance policies, premium bonds money in bank accounts etc. He recommended that a law similar to the English Inheritance (Family Provisions) Act of 1938 be passed to enable elite Africans deal with such property.
The 1961 Act was therefore modelled on the English Act and the 1961 Act remained in force until 1981 when it was repealed following the coming into operation of the Law of Succession Act. Although intestate succession was subject to African Customary Law in some instances the Estates of deceased Africans intestate were brought under statute law and this was mainly in cases where African customary law was found to be inconsistent with justice and morality and the applicable statute in this case was the Probate and Administration Act of 1881. This Act was applied in two reported cases Re Maangi and Re Kibiego that were decided in 1968 and 1972 respectively. In both cases the issue was whether the wife or widow of the deceased could administer the estate of her deceased husband.
Under Customary Law women whether wives or daughters or sisters of the deceased had no capacity to administer the estates of their deceased relatives. That was the sole responsibility of the male relatives of the deceased i.e. father uncle or son. In these two matters the widows sought to administer the Estates of their deceased’s husbands by applying for a grant of letters of administration that was opposed by the male relatives who were basing their case on African Customary Law. The High Court found that the widow was the main stakeholder in the Estate of her deceased husband and therefore best suited to administer the husband’s Estate. It was further found that African Customary Law was repugnant to Justice and Morality for excluding the widows from management and administration of such Estates.
The 1881 Act was repealed in 1981 when Law of Succession Act came into force but the spirit of the decision of the High Court in Re Maangi and Re Kibiego remains that widows have a right to administer estates of their deceased husbands.
General Principles of Succession under African Customary Law
Inheritance and Succession is patrilineal in most customary law systems. Indeed in Kenya there are only two communities that are said to be matrilineal that is the Digo and the Dhuruma although they are said to be quickly adopting the patrilineal system and property therefore passes from the deceased to his immediate male relatives. Family law systems are patriarchal. There is equal distribution of a man’s property among his sons subject to a possibility that the eldest son may get a slightly larger share. In most cases the eldest son tended to be the administrator in which case he got a larger share than the other siblings. In a polygamous household distribution is based on each wife’s house i.e. the property will be split between the various houses in a house comprising of wife and children if any.
Under customary law the property was shared equally among the houses regardless the number of children in each house. Widows are not entitled to an absolute share of the estate and they do not inherit the estate absolutely, they however have a right of use of a particular portion of land and certain movables during their lifetime. This is normally known as a life interest. The right of the widow to use the property is optional not absolute. If the widow remarried she lost her interest in the estate. Daughters are normally excluded but they may receive a share if they remain unmarried. The assumption is that daughters would have access to property through their husbands and therefore need not be given a share. In the absence of sons inheritance goes to the nearest patrilineal relative of the deceased. That includes the father of the deceased, full brothers and paternal uncles.
This customary law position is causing a lot of confusion presently when it comes to applying provisions of the Law of Succession Act where there is no distinction between male and female children. Both sons and daughters are equally entitled to a share of the Estate irrespective of whether they are married or not. The interpretation given to the provisions of the Act by the Courts in the past has tended to lean to the customary law that persons entitled to inherit are sons and daughters only if they are unmarried. Recent decisions make it clear that both sons and daughters married or not are entitled and the law does not discriminate against them. The Act has been criticised that it does not really translate African Customs into law.
Will making was recognised under customary law and is not institution that came with the colonialists. Such a will is expected to reflect the general pattern of inheritance. Property may also be distributed during the father’s lifetime to the sons as and when they got married. Such distribution is usually referred to as inter vivos distribution of a person’s property. With respect to the administration of estates under African Customary Law, male relatives of the deceased persons carried out the administration. The personal representative of the deceased being either appointed by will or by elders. Where the deceased had adult sons the administrator would normally be the eldest son although it is possible for some other relative to be appointed either by the testator or the elders. In some cases it was possible for the eldest son to be overlooked if he was found to be incompetent and someone else would be appointed in his place.
There are 3 principle functions of the administrator under customary law
1. To be the head of the family and represent the family for all legal purposes;
2. To be the guardian of the widow and the children in certain cases;
3. To act as the Administrator of the Deceased’s Estate in terms of protecting the estate and subsequently distributing it amongst those entitled
The elders could remove an administrator who failed his responsibilities from the position.
With respect to intestacy the mode of distribution of estate of a deceased person depended on whether the deceased was married or not whether he had children and whether the marriage was polygamous or monogamous. Where the man was married with one wife and sons and daughters, the sons shared the land equally although in some cases the eldest son may get a slightly larger share, the widow retained cultivation rights during her lifetime. This was usually over the land that had been given to her by her husband during the husband’s lifetime. In the event of her death or marriage the land would revert to one of her sons. If she had any illegitimate male children they would be entitled to inherit the land where she enjoyed cultivating rights.
Livestock is not distributed until all the sons have been married. The widow would get a share of the livestock depending on the number of the livestock left. The rest is thereafter divided equally among the sons. This was because livestock was a source of dowry and therefore needed by every son. Daughters were not entitled to a share of the livestock even where they remained unmarried.
In traditional society the house of the deceased would be demolished but the widow would be entitled to inherit the furniture. In those days the houses were made of mud and temporary. The widow was also entitled to all the crops whether in the store or in the field and the eldest son was entitled to all the ornaments and weapons of the deceased. With respect to the estate of a married man with two or more wives and sons and daughters, the property of the Estate would be divided equally (land) between the houses irrespective of the number of children in each house. Thereafter the land given to each house would be shared equally amongst the sons with the eldest probably getting a larger share. With respect to livestock each house got an equal share and thereafter the livestock in each household would be divided equally amongst the sons. The livestock received as dowry for a daughter of any house is divided equally amongst the sons of the house from which the daughter belonged.
Regarding the Estate of a married man without children or with daughters only, distribution of the property depended on the course taken by the widow taken after the death of her husband. She may remain in her deceased husband’s house where she erects to remain she will be entitled to use the land for life. If there is more than one wife the land will be shared equally and if they both remain to share for life. The second option is for the widow to accept to be inherited in which case all the property left by the deceased goes back to the brother inheritor, the widow would have no rights as a widow. The other option would be for the widow to return to her father’s house or to remarry. Where she takes this option she loses all rights over the property.
In the Estate of an unmarried man is inherited as follows: The father if he is alive and in his absence shared equally among his full brothers, in their absence shared equally amongst his half brothers, in their absence shared equally amongst the sons of his full brothers and in their absence shared equally amongst the sons of his half brothers, in their absence among the paternal uncles or the sons of the paternal uncles in the absence of the uncles and so forth. The female relatives of the deceased unmarried man would only be entitled to a share only if no known male relative of the deceased could be traced in that case the son of the elder sister.
Position of Islamic Law Prior to 1981
1897 Order in Council did not make any reference to Muslims and it was assumed that the reference to natives included Muslims. This created a little problem because many Muslims were Arabs who did not regard themselves as Africans. In any case African Customary Law did not govern Arabs.
The position relating to Muslims was clarified in the Native Regulations 1897. Section 7 of the Regulations gave official recognition to the application of the Islamic Law in accordance with the Koran. The regulations were further enacted in the Natives Courts Ordinance of 1907 that basically reaffirmed the 1897 position and established Islamic Courts that applied Islamic Law in matters of personal law and succession. At the time these courts were known as the Liwali Courts that were a precursor of the Kadhi Courts.
In 1920 the Mohammedan Marriage Divorce and Succession Ordinance 1920 was passed and it indicated the classes of people who were subject to Islamic Laws of Marriage and Succession. This statute applied Islamic Law of Succession to any person who contracted a Mohamedan Marriage or was an issue of such marriage.
Section 4 of the said Ordinance deals with matters relating to Succession. In the case of Ali Ganyuma v Ali Mohamed it was held that in the case of a conflict between African Customary Law and Islamic Law, Islamic Law took priority and Section 4 of the Act applied to the exclusion of African Customary Law. the position stated in the native courts ordinance 1907 and the Mohamedan Divorce and Succession Ordinance 1920 remained the position until Independence. After Independence the government reaffirmed to the Muslims and this affirmation had something to do with the politics at the time.
There was a fear among Muslims in the 10-mile coastal strip as being dominated by the mainland Christians. The reaffirmation was actually intended to counter a threat that the Muslims were making of breaking away from Kenyan and forming part of the Sultanate of Zanzibar. Government gave them insurance that under the new constitutional order they would be allowed to keep their own personal law. This guarantee was given constitutional backing through Section 66 of the Constitution that provided the establishment of the Kadhi’s Courts. These courts were mandated to decide matters arising out of Islamic law where the same related to personal Law and succession. These Kadhi’s courts effectively replaced the Liwali Courts of 1907.
The position stated in the Constitution remained until 1981 when Cap 160 came into operation. Cap 160 repealed all the then existing laws on succession and it became to all persons domiciled in Kenya regardless of their religion. Section 99 of Cap 160 repealed among other law Section 4 of the Mohamed Marriage Divorce and Succession Ordinance. The Muslims were not happy with this arrangement and did not like being brought under the provisions of Cap 160 and in 1990 there was agitation by Muslim seeking to be excluded from the provisions of Cap 160. The Muslim regarded the passing of the Act as repudiation by the government of the reassurance given to them at independence, they regarded as an act of betrayal. Their case was that the Koran must govern matters of personal law for Muslims. For them the argument was that for Muslims the personal Law must be the law embodying the provisions of the Koran.
