[2018] KEHC 6567 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 3221 OF 2013

IN THE MATTER OF THE ESTATE OF KRISHNA KUMARI BHATTI (DECEASED)

JUDGMENT

1. The deceased herein died on 1st December 2013. Representation to her estate was sought by Gita Devi Kishan Singh Gehlot and Seema Shankhla (hereinafter referred to as Seema), in their purported capacities as executors of her will, vide a petition filed herein on 18th December 2013. The petitioners stated that the deceased died testate having made a will on 21st November 2013, and had been survived by the petitioners and two other individuals.

2. Upon gazettement of the said petition, on 31st January 2014, a notice of objection, dated 1st July 2014, was lodged at the registry on even date, by Jayant J Patel (hereinafter referred to as Jayant) and Sanjeeve Modi (hereinafter referred to as Sanjeev). The two claimed to be executors of a will made by the deceased on 31st January 2012. They stated that the will of 21st November 2012 was not valid for the testatrix had been unduly influenced by the beneficiaries, it was made under suspicious circumstances, the testatrix did not know and approve the contents thereof and her signature thereon was a forgery. In addition, the two objectors filed an answer to the petition for grant of probate and a cross-application for a similar grant. The answer and cross-application are both dated 25th August 2014 and were filed herein 20th August 2014.

3. Thereafter various affidavits were filed to support the positions of the various protagonists. On the petitioners side, there are affidavits sworn by Paras Vinod Shah (hereinafter referred to as Paras) on 2nd October 2014, Kanchanben Ramniklal Khimji Shah (hereinafter referred to as Kanchanben) on 3rd October 2014, Rishi Dave (hereinafter referred to as Rishi) on 3rd October 2014, Rita Kaura (hereinafter referred to as Rita) on 12th November 2014, Gita Devi Kishan Singh Gehlot on 18th November 2014 and 8th April 2015, and Seema on 7th April 2015. On the side of the objectors there are affidavits by Mahesh Kumar Bhatti sworn on 16th March 2015 and 25th April 2015, and Jayant sworn on 16th March 2015.

4. In his affidavit, Paras, an advocate of this court, avers that he met the deceased on 20th March 2013 in Nairobi, when he took instructions from her on the preparation of a will. He described her as at 20th March 2013 to have had a lucid and sound mind and to have been acting on her own accord and volition. He prepared a draft will which reflected her instructions and sent it to her in the United Kingdom where she had by then travelled. He avers that he later saw the will prepared by an English solicitor dated 21st November 2013 and confirms that the same reflected the intentions of the deceased as per the meeting that he had with her on 20th March 2013.

5. On her part, Kanchanben states in her affidavit that she was one of the persons who attested to the execution of the will of 21st November 2013. She avers that she did attest the will at the request of the deceased, and that the deceased signed the document in her presence and then she, the witness, affixed hers as attesting witness. She describes the deceased as appearing then to be of sound mind and to have signed the will of her free will. Rishi says in his affidavit that he was the other witness to the will at the request of the deceased. He says that the deceased signed the will of 21st November 2013 on that exact date at a residence within Nairobi in his presence and that he affixed his signature thereafter as attesting witness. He describes the deceased as appearing to have had a sound mind, and to have signed the document of her own free will.

6. Rita is a solicitor practicing as such in England. She says in her affidavit that she was given a copy of the deceased will of 31st January 2012 sometime in 2013, and a draft of another will in July 2013 prepared in by a Kenyan lawyer with instructions to effect changes that would have seen the deceased’s daughters, Gita and Seema, added as beneficiaries in addition to Mahesh. The deceased then met the solicitor in her office on 30th September 2013 and they together went through the new will which the solicitor had amended. She made more changes to the document, and eventually the deceased executed a new will the same day in her chambers. The said will, of 30th September 2013, was attested by the solicitor and her husband, Kamal Kaura, also a solicitor. She states that the said will expressly revoked the will of 31st January 2012. The deceased then travelled back to Kenya, and while in Kenya sent instruction to the solicitor in England through her son in law, Chitranjan Shankhla (hereinafter to be known as Chitranjan), also known as Chitu, to make changes to the will of 30th September 2013, which the solicitor did. The new will was signed on 21st November 2013 in Kenya. The new will revoked that of 30th September 2013, and completely excluded Mahesh from benefit. She said that during the entire period that she dealt with the deceased, she was of the opinion that the deceased was of sound mind and understood what she was doing.

