[2021] KEHC 9775 (KLR)
The court held that, although there were no dependants as defined under Section 29 of the Law of Succession Act and no pending applications under Part III, the presence of a large number of beneficiaries listed in the will and the nature of the grant as a probate one necessitated caution. The court found it prudent...
Source-derived case information.
- Citation
- [2021] KEHC 9775 (KLR)
- Parties
- Applicant: John Chatwin; Applicant: Kamami K. Njoroge
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 38 of 2020
- Procedural Posture
- Succession Cause / Ruling on Application for Early Confirmation of Grant
- Outcome
- application for early confirmation of grant rejected
- Judges
- JN Onyiego
- Legal Topics
- Probate of Will, Confirmation of Grant, Law of Succession Act, Beneficiaries Consent, Dependants Definition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Chatwin
Applicant
Kamami K. Njoroge
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Early Confirmation of Grant
Legal Issues
- 1 Whether the court should confirm a grant of probate before the expiry of six months from issuance.
- 2 Whether the absence of dependants and the presence of multiple beneficiaries justify early confirmation of grant.
Ratio Decidendi
The court held that, although there were no dependants as defined under Section 29 of the Law of Succession Act and no pending applications under Part III, the presence of a large number of beneficiaries listed in the will and the nature of the grant as a probate one necessitated caution. The court found it prudent to wait for the statutory six-month period to lapse before confirming the grant, to avoid excluding any potential objectors and to ensure all beneficiaries are adequately represented or present. The application for early confirmation was therefore rejected, and the grant was to await the expiry of six months from issuance.
Court Disposition
application for early confirmation of grant rejected
Orders
- The application for confirmation of grant before expiry of six months is rejected.
- The grant shall await the expiry of six months from issuance before confirmation.
Full Case Text
Judgment text and source record
14 paragraphs
In re Estate of George Bagshaw (Deceased) (Succession Cause 38 of 2020) [2021] KEHC 9775 (KLR) (12 March 2021) (Ruling)
Neutral citation: [2021] KEHC 9775 (KLR)
Republic of Kenya
In the High Court at Mombasa
Succession Cause 38 of 2020
JN Onyiego, J
March 12, 2021
IN THE MATTER OF THE ESTATE OF GEORGE BAGSHAW (DECEASED)
Ruling
1. The deceased herein died testate on 22nd March, 2020 leaving behind a will dated 18th June, 2019 thus bequeathing his estate to various beneficiaries. A grant of probate of written will was issued on 10th November, 2020 to John Chatwin and Kamami K. Njoroge as joint executors and trustees to the estate.
2. On 10th February, 2021, the executors moved this court vide summons of even date seeking confirmation of the grant before the expiry of six months citing grounds that;a.There are no dependants of the deceased within the meaning of Section 29 of the Law of Succession Act;b.That no application under part III of the Act is pending and that, the estate is incurring huge expenses in running and maintaining the property erected on Subdivision No 21163 Section 1 Mainland which property is to be sold and proceeds shared.
3. I have considered the application herein, affidavit in support and counsel’s oral submissions. Section 71 (3) of the Law of Succession does bestow authority upon the court to confirm a grant before the expiry of six months on condition that; firstly, there are no dependants under Section 29 of the Act that are of full age who have not consented. Secondly, it is convenient so to do in the circumstances of the case.
4. A perusal of the last will aforementioned reveals a huge list of beneficiaries. Although there is no revelation of any other dependant of the deceased who has not consented in accordance with Section 29 of the Act, the circumstances of this case will demand that the court awaits the expiry of six months. Where there are many beneficiaries listed in the will and by the very nature of the grant being a probate one where consents are not mandatory, I will find it convenient to confirm the grant after six months with all beneficiaries listed represented or present. I do not see any good reason to justify confirmation of the grant at this stage. Unlike where the petitioners are the sole beneficiaries of the estate, the rest of the grants should ordinally wait for time to Lapse so as not to lock out potential objectors. For those reasons, application is rejected and the grant to wait for the expiry of six months
DATED SIGNED AND DELVE VIRTUALLY AT MOMBASA THIS 12TH DAY OF MARCH, 2021. ..............................J. N. ONYIEGOJUDGE