[2013] KEHC 3073 (KLR)

[2013] KEHC 3073 (KLR)

The court found that the testatrix intended to dispose of her only asset, LR Muguga/Kanyariri/196, but mistakenly described it in her will as LR No. 4885/16/7, a property that no longer existed. Applying the purposive approach and admitting extrinsic evidence, the court held that the intention of the testatrix was...

Source-derived case information.

Citation
[2013] KEHC 3073 (KLR)
Parties
Applicant: Humphrey Kinyanjui; Applicant: Wathi Mungai; Respondent: Salome Mukami Kariuki (deceased)
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
16 May 2013
Case Number
Succession Cause 2299 of 2012
Procedural Posture
Succession Cause / Ruling on Application to Rectify Will Property Description
Outcome
application allowed
Judges
DN Musyoka
Legal Topics
Wills and Testamentary Disposition, Construction of Wills, Rectification of Wills
Source Language
english
Family and Children Wills and Testamentary Disposition Construction of Wills Rectification of Wills

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Parties

Humphrey Kinyanjui

Applicant

Wathi Mungai

Applicant

Salome Mukami Kariuki (deceased)

Respondent

Procedural Posture

Succession Cause / Ruling on Application to Rectify Will Property Description

Legal Issues

  1. 1 Whether the court can rectify a will to substitute a non-existent property with the actual property owned by the deceased at the time of death.
  2. 2 Whether extrinsic evidence is admissible to ascertain the intention of the testatrix regarding the property disposed of in the will.

Ratio Decidendi

The court found that the testatrix intended to dispose of her only asset, LR Muguga/Kanyariri/196, but mistakenly described it in her will as LR No. 4885/16/7, a property that no longer existed. Applying the purposive approach and admitting extrinsic evidence, the court held that the intention of the testatrix was clear: to distribute her actual property among her nine children as stated in the will. The court therefore allowed the rectification of the will to treat the reference to LR No. 4885/16/7 as referring to LR Muguga/Kanyariri/196, ensuring the will was given effect according to the testatrix's true intention.

Court Disposition

application allowed

Orders

  • The executors shall deal with LR NO: Muguga/Kanyariri/196 as if it is the property disposed of in the will dated 31st October 2008.
  • The said property shall be distributed in the manner stated in clause 4.a of the will of the deceased.