7. In her affidavit, Gita says that the deceased was at all material times coherent and of a sound mind. She attaches to her affidavit, copy of a medical report by Dr Hemant Saha, dated 15th September 2014, on the condition of the deceased during that period. The doctor says that although the deceased ailed from hypertension and diabetes, which affected her physical ability, she, nevertheless, remained of sound mind and used to make decisions regarding her therapy on her own. He states that her mental ability was not affected in anyway. He says that her condition deteriorated in early November 2013, she was admitted at Aga Khan Hospital on 29th November 2013 and died on 1st December 2013 on account of her ailments. In her further affidavit she gives a general background to her family, and how the members of the family related to each other. She deals at length with the business that their late father operated in Kenya, and how some members of the family contributed to the same. She explains the circumstances under which their father created two trusts for the benefit of his children, where he did not discriminate between them on basis of their gender. Seema, on her part, like her co-executrix, gives a detailed factual background of the family of the deceased, focusing specifically on how members of that family related to each other.

8. Mahesh on his part avers that the petition herein is based on an invalid will, invalid as it had been procured by undue influence and coercion. He states that the valid will of the deceased is that executed on 30th January 2012. From his statement it is discernible that his father played a critical role in the making and execution of the will of 30th January 2012, for he is said to have made it clear to the deceased herein that his and the deceased’s estates ought to go to him, Mahesh. He states that as per his father’s will his estate was to pass to the deceased herein, and upon her death then pass on to him. He asserts that after his father died, the deceased herein came under the influence of her daughters and their husbands. He further says that she had been taken by those relatives for treatment in London in October 2013 but she suffered a stroke in Nairobi on 29th November 2013 and remained in a coma until she died on 1st December 2013. He avers that she had been ailing throughout the month of November 2013 prior to her death, and refers to a medical report by Dr Neeraj Krishnan (hereinafter referred to as Dr. Krishnan) who allegedly attended to her on 21st November 2013 when she complained of severe shoulder pain. He asserts that she could not have made a will on 21st November 2013 as she was ill at the time. He complains that the wills of his parents were removed from their previous lawyers by his sisters and their spouses without his consent and that of the executors. He accuses them of procuring the last will of 21st November 2013, which he says disinherited him. He states that the terms of the said last will runs contrary to the wishes of their late father, and was inconsistent with the promises that the deceased herein made to her husband about giving everything to Mahesh. He details in his affidavit the circumstances that he says raise suspicion about the making of the disputed will. These include the fact that she was removed by his sisters for treatment abroad, it was while abroad that the process of the making of the will of 21st November 2013 began there, the deceased was not well when the said will was executed, the removal of the deceased will of 30th January 2012 from the family lawyer by her son in law without consent of the executors and other family members, the fact that the deceased lapsed into a coma not long after she suffered a stroke, and the daughters of the deceased moved for probate without involving him. He also raises issue with the fact that one of the attesting witnesses was a young man and an employee of his brother-in-law, Kishan Gehlot (hereinafter to be referred to as Kishan), who appears to have been the principal character in the making of the disputed will. He says that the said witness, Rishi, was not close to the deceased and was in fact employed by his brother-in-law. He further states that from the affidavit of Paras, the lawyer who made the initial draft of the will, which culminated in the execution of the will of 21st November 2013 met the deceased at his brother- in-law’s office. He states that the draft allegedly done by Paras was not placed before court and there is therefore no knowing whether it was the basis for the later wills.

9. Jayant states that he was a longtime friend of the husband of the deceased, and it was on that account that he got appointed executor of the wills of the two of them. He says both wills were signed on 30th January 2012 in his presence as attesting witness. Both wills gifted the estates of both to their son, Mahesh, and it would appear that both wills were done on the instructions of the deceased husband, as he and Jayant had to explain the purport of her will to her to obtain her concurrence thereto. After the husband died, his will was read to the family. Thereafter the deceased herein called a family meeting whether Mahesh was excluded, and it appeared to Jayant that the deceased’s son in law, Kishan had taken control of the family. The deceased subsequently travelled to London for medical treatment and was apparently taken there by her daughter Gita and her son in law Kishan. She returned to Nairobi in 0ctober 2013, and eventually suffered a stroke on 29th November 2013 and died on 1st November 2013. It was after that that he discovered the existence of the will made on 21st November 2013, and the fact that the will of 30th January 2012 had been taken away from Pramod Patel (hereinafter referred to as Pramod Kishan), the family lawyer who had its custody, by Kishan. He complains that that was done without his consent as executor or that of the son of the deceased. He then goes on to discuss the wills made subsequent to that of 30th January 2013, and to point out why in his view they were not valid or authentic. These arguments are similar to those made by Mahesh in his affidavit. He has attached to his affidavit the two wills of 30th January 2012 that had appointed him executor thereof.

