Law of Succession-Lecture Kenyan Law
Joint testaments
A joint will, will usually be created where two or more persons express their wishes on death on one document. The joint testament will takes effect as a separate will of the parties who made it. It depends on the order in which they died. And it will be admitted as probate of that person and then when the second person dies it will be admitted as the will of the second person. It is commonly used by spouses so that wife and husband make a joint will. It will be convenient for spouses as they tend to have the same property and dependants, so there is no necessity of making separate documents.
The making of a valid will or testament
What are the requirements? The validity is predicated upon two factors, namely capacity and form. A will is only valid if it is made in the proper form by a person of testamentary capacity, i.e. a person who is capable of making a will or disposing of his property by a will.
Capacity
At common law a will is invalid unless the same is made by a person who at the time of making it had capacity to do so. This is testamentary capacity. As a rule, infants and persons of unsound mind are incapable of making a valid will. The common law position on testamentary capacity is reflected in section 5 of the Act. Section 5 (1) embodies the principle of testamentary freedom and provides that any person is capable of disposing his property by will so long as he is of sound mind and not a minor.
Infancy: a will made during infancy is invalid unless upon attaining the age of majority the testator re-executes the will or makes a new will or codicil confirming it. Generally when a minor dies his estates should pass in accordance with the rules of intestacy and this happens even where the minor purports to have made a will.
Unsound mind. With respect to unsoundness of mind, their fate is similar to that of infants. A will made during the period of insanity is invalid. If the same is executed before the mind becomes afflicted, or during elusive interval, such a Will will be valid.
The test of mental capacity to make a will is not directly linked to mental disorder. It is not enough to show that the person had mental disorder at that particular time. Cockburn CJ set the test of determining mental capacity for the purposes of determining testamentary capacity in the case of Banks v Goodfellow. He said: “He must have a sound and disposing mind and memory. In other words he ought to be capable of making his will with an understanding of the nature of the business of which he is engaged, a recollection of the property he means to dispose of, and of the persons who are the objects of his bounty and the manner it is to be distributed among them.”
This test requires three things of the testator:
1. He must have a sound mind to enable him to understand the nature of the act of making a will and its effect. A testator would lack a sound mind if he does not understand precisely of what he is doing either because he is of a low mentality or is under the influence of drink or drugs.
2. He must have a sound memory enabling him to have a recollection of the property of which he is disposing. He should be able to remember his property.
3. He must have a sound understanding. By this we mean he should appreciate the moral claims upon him; he should be able to remember the person he is morally bound to provide for having regard to his relationship to them. Unless there is evidence they have been left out deliberately (that is testamentary freedom)
All these three conditions must be satisfied for a will to be valid or for the person to be said to be of sound mind. In the case of Harwood v Baker the last element of the test was missing. In this case the testator executed his will on his deathbed and left all his estate to his second wife to the exclusion of other family members. He was at the time suffering from a disease that affected his brain and it was held on the basis of the evidence that he did not have sufficient recollection of other family members and therefore he did not satisfy the test. And therefore he was found to lack the requisite testamentary capacity and the will was invalidated on those grounds.
At common law the burden of proving testamentary capacity is up to the executors. Basically the proof required is that he knew what he was doing, etc. the Law of Succession Act takes a slight different position from the common law: the burden of proof is shifted under section 5(3) and (4) to the person alleging that the testator was not of sufficient testamentary capacity at the material time. Section 5 (3) creates the presumption that a person making a will is of sound mind unless the contrary is proved. So it is up to the person alleging to prove.
There is also the issue of insane delusions. The fact that a person is labouring under insane delusions is not necessarily fatal to the validity of a Will so long as the delusions leave the testator’s power of understanding unimpaired. According to the case of Dew v Clerk a person suffers from an insane delusion if he holds a belief of a particular matter which no rational person could possibly hold and the belief cannot be eradicated from his mind by reasoning with him. Insane delusion will only affect the testator’s capacity to make a will if in some way it affects the way he disposes of his property. It has to be shown it affects the way he disposes of his property.
