[2017] KEHC 2963 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI MILIMANI

IN THE MATTER OF THE ESTATE OF JASWINDER SINGH SAIMBI

(DECEASED)

SUCCESSION CAUSE NO. 2160 OF 2012

RULING

PLEADINGS

The deceased JASWINDER SINGH SAIMBI died on 24th May 2012 as evidenced by Death Certificate of Serial No. 197419.

By way of a petition supported by an Affidavit dated 3rd September 2012, PAL SINGH BHACHU, the petitioner petitioned for a grant of probate of the estate of the deceased herein. The petition was advertised in the Kenya Gazette No. 4284 on 9th November 2012. The dependants who were listed in the affidavit in support of the petition as having survived the deceased are:

i. MANJIT KAUR SAIMBI – Wife to the Deceased

ii. GURVEEN KAUR BAMRAH – Daughter to the Deceased and

iii. UPINDER KAUR OBEROI – Daughter to the Deceased.

The inventory of the known assets and liabilities left by the Deceased at the time of his death as listed are:

Assets:

i. 50% shareholder of a Company known as E.K Wahome & Co. Limited which owns Plot No. L.R 9042/107 & L.R. 9042/135

(The deceased was an equal shareholder on a 50-50 basis with his brother PARMINDER SINGH SIAMBI)

ii. 1/3 share in L.R No. 209/10497/45

iii. 1/3 share in MN/1/3218 Mombasa

iv. 1/3 Share in Plot No. 12159/4- Karen (jointly developed modern residential building and that is where the deceased and his brother PARMINDER SINGH SAIMBI occupied)

(The deceased and his 2 brothers; HARBHAJAN SINGH SAIMBI (deceased) and PARMINDER SINGH SAIMBI are tenants in common in equal shares)

v. 50% Shareholder in Universal Fabricators and Building Contractors Limited which owns a Construction Plant and Ironwaves Limited.

Liabilities:

NIL

According to the Petitioner, the deceased left a Will dated 24th March 2012 in which he appointed him (brother-in-law) as executor thereof at paragraph 2 of the Will. In the event he did not survive him he appointed his wife MANJIT KAUR SAIMBI to be Executor and Trustee of his Will. At paragraph 16 the deceased gave Executor powers to deal with the assets that comprise of his estate.

On 29th November 2012 PARMINDER SINGH SAIMBI the deceased's brother and objector filed Objection to making of the grant.

He stated that as brother to the deceased and he had a beneficial interest by right in some of the properties of the deceased that were listed in the deceased’s Last Will and Testament. He listed grounds of his objection as:

i. The Will is a forgery or alternatively it was procured by fraud or undue influence.

ii. The Will is suspect as it contains facts which are materially incorrect.

iii. The Will discloses glaring abnormalities.

iv. The Will wholly ignores the objector’s right of survivorship in properties L.R No. 209/10497/45 and 12159/4 which is something that the Deceased would never do.

v. The deceased’s purported right to property L.R No. 12159/4 is non-existent.

vi. The appointment of PAL SINGH BHACHU as the Executor of the Will is highly suspect as the deceased’s preferred executor would undoubtedly have been the objector, the deceased’s brother.

The Objector filed simultaneously petition by cross application, citation to accept or refuse letters of administration and Answer to petition for a grant on 30th March 2016. He contended that the Executor, brother to the deceased's wife carted away documents of suit properties that he and the deceased owned jointly. Secondly as the deceased's surviving brother, he ought to be appointed Executor of his estate instead of his brother in law. He insisted the Will was forged.

On10th September 2015, MANJIT KAUR SAIMBI the deceased's surviving widow responded to the Objection by filing an Answer to Objection and Further Supplementary Affidavit of 5th April 2016 in which she prayed for the Objection be dismissed and the court issues a grant of probate to the petitioner. In the Reply, she stated that the Objector is unfair and inconsiderate to the legal beneficiaries of the deceased's estate. She averred that the deceased wrote the Will in his lifetime and that he was the one who saw it fit to nominate PAL SINGH BHACHU as the executor. The Will was not procured by fraud, forgery or undue influence as alleged by Objector. She further stated that L.R. No 209/10497/45 was acquired jointly by the Objector and the deceased and the two were registered as joint tenants.