10. Directions were given on divers dates that the petition and the objection be disposed of by way of oral evidence.

11. The oral hearing commenced on 22nd March 2016, when Rita gave evidence de bene esse. She was the only witness called by the petitioners as they closed their case after her testimony. The hearing of the objection commenced on 26th July 2016, when Jayant took the stand. The objectors completed their case after calling their second witness, Mahesh. All the three witnesses gave vent to the averments made in their respective affidavits, and they were extensively cross-examined.

12. At the end of the oral hearing, I directed the parties to file written submissions. There has been compliance, for both sides have filed detailed written submissions, complete with the authorities that they rely upon. I have perused the said written submissions and the authorities and noted the arguments made therein.

13. There are two issues for determination herein,

(a) whether the will of 21st November 2013, which is the basis of the petition herein, is valid; and

(b) if the answer to (a) is in the negative, whether the estate of the deceased ought to be subjected to the will of the deceased made on 31st January 2012.

14. The deceased herein is said to have died testate. She died after the Law of Succession Act, Cap 160, Laws of Kenya, had come into force. The validity or otherwise of her will of 21st November 2013 should therefore be tested against the provisions of the said statute. Part II thereof provides for wills. The validity of wills is dependent on capacity of the maker and whether the same was made in proper form, for a will is defined as valid if made by a person with the relevant capacity in proper form.

15. The law on capacity is stated in section 5 of the Law of Succession Act. The maker ought to be a person of sound mind, who is not a minor. The provision goes on to state that the soundness of mind of the maker shall be presumed unless at the time of executing the will he was not in a state of mind as not to know what he was doing, on account of either mental or physical illness, or drunkenness, or any other cause. The burden of proving lack of capacity on account of lack of a sound mind is cast on the person alleging that the deceased lacked such capacity. Related to that is the provision in section 7 of the said Act, with regard to wills caused by fraud or coercion or importunity or mistake. Such wills are stated to be void.

16. In the case before me, the objectors appear to be founding their case on both sections 5 and 7 of the Act. It is suggested that the deceased was ill at the time she executed her will on 21st November 2013, and at the same time that she was under such overwhelming influence from her daughters and sons in law that the will she executed did not reflect her wishes or intentions, and therefore the same was procured by importunity or undue influence. It is also suggested that the will was made under suspicious circumstances such that the deceased did not know nor approve of the contents of the will that she signed. I shall deal with each of these allegations in turn.

17. Regarding the question of illness, the material on this was presented by Mahesh in his affidavit sworn on 16th March 2015. He avers that the deceased was ill and did not have a good state of mind so as to know what was happening around her or even to appreciate the contents of the will she was signing. He states that on that very day when she is alleged to have signed the will, 21st November 2013, she had been to see a doctor, Dr Krishnan, who is said to have concluded that she was in so much pain that the same could not be taken away by painkillers and recommended an injection. A report of the said doctor is attached, dated 19th February 2014. It indicates that the deceased went to see the doctor on that day for review over a severe pain that she had had for several months. The doctor diagonised rotator cuff tendinitis. The petitioner’s case is, as presented by Gita, that the deceased was coherent and of sound mind throughout. She has attached to her affidavit of 18th November 2014, a medical report by Dr Hemant. The report is dated 15th September 2014, and in it the doctor claims to have been taking care of the deceased medically for the period running from 21st December 2012 till 1st December 2013 when she died. He says that she had diabetes and hypertension, of which she was to later die. He states that the diseases affected her physically but not mentally. It should be noted that both sides did not call any of the doctors to testify and be subjected to cross-examination on the contents of their medical reports.

18. Unsoundness of mind for testamentary purposes has been defined in a number of cases. It refers to inability on the part of the testator to make decisions with regard to will making. In Banks vs. Goodfellow(1870) LR 5 QB 549, it was put as the inability of the testator to understand what they are doing at the precise moment when they are executing the will, in terms not being able to remember the property that they are disposing of and of the persons who ought to benefit from their bounty. The question then that I should be seeking to answer here is whether the deceased in this case was a person, who, on 21st November 2013, when she allegedly executed the will of that date, knew what she was doing, remembered the property she was disposing of and recalled the persons that she was bound to provide for.

