LAW OF SUCCESSION

ASSIGNMENT

GPR 417

G34/2628/2008

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In the matter of the Estate of Nderitu. The issues that need to be considered in this matter are as follows: The Validity of the will which include: Question of legitimacy of the child Ndegwa receiving of the estate? The semi-conciousness of his father i.e. mental capacity Ndegwas character including the murder and his disobedience Remedies for Miano.

Question of legitimacy of Miano The first thing that miano needs to know or establish is? if he is the legitimate child of Ndegwa and also if he has a claim to the estate of Ndegwa. The main way in which he can do this is through a DNA Test. The court will give due regard to a valid paternity test that will show that he is indeed the father. It matters not if a child is illegitimate but a child is considered to be entitled to a share of the estate of the deceased. The fact that the mother was not married to the deceased is no bar to the child inheriting his or her deceased father in intestacy.1 Marriage is not a factor in determining a childs right to inherit his father. In the Matter of the Estate of Jonathan Mutua Misi (deceased) held that a child of an adulterous union is entitled to inherit his father as he is his progeny and cannot be expected to prove his mothers marriage to his father. John Ndungu Mubea vs. Milka Nyambura Mubea held that the children of an adulterous union are children for the purposes of succession.

Issues of paternity often arise on the question of whether a particular child is the progeny of the deceased and therefore an heir in intestacy. Section 118 of the Evidence Act is a guide in determining the matter. It provides that the fact that any person was born during the
1

See In Matheka and another vs. Matheka Nairobi (2005) 1 EA 251 (Omolo, OKubasu and Onyango Otieno JJA), In the Matter of the Estate of Stephen Wanyoike Muhia (deceased) Nairobi HCCA No. 6 of 2002 (Koome J) and

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continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, should be conclusive proof that he was the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time when he would have been begotten. 2 Section 3 of the Law of Succession Act is instructive where the issue of paternity cannot be proved, where there is evidence that the deceased took in the child and accepted him as his own he will be treated as a child for the purpose of succession. Islam religion Another issue that also need to be considered in this situation is the issue of religion. This is because if Ndegwa was a muslim the following would apply: Inheritance law regarding walad-ul-zina (Illegitimate child)

If a man commits fornication with a free woman or a slave woman, the child is the product of fornication, he neither inherits nor may anyone inherit from him. Tirmidhi 1. Illegitimacy in Islamic law is based on gestational period and the legal maxim, the son belongs to the marriage bed. (Sahih al-Bukhari) 2. Muslim jurists have placed limits on the minimum and maximum period of gestation allowed under Islamic law to determine the legitimacy of a child. 3. In Hanafi fiqh the presumption of legitimacy starts from the time of the marriage contract. 4. According to the other three Sunni schools of fiqh legitimacy starts after consummation of marriage whether acknowledged by the parties or presumed by law. 5. The minimum gestational period according to all the four Islamic schools of fiqh is six lunar months(**). 6. The illegitimate child does not inherit from the father and the father does not inherit from the illegitimate child. 7. Under Sunni Islamic law, the illegitimate child is entitled to inherit from the mother and she can inherit from the illegitimate child. 8. In Islamic inheritance law walad-ul-mulainah (imprecation/disavowed) is treated in a similar manner to walad-ul-zina. 9. The definition of illegitimacy in Islamic law and English is different. **Interesting enough the six lunar months set as the minimum gestational months set by Muslim jurists around 1400 years ago, based on the evidence in the Quran, is very close to the
2

See In the Matter of the Estate of Elijah Mbondo Ntheketha (deceased) Nairobi HCSC No. 193 of 1997 (Koome J).

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minimum gestational age at which babies can survive in the most advanced neonatal units. NB in obstetrics we use LMP for convenience to calculate gestational age rather the conception date.3 The aspect relating to Islamic law will thought be limited to interpretation vide the Succession Act which provides as follows: Sec 2(3) Subject to subsection (4), the provision of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law. This just focuses on the substantive part of the law, where it does not apply but rather focuses on applying the Islamic law. It should be pointed that sec 48(2) of Succession Act further states that only Kadhis court shall exercise jurisdiction as pertaining the said matters.