She also attached copies of titles of the suit properties and averred that property L.R. No. 12159/4 is registered in the names of the her late father-in-law CHANAN SINGH SAIMBI, the Objector and her late brother-in-law HARBHAJAN SINGH SAIMBI; whose widow is still alive and that her matrimonial residential home is erected on that very parcel of land and she had lived there since 30th December 1979 when she was married to the deceased. It was also stated that the Objector also lived with them in that residential home. At the time of acquisition of this property, the deceased was in UK and was not registered as part of the owners of the property. The property was considered one of the family investments. The said property is which covers almost 5 acres is where her father-in-law erected the family home for himself and his sons' families. The deceased's widow has lived there to date since she was married by the deceased on 30th December 1979. In addition, she further averred that property L.R. No. MN/1/3218 Mombasa is registered in the names of the deceased and the Objector as ‘tenants in common.’

On 1st October 2015, the Objector filed Summons and an Affidavit in support of the Summons in which he sought orders that the Answer to Objection be dismissed. The grounds in support of the Summons being that the Answer to Objection was un-procedural and that MANJIT KAUR SAIMBI who responded to the Objection was not a party to the suit and had no locus-standiand it would thus be in the interest of justice to strike out the Answer to Objection.

The Petitioner then moved the Court by way of a Cross Application accompanied by a Supporting Affidavit dated 23rd October 2015.

He sought orders that the Court hears and determines the Objection Application dated 29th November 2012 and the Summons filed in 1st October 2015 by the Objector and that upon determination on those applications, that the Court be pleased to issue a grant of probate in favor of the Petitioner. The Cross Application was premised on the grounds that the Petitioner is the executor of the deceased Will, that a Petition for grant of probate was lodged but the same was not made following the objection lodged thereafter, that an Answer to Objection had been filed in response to the Objection, that the Objector had not moved the Court to determine his objection, that the delay in determining the Objection is prejudicial to the beneficiaries of the estate of the deceased and that the Objector by his Application dated 30th September 2015, being the Summons filed opted for unnecessary legal technicalities with the sole intention of frustrating the beneficiaries of the Estate of the Deceased brother.

The Objector by way of an Answer to Petition for a Grant of Representation dated 22nd March 2016 stated that the Application for the said grant was duly published on 9th November 2012 after which he lodged his objection. He prayed that the said application for the grant be dismissed for reasons that the purported Will of the deceased was a forgery or that it was procured by undue influence and that it contained anomalies. This was due to his reasons that, the deceased was aware that property L.R.No. 209/10497/45 is registered under his name and that of the deceased as joint tenants, that property L.R. No. 12159/4 was registered under his name, that of his late brother HARBAJAN SINGH SAIMBI and his late father CHANAN SINGH SAIMBI as tenants in common and that the deceased did not make any financial contributions towards property L.R. No. 12159/4. Other grounds were that the original documents of title pertaining to the aforementioned properties were taken away without his authority and that they are being unlawfully held by the Petitioner PAL SINGH BHACHU who had refused to surrender them to him and that the appointment of the Petitioner as executor of the said Will is highly suspicious.

The Objector further filed a Petition by Way of Cross Application for a Grant accompanied by a Supporting Affidavit dated 22nd March 2016. He stated that the deceased died intestate living him and five other people surviving him. The five who were mentioned were; MANJIT KAUR SAIMBI (wife), GURVEEN KAUR BAMRAH (daughter), UPINDER KAUR OBEROI (daughter), HARBHAJAN KAUR LALL (sister) and MOHINDER KAUR SINGHRAO (sister). He further stated that the two aforementioned sisters have consented to the Grant of Letters of Representation to being made by him. He further deponed that Citation had been made for the surviving wife and the deceased’s two daughters.

The Petitioner then filed an Affidavit in Reply to Answer to Petition and Cross Application for grant of letters of administration of the deceased estate dated 5th April 2016. In this said Application, the Petitioner confirmed that he, as the named executor of the deceased last Will petitioned the Court for a grant of Probate and that the petition was advertised but the grant was not made due to the Objection filed thereafter. He furthered averred that as per his knowledge, the Will met all the legal prerequisites of a valid Will and is therefore valid. The Objector was put to strict proof of all the allegations stated in his Answer to Petition and Cross Application. The Petitioner prayed that the Court dismisses the Objection and Cross Application and Proceed to allow the Petition.

A Supplementary Affidavit in Reply to Answer to Petition and Cross Application for grant of letters of administration of the deceased dated 5th April 2016 was then lodged. MANJIT KAUR SAIMBI the deceased wife who swore the Affidavit stated that she was in agreement with the contents of the Last Will and Testament of the deceased, that the deceased was in good physical and mental condition when he made the Will and that the Will was not a forgery. She further averred that the delay in making the grant prejudiced her personally and prayed that the Court dismisses the Objection and Cross Application by the Objector and grant the Petition as prayed for by the Petitioner.