19. I have before me affidavits of the persons who allegedly played a role in the execution of the said will. There is the English solicitor who drafted the will in question, and who allegedly was in communication with the deceased up to the time of the alleged execution of the will. There are the two witnesses who attested to the will. They all say that at that time the deceased was of sound mind. She knew what she was doing. Of the three, only the solicitor was presented for cross-examination. She appeared to me to be fairly consistent in what she was telling the court. She painted her interaction with the deceased as fairly personal and from it it emerges that the deceased was of testamentary capacity. I have also perused through the affidavits of the objector and his witness, and of the material they have placed on record, and I have noted that there is nothing to suggest that the deceased’s condition had deteriorated progressively to a stage where she had to be hospitalized. According to Jayant, the deceased had medical issues over time, she was taken at one point to London for medical care, and after she came back to Kenya he visited her several times to enquire about her health and they would converse. He says that she suffered a stroke on 29th November 2013 and lapsed into a coma and died on 1st December 2013.

20. On the medical evidence, it is clear from the report by Dr Saha that the deceased suffered hypertension and diabetes. These conditions affected her physical ability but not her mental state. The report by Dr Krishnan does not address the mental state of the deceased at the time when the said doctor attended to her on 21st November 2013. I cannot therefore gange from it whether or not the deceased had mental ability at the time. All that it appears to suggest is that the deceased was unwell at the time and on the very day it is alleged she signed the will she had in fact had to seek medical attention. My reading of that report is that the deceased did not visit Dr Krishnan that day because she fell ill or her condition had worsened, it was a routine visit, for review. Indeed, the medical report opens with the words ‘Mrs Bhatti came for review on 21/11/13 ...’ After the said review the doctor recommended an injection, which was administered on 23rd November 2013 under ultrasound guidance. The medical reports on record do not suggest unsoundness of mind on the part of the deceased as at the date of execution of the will of 21st November 2013.

21. In view of the above, it is my conclusion that there is no material before me upon which I can hold that the deceased did not have the requisite testamentary capacity to execute the will of 21st November 2013.

22. The twin issues of undue influence and the making of the will under suspicious circumstances have been raised. These fall within the provisions of section 7 of the Act, and a will executed under such circumstances is void. They call into question the validity of the will on the basis that the deceased did not know the contents of the documents that he signed or that even if he did know contents he did not approve of them, eventhough at the time of executing the document he was of sound mind.

23. On undue influence, it should be understood that the same would occur where the testator is coerced or induced or driven into making certain dispositions that he did not really want to make. It is all about pressures, persuasions, threats, importunity, among others. The question is whether these take away the free will or volition of the testator so that the contents of the will are the product of the person exerting the pressure but not of the testator himself. What encompasses undue influence was very well articulated by Sir James Hannen in Wingrove vs. Wingrove (1885) 11 P&D 81.

24. The case for the objectors is that after her husband’s death, the deceased came under the influence and control of her daughters and their husbands. The name of Kishan in particular kept coming up as a person who was very aggressive against the interests of the son of the deceased, Jayant says that this man took control of the family of the deceased. The other son-in-law, Chitranjan, was also mentioned with regard to the wills drafted by the English solicitor. However, other than the fact that they appear to have been central characters around the deceased during the time these wills were drafted, there is no positive evidence that they influenced the deceased in any way in the making of the will of 21st November 2013. There is no evidence whatsoever to suggest that either them or their wives exerted any sort of pressure on the deceased or induced or coerced her to make the will of 21st November 2013 in one way and not the other.

25. The circumstances under which a will is made are suspicious, and can lead to the will being rendered void, where the person who writes or prepares the will or plays a central role in its making takes a substantial benefit under it. There is abundant caselaw on this, represented by such local cases as Vijay Chandrakant Shah vs. The Public Trustee CA No. 63 of 1984, Mwathi vs. Mwathi and another (1995-1998) 1 EA 229 and Wanjau Wanyoike and four others vs. Ernest Wanyoike Njuki Waweru and another HCCC No. 147 of 1980, and the English cases of Tyrell vs. Painton (1894) 1 P 151, Barry vs. Butlin (1838) 2 Moo PC 480 and Wintle vs. Nye (1959) All ER 552.