Ndegwa receiving of the estate. This is what is referred to as a will made under suspicious circumstances: in that a lump some of the estate is given to one beneficiary with little regard to the others. Tyrell vs. Painton (1894) It was held that it would be a suspicious circumstance if the will is written or prepared by a close relative of a substantial beneficiary. Wintle vs. Nye (1959) The testatrix was an elderly woman who had no experience of dealing with money. She placed heavy reliance on the family solicitor. She left most of her sizeable estate to him. It was held that the circumstances were suspicious. Atter vs. Atkinson (1869) The proportion however is undoubted that if you have to deal with a will in which a person who made it himself takes a large benefit, you ought to be satisfied, from evidence calculated to exclude all doubt that the testator not only signed it, but that he knew and approved of its contents.

http://forum.mpacuk.org/archive/index.php/t-10485.html

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The case of Atter set a nice precedence in that now you have to look at the evidence and try to see what circumstances surrounded the situation and as result get a logical conclusion. From the facts of the question there is no evidence to show presence of various people during the execution as we can only see it was made while the deceased was in hospital. The Kenyan position can be explained by the following case: In Mwathi vs. Mwathi and another (1995-1998) The deceased died 1965 at 65. He never married and left behind no wife or children. A brother and two sisters survived him. He owned real property. Two days before his death, he made a will under the terms of which he bequeathed the property to the brother. According to the brother, the deceased dictated his wishes and the brother reduced them into writing. The will was then thumb-printed by the deceased and witnessed by, among others, the brother and his wife. Following the death of the deceased the brother applied for grant of probate of the will of the deceased and letters of administration were issued to him. It was held by the High Court that the circumstances excited suspicion and that the will was therefore invalid. The grant was revoked. An appeal to the Court of Appeal on this aspect of the High Court decision was rejected, with the Court of Appeal stating that the brother was not only the author of the will but also the sole beneficiary under it he had a duty to do everything above board.4 Here the circumstances surrounding this case are similar in nature as the will is alleged to be drafted at the hospital. This suspicious incident brings as to question the entire validity of the will and its content therein. Mental Capacity of Nderitu The main question we need to ask ourselves is, when the alleged will is purpoted to have been drafted did nderitu have the mental capacity to draft it? This will answer by examining the following cases and provisions: Sec 5(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.

See also In the Matter of the Estate of Naomi Wanjiku Mwangi (deceased) Nairobi HCSC No. 1781 of 2001 (Koome J).

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This is the main provision that needs to be given due consideration. Mbugua vs. Mbugua Emphasised that a testator must be of sound mind and he must not at the time of giving his instructions be drunk or insane or otherwise incapable of making a valid will. In the Matter of the Estate of James Ngengi Muigai the testator was dementing and physically incapacitated due to joint pains and hypertension at the time of making the will The witnesses who attested the will testified that the deceased looked normal. The court was satisfied that he was of sound mind as the objectors had failed to prove unsoundness of mind at the time of the execution of the will. That is unless it is proved that at the time of executing the will he is of unsound mind occasioned by mental or physical illness, drunkenness or other cause to make him not know what he is doing. Ndegwa here being the objector, the balance of proof shifts to him as he has now to prove that actually what is in the will was a sham and that a new grant needs to be made. The test of mental capacity to make a will is not directly linked to mental disorder. Cockburn C.J. set the test in Banks vs. Goodfellow (1870) in the following terms:-

he musthave 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 in 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 between them.5 The test stated was cited and applied with approval by the Tanzanian Court of Appeal in Vaghella vs. Vaghella (1999) where it was stated that the validity of a will derives from the testamentary capacity of the testator and from the circumstances attending its making. This test requires three things of the testator: He must have a sound mind enabling him to understand the nature of the act of making a will and its effects. He would lack a sound mind if he does not understand what he is precisely doing, either because he is of low mentality or is under the influence of drink or drugs. He must have a sound memory enabling him to have a recollection of the property of which he is disposing.