They were unhappy about certain provisions in the Law of Succession Act that they considered to be inconsistent with the Koran. One of those provisions was Section 5 of the Act that provides for the doctrine of testation that allows a testator to will away his property as he wishes. Under Islamic Law a person can only distribute away a third of his property and they considered a law that allows a person freedom to will away everything to be contrary to the provisions of the Koran.
The other provision that they were uncomfortable with was Section 29 of the Law of Succession Act that deals with dependency and sets out provisions for determining dependency. Under this section there are 3 categories of dependants
1. Wife/wives and children of the deceased – these are entitled to inherit without having to prove dependency;
2. Parents of the deceased, the siblings of the deceased and children that the deceased has taken into his family as his own. This category of dependants has to prove that they were dependent on the deceased immediately prior to his death for them to benefit from the Estate.
3. Husband where the deceased was a woman, such a husband is required to prove that he was dependent on the deceased during his lifetime.
The Muslims were unhappy with the 2nd category of the dependents and in particular the question of illegitimate children. Section 29 shows that an illegitimate child is allowed to inherit so long as the father recognizes the child as his own and maintains the child immediately prior to his death. Under Islamic law, an illegitimate child or an adopted child have no right of inheritance and the Muslims were saying that the provisions were inconsistent with the Koran.
Government eventually gave into pressure from the Muslims in 1990. The Statute Law (Miscellaneous Amendments) Act NO. 2 of 1990 was passed. This Act disapplied the Law of Succession Act to persons who at the time of their death were Muslims. It also applied the Law as contained in the Koran to the Estates of such persons. The Amendment Act also reaffirmed the position of the Kadhi’s Courts by stating that the said courts continued to have jurisdiction to decide on succession matters relating to Muslims in accordance with Islamic Law and that remains the law regarding the Muslims to this day.
Cap 160 can still be applied to the Estate of a Muslim but only with respect to administration but otherwise the substantive law stated in Cap 160 does not apply to Muslims.
Position of Hindus
Between 1897 and 1898 the position relating to Hindus was not certain. The uncertainty was created by the fact that the laws that applied to Hindus in India had been applied in Kenya but the said laws had been disapplied to the Hindu community. The Indian Succession Act of 1865 was the substantive law of succession and the Probate and Administration Act was the procedural Law. these two were applied in Kenya but disapplied to Hindus. The position was clarified in 1898 through Order No. 22 of that year. The order applied the statute known as the Hindu Wills Act that was an Indian piece of legislation that was made applicable in Kenya. This Act was an adaptation of the Indian Succession Act of 1865 applied in Kenya to provide for testate succession for the Hindus living in Kenya. With regard to intestate succession no law had been specified as being applicable, there was a vacuum of some sort. The Hindu Customary Law automatically filled in the vacuum.
In 1946 the Hindu Marriage Divorce and Succession Ordinance was passed, its effects was to confirm that matters of intestate succession for Kenyan Hindus was to be governed by Indian Customary Law.
Other changes occurred in 1961 following Law Reform in India in 1960. the main effect of 1861 changes was that the 1946 Ordinance was split into two into the Hindu Succession Ordinance and the Hindu Marriage and Divorce Ordinance. The Hindu Succession Ordinance provided for intestate succession while the Hindu Wills Act governed testate succession and the two statutes were to remain in force until 1981 when they were replaced by the law of succession Act. Hindus had no problem with Cap 160 and the law applies.
Europeans
With respect to the Europeans, there was no law that could govern the Estates of deceased Europeans in the Kenyan colony and for that reason the colonial government imposed the English law of Succession to govern the Estate of the English Law of Succession in Kenya. The 1897 Order in Council provided that the law to govern Succession to the Estate of Europeans was the Indian Succession Act of 1865 and the Probate and Administration Act of 1891.
The 1865 reflected the position of Succession law in England at that time and it provide for both testate and intestate succession. It also contained the doctrine of testamentary freedom in its absolute form i.e. which allowed the property owner to will away his property without necessarily leaving anything for the dependants. This Act remained in force until 1981 when it was disapplied following the coming into operation of Cap 160 and Europeans are now subject to Cap 160 together with other communities resident in Kenya.
THE LAW OF SUCCESSION ACT CAP 160
This statute was passed with the intention of merging and consolidating the then existing systems of law of succession and their support legislation into one comprehensive statute in order to give the country a uniform law of succession applicable to all sections of the population.
The Act came about as a result of a report compiled by a commission appointed in 1967 by the late President Kenyatta to look into the problems concerning the succession regime in Kenya. The purpose and scope of the Act is stated in its preamble i.e. to define and consolidate the law relating to intestate and testamentary succession and the administration of the Estates and connected purposes.
Section 2 (1) of the Act is the provision which underlines the fact that this law is meant to be of universal application. It states that the Act constitutes the law of Kenya in respect of intestate or testamentary succession to the Estate of deceased persons dying after the commencement of the Act and it goes on to state that it shall have universal application to all such cases and it is these provisions that clearly replace the previous customary law.
Section 99 of the Act repeals all the then existing statutes on the law of succession. This are listed in the 8th Schedule.
Section 100 provides for the amendment of other existing statutes among them being the Mohamedan Divorce and Marriage Act Cap 156. Cap 156 was harmonized with the law of Succession Act by the deletion of its Section 4 that dealt with matters of Succession.
LAW OF SUCCESSION Lecture 4
Various way that property passes
Gift in contemplation of Death (Donacio mortis causa)
These modes of property passing after death are similar but they are distinguished. DMC is a gift made by a person during their lifetime that is conditional upon their death. There are two elements of a gift in contemplation of death
(i) Given during the lifetime of the maker and there is actual parting of possession from the maker
(ii) It is conditional upon death.
The property in the gift does not pass to the beneficiary until death. For this reason this gift is said to be neither an inter vivos gift nor a testamentary gift. It is comparable to inter vivos in the sense that there is parting of possession, but unlike an inter vivos a DMC, property does not pass, and ownership remains until the owner of property dies. It is comparable to a testamentary gift in the sense that property in the gift passes upon death but differs in the sense that in DMC there is parting of possession.
Barclay L. J. in the case of Re Beaumont says on a gift in contemplation of death
“it may be said to be of an amphibious nature, being a gift which is neither entirely inter vivo, or testamental.”
Please note that a gift in contemplation of death cannot be revoked by a subsequent will because it does not fall under the Law of Succession. It is not free property because only free property can be given away under a Will, only free property is subject of a will, DMC is not free property. It cannot be given away under a will.
Where such property has already been given, as a DMC any subsequent Will which purports to give the same property to somebody else under the Will, would fail. Since the DMC is not testamentary, it cannot form part of a deceased’s estate and therefore the rules of testacy do not apply. Note however that where the Estate is insufficient to pay the deceased debts i.e. where the debts are more than the assets, the subject matter of a gift in contemplation of death may be used for the purpose of settling the debts of the Estate.
Look at the case of Re Korvine’s Trust (1921) 1 Ch. 343 at 348.
CONDITIONS TO BE SATISFIED FOR A VALID GIFT IN CONTEMPLATION OF DEATH
Lord Russell set out the conditions in the case of Cain v Moon where he listed four conditions
1. The gift must be made by the donor in contemplation of death; at the time of making the gift the donor must be contemplating his death;
2. Gift must be conditional on the donor’s death i.e. the person must be contemplating his death that he is likely to die soon, it is conditional on death occurring; and
3. The subject matter of the gift must be delivered to the donee, there must be actual delivery of the gift to the donee; and
4. The property must be capable of forming the subject matter of a DMC that means that not all property can be the subject of a gift in contemplation of death.
The burden of proving that the four conditions are satisfied lies with the donee. Gifts in contemplation of death are dealt with under Section 31 of the Law of Succession Act and this provision incorporates the conditions set out in the case of Caine v. Moon. With regard to the first condition, the gift must be made in contemplation of death,
Law of succession Act, Section 31
A gift in contemplation of death would be valid if;
a) The person making the gift is at the present time, contemplating the possibility of his death, whether or not expecting death as a result of a present illness or as a result of present or imminent danger.
b) A person gives movable property (which includes any debt incurred upon movable or immovable property) which he could otherwise dispose of by will;
c) There is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of the title thereto.
d) The death of the donor need not be imminent, but the donor must believe that they are dying or that they are likely to die in a particular way. For example if a person is suffering from a terminal disease they must believe that they are dying from that disease or if embarking on a dangerous expedition. It is generally irrelevant that the donor dies from a cause other than the one within their contemplation so long as the condition from which the disease 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 it dies from any cause without having survived the illness or danger. Wilkes v Allington illustrates this point. In this case the first condition was deemed met even though the deceased thought that he was going to die of cancer but died instead of pneumonia. He was not cured of cancer but died of pneumonia. Note that the gift would fail if the donor survives contemplated illness or danger but dies of a different cause. Please note that the condition that the gift is made in contemplation of death cannot be satisfied where the donor contemplates his or her own death by suicide.