26. The objectors have listed certain circumstances, both prior and after the making of the impugned will, and submit that the same were suspicious. These include the removal of the deceased from Kenya to London under the guise that she was being taken for medical care there, the deceased was in such great pain on 21st November 2013 that she had to be taken to Dr Krishnan for attention, she suffered a stroke a few days after signing the will and died three days later, the will of 30th January 2012 was taken away from the lawyer who had custody of it without the consent of the executor or of the son of the deceased, the daughters of the deceased sought probate of the alleged will secretly without consulting the executors of the will of 30th January 2012, doubts are raised as to whether the alleged attesting witnesses were present when the said will was executed, one of the said attesting witnesses was said to be an employee in the business of Kishan, the address indicated in the will as that of the deceased was in fact that of the firm of the said Kishan, the advocate who did the initial draft of the will, Paras met the deceased in the office of Kishan and held discussions on the proposed will with relatives of the said Kishan and in the presence of the other son in law of the deceased, Chitranjan. Their case appears to me to be that the sons in law of the deceased sought to have the only son of the deceased excluded from benefit so that their wives end up as the sole beneficiaries.

27. The whole drama started to play out on 30th January 2012, when the initial will of the deceased was executed simultaneously with that of her now late husband. The deceased had to be persuaded to accede to the husband’s position that he wills his estate to her absolutely on the understanding that she executes a will that gifts her estate, substantially the same one that she had inherited from him, to their son. After the husband dies, the deceased then appears to develop a rather tight relationship with her sons in law, even as her relationship with her son appears to deteriorate, ostensibly after he comes under what is described as the control of his wife. The deceased’s will is then retrieved from the chambers of the advocate who had custody of it, Pramod, by one of the sons in law, Kishan, and is placed in the hands of another lawyer, Paras, with instructions to make changes to it that would have the two daughters of the deceased provided for. Paras then prepares a draft, which is not finalized and executed. The draft is placed before a socilitor in London, who makes slight changes, but retaining provision for the three children of the deceased. The English solicitor does a draft which is then executed by the deceased in London. The London will is then changed by the English solicitor, ostensibly on instructions of the deceased, so as to remove the son from benefit, a draft is signed in Nairobi effectively revoking the London will.

28. In all the developments that I have stated in the foregoing paragraph, the two sons in law of the deceased played very central roles. The will of 30th January 2012 was removed from the chambers of Pramod, by Kishan. The objectors complain that they were not involved in that exercise, one being the executor of the will while the other is the son of the deceased. By this time the deceased was still alive. The executor-objector therefore had not yet assumed office for he could only do so upon the demise of the testator. There would have been no need for him to be informed that the will was to be taken away from its custodian. Regarding the son, the same principle would apply. There is nothing in law that provides that a child of a testator ought to be informed before their parent’s will is taken from the custody of the person holding it. However, the fact of that retrieval of the will from the custodian by a person other than the maker of the will is a matter that should raise eyebrows. Kishan stands accused of having removed a will that had nothing to do with him from the person who had custody of it. It behoved him to step forward and explain himself, by way of an affidavit. Probably he had a reason to do what he did. Perhaps he had authority from the testatrix to collect it from the advocate. He should have sworn an affidavit to explain himself, and account for his actions. He did not and therefore the allegations made against him with regard to this remain uncontroverted. I note too that the petitioners did not get Pramod to swear an affidavit to explain the circumstances under which he released the will of the deceased to Kishan, who, in the strict sense of social relationships, was not an immediate member of the family of the deceased or a close kin of the testatrix. The conduct of the retrival of the said will from Pramod is a matter that raises suspicion, no doubt the said suspicions could be dispelled by explanation from either or both Kishan and Pramod.

29. it emerges from the affidavit of Jayant, that the event the subject of paragraph 28 hereabove happened sometime shortly after the demise of the late husband of the deceased and the reading of his will in the presence of his family. The significant event that followed the retrieval of the will of the deceased from Pramod was on 20th March 2013 as narrated by Paras, in his affidavit. He met the deceased in the offices of her son in law, Kishan Gehlot, and there was a general discussion of her will in the presence of the said Kishan Gehlot and of the deceased’s other son in law, Chitranjan, and two other individuals who were no doubt relatives of Kishan, that is Leena Gehlot and Samit Gehlot. I presume the will the subject of the general discussion was the one dated 30th January 2012 that Kishan had earlier retrieved from Pramod. It was after the general discussion, whose content or detail is not disclosed, that the advocate was left alone with the deceased to take instructions on the making of a new will, principally to deal with the issue of her mistreatment by her son, Mahesh.