In Dew v Clerk a testator made a will which was rational superficially but which excluded his daughter from benefit. The daughter showed by evidence that the testator had an insane aversion of her; he had refused to see her for the first three years of her life; and at one point he had made her sleep with an insane woman. The court came to the finding that there was an insane delusion on the part of the testator which affected the way he disposed of his property and he was found to lack the requisite mental capacity to make a will.
In Re Nightingale lack of mental capacity was shown when a son was excluded from his father’s will because the father wrongly and insanely believed that the son was trying to kill him. The son had on two occasions pushed the father back on the pillow when he was having difficulty breathing; and he thought he was on a mission to kill him.
In Banks v Goodfellow the testator said that he was being pursued by evil spirits and by a person who was already dead. The court found that although the testator suffered from an insane delusion, the same did not affect his testamentary capacity. Because the delusion did affect the way he disposed of his property by will and the will was upheld.
Sometimes the delusion may only affect a part of the will. In such cases probate will be granted to those parts of the will that are not affected by the delusion. The part affected will pass as intestacy. See R Bohrmann’s Estate for this position.
Testamentary capacity and absence of approval
Sometimes a person may have testamentary capacity to make a will but the person may execute the document without knowing the contents of the documents they are signing and approving of them. The effect of executing a will under those circumstances will be that the person lacks testamentary capacity. This has the effect of invalidating the document. The law requires that in addition of having testamentary capacity the testator must know and approve the contents of the will. A testator knows the content of the will if he is aware of and understands the terms of the will. But he need not understand the legal effect of those terms.
A testator is said to approve the content of a will if he executes it on his own volition and not as a result of coercion or undue influence of another. Knowledge and approval may also be absent in case of fraud or mistake.
This requirement of knowledge and approval is of particular significance where the document is drawn up for the testator by someone else. Section 7 of the Act addresses this issue and states that a will made by fraud, coercion, importunity or mistake is void. It is the time of the execution that that testator must know and approve the contents of the will. He does not help if this is done earlier. It must be at the time of signing the documents. But there is an exception to this general rule that the testator must know and approve the contents of the will at the time of signing it in the case of Parker v Felgate and in the Estate of Wallace. In these two cases it was said that a will may be valid in spite of lack knowledge and approval at the time of execution if the following conditions apply:
1. The testator knew and approved the contents of the will at the time at which he gave instructions to the advocate to draft the will
2. The will was prepared in accordance with his instructions
3. At the time the will was executed the testator understood that he was executing a will for which he had earlier given instructions.
In the Estate of Wallace the testator who was seriously ill had written and signed a document entitled last wish, at the time of the execution of this document he knew and approved the content (because he is the one who prepared the documents). The document was later given to a testator to a solicitor to prepare a will in accordance to the terms of the documents, which the solicitor did. At the time when the testator executed the documents he did not know and approve the contents of the will because they were not read over to him. The court held that the will was valid because it was made in accordance with the instructions that he had earlier given and at the time of executing it he understood that he was signing a document prepared in accordance to his earlier instructions.
Section 11 paragraph (a) provides that for a will to be valid and properly executed it must be signed by the testator or somebody else in the presence of the testator and by the direction of the testator.
Rule 54 (3) of the Probate and Administration Rules states that where the testator is blind or illiterate or where a will is signed by another person or where it appears to be written in a language with which the testator is not familiar evidence will be required before the will is admitted to probate, evidence that the testator knew and approved of the content before signing the documents. Rule 54 (3) requires the court to satisfy itself that the testator knew the contents by requiring an affidavit showing that the contents had been read over and explained to the testator and that the testator appear to understand those contents.
Suspicious circumstances:
Where such suspicious circumstances have the effect of invalidating a will or where a person who writes or prepares the will takes substantial benefits of the will this will be regarded as suspicious circumstance. Similarly where a person suggests the terms of the will to the testator other than writing the will himself and takes the testator to the advocate of that person’s choice the circumstances will be regarded as suspicious. See Falton v Andrew and Tyrrel v Painton. In Tyrrel v Painton it was held that it will be suspicious circumstance if the will is written by a person who takes substantial benefits in the will. In the case of Wintle v Nye a testatrix who was held and who had little experience of dealing with money and who used to rely heavily on the family testator left most of her sizable estate to the solicitors. It was held the circumstances were suspicious. Lord Penzance in Atler v Akinson said existence of suspicious circumstances: “The proposition is undoubted that if you have to deal with a will in which a person who made it himself takes a large benefit you must be satisfied from evidence calculated to exclude all doubt that the testator not only signed it but he knew and approved of its contents.