Section 31(i) states that no gift made in contemplation of death shall be valid if the death is caused by suicide. Case law shows that it is against public policy to uphold a gift that was intended to take effect by means of suicide. Look at the case of Agnew v The Belfast Banking Co. and the case of Re Dudman in Re Dudman the donor committed suicide as he could not cope with his terminal illness and it was held following the decision in Agnew that the donation failed on the ground of public policy. Please note that the legal position stated in these two cases is no longer valid in England following the enactment of the Suicide Act of 1961 that decriminalised suicide in the UK. But the pre 1961 UK position remains the law in Kenya by virtue of Section 31(i) of the Law of Succession Act Cap 160.
With respect to the second condition i.e. the gift is conditional on the death of the donor, the relevant law is Section 31 (d) and 31(2) of the Cap 160. If the donor does not die, the gift will take effect and the donor will be entitled to recover possession of the property from the donee. The donor to be conditional upon death can state a gift expressly or 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 since at that point death would be imminent and must be prime in the donor mind that he could die at any time. Where the gift in these circumstances is made in writing as opposed to orally, it is presumed by the Court that the gift is not in contemplation of death but either an attempted lifetime gift or an attempted inter vivos gift or a failed testamentary gift.
Look at the case of Edward v Jones. Section 31(d) states 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 illness or danger. The point we are emphasizing is that it is conditional “if”. A gift in contemplation must be oral, the moment it is reduced into writing makes it not a gift in contemplation of death. Section 31(ii) states that the donor may at any time before his death lawfully request the donee to return the gift. This effectively makes a gift in contemplation of death revocable.
Section 31 (c) deals with the third condition states that a gift in contemplation of death would be valid if there is delivery to the intended beneficiary of the possession or the property or evidence of title. The donor must have handed over to the donee or his agent the subject matter of the gift or the means of controlling it in other words parting with possession or passing over dominion of the subject matter of the gift. When one parts with a document of title it is taken to mean that they have parted with the dominion of control. Refer to Wildish v Fowler.
Her sick tenant with instructions to take good care of ‘this’ in this case handed a landlady property and the court found that there had been no gift in contemplation of death as the donor in this case had not parted with dominion over the property. The property was delivered to the landlady merely for the purpose of safe custody. Caine v Moon the donor in this case 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 the other property was to be the mother’s should she die and when she died it was held that there was effective delivery of the property. She had parted with possession and dominion of the property.
In the case of Woodward v Woodward a father handed over keys of his car to his son at a time when the father was seriously ill but he the father kept a duplicate set of the keys. The court held that there was delivery because during the father’s illness, it was only the son who had access to the car and therefore the father had parted with dominion over the car.
The fourth condition is dealt with under Section 31(b) of the Act. The property the subject of the gift should be capable of being the subject matter of such a gift. Section 31(b) states that a gift in contemplation of death would be valid if a person gives movable property which he could otherwise dispose off by Will. This means that property that cannot be disposed off by will cannot be donated.
A testator can only dispose of free property by will, property which is not subject to any encumbrance and therefore only free property can be the subject of a donation. Case law shows that cheques and promissory notes drawn by the donor cannot be a gift in contemplation of death. This is because cheques and promissory notes are note enforceable without consideration.
Refer to Re Beaumont and Re Leaper on the point. Note that from Section 31(b) gifts in contemplation of death are limited to movable property and therefore immovable property cannot be gifts in contemplation of death.
The gift would not be effective where the donee predeceases the donor Section 31(f) of the Act states 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 the estate of the donee would have no claim or cause of action against the estate of the donor. This is because the property should take effect upon the death of the donor and where the donee dies before the donor one cannot say that the property is effective after the donor’s death.
CONDITIONAL OR JOINT WILLS & TESTAMENTS:
A conditional Will or Testament refers to a Will intended to operate only upon the happening of some event specified in the Will itself. The event being the pre-condition to the will operating so that if the event fails to occur the will would be ineffective i.e. the Will is made conditional to the occurrence of some event or occurrence of some event. If a testator makes a provision in his will that the same is to operate only if his wife predeceases him that would be a precondition. The will would be conditional on the wife predeceasing the testator. If the testator dies first, then the will would be ineffective. Where a testator operates only if he dies on a dangerous journey which he is about to undertake, the condition will be satisfied if he dies on the trip and the Will will be effected, it will be invalid if he does not die in the trip. Whether a will is conditional or not depends a lot on the circumstances and also on the wording of the document.
Sometimes the event specified in the document is merely a motive for the making of the will. It motivates the testator to make the will and may not be the condition. Where the event mentioned in the will is the motivating factor behind the making of the will, it remains valid notwithstanding the failure to occur of the envisaged events. In other words the effectiveness of the will in the circumstances would not depend on the occurrence of the event if the event is the motive behind the making of the will. If the event is a precondition for the effectiveness of the will then validity of the will will depend on the occurrence of the event.
Refer to the case of Lindsay v Lindsay where a will commenced with the following words “If I should die at sea or abroad…”; the testator dies in England and the issue was whether the will was effective or not, was it a conditional will or was it motivated by the fact that the testator made the will when he was about to leave England by Sea? Was it a conditional will? This was a conditional will or testament. The court held that the Will was ineffective as the precondition of dying at sea or abroad was not satisfied.
In the case of the in the Goods of Dobson 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 …” he travelled and survived the journey and died later of other causes and the issue arising was whether the will in this case was a conditional one or not. It was held in this case that it was not 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.
In Re Spratt’s Goods an army officer serving in New Zealand during a war the Maori war made a privileged will (one which does not comply with the normal requirements and can only be made by members of the Armed Forces in active service and by members of the Merchant marine also in active service) since this man was serving in a war, his will was privileged. It 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 and he died without making a new will or revoking the privileged one. The issue was whether the privileged will was effective?
Was it a conditional will? The court found that the privileged will was admissible to probate and the son was entitled to take all his father’s estate. The will was not conditional; the father was motivated by the war into making the will. If it were a conditional will, it would have been ineffective because the precondition that he dies in the war before it becomes effective had not been satisfied. Whether it is a conditional will depends largely on the circumstances and also on the wording of the document itself.
Law of Succession-Lecture 5
Joint testaments
A joint will, will usually be created where two or more person expresses their wishes on death on one document. The joint will takes effect, as a separate will of the parties who made it. It depends on the order in which they died. And it will be admitted as probate of that person to done and then when the second person dies it will be admitted as the will of the second person.
It is commonly used by spouses so that wife and husband make a joint will. It will be convenient for spouses, as they tend to have the same property and dependants, sot there is no necessity of making separate documents.
The making of a valid will of testament
What are the requirements? The validity is predicated upon two factors, namely capacity and form. A will is only valid if it is made in the proper form by a person of testamentary capacity, i.e. a person who is capable of making a will or disposing of his property by a will.
Capacity
At common law a will is invalid unless a person who at the time of making it had capacity to do so makes the same. This is testamentary capacity. As a rule, infants and persons of an unsound mind are incapable of making a valid will. The common law position on testamentary capacity is reflection in section 5 of the Act. Section 5 (1) embodies the principle of testamentary freedom and provides that any person is capable of disposing his property by will so long as he is of sound mind and not a minor.
Infancy: a will made during infancy is invalid unless upon attaining the age of majority the testator re-executes the will or makes a new will or codicil confirming it. Generally when a minor dies his estates should pass in accordance with the rules of intestacy and this happens even where the minor purports to have made a will.
Unsound mind. With respect to unsoundness of mind, their fate is similar to that of infants. A will made during the period of insanity is invalid. If the same is executed before the mind becomes afflicted, or during elusive interval, such a will be valid.
The test of mental capacity to make a will is not directly linked to mental disorder. It is not enough to show that the person had mental disorder at that particular time. Cockburn CJ set the test of determining mental capacity for the purposes of determining testamentary capacity in the case of Banks v Goodfellow. He said: “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 of 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 among them.”
This test requires three things of the testator:
1. He must have a sound mind to enable him to understanding the nature of the act of making a will and its effect. A testator would lack a sound mind if he does not understand precisely of what he is doing either because he is of a low mentality or is under the influence or drink or drugs.
2. He must have a sound memory enabling him to have a recollection of the property of which he is disposing. He should be able to remember his property.
3. He must have a sound understanding. By this we mean he should appreciate the moral claims upon him; he should be able to remember the person he is morally bound to provide for having regard to his relationship to them. Unless there is evidence they have been left out deliberately (that is testamentary freedom)
All these three conditions must be satisfied for a will to valid or for the person to be said to be of sound mind. In the case of Harwood v Baker the last element of the test was missing. In this case the testator executed his will on his deathbed and left all 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 and it was held on the basis of the evidence that he did not have sufficient recollection of other family members and therefore he did not satisfy the test. And therefore he found to lack the requisite testamentary capacity and the will was invalidated on those grounds.
At common law the burden of proving testamentary capacity is up to the executors. Basically the proof required is that he knew what he was doing, etc. the Law of Succession Act takes a slight different position from the common law: the burden of proof is shifted under section 5(3) and (4) to the person alleging that the testator was not of sufficient testamentary capacity as the material time. Section 5 (3) creates the presumption that a person making a will is of sound mind unless the contrary is proved. So it is up to the person alleging to prove.