30. The events of 20th March 2013 were perhaps innocent, just a case of an advocate meeting his client away from his chambers to take instructions from her. However, there are a number of things that would excite the suspicion of any discovery. In the first place, the alleged advocate-client meeting took place not at the home or office of the client herself, but at the office of her son in law, the same one who is alleged to have been the author of the events that led up to the making of the will of 21st November 2013, where a son of the deceased was disinherited, and the same one accused of suspiciously removing the will of the deceased from Pramod. In addition, the said Kishan is said to have been party to discussions over that will with the advocate, the deceased, Kishan’s own relatives and Chitranjan. This was a meeting between two sons in law of the deceased and their relatives in the presence of the deceased about her will, resulting in a final will where the deceased inherits her son and gifts her entire estate to her two daughters, the wives of the two sons in law, who met lawyer Paras on 20th March 2013 in the offices of one of them. It is instructive that the lawyer then holds a private advocate-client conference with the deceased after the larger meeting with the sons in law and their relatives. The events of 20th March 2013 no doubt raise suspicion and it behoved the two sons in law, who are placed at the centre of all this, to explain the circumstances of the said meeting and the events that followed. I note that there are no affidavits by the two, that is Kishan and Chintranjan, neither did they appear in court to explain themselves thereon.

31. After that the events shifted to England. A solicitor based there was given the original will of 30th January 2012, presumably the one Kishan retrieved from Pramod, and a draft of the one done by Paras after the meeting of 20th March 2013. She says she got the wills on divers dates in 2013. It is the other son in law, Chitranjnan who features prominently during this phase. Whereas the solicitor was vague on how the will of 30th January 2012 reached her, she was specific that it was Chitranjan who sent to her copy of the draft will done by Paras. The socilicitor later held a meeting with the deceased in her chambers in London on 30th September 2013, when she allegedly took instructions to make a new will based on the draft sent to her by Chitranjan. The said draft altered the will of 2012 so as to make provision for the two daughters and to appoint them executors and trustees. The will was executed by the deceased the same day before the English solicitor who acted as attesting witness, together her solicitor husband. The will of 30th September 2013 was subsequently revoked by another will, the disputed will of 21st November 2013. The latter will was also prepared by the English solicitor and was executed in Nairobi by the deceased. The instructions to make a new will in November 2013 were sent to the solicitor through Chitranjan. She drafted the new will and sent a fair copy to Chitranjan on 18th November 2013. On 22nd November 2013 the said Chitranjan telephoned from Nairobi so that she could talk to the deceased and the solicitor allegedly took her through the terms of the new will that she had signed the previous day, 21st November 2013.

32. It is curious that the will of 2012 and the draft from the meeting of 20th March 2013 were given to the English solicitor, not by the deceased but by proxy, principally Chitranjan, one of the sons in law accused of manipulating the deceased. It is also a matter of curiosity that the same were sent by July 2013, ahead of the deceased’s trip to London in September 2013 for medical attention. It would be suspicion that a London solicitor who appears to have been known to Chitranjan was to do the final draft when the deceased was at all times resident in Kenya. It would appear to me that Chitranjan was only person in the family of the deceased with whom the said solicitor dealt with at all the material times. It is not lost to me that the address that the wife of Chitranjan, who is daughter to the deceased, Seema, uses in these proceedings is a London one – 8A, Southway, London, No. 20 8EA, United Kingdom – which would suggest that she and her husband are London residents, and Rita, the London solicitor is their lawyer. When the said solicitor gave evidence she claimed to have had acted previously for the deceased. I find that unlikely given that the deceased was actually resident in Kenya, and travelled to the United Kingdom only for medical care.