In the Barry v Butlin testator made a will in the home of his solicitor in the handwriting of the solicitor and left a quarter of his estate to the solicitors and the rest to his friends. The testator’s son who was excluded challenged the will on the basis of suspicious circumstances. The court held that the circumstances were suspicious on the face of it but the suspicions were dispelled by two factors:
1. the will was executed before two independent witnesses
2. the fact that the son was excluded from the will because of his criminal conduct.
A Kenyan case: Julius Wainaina Mwathi v Beth Mbene Mwathi & Another. The facts in this case were that the deceased died at the age of 65. He had never married and therefore left behind no wife or children. He was survived by a brother and two sisters and he owned some real property. Two days before his death he made a will in which he bequeathed the property to the brother. According to the brother he dictated his wishes and the brother reduced them into writing. The will was thumb-printed by the deceased and witnessed among others by the brother and his wife. Following his death the brother applied for a grant of probate and he was issued with letters of administration which the sisters sought to have revoked on the grounds that the will was invalid because it was made under suspicious circumstances. It emerged that shortly before the execution of the alleged will the brother had removed the deceased from the mother’s house to the brother’s house for baptism and then took him back to his mothers house. It also emerged that on the day the deceased executed the alleged will the brother moved him again from the mother’s house to the brother’s house. At the same time of executing the will the brother exhibited considerable animosity towards the sisters and he prevented them from entering his house. At the time the deceased allegedly dictated the will he was quite ill and he could not walk without support. The high court found that the circumstances excited suspicion and the will was declared invalid and the will made to the brother was revoked. An appeal to the Court of Appeal on this aspect was rejected.
Joint testaments
A joint will, will usually be created where two or more persons express their wishes on death on one document. The joint testament will takes effect as a separate will of the parties who made it. It depends on the order in which they died. And it will be admitted as probate of that person and then when the second person dies it will be admitted as the will of the second person. It is commonly used by spouses so that wife and husband make a joint will. It will be convenient for spouses as they tend to have the same property and dependants, so there is no necessity of making separate documents.
The making of a valid will or testament
What are the requirements? The validity is predicated upon two factors, namely capacity and form. A will is only valid if it is made in the proper form by a person of testamentary capacity, i.e. a person who is capable of making a will or disposing of his property by a will.
Capacity
At common law a will is invalid unless the same is made by a person who at the time of making it had capacity to do so. This is testamentary capacity. As a rule, infants and persons of unsound mind are incapable of making a valid will. The common law position on testamentary capacity is reflected in section 5 of the Act. Section 5 (1) embodies the principle of testamentary freedom and provides that any person is capable of disposing his property by will so long as he is of sound mind and not a minor.
Infancy: a will made during infancy is invalid unless upon attaining the age of majority the testator re-executes the will or makes a new will or codicil confirming it. Generally when a minor dies his estates should pass in accordance with the rules of intestacy and this happens even where the minor purports to have made a will.
Unsound mind. With respect to unsoundness of mind, their fate is similar to that of infants. A will made during the period of insanity is invalid. If the same is executed before the mind becomes afflicted, or during elusive interval, such a Will will be valid.
The test of mental capacity to make a will is not directly linked to mental disorder. It is not enough to show that the person had mental disorder at that particular time. Cockburn CJ set the test of determining mental capacity for the purposes of determining testamentary capacity in the case of Banks v Goodfellow. He said: “He must have a sound and disposing mind and memory. In other words he ought to be capable of making his will with an understanding of the nature of the business of which he is engaged, a recollection of the property he means to dispose of, and of the persons who are the objects of his bounty and the manner it is to be distributed among them.”
