[2018] KEHC 9158 (KLR)
The court declined to grant the petition for probate because the petitioner failed to comply with the mandatory requirements of Section 51(1)(3) of the Law of Succession Act. Specifically, the copy of the will annexed to the petition was not authenticated, and the petitioner did not provide the names and addresses...
Source-derived case information.
- Citation
- [2018] KEHC 9158 (KLR)
- Parties
- Applicant: Kalpa Nitesh Bharatkumar Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 351 of 2018
- Procedural Posture
- Succession Cause / Ruling on Petition for Grant of Probate of Lost Will
- Outcome
- petition declined
- Judges
- AO Muchelule
- Legal Topics
- Probate of Lost Will, Requirements for Grant of Probate, Authentication of Will, Executor Identification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kalpa Nitesh Bharatkumar Shah
Applicant
Procedural Posture
Succession Cause / Ruling on Petition for Grant of Probate of Lost Will
Legal Issues
- 1 Whether the petitioner has satisfied the statutory requirements for grant of probate of a lost or mislaid will.
- 2 Whether the copy of the will annexed to the petition is properly authenticated as required by law.
- 3 Whether the petitioner has provided sufficient information regarding persons able to prove the contents of the will.
Ratio Decidendi
The court declined to grant the petition for probate because the petitioner failed to comply with the mandatory requirements of Section 51(1)(3) of the Law of Succession Act. Specifically, the copy of the will annexed to the petition was not authenticated, and the petitioner did not provide the names and addresses of persons able to prove the contents of the will. Additionally, there were discrepancies in the spelling of the executors' names, and no independent confirmation was provided to clarify the identity of the executors. Until these statutory conditions are fulfilled and the necessary clarifications are made, the court cannot grant the petition for probate of the lost will.
Court Disposition
petition declined
Orders
- The petition for grant of probate is declined until the requirements of Section 51(1)(3) of the Law of Succession Act are fulfilled and clarification is provided regarding the identity of the executors.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 351 OF 2018
IN THE MATTER OF THE ESTATE OF SAVITABEN BHARATKUMAR SHAH (DECEASED)
KALPA NITESH BHARATKUMAR SHAH.............PETITIONER
RULING
1. The deceased died on 20th January 2018 in the United Kingdom. At the time of her death she was domiciled in the United Kingdom. According to the petition for a grant of probate of a Will which has been lost or mislaid since the testator’s death filed by the petitioner on 20th March 2018, the deceased left a Will dated 3rd October, 2002. A copy of the Will was annexed to the petition.
2. In the affidavit in support of the petition, the petitioner stated that she was the daughter –in-law of the deceased and the only surviving executor named in the Will. The other executors were Bharatkumar Dharamshi Ranmal Shah who died on 4th October 2011 and Nitesh Bharatkumar Shah who died on 28th November 2002. She undertook to faithfully administer according to law all the estate which by law devolved upon and vested in personal representatives of the deceased and to render a just and true account of such estate wherever required by law, and to, when required by this court, deliver up thereto the said Will.
3. The procedure for the application of a grant of probate of a Will is provided for under Section 51(1) (3) of the Law of Succession Actas follows:
“Where it is alleged in an application that the deceased left a valid Will:-
a) If it was written, the original Will shall be annexed to the application, or if it is alleged to have been lost, or destroyed otherwise than by way of revocation, or if for any other reason the original cannot be produced, then either –
i) an authenticated copy thereof shall be so annexed; or
ii) the names and addresses of all persons alleged to be able to prove its contents shall be stated in the application;
4. In the present petition, the copy of the Will attached is not authenticated as required bySection 51(1) (3) (i)of the Act. The petitioner did not also provide any names and addresses of other persons able to prove the contents of the Will as required by Section 51(1) (3) (ii)of the Act.
5. There is also an issue of names of the executors being misspelt, as stated in the affidavit in support of the petition. There is need for an independent person, preferably from the family of the deceased, to confirm that the persons referred to in the copy of the Will are same as those referred to at paragraphs 8, 9 and 10 of the affidavit in support of the petition.
6. Until the conditions set out in Section 51(1) (3) of the Act are fulfilled, and until such clarification is given as to the names and identity of the executors, the present petition is declined.
DATED and SIGNED at NAIROBI this 30th day of MAY 2018
A.O. MUCHELULE
JUDGE