33. Whereas Chitranjan prayed a critical role in the preparation of the will that was signed on 21st November 2013, it is the other son in law of the deceased, Kishan who appears to be at the centre of the execution of the said will. There are allegations by the witnesses of the objectors that one of the persons who attested to the execution of the will, Rishi, was a young employee, of a company associated with Kishan called Intex Construction Company Ltd. It is suggested that it must have been Kishan who brought him to attest the said will. It is also said that the other attesting witness was also associated with Kishan, for the address given as that of the witness is that of Intex Construction Company Limited. Kishan Gehlot did not swear an affidavit in these proceedings and therefore the allegations have gone uncontroverted. The two attesting witnesses have also not sworn affidavits to address this aspect of the objector’s case. The reason they were present as witnesses was so as to provide evidence that would shed light on the circumstances of the making of the will. In cases where the validity of the will is under attack they ought to be the primary witnesses. They should have sworn affidavits to address these allegations which no doubt touch on their integrity.

34. The question of the deceased being removed to the United Kingdom was raised. According to the objectors that was done to facilitate the making of the wills of 30th September 2013 and 21st November 2013. According to the executors, it was so that she could receive medical attention there. Looking at the circumstances of the case and the evidence tendered, I am of the persuasion that there was nothing sinister about the deceased being taken to the United Kingdom at the time that she was taken.

35. Having considered the law on suspicious circumstances as against the material before me, I am of the persuasion that the wills of 30th September 2013 and 21st November 2013 were made under a cloud of suspicion. It would appear that the two exercises were engineered and controlled by the deceased’s sons in law, Kishan and Chitranjan, to ensure that the name of their brother in law, Mahesh, was excluded from the will of the deceased so that their wives, Gita and Seema, became the sole beneficiaries under the will of their mother. I am persuaded that the wills were authored by the two sons in law, and did not reflect the wishes and intentions of the deceased. Put in a different way, I am not persuaded that the deceased knew or approved of the contents of the two documents. They were procured by importunity, and, by virtue of section 7 of the Law of Succession Act, I hereby declare that the said wills are void.

36. Questions were raised about the manner of execution and attestation of the document. This complaint by the objectors was not well articulated. I have carefully scrutinized the document in question, and I am satisfied that it was properly signed by the purported testatrix and the two attesting witnesses. If there were doubts at the authenticity of the signatures, the objectors ought to have subjected them to examination and testing by document examiners and handwriting experts. On whether the same was signed at the place where it purports to have been signed, I have no material before me which suggests that it was not signed at the place where it is purported the deceased was at when the same was executed. Whether the witnesses were present at the same time, again, the objectors did not place before me any evidence to suggest that the witnesses were not present at the same time when the said document was signed by the deceased.

37. Having found that the two wills cannot stand leaves me with the will of 30th January 2012. Should I find that the same is valid and ought to be probated? Or should I find it invalid and declare that the deceased intestate?

38. The parties hereto addressed me mainly on the wills of 30th September 2013 and 12th November 2013. Not much effort was made to address the question of the validity of the will of 30th January 2012. However, there are a number of averments on the same that I can use as basis to pronounce on the validity or otherwise of the said will. The objectors would like the court to rely on the said will, the same having been executed in proper form by a person who was of sound mind. Jayant is named as executor to that will and has given details on what expired on the day the same was executed. The petitioners on the other hand have contended that the same did not reflect the wishes of the deceased, saying it reflected the wishes of their late father instead. They have gone to say that the deceased never appointed the persons named therein as executors and explain that that was one of the motivations behind her seeking to revoke the said will by making others.

39. I believe the answer to the validity of the will of 30th January 2012 ;lies with the averments made by Jayant in his affidavit of 16th March 2013, he was present at the execution of the said will and also that of the late husband of the deceased. I shall cite the relevant paragraphs of that affidavit –

’8. THAT in 2102 OM Prakash Bhatti requested me to be one of the executors of the family Wills he intended to make. In fact, because of my age I had requested him to appoint his younger brother Baldev Bhatti instead but he insisted that myself and the finance manager of his company, Mr Sanjeev Modi oblige him.

9. THAT on 30th January 2012, he asked Sanjeev Modi and myself to be at his residence to witness the signing of his own Will and that of his wife, Krishna Kumari Bhaii all dated 30th January 2012. In the afternoon OM Prakash Bhatti began explaining to his wife the contents of both his and her Wills and his intentions in order to guide her future actions.

10. THAT the said OM Prakash Bhatti informed that his assets in Kenya were his residence, his bank account and 74% shares in TM Construction. He elaborated the facts which Krishna was well aware of that he had provided for his family and relatives over the past years with acquisition of their houses, in education and marriages in the families, giving life time employment with excessive benefits and so on. He regretted to say that his own relatives whom he trusted to manage the company had made substantial losses and abandoned responsibility when the company was in dire need.