This test requires three things of the testator:
1. He must have a sound mind to enable him to understand the nature of the act of making a will and its effect. A testator would lack a sound mind if he does not understand precisely of what he is doing either because he is of a low mentality or is under the influence of drink or drugs.
2. He must have a sound memory enabling him to have a recollection of the property of which he is disposing. He should be able to remember his property.
3. He must have a sound understanding. By this we mean he should appreciate the moral claims upon him; he should be able to remember the person he is morally bound to provide for having regard to his relationship to them. Unless there is evidence they have been left out deliberately (that is testamentary freedom)
All these three conditions must be satisfied for a will to be valid or for the person to be said to be of sound mind. In the case of Harwood v Baker the last element of the test was missing. In this case the testator executed his will on his deathbed and left all his estate to his second wife to the exclusion of other family members. He was at the time suffering from a disease that affected his brain and it was held on the basis of the evidence that he did not have sufficient recollection of other family members and therefore he did not satisfy the test. And therefore he was found to lack the requisite testamentary capacity and the will was invalidated on those grounds.
At common law the burden of proving testamentary capacity is up to the executors. Basically the proof required is that he knew what he was doing, etc. the Law of Succession Act takes a slight different position from the common law: the burden of proof is shifted under section 5(3) and (4) to the person alleging that the testator was not of sufficient testamentary capacity at the material time. Section 5 (3) creates the presumption that a person making a will is of sound mind unless the contrary is proved. So it is up to the person alleging to prove.
There is also the issue of insane delusions. The fact that a person is labouring under insane delusions is not necessarily fatal to the validity of a Will so long as the delusions leave the testator’s power of understanding unimpaired. According to the case of Dew v Clerk a person suffers from an insane delusion if he holds a belief of a particular matter which no rational person could possibly hold and the belief cannot be eradicated from his mind by reasoning with him. Insane delusion will only affect the testator’s capacity to make a will if in some way it affects the way he disposes of his property. It has to be shown it affects the way he disposes of his property.
In Dew v Clerk a testator made a will which was rational superficially but which excluded his daughter from benefit. The daughter showed by evidence that the testator had an insane aversion of her; he had refused to see her for the first three years of her life; and at one point he had made her sleep with an insane woman. The court came to the finding that there was an insane delusion on the part of the testator which affected the way he disposed of his property and he was found to lack the requisite mental capacity to make a will.
In Re Nightingale lack of mental capacity was shown when a son was excluded from his father’s will because the father wrongly and insanely believed that the son was trying to kill him. The son had on two occasions pushed the father back on the pillow when he was having difficulty breathing; and he thought he was on a mission to kill him.
In Banks v Goodfellow the testator said that he was being pursued by evil spirits and by a person who was already dead. The court found that although the testator suffered from an insane delusion, the same did not affect his testamentary capacity. Because the delusion did affect the way he disposed of his property by will and the will was upheld.
Sometimes the delusion may only affect a part of the will. In such cases probate will be granted to those parts of the will that are not affected by the delusion. The part affected will pass as intestacy. See R Bohrmann’s Estate for this position.
Testamentary capacity and absence of approval
Sometimes a person may have testamentary capacity to make a will but the person may execute the document without knowing the contents of the documents they are signing and approving of them. The effect of executing a will under those circumstances will be that the person lacks testamentary capacity. This has the effect of invalidating the document. The law requires that in addition of having testamentary capacity the testator must know and approve the contents of the will. A testator knows the content of the will if he is aware of and understands the terms of the will. But he need not understand the legal effect of those terms.
A testator is said to approve the content of a will if he executes it on his own volition and not as a result of coercion or undue influence of another. Knowledge and approval may also be absent in case of fraud or mistake.
This requirement of knowledge and approval is of particular significance where the document is drawn up for the testator by someone else. Section 7 of the Act addresses this issue and states that a will made by fraud, coercion, importunity or mistake is void. It is the time of the execution that that testator must know and approve the contents of the will. He does not help if this is done earlier. It must be at the time of signing the documents. But there is an exception to this general rule that the testator must know and approve the contents of the will at the time of signing it in the case of Parker v Felgate and in the Estate of Wallace. In these two cases it was said that a will may be valid in spite of lack knowledge and approval at the time of execution if the following conditions apply:
1. The testator knew and approved the contents of the will at the time at which he gave instructions to the advocate to draft the will
2. The will was prepared in accordance with his instructions
3. At the time the will was executed the testator understood that he was executing a will for which he had earlier given instructions.
