[2021] KEHC 9821 (KLR)
The court held that the statutory six-month waiting period for confirmation of a grant is designed to protect the interests of potential objectors and beneficiaries by providing them with an opportunity to challenge the grant or the will. The discretion to confirm a grant before six months should be exercised...
Source-derived case information.
- Citation
- [2021] KEHC 9821 (KLR)
- Parties
- Applicant: John Harry Buckle; Applicant: Stephanie Moya Turnbull; Applicant: Stewart Saunders (deceased); Applicant: Slee Blackwell (renounced)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause E012 of 2020
- Procedural Posture
- Succession Cause / Ruling on Application for Early Confirmation of Grant of Probate
- Outcome
- application for early confirmation of grant rejected
- Judges
- JN Onyiego
- Legal Topics
- Probate Confirmation, Early Confirmation of Grant, Absence of Dependants, Resealing of Grant, Will Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Harry Buckle
Applicant
Stephanie Moya Turnbull
Applicant
Stewart Saunders (deceased)
Applicant
Slee Blackwell (renounced)
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Early Confirmation of Grant of Probate
Legal Issues
- 1 Whether the court should confirm the grant of probate before the expiry of six months as provided under Section 71(3) of the Law of Succession Act.
- 2 Whether the absence of dependants and the need for resealing in the United Kingdom constitute sufficient grounds for early confirmation of the grant.
Ratio Decidendi
The court held that the statutory six-month waiting period for confirmation of a grant is designed to protect the interests of potential objectors and beneficiaries by providing them with an opportunity to challenge the grant or the will. The discretion to confirm a grant before six months should be exercised sparingly and only in extremely deserving cases. In this matter, the court found no urgency or expediency justifying early confirmation, especially since there are other named beneficiaries who should be notified and given an opportunity to participate. The need for resealing in the United Kingdom does not constitute sufficient urgency, as there is no time limitation for resealing....
Court Disposition
application for early confirmation of grant rejected
Orders
- Application for confirmation of grant before expiry of six months is rejected.
- Applicants to apply for confirmation of the grant when the time is ripe.
Full Case Text
Judgment text and source record
20 paragraphs
In the Estate of Dudley Paul Charlesworth Harwood (Deceased) (Succession Cause E012 of 2020) [2021] KEHC 9821 (KLR) (19 April 2021) (Ruling)
Neutral citation: [2021] KEHC 9821 (KLR)
Republic of Kenya
In the High Court at Mombasa
Succession Cause E012 of 2020
JN Onyiego, J
April 19, 2021
Ruling
1. The deceased herein died intestate on March 26, 2020 while domiciled in Diani, Kenya. He left a written will executed on May 18, 2020 in which he appointed his friends Stewart Saunders, John Buckle, Stephanie Moya Atkinson and the firm of Slee Blackwell as executors and trustees.
2. On October 29, 2020, John Harry Buckle and Stephanie Moya Turnbull petitioned for a grant of probate. In their petition application (form 78), they averred that one of the appointed executors hereof stewart Saunders had died and that the firm of Slee Blackwell solicitors being the 4th executor/ trustee had renounced their executorship vide their letter dated September 15, 2020.
3. Consequently, a grant of probate of written will was made and issued on February 1, 2012 to the joint applicants. Subsequently, on March 17, 2021, they filed a Chamber Summons dated 4th Febraury,2021 pursuant to Section 71 (3) and (4) of the Law of Succession seeking that the grant of probate be confirmed before the expiry of six months.
4. The application is premised upon grounds set out on the face of it and an affidavit sworn on March 17, 2021 by the applicants jointly. Among the reasons Advanced in support of the application is the argument that there are no dependants of the deceased within the meaning of Section 29 of the Law of Succession; the bulk of the properties of the deceased requiring succession are in the United kingdom with the only property in Kenya comprising Kshs 1,700,000 in two bank accounts; there is need for resealing of the grant in the United Kingdom first before the said estate can be distributed to the beneficiaries; there are no immovable properties comprising the estate in Kenya; it is just in the circumstance’s that the grant be confirmed to pave way for resealing in U.K.
5. During the hearing, the petitioners appeared online thus confirming that there was no objection from any quarters. They further confirmed that the deceased had no wife nor children.
6. I have considered the application herein, affidavit in support and submissions by counsel for the applicants. The application herein was filed under Section 71 (3) of the Law of Succession which allows confirmation of a grant of probate or letters of administration before the expiry of six months in case there are no dependants or if the circumstances or expediency of the matter so requires.
7. The purpose of waiting for expiry of six months before confirmation of grant is meant to give sufficient time to could be objectors or dependants to lodge an objection if not satisfied with the manner in which the grant was acquired or proposed mode of distribution or in case of a will, challenge its validity.
8. This window can only be varied at the discretion of the court after satisfying itself that there are no dependants nor objections and that the expediency of the circumstances so demands.
9. In this case, there is a written will and there seems to be no dependants as can be discerned from the wording of the will and confirmation by the petitioners (executors). Why cann.t the petitioners wait for the expiry of six months so as not to lock out any could be objectors. Besides the executors, there are other named beneficiaries like Maisiel, Russell Kamau and Hannah Violet Ngina who need to attend court and be made aware of their beneficial interest in the estate.
10. For all purposes and intents, I do not see any urgency and expediency in confirming the grant before time. There is no time limitation in resealing a grant in United Kingdom. Accordingly, I decline to confirm the grant before the expiry of six months.
11. Section 71 (3) of the Law of Succession should be applied sparingly and only in extremely deserving cases lest we lock out several interested parties in the estate. Application is therefore rejected and the applicants to apply for confirmation of the grant when the time is ripe.
DATED, SINGED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF APRIL, 2021J. N. ONYIEGOJUDGE