11. THAT he continued to explain that at his age of 85, he was landed with management of the company affairs. He went on to remind her that their son Mahesh Kumar Bhatt received none of the company benefits the others had enjoyed. Therefore, he emphasized that his depleted remaining assets must pass on to their only son, Mahesh Kumar Bhatt and his family, to ensure their wellbeing and perpetuate his dynasty. He hoped that his grandson, Ashish, would take over the reign of the Company on completion of his education.

12. THAT he emphasized to Krishna Kumari Bhatti, the deceased here win (sic) that his remaining assets must pass on to his only son Mahesh Kumar and Mahesh’s family to ensure their wellbeing and perpetuate his dynasty. (Underlining is by the deponent of the affidavit)

13. THAT OM Prakash Bhatti then went on to explain that as per tradition if he died before Krishna his wife, then the entire estate Will (sic) be inherited by her and that upon her death it will be passed on to her son Mahesh Kumar Bhatt. The deceased herein Krishna Kumari Bhatti agreed to the contents of both their Wills. Her now late Husband further emphasized that under no circumstances should she change the intent stated therein and she assured him she would not. (Underlining is by the deponent of the affidavit)

14. THAT I as executor asked Krishna Kumari Bhatti to state whether she understood and accepted the contents and intentions of the Wills to which she replied that she did. Both OM Prakash Bhatti and Krishna Kumari Bhatti there upon signed their respective Wills. These are the Wills dated 30th November 2012. I retained the originals …’

40. From the averments in that affidavit, it is plain that the wills that the deponent was asked to attest to and execute were made at the instance of the late husband of the deceased, hence the necessity on the part the late husband to explain their contents to the deceased. Paragraph 8 of the affidavit talks of ‘ … the family Wills he intended to make …’ Paragraph 9 says ‘… OM Prakash Bhatti began explaining to his wife the contents of both his and her Wills and his intentions ...’ In paragraphs 12 and 13 it was made clear that the deceased could only act according to the wishes of her late husband, and those were not to be departed from by the deceased herein under any circumstances.

41. Section 3 of the Law of Succession Act, defines a will as ‘the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death ... ’ The ordinary everyday meaning of the word ‘will’ is the faculty by which a person decides or is regarded as deciding or initiating action. (See The Concise Oxford Dictionary, Ninth Edition, 1995, OUP, Oxford). It denotes exercise of free-will by the maker of the will. It expresses that person’s personal wishes and intentions.

42. Looking at the averments in the affidavit of Jayant I am not persuaded that the document that the deceased executed on 30th January 2012 was an expression of her will or wishes or intentions or desires. She did not procure or instruct anyone to make the document in question in the terms that it was in. It was made by another, to express his will or wishes or desires. The language in the affidavit is very clear that there was no concurrence between the deceased and her husband on the wills before they were drafted and presented to her for signature. She appears to have been confronted with the same for the first time on 30th January 2012. The averment that the same was explained to her and she understood and accepted it hence signed it, is something that I believe should be approached with a measure of caution. She was seeing the document for the first time, and her husband was explaining it to her in the presence of non-family members and requiring her to sign it. It would appear that the late husband was also imposing certain demands on her as reflected in paragraphs 12 and 13 of the said affidavit. I do not believe that the said document reflected her wishes, and I hereby decline to admit the same to probate.

43. I have considered the law on the matter, the oral evidence of the witnesses and pleadings in the cause, and I am disposed to determine the objection proceedings in the following terms:

a) that I hereby declare that the wills purportedly executed by the deceased on 30th January 2012, 30th September 2013 and 21st November 2013 are not valid and that the deceased died intestate;

b) that I hereby appoint Mahesh Kumar Bhatti, Geeta Devi Singh Gehlot and Seema C. Shankla administrators of the estate of the deceased herein and a grant of letters of administration intestate shall issue to them accordingly;

c) that the said administrators, or any one of them with notice to the rest, shall be at liberty to seek confirmation of their grant before the usual six (6) months expire;

d) that each party shall bear their own costs; and

e) that any party aggrieved by the orders made herein shall be at liberty to lodge an appeal against the same at the Court of Appeal within twenty-eight (28) days.

DATED, SIGNED and DELIVERED at NAIROBI this 31ST DAY OF MAY, 2018.

W. MUSYOKA

JUDGE