In the Estate of Wallace the testator who was seriously ill had written and signed a document entitled last wish, at the time of the execution of this document he knew and approved the content (because he is the one who prepared the documents). The document was later given to a testator to a solicitor to prepare a will in accordance to the terms of the documents, which the solicitor did. At the time when the testator executed the documents he did not know and approve the contents of the will because they were not read over to him. The court held that the will was valid because it was made in accordance with the instructions that he had earlier given and at the time of executing it he understood that he was signing a document prepared in accordance to his earlier instructions.
Section 11 paragraph (a) provides that for a will to be valid and properly executed it must be signed by the testator or somebody else in the presence of the testator and by the direction of the testator.
Rule 54 (3) of the Probate and Administration Rules states that where the testator is blind or illiterate or where a will is signed by another person or where it appears to be written in a language with which the testator is not familiar evidence will be required before the will is admitted to probate, evidence that the testator knew and approved of the content before signing the documents. Rule 54 (3) requires the court to satisfy itself that the testator knew the contents by requiring an affidavit showing that the contents had been read over and explained to the testator and that the testator appear to understand those contents.
Suspicious circumstances:
Where such suspicious circumstances have the effect of invalidating a will or where a person who writes or prepares the will takes substantial benefits of the will this will be regarded as suspicious circumstance. Similarly where a person suggests the terms of the will to the testator other than writing the will himself and takes the testator to the advocate of that person’s choice the circumstances will be regarded as suspicious. See Falton v Andrew and Tyrrel v Painton. In Tyrrel v Painton it was held that it will be suspicious circumstance if the will is written by a person who takes substantial benefits in the will. In the case of Wintle v Nye a testatrix who was held and who had little experience of dealing with money and who used to rely heavily on the family testator left most of her sizable estate to the solicitors. It was held the circumstances were suspicious. Lord Penzance in Atler v Akinson said existence of suspicious circumstances: “The proposition is undoubted that if you have to deal with a will in which a person who made it himself takes a large benefit you must be satisfied from evidence calculated to exclude all doubt that the testator not only signed it but he knew and approved of its contents.
In the Barry v Butlin testator made a will in the home of his solicitor in the handwriting of the solicitor and left a quarter of his estate to the solicitors and the rest to his friends. The testator’s son who was excluded challenged the will on the basis of suspicious circumstances. The court held that the circumstances were suspicious on the face of it but the suspicions were dispelled by two factors:
1. the will was executed before two independent witnesses
2. the fact that the son was excluded from the will because of his criminal conduct.
A Kenyan case: Julius Wainaina Mwathi v Beth Mbene Mwathi & Another. The facts in this case were that the deceased died at the age of 65. He had never married and therefore left behind no wife or children. He was survived by a brother and two sisters and he owned some real property. Two days before his death he made a will in which he bequeathed the property to the brother. According to the brother he dictated his wishes and the brother reduced them into writing. The will was thumb-printed by the deceased and witnessed among others by the brother and his wife. Following his death the brother applied for a grant of probate and he was issued with letters of administration which the sisters sought to have revoked on the grounds that the will was invalid because it was made under suspicious circumstances. It emerged that shortly before the execution of the alleged will the brother had removed the deceased from the mother’s house to the brother’s house for baptism and then took him back to his mothers house. It also emerged that on the day the deceased executed the alleged will the brother moved him again from the mother’s house to the brother’s house. At the same time of executing the will the brother exhibited considerable animosity towards the sisters and he prevented them from entering his house. At the time the deceased allegedly dictated the will he was quite ill and he could not walk without support. The high court found that the circumstances excited suspicion and the will was declared invalid and the will made to the brother was revoked. An appeal to the Court of Appeal on this aspect was rejected.
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