[2022] KEHC 13952 (KLR)

In re Estate of Josephat Njoka Mbiriai (Deceased) (Succession Cause 200 & 315 of 2010 (Consolidated)) [2022] KEHC 13952 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13952 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 200 & 315 of 2010 (Consolidated)

LM Njuguna, J

October 4, 2022

Ruling

1. The matter pending for determination before the court is the objection to confirmation of grant in relation to the estate of the deceased herein.

2. The petitioner and the interested party allege that the deceased herein died testate while the objectors argue that the deceased died intestate and the alleged will does not fit the essential elements of a valid will. Previously, the objectors had filed for letters of administration intestate vide Succession Cause Number 315 of 2010 only to realize that the petitioner had filed another Succession Cause Number 200 of 2010 without the knowledge of the beneficiaries of the estate herein. The court thus ordered that the two causes be consolidated and wherein the petitioner contended that the deceased died testate while the objectors on the other hand opposed the alleged will citing reasons inter alia that the same did not meet the essential elements of a valid will.

3. The court directed that the matter be canvassed by way of viva voce evidence and thereafter parties to file their submissions. The parties herein adhered to the directions.

4. Counsel for the petitioner sought to address this court by coming up with various heads for determination to prove their case as discussed below.

5. The petitioner and the interested party contended that the deceased had the mental and physical capacity to make the will in question. Reliance was placed on In re Estate of Nyoro Julia Nyoro Julia Nguhi Wanjiru (Deceased) [2019] eKLR where they submitted that the objectors did not shift the burden in regards to the deceased at the time of making the alleged will being possessed of mental and physical capacity to write the alleged will. That the evidence of Margaret Kairu Njoka buttressed the petitioner’s case in that she was present when the will in question was made and that the deceased indeed had the required mental and physical capacity to write the will in question and further, the deceased called his first born sons and informed them that he had written a will which had been deposited with one Mwangi Chege who is an Advocate. That all these were never rebutted by the objectors. Further reliance was placed on the Court of Appeal case of Rosemary B. Koinange (suing as legal representative of the Late Dr. Wilfred Koinange and also in her own capacity & 5 Others v Isabella Wanjiku Karanja & 2 Others [2017] eKLR.

6. On whether the alleged will met the statutory threshold of a valid will, the petitioner submitted that the will dated October 22, 1999 bore the signature of the deceased and equally was attested to, by two competent witnesses namely Peter Gichuki and Johnson Gicovi Njeru. That anybody can attest to a will as long as they are of sound mind and of full age and as such, they need not be close to the deceased or be his/her acquaintances. Reliance was placed on sections 11 and 16 of the LSA. It was submitted that the same was buttressed by the testimony of Johnson Gicovi Njeru who confirmed that he indeed witnessed the deceased make the will. The petitioners relied on the Court of Appeal case of Ngengi Muigai & Another v Peter Nyoike Muigai & 4 Others [2018] eKLR. On whether the signature of the deceased was a forgery and/or he was under undue influence on the material day, the petitioners submitted that indeed, the will is not a forgery. That anyone alleging such, should be guided by section 109 of the Evidence Act in that, evidence ought to be led in that regard which did not happen in this case.

7. On whether the will adequately catered for all the deceased’s dependants, it was submitted that section 29 of the LSA defines who a dependant is. That in the case herein, the deceased in his will dated October 22, 1999 provided for all his dependants. That this was supported by the evidence of Margaret Kairu Njoka and Robert Njoka during the hearing that, after the will was read to the family members, everyone took up their share of the estate and settled in their respective parcels of land as had been bequeathed in the will. Further that, for the dependants who desired more provision from the estate, they were free to move this court for reasonable provision. Reliance was placed on sections 26, 27 and 28 of the LSA.

8. On whether the deceased’s failure to include some of his properties in the will or including properties that did not belong to him invalidated the alleged will, it was submitted that the deceased was a man of vast wealth and as such, it is possible that he might not have had a recollection of all his properties due to the fact that he was of advanced age. That in reference to the two parcels of land held by Phineas Mwaniki Njoka and Simon Njeru Njoka, it is not unusual for children and sons to hold properties in trust for other siblings. Further, in regards to the properties listed by the objectors and not included in the will, the petitioners submitted that the same had already been distributed by the deceased during his lifetime to the respective beneficiaries and as such, the same could not further be included in the will. In the end, the petitioners urged this court to find that the deceased left a valid will capable of execution.