There is also the issue of insane delusions. The fact that a person is labouring under insane delusions is not necessarily fatal to the validity of will so long as the delusions leave the testator’s power of understanding unimpaired. According to the case of Dew v Clerk a person suffers from an insane delusion if he holds a belief of a particular matter that no rational person could possibly hold and the belief cannot be eradicated from his mind by reasoning with him. Insane delusion will only affect the testator’s capacity to make a will if in some way it affects the way he disposes of his property. It has to be shown it affects the way he disposes of his property.
In Dew v Clerk a testator made a will that was rational superficially but which excluded his daughter from benefit. The daughter showed by evidence that the testator had an insane aversion of her; he had refused to see for the first three years of her life; and at one point he had made her sleep with an insane woman. The court came to the finding that there was an insane delusion on the part of the testator that affected the way he disposed of his property and he was found to lack the requisite mental capacity to make a will.
In Re Nightingale 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. The son had on two occasions pushed the father back on the pillow and he was having difficulty believed; and he though he was on a mission to kill him.
In Banks v Goodfellow the testator that he was being pursued by evil spirits and by a person who was already dead. The court found that although the testator suffered from an insane delusion, the same did not affect his testamentary capacity. Because the delusion did affect the way he disposed of his property by will and the will was upheld.
Sometimes the delusion may only affect a part of the will. In such cases probate will be granted to those parts of the will that are not affected by the delusion. The part affected will pass as intestacy. See R Bohrmann’s Estate for this position.
Testamentary capacity and absence of approval
Sometimes a person may have testamentary capacity to make a will but the person may execute the document without knowing the contents of the documents they are singing and approving of them. The effect of executing a will under those circumstances will be said that the person lacks testamentary capacity. This has the effect of invalidating the document. The law requires that in addition of having testamentary capacity the testator must know and approve the contents of the will. A testator knows the content of the will if he is aware of and understands the terms of the will. But he need not understand he legal effect of those terms.
A testator is said to approve the content of a will if he executes it on his own volition and not as a result of coercion or undue influence of another. Knowledge and approval may also be absent in case of fraud or mistake.
This requirement of knowledge and approval is of particular significance where someone else draws up the document for the testator. Section 7 of the Act addresses this issue and states that will make by fraud; coercion, importunity or mistake is void. It is the time of the execution that that testator must know and approve the contents of the will. He does not help if this is done earlier. It must be at the time of signing the documents. But there is an exception to this general rule that the testator must know and approve the contents of the will at the time of signing it in the case of Parker v Felgate and in the Estate of Wallace. In these two cases it was said that a will might be valid in spite of lack knowledge and approval at the time of execution if the following conditions apply:
1. The testator knew and approved the contents of the will at the time at which he gave instructions to the advocate to draft the will
2. The will was prepared in accordance with his instructions
3. At the time the will was executed the testator understood that he was executing a will for which he had earlier given instructions.
In the Estate of Wallace the testator who was seriously ill had written and
signed a document entitled last wish, at the time of the execution of this
documents he knew and approved the content (because he is the one who prepared
he documents). The document was later given to a testator to a solicitor to
prepare a will in accordance to the terms of the documents, which the solicitor
did. At the time when the testator executed the documents he did not know and
approve the contents of the will because they were not read over to him. The
court held that the will was valid because it was made in accordance with the
instructions that he had earlier given and at the time of executing it he
understood that he was signing a document prepared in accordance to his earlier
instructions.
Section 11 paragraph (a) provides that for a will to be valid and properly executed it must be signed by the testator or somebody else in the presence of the testator and by the direction of the testator.
Rule 54 (3) of the Probate and Administration Rules states that where the testator is blind or illiterate or where a will is signed by another person or where it appears to be written in a language with which the testator is not familiar evidence will be required before the will is admitted to probate, evidence that the testator knew and approved of the content before signing the documents. Rule 54 (3) requires the court to satisfy itself that the testator knew the contents by requiring an affidavit showing that the contents had been read over and explained to the testator and that the testator appear to understand those contents.
Suspicious circumstances
Where such suspicious circumstances have the effect of invalidating a will. Where a person who writes or prepares the will takes substantial benefits of the will this will be regarded as suspicious circumstance. Similarly where a person suggests the terms of the will to the testator other than writing the will himself and takes the testator to the advocate of that person’s choice the circumstances will be regarded as suspicious. See Falton v Andrew and Tyrrel v Painton. In Tyrrel v Painton it was held that it wouldlk be suspicious circumstance if the will is written by a person who takes substantial benefits in the will. In the case of Wintle v Nye a testatrix who was held and who had little experience of dealing with money and who used to rely heavily on the family testator left most of her sizable estate to the solicitors. It was held the circumstances were suspicious. Lord Penzance in Atler v Akinson said existence of suspicious circumstances: “The proposition is undoubted that if you have to deal with a will in which a person who made it himself takes a large benefit you must be satisfied from evidence calculated to exclude all doubt that the testator not only signed it but he knew and approved of its contents.
In the Barry v Butlin testator made a will in the home of his solicitor in the handwriting of the solicitor and left a quarter of his estate to h=thye solicitors and the rest to his friends. /the testator’s son who was excluded challenged the will on the basis of suspicious circumstances. The court held that the circumstance were suspicious on the face of it but the suspicions were dispelled by two factors:
1. the will was executed before two independent witnesses
2. the fact that the son was excluded from the will because of his criminal conduct.
A Kenyan case: Julius Wainaina Mwathi v Beth Mbene Mwathi & Another. The facts in this case were that the deceased died at the age of 65. He had never married and therefore left behind no wife or children. A brother and two sisters survived him and he owned some real property. Two days before his death he made a will in which he bequeathed the property to the brother. According to the brother he dictated his wishes and the brother reduced them into writing. The will was thumb-printed by the deceased and witnessed among others by the brother and his wife. Following his death the brother applied for a grant of probate and he was issued with letters of administration that the sisters sought to have revoked on the grounds that the will was invalid because it was made under suspicious circumstances. It emerged that shortly before the executions of the alleged will the brother had removed the diseased from the mother’s house to the brother’s house for baptism and then took him back to his mother’s house. It also emerged that on the day the deceased executed the alleged will the brother moved him again from the mother’s house to the brother’s house. At the same time of executing the will the brother exhibited considerable animosity towards the sisters and he prevented them from entering his house. At the time the deceased allegedly dictated the will he was quite ill and he could not walk without support. The high court found that the circumstances excited suspicion and the will was declared invalid and the brother made to the brother was revoked. An appeal to the Court of Appeal on this aspect was rejected.
LAW OF SUCCESSION Lecture 6
Legal mechanisms of making a legal will are Form and Capacity – mental capacity.
Knowledge and approval – where the testator does not know what the will contains or where he knows but has not approved the contents, the will will not be invalidated on those grounds.
CAPACITY
EFFECT OF MISTAKE ON A WILL
The knowledge and approval of the testator may be absent by reason of a mistake on the part of the testator or of a person employed by him to draft the document. The mistake may relate to part or the whole of the will i.e. a partial mistake or a mistake that affects the entire document. A mistake relating to the whole will renders it invalid. Partial mistake on the other hand may be corrected or if it cannot be corrected, that portion of the will affected by the partial mistake will be revoked.
In the case of In the Goods of Hunt the mistake related to the whole will. The facts that were that a woman who was living with her sister prepared two wills which were in similar terms for their respective execution. By mistake she signed the will of her sister instead of the one she had prepared for herself. Probate of the will was not granted on the ground that the woman would not have executed the same had she known that it had a content of the will she had drawn for her sister and in the opinion of the court this was an incurable mistake and rendered the Will invalid.
In Re Morris the mistake was partial, in this case a testatrix made a will but after some time decided to change 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 and thereafter the testatrix executed the codicil after merely passing a glance through it but without reading the contents i.e. she was not able to detect the error because she didn’t read. Upon her death executors brought an action seeking to be allowed to use the right figure instead of the erroneous one and the court allowed them to do so on the basis that the error was curable.
In the case of Re Phelan a testator bought some pre-printed forms from a bookstore i.e. forms of a will and 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. The standard will would start with the first row being… He then executed the forms each after the other on the same day. The effect was that only the last form was valid because all the previous forms were revoked by the next. 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 previous form executed. This meant that the testator died intestate in respect of the other gifts. This was the argument by executors when they applied for probate. It was held in this case that the testator did not know or approve the contents of the wills insofar as they related to the revocation clauses for he had inadvertently included the revocation clause in each of the 3 wills i.e. this was a curable mistake as the clauses were put in by mistake the testator had not approved of them being there. The court admitted all four documents to probate without the revocation of the clauses.
If the testator does know and approves the contents but is mistaken as to the legal effect of the words, the same will be considered valid and admissible to probate i.e. it must be a mistake of fact not a mistake of law. refer to the case of Collins v Elstone . where the mistake goes to the very core of the document, then the document is invalid.
