[2022] KEHC 1927 (KLR)
The court determined that the existence and validity of the newly discovered will dated 3rd February 1975, which is alleged to revoke the earlier will of 7th December 1950, is a fundamental issue that must be resolved before any further orders regarding the administration or distribution of the estate can be made....
Source-derived case information.
- Citation
- [2022] KEHC 1927 (KLR)
- Parties
- Respondent: Jasjit Singh Heer; Applicant: Ravinder Pal Singh Heer
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 20 of 1984
- Procedural Posture
- Succession Cause / Directions on Preliminary Applications and Objection
- Outcome
- Application for revocation of grant treated as an objection; directions issued for oral hearing and further evidence; costs in the cause.
- Legal Topics
- Testate Succession, Grant Revocation, Will Validity, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jasjit Singh Heer
Respondent
Ravinder Pal Singh Heer
Applicant
Procedural Posture
Succession Cause / Directions on Preliminary Applications and Objection
Legal Issues
- 1 Whether a newly discovered will dated 3rd February 1975 revokes the earlier will of 7th December 1950.
- 2 Whether the grant issued and confirmed based on the earlier will should be revoked in light of the new will.
- 3 Whether the respondent should be compelled to provide a full account of the estate under Section 83 of the Law of Succession Act.
Ratio Decidendi
The court determined that the existence and validity of the newly discovered will dated 3rd February 1975, which is alleged to revoke the earlier will of 7th December 1950, is a fundamental issue that must be resolved before any further orders regarding the administration or distribution of the estate can be made. The court held that this issue cannot be determined solely on affidavit evidence due to its weight and complexity, and that oral evidence is necessary to properly ventilate the matter. Accordingly, the application seeking revocation of the grant is to be treated as an objection, and the parties are directed to file further affidavits and evidence. The determination of whether...
Court Disposition
Application for revocation of grant treated as an objection; directions issued for oral hearing and further evidence; costs in the cause.
Orders
- The application dated 16th June 2021 is treated as an objection.
- Replying affidavits are deemed a defence and the respondent a defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
SUCCESSION CAUSE NO. 20 OF 1984
IN THE MATTER OF THE ESTATE OF THE
LATE ISHER SINGH S/O SUNDER SINGH (DECEASED)
JASJIT SINGH HEER.............................EXECUTOR/RESPONDENT
VERSUS
RAVINDER PAL SINGH HEER..................OBJECTOR/APPLICANT
DIRECTIONS
1. There are two sets of applications herein, namely, that dated 16th March 2021 made by the applicant Ravinder Pal Singh Heer in which he is seeking for orders that the respondent Jasjit Singh Heer be compelled to give a full account of the estate as provided under Section 83 of the Law of Succession Act. He is as well asking that the estate be distributed as per the deceased will in equal shares.
2. The second application by Jasjit Singh Heer dated 16th June 2021 is seeking to revoke the grant issued on 7th May 1987 and confirmed on 11th March 2005 on the grounds that there has now been discovered a new will made by the deceased on 3rd February 1975 which revoked the will of 7th December 1950. The applicant thus is asking the court for such far reaching orders which if granted will literally take the estate several years back.
3. The court having read the two rival applications is of the considered opinion that if indeed there is another will revoking the earlier one then the court must first make a decision over the same before looking at the application to provide accounts.
4. The issue cannot therefore be litigated by affidavits alone. The same is weighty as it goes to the root of the estate. It needs oral evidence so as to allow the parties ventilate the issues properly. Whatever the outcome the court will then make a determination on the application of providing accounts if it will still be appropriate.
5. Consequently, the court orders that the application dated 16th June 2021is hereby treated as an objection. The replying affidavits shall be deemed a defence and the respondent a defendant. Parties are granted 30 days from the date herein to file and exchange further affidavits, statements and or any other exhibits they intend to rely on.
6. Costs shall be in the cause.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 3RD DAY OF MARCH 2022.
H K CHEMITEI.
JUDGE.