A further Affidavit in Response to the Affidavits of MANJIT KAUR SAIMBI and PALL SINGH BHACH dated 5th April 2016 was then filed on 19th September 2016 by the Objector. He stated that the Cross Application dated 23rd October 2015 as aforementioned was wholly un-procedural, that the deceased was suffering was severe alcohol addiction and his mental and physical condition was deteriorating and thus lacked mental capacity to make the Will and that the deceased was battling with severe depression during the period of February-March 2012 before his condition worsened and he passed on 24th May 2012. Other pertinent issues adduced were similar to the grounds in support of the Objection Application which was previously filed by the Objector.

ISSUES

1. Is the Will of the Jaswinder Singh Siambi (deceased) of 24th March 2012 valid?

2. Should the Petitioner Pal Singh Bhachu and/or the Objector Parminder Singh Siambi be executor (s) of the deceased's Will or appointed administrator(s) of the deceased's estate?

3. Who are the beneficiaries of the deceased's estate?

DETERMINATION

The validity of the Will is regulated by the following provisions;

a)Section 5(3) of Law of Succession ActCap 160 provides;

Any person making or purporting to make a Will shall be deemed to be of sound mind for the purpose of this section unless he is; at the time of executing the Will, in such state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.

b)Section 5(4) of Law of Succession Act Cap 160 provides;

the burden of proof that a testator was, at the time he made any Will, not of sound mind, shall be upon the person who so alleges.

Sections 5(1) (3) & (5) Law of Succession Act provide for the testator's capacity and freedom to pen his wishes as to assets that comprise his estate and to whom the beneficial interest shall be transmitted to in the Succession process.

In the case of;

BANK vs GOODFELLOW [1870] LR QB 549the Court said of the testator;

He must ...have sound and disposing mind and memory. In other words, he ought to be capable of making his Will with an understanding of the nature of the business in which he is engaged, a recollection of property he means to dispose of, and of the persons who are objects of his bounty and the manner it is to be distributed between them.

VAGHELLA vs VAGHELLA (1999) 2 E.A.351

a testator shall understand the nature of the act and its effects, shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate claims to which he ought to give effect; and, with a view of the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties- that no insane delusion shall influence his will in disposing property and bring about a disposal of it which if in the mind had been sound, would not have been made.

The Objector deponed in the Objection to making grant application that the Will is a forgery or alternatively it was procured by fraud or undue influence. The Will is suspect as it contains facts which are materially incorrect The Will discloses glaring abnormalities.

In the further affidavit filed on 19th September 2016, the Objector deponed that the Will of the deceased is void in terms of Section 7 of Law of Succession Actin that the deceased suffered severe alcohol addiction and his physical and mental condition was progressively deteriorating. As time went by, his symptoms gradually became more pronounced. In February -March 2012 the deceased was battling with severe depression, extreme fatigue, uncontrollable body tremors, hysteria, loss of appetite and blurred thinking. He was admitted in M.P. Shah Hospital on 14th April 2012 and discharged on 18th March 2012 as per the annexed Discharge Summary marked PSS1. His condition worsened and he was admitted at Aga Khan Hospital on 24th may 2012 and he succumbed to his illness on the same day. He lacked mental capacity to make a Will.

This Court considered the evidence on record, the deceased wrote and signed the Will on 23rd March 2012 before Ramesh Sharma Advocate and it was witnessed by Legal Secretary Ms Stella Ndumi Musau. The Will is duly signed by the deceased on every page. The will is detailed as to list of beneficiaries, appointment of Executor, List of properties and his own share and distribution of the same to the beneficiaries. The information on the Will is so detailed clear and concise, it cannot be by one who was not of sound mind.

Secondly, the Objector, apart from claiming that deceased was not of sound mind due to illness did not call any of the doctors who attended to the deceased to testify in Court and undergo cross examination. The Discharge summary cannot by and of itself confirm the extent and impact of deceased's illness on decision making processes and for what duration; was it over a prolonged period and deterioration or spontaneous and final? In the absence of sufficient evidence on the deceased's state of mind as at 23rd March 2012 this Court finds when the Will was signed, that the deceased had capacity to make the Will.

The 2nd issue is with regard to allegations of fraud, forgery or undue influence.

Section 7 of Law of Succession Act Cap 160 provides;

A Will or any part of a Will , the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.

In the case of ELIZABETH KAMEME NDOLO vs MATATA NDOLO COURT OF APPEAL 128 OF 1995

The Court observed that the charge of forgery is a serious one and the standard of proof is higher than is required in ordinary Civil cases, that is proof upon a balance of probabilities but certainly not beyond reasonable doubt as in criminal cases.