COERCION OR UNDUE INFLUENCE
Knowledge or approval may be absent owing to coercion or undue influence being exercised on the testator. Undue influence is said to occur when a testator is coerced into making a will or some part of it that he does not want to make and it is usually proved if it can be shown that the testator was induced or coerced into make dispositions that he did not really intend to make. It is common where the testator is of a weak or impaired mental capacity or in failing health otherwise in other cases it does not really amount to undue influence if he is induced in some other way to make dispositions.
A distinction should be drawn between undue influence and persuasion, undue influence is unlawful, and persuasion is not. The distinction was brought out by lord Penzance in the case of Hall v Hall he said “persuasion is not unlawful but pressure of whatever character if so exerted as to overpower the volition without convincing the judgment of the testator will constitute undue influence though no force is either used or threatened.” The will is not made by the testator in the exercise of his free will but to suit a person who has put pressure that the testator cannot resist i.e. a sick person whose resolve is not very strong and at some time give in to the prompting to escape the trouble of being incessantly harassed by the influencers. In the circumstances of the case of Julius Wainaina Mwathi also demonstrates the use of undue influence or coercion on the deceased. At the High Court Bosire J. as he then was said “the petitioner was obliged but he 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.” (Look at suspicious circumstances)
Persuasion is lawful where a person is persuaded to influence which is undue is exercised has a weak mind or is in ill health, where a person is well and strong, it will be presumed that he disposed of his property the way he did upon the exercise of his persuasion. In the case of Wingrove v Wingrove it was remarked obiter 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, it would tend towards persuasion rather than undue influence. Sir J Hannen in Wingrove v Wingrove made the following remarks, he said “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 judgment is suspicious of restraint under which no valid will can be made. Importunity of 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. This if carried to a degree in which the free play of the testator’s judgment discretion or wishes is overborne will constitute undue influence though no force is 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 the Kenyan case of Beth Wambui and Another v Gathoni Gikonyo and 3 Others the issue of persuasion and undue influence came up. The deceased in this case gave instructions regarding the disposal of his assets upon death that were then reduced into writing by one of the two people present. He distributed his land to his wife and children including the Appellant who was a married daughter. The document was thumb-printed by the deceased in the presence of the two witnesses who did not however sign it.
The Appellant was not herself present when the document was being made. When her father of the gift told the Appellant, she could not believe it and she could not believe it because under Kikuyu Customary law as a married woman she was not entitled to any land from her father and she insisted that the father make another document to show his good faith. The deceased then caused another document to be prepared with similar terms which he thumb-printed after it was signed by the attesting witnesses.
Upon the deceased death the appellant sought the grant of probate of both documents her petition was challenged by the other beneficiaries who alleged that the documents were not valid, as coercion had been exercised on the deceased to make a will in the Appellant’s favour. The Court of Appeal came to the finding that there was no coercion and the evidence persuaded persuasion that is not unlawful. The Court observed that in the second document i.e. the document that the Appellant insisted on the father preparing as a sign of good faith, the deceased only confirmed the earlier document since he distributed his estate in the 2nd document as per the terms of the 1st one.
Coercion amounting to undue influence can take a number of forms; it can take the form of actual physical force or the incessant talking to a sick frail or elderly testator. The burden of proof always lies with the person alleging coercion or undue influence.
The use of undue influence is common in circumstances of what may be described as confidential relationship particularly those of a religious nature between a pastor and a member of the congregation. In Parfit v Lawless there was a relationship of that kind and the issue of whether undue influence was exercised on the testator came up for consideration. The testatrix left her residue 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 the presumption of undue influence.
The Court came to the finding that although there existed a confidential relationship between the two there was no positive evidence of undue influence. In Re Harden the relationship was between a woman and spiritualist medium. The testatrix left property to the 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 testaments that made the Medium a substantial beneficiary of her Estate. It was held that the Medium had taken control of the testatrix mind to the extent that she had written what he had wanted rather than the record of her mind. The will was invalidated on grounds of undue influence.
Section 5(2) addresses the case of a married woman and adopts the position under the Married Woman’s Properties of 1882 by providing that any female whether married or unmarried is capable of making a valid will. At common law it is notable that married women suffered a disability similar to that of infants and idiots mainly because upon marriage the husband acquired rights over the married woman’s property which meant that during the cause of the marriage the married woman had no capacity to dispose off the property by will and only a single or unmarried woman could make a valid will. This position changed with the enactment of the Married Women Properties Act which enabled women to own property in their own right and thus conferring upon them the right to dispose of such property by will.
FORM
Under Kenyan Law no specific form of a will is required. Section 8 of the Act provides that a will may be either oral or in writing and it may therefore take any form provided it satisfies the laid down requirements of formal validity and this requirement as we shall see shortly relates to execution and attestation.
Section 9 provides for the formal requirements for an oral will while Section 11 deals with written wills and testimonies.
The case of an oral will
It must be made in the presence of two or more competent witnesses. Competent in the sense that the witnesses must have capacity to make a will in their own right. In addition to this is the requirement that the testator should die within 3 months after it is made for it to be valid. There is a time stipulation of 3 months. The other reason is that such wills are made in a state of panic or fear or anxiety e.g. when the testator is very will or in a state of imminent danger and persons in such circumstances tend to be irrational in their decisions. The 3 months period is intended to allow them time to reconsider the terms of the will and if possible reduce the same into writing.
There is a proviso to Section 9 (1) (b) which provides an exception to these requirements. The exception covers persons in active service in the Armed Forces or the Merchant Marine in active service. An oral will make by such persons is valid if the person dies in active service, notwithstanding that the will was made more than 3 months before their death. This exception is given to these category of persons on the basis that their conditions of work i.e. their being in active service would normally not allow them the opportunity to comply strictly with the requirements of Section 9.
Please note that the Kenyan Courts have held that where a dead 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 that the instructions are given in the presence of two or more witnesses. This position was stated in the case of Re Rufus Ngethe Munyua Public Trustee v Wambui where the deceased gave instructions on the disposal of his properties to his wives and children. The instructions were written on a piece of paper by one of the children of the deceased. The deceased died two days later and it was held that the writing disposing of property was an oral will. It was oral, as it did not satisfy execution and attestation.
In Beth Wambui & Another v Gathoni Gikonyo and 3 Others – in this case the deceased was illiterate called two persons to his house and requested them to write his wishes. The wishes were taken down, the person who took the instructions subsequently had the document typed, read it back to the deceased who then thumb-printed it but the document was not countersigned by the witnesses. The Court of Appeal relying on the decision in Re Rufus Ngethe Munyua and Sections 8 and 9 of the Law of Succession Act held that the document was capable of being construed, as an oral will. This was it was made in the presence of two person but did not comply with formal requirements for a written will.
Section 10 where a conflict arises between the contents of a written will and an oral one the contents of the written will prevail.
Formal Requirements for a Written Will:
Section 11 of Cap 160 provides that no written will shall be valid unless it satisfies the following requirements:
1. 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;
2. Unless it appears that the testator intended by his signature or mark or the signature of the person signing for him to give effect to the will i.e. it is not enough that the document must be signed but must be signed in such a way that the testator meant it to give effect and this depends on where the signature is affixed;
3. Unless the signature of the testator or the person signing on his behalf is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time; it is acceptable that the document be signed by the testator away from the witnesses and in this case the testator should show the signature to the witnesses and acknowledge it as his.
4. Each witness must attest and sign the will in the presence of the testator but not necessarily in the presence of the other witness. The witness is there to attest or to witness the testator signing the document and is not there to witness other witnesses signing the document.
Since the Act does not prescribe a particular form of the Will it is presumed that it may be handwritten, typed or printed. The handwriting may be that of the testator or of any other person. It may also be in any language. This is clearly implied by Rules 52 (2) and 54 (3) of the Probate and Administration Rules.
Case Law shows that it may even be in a form of a code so long as the code can be deciphered. In the case of Kell v Charmer a Will written in the jeweller’s code was admitted to probate. It may be written on any material and need not necessarily be on paper provided the material produces a visible form in Hodson v Barnes it was written on an eggshell and the same was admitted to probate and in the Canadian case of Re Murray it was written on a cigarette packet and it was admitted to probate.
The Act does not define the word signature in the Law of Succession Act but the Courts have widely interpreted signature to cover any mark of the testator that is intended as a signature. It could be a thumbprint, initials, assumed name, mark of a rubber stamp with the testator’s name, all these have been held to be valid signatures. It need not even consist of a name at all. In Re Cookes Estate 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 the testatrix on a point of death started to sign her normal signature that is E Chalcraft but after writing E Chal she became too weak to continue and left it at that and it was held that that signature was valid that it was the best she could do in the circumstances.
Where another person on behalf of the testator signs the Will, this should be done in the presence of the direction or the testator. 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 i.e. it is not enough that she was present, she must have been in a condition to either object to the document being signed or to consent.
A Will will normally be signed on behalf of the testator in circumstances where the testator 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. refer to the case of In the Goods of Clark. The person signing on behalf of the testator may be one of the witnesses to the will. Refer to the case of Smith v Harris.
It is advisable or more prudent for the person signing on behalf of the testator to sign his own name to avoid any doubt or any confusion and to state that he is signing on behalf of the testator in the testator’s presence and under his direction. This is important to obviate and uncertainty as to whether the person is signing for the testator or as an attesting witness.