9. Margaret Kairu Njoka also filed her submissions in which she contended that indeed the alleged will was made by the deceased and that even the wives were told how the land parcels were subdivided and it was on that basis that Grace Karau Njoka whom she used to share land with while living on LR Gaturi/Nembure/267 moved to LR Gaturi/Nembure/104 where she lived. That the will was read to everyone after the death of the deceased and all the other beneficiaries have since possessed their respective properties as per the will. Reliance was placed on section 11 of the LSA. It was submitted that no evidence was adduced to dispute the capacity of the testator and his signature to allude that the same could be a subject of forgery. Reliance placed on section 109 of the Evidence Act and In the estate of Julius Mimano (Deceased) [2019] eKLR. She thus urged this court to find that the will herein is valid and that the deceased died testate.

10. On their part, the objectors submitted that the deceased herein died intestate as the alleged will is invalid. The objectors listed all the assets comprising the estate and further noted the number of properties that were left out of the alleged will. They also named the same properties included in the will yet they are not part of the deceased’s estate. That upon the deceased’s death, the petitioner informed the family members that the deceased had left a will with one Mr Chege Mwangi but they were surprised to find Mr Kinyua Muriithi who went to read to them the contents of the alleged will. That the alleged second witness to the will, one Peter Gichuki was not called as a witness by the petitioner and as such, there was no proof that the will was witnessed by at least two people as required by the law. Further that, the advocate who read the will was not the one who drafted it and that the inadequacies, omissions and inconsistencies in the will are too many for the will to be said to have been made by the deceased. They relied inter alia on the cases of Ngengi Muigai &Another v Peter Nyoike Muigai & 4 Others (supra); Julius Wainaina Mwathi v Beth Mbene & Another (1996) eKLR. In the end, this court was urged to find that the alleged will is invalid and incapable of being executed and order the distribution of the estate herein do proceed intestate.

11. The court has considered the viva voce evidence and the submissions by the parties and I form the view that this court has been called upon to determine whether the deceased left a valid will.

12. The provisions of section 5(1) of the Law of Succession Act stipulates that any person who is of sound mind and is not a minor may dispose of all/or any of his free property by will. SeeIn Re Estate of G.K.K (Deceased) 2013 eKLR.

13. The validity of a will is dependent upon two principal factors, namely;i.The capacity of the testator to make a will at the material time; andii.Adherence with the formal requirements for the making of a will.

14. Capacity to make a will, and testation is covered in section 5 of the Law of Succession Act. The relevant provisions thereof state as follows;‘5(1).… any person who of sound mind and not a minor may dispose of his free property by will …(2)..…(3)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 a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.(4)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.’

15. The case of Banks v Goodfellow (1870) LR 5 QB 549, laid out the essentials of testamentary capacity as follows;‘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 the claims to which he ought to give effect; and, with a view to 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 the mind had been sound, would not have been made.’

16. Therefore, a will is the means by which a person exercises his or her testamentary freedom to bequeath his or her estate without relying on intestacy rules of probate. What this means is that, there are certain aspects of importance which must exist in the making of a will and unless, one possesses the right age of maturity, and mental capacity he or she will be considered as being incapable of upholding the legality of the will.

17. What comes out from the above is that, a testator has a testamentary freedom and that, so long as he is of sound mind, he can bequeath his/her estate or part thereof to any person that he wishes. Where a person challenges a will based on lack of capacity, such a person has the burden of proving lack of capacity. [Seein Re Estate of Gatuthu Njuguna (Deceased) [1998] eKLR where the court quoted an excerpt fromHalsbury’s Laws of England, 4thEdition Vol 17 at page 903-904).

18. In this case, the objectors alleged that the deceased was not in the right mental state to make the alleged will given that he was very sick and admitted in hospital. In my view, the objectors were obligated to prove to this court that the alleged situation affected the deceased to an extent that he never appreciated his actions during the time of the making of the alleged will. In other words, the burden of proof was on the objectors to prove that the deceased had no capacity to make a valid will.

19. The other provision relating to testamentary capacity is section 7 which states;‘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.’

20. The formal requirements of a valid will are contained in section 11 of the Law of Succession Act. It states -11. No written will shall be valid unless-(a)The testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;(b)The signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;(c)The will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.’