In the instant case no evidence was adduced on the alleged forgery, fraud and/or undue influence apart from the Objector deponing the same in his pleadings. Unfortunately, saying so does not make it so as each party who alleges a matter is under legal obligation to prove the same by some form of evidence. The same is lacking. He did not say who forged and how or when. In the absence of evidence to prove these grounds, this Court finds the deceased's Will valid and not void from forgery, fraud or undue influence.

Thirdly, was the Will of 23rd March 2012 properly executed s required by Section 11 of Law of Succession Act?

It is required that the testator append his signature on the Wil with the intention of giving it effect as his last Will and testament.

The Will was drawn by the deceased and formally typed at his advocate’s office; signed by the said advocate and his secretary and officially stamped; “Ramesh Sharma & Company Advocates.” The deceased's signature appears on each page. The Will was properly executed.

The Fourth issue is with regard to proliferation of pleadings filed in the instant case. These are;

a. Petition was filed on 11th May 2012.

b. Objection to Making Grant filed on 20th November 2012.

c. Answer to Objection filed 10th September 2015.

d. Cross Application filed on 27th October 2015.

e. Petition by Way of Cross Application for grant filed on 30th March, 2016.

f. Answer to petition for grant filed on 30th march 2016.

g. Further Supplementary Affidavit filed on 19th September 2016.

All these pleadings are with regard to the petition for grant of Probate of Will of the deceased. The petitioner objected to the Cross Application and opted to address only the Objection to Making of Grant. Be that as it may; this Court is guided by;

Section 68 (2) Law Of Succession Act Cap 160 which provides;

Where a notice of objection has been lodged under Subsection (1) the Court shall give notice to Objector to file Answer to the application and a Cross Application within specified period.

Section 69(2) Law of Succession Act Cap 160 which provides; Where an

answer and Cross application have been filed under Subsection (2) of Section 68, the Court shall proceed to determine the dispute.

The pleadings filed and affidavits filed with leave of Court are in order to determine the matter at hand whether the deceased's Will is valid. From the above considerations and in the absence of cogent evidence as to capacity of the deceased and execution of the Will whether it is a valid Will.

Finally, there are 2 issues that the Objector is gravely concerned about; the first is that his brother the deceased could not have appointed his brother-in-law as executor but him. The court finds that paragraph 2 of the said Will, the deceased appointed the Petitioner, brother to his wife executor and if he predeceased him, his wife would be executor of his Will. The Executor was not allocated any property and he is not beneficiary of the deceased's estate so as to suggest undue influence or fraud. The Deceased like any testator has free will to determine his last wishes.

The court will intervene if it is shown that apart from preference there was interference in decision making or unfairness in non provision to beneficiaries.

IN THE MATTER OF THE ESTATE OF LATE SOSPETER KIMANI WAITHAKA SUCCESSION CAUSE 341 OF 1998 the Court held;

“The Will of the departed must be honored as much as it is reasonably possible. Readjustments of the wishes of the dead, by the living, must be spared for only eccentric and unreasonably harmful testators and weird Wills. But in matters of normal preferences for certain beneficiaries or dependents, maybe for their special goodness to the testator, the Court should not freely intervene to alter them.’’

The second issue raised by Objector intertwined with Objection to making of grant is that the properties listed are jointly owned with family members and are family investments and may not be part of the assets comprising his estate and be available for distribution of the deceased's estate.

I have read through pleadings and seen copies of title documents that confirm that the properties listed are jointly owned, belonged to their father and still registered in his name and his sons and others are Companies of family businesses. This Court appreciates the concern. However, issuance of grant of Probate is not equivalent to automatic distribution of the deceased's estate as per the Will. During the confirmation of grant proceedings; the Objector has legitimate and legal right to contest and object to confirmation of grant to properties that the deceased has no interest and hive off only his share that is available for distribution as required under Section 71 of Law of Succession Act.

DISPOSITION

1. The objection to making of grant application and cross application for grant are dismissed.

2. The Will of deceased of 23rd March, 2012 is valid and legal.

3. The executor of the Will is Petitioner of grant of Probate and in default widow to the deceased.

4. The beneficiaries of the deceased's estate are widow and children of the deceased only.

5. The Objector shall protest distribution of deceased's estate during confirmation of grant of probate proceedings on properties and/or share in dispute.

6. Grant of Probate to issue to Executor of the Will of deceased and he will exercise statutory duty under Sections 82 & 83of Law of Succession Act Cap 160.

7. Each party to bear own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 12TH DAY OF OCTOBER, 2017.

M. W. MUIGAI

JUDGE