Lesson Seven
REQUIREMENTS FOR THE VALIDITY OF A WILL SECTION 11 OF THE ACT
FORM
Section 11 (b) deals with position of signature or mark on the document and the provision states that the signature or mark should be so placed as to make it appear that the testator 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. The law doesn’t require that the signature be placed at some point on the document, it can be anywhere on the document even on the envelop, it all depends on circumstances. The mark will be regarded to give effect to the will depending on the circumstances of the case.
The Administration of Justice Act of 1982 of England carries a provision at Section 17 similar to Section 11(b) of the Law of Succession Act. Recent UK decisions on the point are a useful guideline because we do not have much case law in Kenya on the positioning of the signature on the document. In Weatherall v Pearce the Testatrix made a will on a pre-printed form obtained from the bookshops. She signed her name in the middle of the attestation clause but not at the end of the Will. The issue arising in this case was whether this constituted a signature for the purpose of Section 17 of the UK Act and it was held that since she had intended her name as signed to be her signature, the Will was properly signed.
In the case of Wood v Smith the testator wrote in his own handwriting at the top of his will and before writing the rest of the Will the following words “MY WILL BY PERCY WINTERBONE he did not sign his name at the foot of the document, there was no signature at the end of the document and the question was whether this will was properly signed or not 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 intended to give effect to the provisions and the will was held to be duly executed.
The issue also arose in the Kenyan case of Beth Wambui and another v Gathoni Gikonyo and Others in this case the witnesses signed the document first and then the deceased affixed his mark thereafter and one of the points being raised was whether this was proper, should the deceased sign after the witnesses? The court found that the fact that the deceased signed last, the witnesses having signed first did not invalidate the testament.
What happens where the signature appears on a separate piece of paper or on an envelope containing the otherwise unsigned will or testament? In such situations whether the Will is validly executed will depend on the intention of the testator. If the intention of the testator is to ratify the Will by signing on a separate paper, it will be valid, if the intention is however to identify the testament, the same will be invalid.
The intention therefore of the testator is a question of fact, and has to be gauged from the evidence adduced. In the case of in the Estate of Bean the testator put his otherwise unsigned will in an envelop and wrote his name and address on the envelop, it was not signed and it was not attested, only the name and address on the envelop. The court found that the same was not validly executed, the deceased wrote his name on the envelop to identify rather than to ratify the will and probate of the Will was refused. The argument of the court was that the name and the address appearing on the envelope was meant to guide the will misplaced in knowing where to direct the will.
In Re Mann’s Goods the facts were similar. A testatrix put her unsigned will in an envelope and wrote on the envelope Last Will and Testament of J C Mann. She then signed the envelope and had it witnessed. She thereafter put or placed the envelop in a larger envelop. The court found that there was an intention to ratify the will and the same was therefore admitted to probate.
Section 11 (c) requires that the testator’s signature must be made in the presence of two or more persons present at the same time. If one witness is present then that could be invalid, there has to be two. To be present at signing means the witnesses must be capable of seeing the testator sign. The witnessing is of the signature i.e. the fact of signing. Please note that the witnesses need not look at the signature, all they are required to do is see the person sign. Case law has held that they need not even know that the document is a Will.
Refer to the case of Benjamin if the witness is present but unaware of what the testator is doing, the attestation will be invalid. This is brought out in Brown v Skirrow where a testatrix took her will to a grocer’s shop to be executed. She asked two shop assistants to act as witnesses. As she was signing the documents, one of the assistants was busy serving a customer and therefore was not able to see the document being signed by the testatrix and the court found that the will was invalid because it was not properly attested. Refer to the case of Re Colling
Section 11 (c) makes reference to acknowledgment of a signature. Instead of being present when the testator is signing the will or testament, the witnesses may be called after the document has been signed. In such event, the testator should acknowledge his signature or mark or the signature of the person signing on his behalf to the two witnesses. The law requires that both witnesses must be present at the acknowledgment at the same time i.e. they must see the signature at the same time.
Please note that acknowledgment may be by words or conduct although it is preferred that it be expressed or it be in words. Earlier case law indicates that it can also be by conduct. Refer to Daintree v Butcher where the testatrix merely said that she had a document which she needed witnesses to sign and did not show or acknowledge the signature to the witnesses and the court found in that case that the acknowledgment was sufficient. Note however that the decision in this case of Daintree that was a 1988 decision conflicts with later decisions that appear to favour express acknowledgments. In Re Groffman {1969] the testator in the presence of both witnesses gestured to his coat pocket saying “I should like you to witness my Will” He then took the witnesses separately to a room and showed them his signature on the will and it was held that the acknowledgement was invalid because the witnesses were not present at the same time when the signature was being acknowledged and did not see the signature at the same time. Compare this with facts in Couser v Couser where the testator made a will which he signed, took to a couple and asked them to witness it.
The wife part of the couple went inside the house with the testator leaving the husband outside. The testator showed her his signature and she signed thereafter. The husband then came in from the outside and signed as a second witness after the testator had acknowledged his signature. At the time, the wife was standing some meters away making coffee and loudly expressing doubts about the validity of the execution of the Will. The court held that the document was validly executed since both witnesses were present when the testator acknowledged his signature to the husband and what mattered according to the court was that at some point in time all 3 parties to the transaction were concerned in it together and simultaneously.
Requirement of Witnesses: witnesses are important for purposes of authenticating the signature of the testator to remove any doubts regarding the free-will of the testator at the time of signing the document. The witnesses are important in that evidence can be obtained after the testator’s death as to what actually happened particularly where the validity of the will is being questioned. For this reason it is advisable to select persons who are younger than the testator as these are more likely to survive the testator. It is also advisable to choose persons who can be easily be traced in preference to total strangers, persons of no fixed abode or a person who is likely to be far away at the time of the testator’s death as they may be needed for the purpose of providing evidence.
Section 11(c) is not specific on who may be a witness. The provision just talks about the witness being present and does not set out qualifications of a witness. Section 11 (c) however does require that the witnesses must be capable of seeing the signature and understanding what they are doing. This would mean that blind and illiterate witnesses are not suitable. It also means that minors, drunkards and insane persons should not be chosen as witnesses. Section 11 (c) requires that each witness must sign the will in the presence of the testator.
It further provides that the witnesses need not sign in the presence of each other. This is because the witnesses put their signatures on the document with the intention of validating the testator’s signature and not each others signature. Section 11 (c) does not provide a particular form of attestation, the signature of the witness need not be in particular place on the will but it should be so positioned as to show the intention to ratify the testator’s signature. Refer to Re Beadle and the case of In the Goods of Sperling. The witnesses must sign the will themselves rather than have a 3rd party sign on their behalf.
At common law and under Section 54 of the Indian Succession Act of 1865 a beneficiary under a will could not attest the execution of the same. If a beneficiary attested a will, they either lost their bequest or the will was rendered invalid. In the Estate of Bravda, a 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 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 the will stronger. They signed and it was held that since the daughters had put their signatures under the words witnessed by, they had signed as witnesses and for that reason the will was utterly null and void.
Please note that the Law of Succession Act takes a different position from the Common Law. Section 13 of the Law of Succession Act provides that a Will shall not be considered invalid or insufficiently attested merely by the fact that a beneficiary or a spouse of a beneficiary attested it 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 or a gift to an attesting beneficiary void where the signature of such beneficiary is not attested. Under Kenyan Law a beneficiary loses his gift if he acts as a witness unless two witnesses attest his signature.
Section 12 of the Act provides for incorporation of papers by reference. The Section embodies the doctrine of incorporation by reference that allows documents which satisfies certain conditions to be regarded as part of the will even though the documents themselves are not executed. Such documents if and when properly incorporated into a Will are admissible to probate as part of the Will. Such documents would normally be a schedule of the properties owned by the deceased. For incorporation to be effective the document incorporated by reference must
1. Be in existent at the date on which the will is being executed;
2. It must be referred to in the will as being in existence;
3. It must clearly identify.
The criteria is set out in a number of English cases
Re Keen
In the Goods of Lady Truro
In the Goods of Smart
The Act also provides for the validity of testament made outside the scope of the Act. These are addressed under Section 15 and 16 of the Act. Section 15 covers testaments made before the commencement of the Act, i.e. executed before July 1981. Section 15 provides that such written testaments executed prior to the commencement of the Act regardless of whether the testator died before or after the commencement shall be treated as properly executed if they were executed according to the requirements of the law then in force at the time of execution. There were 3 specific statutes which provided for written testament. Indian Succession of 1865, African Wills Act of 1965 and Hindu Wills Act. When it comes to the administration of the estate the applicable law would be the law of succession Act but when it comes to determining validity you look at the law under which that will was made.
TESTAMENTS EXECUTED OUTSIDE JURISDICTION
The same shall be treated as properly executed if they are executed in accordance with the requirements of the law of the country where they are executed. If executed in Britain it ought to be in conformity with UK Law but if it is administration, it can be administered under the law of succession.
PRIVILEGED WILLS AND TESTAMENTS
A privileged will is one which is deemed valid not withstanding the failure to comply with the strict legal formalities required of a Will. One that does not comply with the formal requirements maybe one signed by a testator but not witnessed. These are normally made in circumstances that by their very nature do not allow the opportunity of making a normal will. Only a small class of persons have the privilege of making such testaments and that is members of the Armed Forces and of the Merchant Marine during periods of active service.