21. What section 11 emphasizes explicitly are the formal and procedural requirements of making a will. The will must be in writing and signed at the end of it by the testator and at least two witnesses. Such a solemn instrument is expected to be signed in the presence of the two appointed witnesses. The court is also required to look out for any suspicious circumstances that may have played a role in executing the will to ensure that the same was founded on freewill without any undue influence, coercion or duress.

22. The task of dutifully laying evidence seeking to foster the invalidity and due execution of the challenged will falls squarely upon the objectors. The court does not, and cannot set aside the will unless it’s able to ascertain that the presumption in favour of due execution has been rebutted. The objector’s case is hinged on the fact that the alleged will does not conform to formal requirements of a valid will as enunciated in LSA.

23. In the quest to determine the authenticity of the alleged will herein and in reference to the evidence adduced by PW3 who testified that indeed the testator made the will herein, from the cross examination, the witness testified that the testator allegedly called him to his home and upon arrival he found three people and at that point, the testator informed him that he wished to distribute his property. That by then, the deceased herein had not signed the will. To this end, I make reference to the provision of section 11 of the LSA11. No written will shall be valid unless-(a)………(b)……….(c)The will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.’

24. The above provision emphasizes explicitly the formal and procedural requirements of making a will. The question that this court asks, therefore, is what exactly was PW3 witnessing when in fact the testator had not even prepared the alleged will? It is trite that PW3 ought to have witnessed the signature of the deceased and/or of a person who might have done the same on his behalf and not the other way round. [See Ngengi Muigai & Another v Peter Nyoike Muigai & 4 Others [2018] eKLR; In re Estate of Wilfred Koinange Gathiomi (Deceased) [2020] eKLR].

25. The objectors have submitted that the deceased left out some of his properties unwilled which in the view of the petitioner, the same is not strange given that the deceased had distributed some of his wealth to his dependents during his lifetime. The petitioner also submitted that, some properties were also held in trust by the first borns of the houses and further that the deceased was a man of vast wealth and equally was of advanced age thus making it possible for him to omit other properties from his will. From the record, it is evident that the alleged will was made on October 22, 1999 while the deceased, from the death certificate, died on September 8, 2000 aged 80 years. It is clear that the deceased was aged and also from the evidence adduced before this court, the deceased had been in and out of hospital which creates doubt in the mind of the court as to whether indeed the deceased was in the right state of mind due to his physical illness.

26. As already noted by the objectors, the inconsistencies in the case herein were too many to evade this court’s attention. I say so in reference to the fact that the deceased allegedly did not appreciate the vastness of his wealth and further, his children. Case in point, the deceased only recognized Esther and not any other female child in as much as the deceased was free to will his properties as he had so wished. In my considered view, I find that the same is suspect and to support my view, I rely on the case of Banks v Goodfellow (1870) LR 5 QB 549, which laid out the essentials of testamentary capacity as follows;‘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 the claims to which he ought to give effect; and, with a view to 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 the mind had been sound, would not have been made.’

27. The court is alive to the fact that a will is one of the best instruments that can ensure that the property of the testator is distributed according to his or her wishes upon death.

28. Generally speaking, the courts will be slow to interfere with a will, having regard to the fact that the testator intended the beneficiaries to be bound by the contents in the last will and testamentary. But in the case herein, I am of the considered view that, from what emerges from the evidence adduced before this court, the document said to be the last wishes of the deceased in law is not a valid will.

29. I am guided by the case of Maurine Dommy academia eau/ 35425630/construction of wills on the construction of wills and the same states as;“The duty of the court is to interpret the words as used by the testator in the will regardless of whether they produce an unfair result, provided that was the intention of the testator. Even where a provision for his lawful dependants. It is not for the court in interpreting the will to seek to make provision for these survivors. The court interprets the will as it stands and promises that the survivors are not provided for.”

30. The principle in Re Potters’ Will Trust {1944} CL 70 embodied this legal position that:“It is fundamental rule in interpretation of wills, that effect must be given, so far as possible, to the words which the testator has used. It is equally fundamental that apparent inconsistencies must, so far as possible, be reconciled and that it is only when reconciliation is impossible that a recalcitrant provision must be rejected.”

31. In view of the foregoing, the court finds and hold that the deceased died intestate as the document said to be his last will has not met the threshold of a valid will.

32. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE…………………………………………….for the Objectors………………………………………….for the Respondent………………………………...…..for the Interested Party