The Law of Succession Act provides for the making oral privileged wills or testaments, it does not make provisions for written wills. This is covered under Section 9 of the Act which allows members of the Armed Forces of Merchant Marines to make an oral will during a period of active service and the same should be valid if the testator dies during the same period of active service notwithstanding the fact that the testator dies more than 3 months after the making of the Will. The term Active Service is defined in Section 3 of the Act to mean with respect to a member of the armed forces being in a field of Military operations either a war or training in preparation for war or under orders to proceed to a field of operations. With respect to members of Merchant marines it refers to being at sea or under orders to proceed to sea.
Refer to Re Jones and RE Wingham and RE Stable
In RE Stable the deceased who was a Lieutenant under orders to proceed to war during the first world war 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 witness. The Court found this to be a privileged will and probate of the deceased words was granted.
Note that the Armed Forces Act Cap 119 Laws of Kenya at section 219 does provide for a written privileged will. Under this provision a soldier can make a written will if one witness only who should be an officer of the Regiment attests it. The Law of Succession does not have a section for a written privileged will because there is already a provision in the Armed Forces Act.
LAW OF SUCCESSION Lecture 8
REVOCATION OF A WILL OR TESTAMENT:
Revocation is a freedom of a will or testation in the sense that the testator has the freedom to make the will he so wishes and all wills are revocable even where one drafts a will and says it is revocable it can still be revoked. It can be revoked either voluntarily or involuntarily. There are 3 methods of voluntary revocation:
1. Express Revocation;
2. Implied Revocation; and
3. Revocation by Destruction.
These are deliberate intentional acts of the testator intended to revoke his will. These 3 methods required 2 essential elements
(a) Mental Capacity – the testator must have mental capacity to the same degree as to the creation of a Will;
(b) The intention to revoke –
There is only one involuntary method of revocation under Kenyan Law and that is revocation by marriage. This arises by the operation of the law and therefore it does not require the testator to have mental capacity or intention to revoke. The question of intention does not arise.
Section 17 of the Act provides that its maker may revoke a Will at any time when he is competent to dispose of his free property by Will.
Voluntary Methods of Revocation:
Express Revocation
This is provided for under Section 18(1) which provides for the revocation of a Will or Codicil by another will or Codicil declaring an intention to revoke the previous will or codicil. Read together with S 17 S 18(1) enables the testator to revoke his will so long as he has capacity to do so. Professionally drafted Wills and Testaments invariably contain an express revocation clause. “ I revoke all former Wills and Testamentary dispositions previously made by me..” any professionally drafted will will contain such a clause. It is not sufficient however to say “.. This is the last will and testament made by me..” that does not have the effect of revoking the previous will. It is preferable that the revocation clause says that you revoke the testament. This is the last will made by me is not a revocation clause. Refer to RE Hawkesley’s Settlement where that point was made, that the description of the Will as the Last will and testament is not a sufficient express clause.
Codicil is often used when only parts or sections of a Will are to be revoked. Express revocation requires an intention to revoke on the part of the testator.
Implied revocation
With respect to Implied revocation there is no express wording for revocation but 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 earlier will or codicil which means that if one makes a later will that is not inconsistent with the earlier one, it will not revoke the earlier one. Whether there is Implied Revocation of a Will by another is a matter of construction or interpretation of the Will or Codicil which purports to remove the earlier one. Therefore to determine whether there is implied revocation you have to look at the wording of latter codicil.
Revocation by Destruction
Provided for under S 18(1) of the Law of Succession Act Cap 160 which provides for revocation by the burning tearing or otherwise destroying the Will with the intention of revoking it. The act of destruction burning, tearing or destroying must be of the testator or of someone else at his direction. Revocation by destruction involves 2 distinct elements
(i) Actual destruction;
(ii) The intention to revoke.
Both must be present. The actual destruction must be by burning, tearing or destroying the will. But otherwise destroying has been constructing using the ejusdem generis rule to require that the acts of destruction are of the same kind as burning and tearing. Refer to Cheese v Lovejoy. In this case the testator cancelled his will by striking out his clauses and his signature with a pen and then writing on the back of the Will “all these are revoked”. He threw the Will in a pile of paper in a corner somewhere in his house where it was retrieved by a servant and kept in a kitchen drawer until the testator’s death 8 years later. The issue was whether the Will was valid or whether it had been revoked. The court held that the acts of the testator did not amount to revocation of the Will. there was no express, implied or destruction revocation. There was an intention to revoke but the will had not been destroyed and the same was admitted to probate.
In Re Morton’s Goods the testator’s signature was completely scratched out by the testator and that was the only part of the Will that was affected. The court held that it amounted to otherwise destroy.
In Re Adams parts of a Will were heavily scored through with a ballpoint pen and the court found that the relevant parts i.e. the parts that were affected had been actually destroyed and therefore the actual destruction was partial and the rest was admitted to probate.
In Hobbs v Knight it was held that tearing included cutting. Please note that whether actual destruction of part of a will results in the revocation of the entire document or a section of it depends on the part that was actually destroyed i.e. it depends on the importance of the part of the Will destroyed. If the destroyed part impinges in the whole will, then the whole Will is revoked the best example is the signature, if the signature is torn from the document it renders the entire document revoked or the attestation bit will render the Will revoked. If the parts destroyed are less important, only those parts will be revoked.
To establish actual destruction it must be proved that the testator completed the acts of destruction. In the case of Perkes v Perkes the testator tore up his will into four pieces after an argument with one of the beneficiaries. After sometime he calmed down and fitted the pieces together. The court found that there was no actual destruction as the testator did not complete all what he had intended to do. There was a change of mind and there was no intention to revoke the will.
The acts of revocation must be by the testator himself or of someone else in the testator’s presence and under his direction. Where someone else without the testator’s direction or in his absence destroys the document, the issue of revocation by destruction does not arise. In Re Dadd’s Goods the testatrix on her death bed expressed her 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 because she did not direct them to destroy it and even then it was in her absence.
In Gill v Gill the testator’s wife tore up his Will in a fit of temper and again it was held that there was no actual destruction.
What is the position of the person in possession of the Will being requested by the testator to destroy the Will and one destroys the Will, would there be destruction? What is the legal position, there is no revocation. or supposing the testator writes to the holder of the Will and signs the letter which he gets two witnesses to attest, is there revocation, there would be actual destruction and revocation. Refer to the case of Re Durance.
With respect to intention to revoke, the testator must have the same capacity to revoke as is necessary to execute a valid will and therefore all one needs for purposes of establishing intention is capacity. Refer to the case of Re Aynsley that is a case where the testatrix who was very old and confused tore a testament into 40 pieces. The court found that she lacked the mental capacity to revoke and there was no intention on her part to revoke and the Will was therefore admitted to probate.
The destruction must not be accidental, where there is destruction but the same occurs accidentally there is no intention and thus there is no revocation e.g. if the house burnt down, or if the will is destroyed under some unmistaken belief that the Will is invalid, there will be no intention to revoke.
REVOCATION BY MARRIAGE
As a general rule the marriage of a testator automatically revokes any Will or codicil made prior to the marriage. The rationale is that marriage gives rise to new obligations which would ordinarily be taken into account where a Will is made by a single person and revocation is intended to give the testator an opportunity to make a Will taking into account the new obligations.
Section 19 provides that the marriage of the testator will automatically revoke a will. there is an exception to this general rule which is where the Will is expressed to be made in contemplation of marriage with a specified person, it should not just be contemplation of marriage in general but specific, where one makes provisions to a specific person who they intend to marry then it will be of consequence. Kenyan law does not recognise revocation by divorce. Where one divorces their spouses they must revoke and prepare a new Will.
CONSTRUCTION OF WILLS
EXECUTORS
INTESTATE SUCCESSION
Intestacy occurs where a person dies without having made a Will and where a Will is rendered invalid and thirdly where a person revokes his Will and subsequently dies without having made another one. Intestacy may be total or partial. It is total where the testator has left no valid will at all and the property of the estate is subject totally to the provisions of intestacy. It is partial in the following circumstances:
1. Where the person fails to include all his property in his otherwise valid will and the Will is not ambulatory;
2. Where part of a Will is declared invalid, the property the subject of the invalid part would fall under the intestacy provisions;
3. Where only a part or section of the will is revoked;
4. A person acquires property subsequent to the making of the will unless the will is ambulatory.
Please note that the rules of intestacy determine the question of who is entitled to the Estate of an intestate. These rules only benefit people who have a direct blood link with the intestate accept of course the spouses. It does not confer benefit on unmarried partners, parents’ in-law and other relatives in law. to benefit such persons the deceased has to make a will. in the absence of blood relatives the estate of an intestate passes to the State. it is usually sold and the proceeds sold to the consolidated fund.
The provisions relating to intestacy are contained in Part 5 of the Law of Succession Act Cap 160 and that is Section 32-42 of the Act.
Section 32 of the Act empowers the Minister to display by a notice in the Gazette Agricultural land and crops on such land or livestock in some parts of the countries from Part 5 of the Act i.e. under this section the Minister has power to exempt property in some parts of the country from Part 5 of the Act.
Section 33 of the Succession Act applies Customary Law to Property excluded under Section 32 of the Act i.e. property which has been exempted from provisions of Part 5 subject to Customary Law.
The Minister has exercised power under Section 32 only once under Legal Notice No. 94 of 1991 under which the Minister exempted property in the predominantly pastoral districts of Marsabit, Narok, Tana River, Samburu, West Pokot, Turkana, Isiolo, Mandera, Wajir and Kajiado from intestacy provisions and here African Customary Law and not Part 5 of the Act was to apply.
The Act contemplated a capitalist market economy that recognizes individual ownership of property under which it is possible to determine the appropriate share of each individual. In the predominantly pastrolist areas, individual ownership of property is not recognized. Land is still held communally and even property such as livestock is owned collectively. Succession to Property in such circumstances is better left to the customary law of the people concerned. Land Registration has not been done in the areas covered by most of the mentioned districts and most of them individuals do not have a share to what is referred to as group ranching.
Section 32 and 33 do not provide a blanket exemption covering all Africa intestates. It only covers property in the areas exempted from the provisions of the Act. The Court of Appeal has interpreted Sections 32 and 33 to mean that all African intestate are exempted from the intestacy provisions of Part 5 of the Act. In the opinion of the Court of Appeal reading from most judgement all Africans who die intestate are subject to African Customary Law and not Part 5 which is not the case Section 32 and 33 only covers the mentioned districts. These decisions are inconsistent with the Act. Refer to the case of Julius Wainaina Mwathi v Ben Mwathi and Another the deceased was unmarried and was survived by a brother and two sisters, he hailed from Kiambu District. His Will was declared invalid by the High Court which then ordered that the Estate be shared equally between his brother and the two sisters in terms of Part 5 of the Act. The brother aggrieved by the decision of the High Court appealed to the Court of Appeal that upheld the High Court Order with respect to the invalidity of the Will and confirmed that the deceased had died intestate.
The Court of Appeal however differed with the High Court by holding that the applicable law to the intestate estate of the deceased was Customary Law and not the intestacy provisions in Part 5 of the Act. A portion of the Court of Appeal judgment says “the intestate succession of a deceased Kikuyu is governed by Kikuyu Customary Law. The asset involved is a piece of land and the matter must therefore be determined by Kikuyu Customary Law relating to land inheritance.” That portion of the decision is inconsistent with the Law of Succession Act.
In another matter the case of John Kinuthia Githinji v Githua Kiarie and 2 others Gachuhi J A. said obiter “ the other aspect of the claim is under the provisions of the law of succession where a person dies without a will. this will be in the case of intestacy. The distribution on intestacy shall be governed by the law or custom applicable to the deceased community or tribe as the case may be.”
The High Court on the other hand has been consistent in maintaining the correct interpretation of Sections 32 and 33. The interpretation given by Bosire J as he then was in Mwathi v Mwathi was the right interpretation of Section 32 and 33 was the right decision. “Kiambu was not one of the District mentioned in Part 5”.
Justice Githinji also correctly interpreted the provisions in the matter of the Estate of Kihara Githamba. This was a case where two wives and 17 children survived the deceased. The first wife had four sons and four daughters while the other wife had 2 sons and 7 daughters. Some of the daughters were married while the others were unmarried. The sons claimed that the deceased had made an oral will recorded in a book. The effect of the alleged oral will was to give the prime land to the 6 sons equally. The distribution of the other pieces of land was also to the 6 sons equally. The effect of the oral will was to deny the surviving widow and her unmarried daughters a share of the deceased piece of land. The Court declared the alleged will invalid and ordered that the Estate be distributed in accordance with the law of intestacy. The sons sought to rely on Section 33 of the Act arguing that the Estate ought to be distributed in accordance with Kikuyu Customary Law that excludes daughters from inheriting. Justice Githinji said of Section 33 “Section 33 refers to the distribution of properties as specified in Section 32 of the Law of Succession Act situated in the areas as the Minister may by notice specify. There is no evidence that the Minister by a Gazette Notice has specified that the lands located in the area the Estate is situated should be distributed as provided under Section 33 of the Law of Succession Act. In any case, the deceased died after the Law of Succession Act came into operation and the law applicable by virtue of Section 2(1) of the Law of Succession Act is Part 5 of the Act. ” He then proceeded to apply Part 5 of the Act to the Estate providing for the sons and unmarried daughters of the deceased. The decision of the Court of Appeal in this case is incorrect. One can only conclude that the Judges in this case decided the matter as Africans.
The Act provides for both monogamous and polygamous situations and the nature of the devolution of property upon intestacy depends on whether the deceased was monogamous or polygamous and on whether there were children or not.
UPDATE ON THE LAW OF SUCCESSION KENYA
Below are some interesting Succession Law cases from various courts around the
country. These decisions were reached within the past year and are all
available to subscribers of Lawafrica Law Reports on www.lawafrica.com
1. Charles Wathuku v Ngure & Another (Waki,J)
R: 18/10/01 HCSC (Nyeri): 60/97 [1997] LLR 1950 (HCK)
SUCCESSION – Intestacy – Disputed paternity of petitioner – Deceased left no surviving widow –Objectors not dependants of the deceased – Petitioner born out of wedlock and subsequently brought up by mother and her husband – Whether there was sufficient proof of paternity – Whether grant would be confirmed – Whether an order would be made for refund of money withdrawn by the objectors
Held:
1. It was common ground that the deceased married twice but both wives, who
predeceased him, had no children. However, as no medical report of the deceased
was produced to confirm whether he was impotent, no such conclusion would be
drawn.
2. There was sufficient evidence that the mother of the petitioner and the deceased had an intimate relationship, even though they both eventually married other persons. The evidence of the mother and the actions of the deceased in adopting the petitioner as his son led to the conclusion that the petitioner was the son of the deceased.
3. The objectors, who were cousins but not dependants of the
deceased, were not entitled to inherit.
4. The petitioner’s grant would be confirmed and he would inherit the estate of
the deceased absolutely.
5. Since no application was made formally to court for refund of 5.8 million
shillings withdrawn by the objectors during the proceedings, no such order
would be made.
2. Hadija Musa v Ibrahim Musa (Ringera,J)
R: 31/7/02 HC P&A (Bungoma): 22/2000 [2000] LLR 2014 (HCK)
SUCCESSION – Revocation of grant – Whether there were defects of
substance in the proceedings – Petitioner only surviving widow of deceased –
Whether there was a requirement to produce sureties in excess of one – Whether
petitioner required to obtain consent of other beneficiaries before filing
petition
SUCCESSION – Continuing trust – Whether a continuing trust arises where some of
the beneficiaries are minors – Whether grant of letters of administration to
widow alone was made validly – s 58 Law of Succession Act
Held:
1. Since the widow had priority in petitioning for the grant by virtue of section 66 Law of Succession Act, she did not require consent of any other person. Rule 7(7)(b) Probate and Administration Rules considered.
2. There is no requirement in the Act or in the rules that one or more sureties must accompany an application for grant of letters of Administration. Rule 29(3) Probate and Administration Rules considered.
3. Where some of the beneficiaries of the estate are minors, a
continuing trust arises. It therefore follows that a grant cannot be made to
one person. Section 58(1) Law of Succession Act applied.
4. Failure to include some beneficiaries or some properties of the deceased
need not be fatal to the grant of letters of administration. Section 51(4) Law
of Succession Act considered.
3. Re Matheka’s Estate (Aluoch,J)
R: 27/6/02 HCSC (Nbi) : 470/90 [1990] LLR (HCK)
SUCCESSION – Revocation of grant – Disputed paternity of objector – Deceased swore affidavit on change of objector’s name and referred to him as the son – Objector’s mother had intimate relations with deceased at the time objector was born – Whether paternity proved on the evidence – Whether grant would be revoked suo motu
Held:
1. On the evidence, the paternity of the objector by the deceased had been
proved.
2. The grant would be revoked suo motu. A new grant would be issued to the
petitioners and the objector jointly, after which they may petition for
confirmation of the same.
4. Mumo v Makau (Omolo, Tunoi, Bosire, JJ.A.)
R: 28/6/02 CA: 56/01 [2001] LLR 3650 (CAK)
SUCCESSION – Distribution of property – Property originally
belonging to deceased father – Appellant half-sister of respondent - Appellant
registered as owner but respondent in occupation of the property – Whether a
married daughter could inherit property under Kamba customary law – Whether
appellant holding land in trust for the family – Whether respondent had right
to the property by virtue of patrilineal inheritance – s 3(2) Judicature Act
LAND – Trust – Customary law trust – Appellant registered as first owner of the
land – Land originally belonged to appellant’s father – Whether appellant holds
land in trust for other members of the family – Whether customary law trust can
be declared on first registration – Registered Land Act
Held:
1. The land in question would have been inherited under Kamba customary law. It
was against the tenets of this customary law for the appellant, a married
daughter, to inherit a portion of the deceased father’s family land. Section
3(2) Judicature Act applied.
2. There is nothing in the Registered Land Act which precludes the declaration
of a trust in respect of registered land, even if it is a first registration. Wambugi
v Kimani [1988–92] 2 KAR 58 approved.
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