See also Cleare vs. Cleare (1869) LR 1 P&A 655 Lord Penzance at page 557.

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He must have a sound understanding. He should appreciate the moral claims upon him. He should be able to remember the persons he is morally to provide for having regard to their relationship him.

Harwood vs. Baker (1840) A testator executed his will on his death bed and left al 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. It was held that based on the evidence, he did not have sufficient recollection of his other family members. John Kinuthia Githinji vs. Githua Kiarie and others The deceased, who was admitted in hospital seriously ill with cancer of the duodenum, sent for her advocate whom she gave instructions to draw a will the details of which comprised of how she wished her property to be disposed of. The advocate drew the will in accordance with the instructions and thereafter explained its contents to the testator in the hearing of a nurse on duty. At the time of execution she was said to be mentally alert and appeared to understand the advocates explanations of what was contained in the will. Consciously and knowing what she was doing the testator executed the will by signing it. It was held that in the absence of evidence that the illness had affected her mind so as not to know what she was doing when she signed the will, the subject will was valid. If the circumstances that surround Ndiritus alleged will drafting are similar, will look at such matters but here the similarity is limited. The other issue is, if the will is nullified then it will be found he died intestate and the distribution of his estate shall be with regard to the intestacy provision set out in the Succession Act. If not then the distribution shall be as per the testate provisions. To be added is that in terms of distribution of the estate the children will have an equal share of the estate with regard going to the dependants one. The act in sec 40 infers that distribution of the estate should not be in equal terms but rather due consideration be given to the distinct household and dependency. It would appear that the division of the property between the children should be in equal shares as per sec 35(5)

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In the Matter of the Estate of the Late Wanjihia Njuguna postponed the confirmation of grant to allow the parties to disclose daughters, if any, in compliance with section 35. In the Matter of the Estate of Kinyuru Karanja held that a proposal by a woman to share out the estate of her deceased husband among their sons in a manner which would have resulted in one of them getting a larger share was wrong. He directed that the estate be divided equally between the sons.6 Rono vs. Rono and another expressed the opinion that section 40 does not provide that each child must receive the same or equal portion. In his opinion, this would work an injustice, particularly in the case of a young child who is still to be maintained, educated and generally seen through life.

Ndegwas Character and murder. In John Gitata Mwangi vs. Jonathan Njuguna Mwangi Where the children of the second house brought an application to the court. One of the sons had married an Australian and lived there without taking consideration about his father. The other son was an irresponsible man who drunk a lot. The negative conduct of the child is taken into consideration as pertaining to the final distribution of property. Here the negative conduct of Ndegwa should be taken into consideration as he is accused of the murder of his father and also their existing bad blood between him and his father.

What is disturbing about this decision is that although there were two daughters they were not provided for, and it is not clear whether they had disclaimed their share.

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Remedies available to Miano. I believe Miano should have a claim of the estate as argued above. The remedies he has are: Objecting the will through protection provisions Grant letters

This he should do so as to avoid misappropriation and also to get an executor from the court to ensure the estate is administered in the right manner. The protection provisions he will seek are as follows: 1. Intermeddling 45. (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

In the Matter of the Estate of Mohamed Saleh Said Sherman stated that the Law of Succession Act provides for protective powers to be exercised against wrongful disposal and intermeddling with any free property of the deceased except in accordance with the Act. In the opinion of the court, the spirit of the Law of Succession Act gives the court wide jurisdiction in dealing with testamentary and administration issues. This is through section 47, which gives the court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and orders as may be expedient. The court then in exercise of inherent jurisdiction and compliance with the open jurisdiction under section 47 made restraining orders to safeguard the estate. In the Matter of the Estate of David Murage Muchina The court gave restraining orders to stop a party from intermeddling in any manner whatsoever with any of the assets of the estate of the deceased pending the hearing and disposal of a

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pending revocation application. It is not indicated under which provisions the restraining orders were made, the orders were presumably made in exercise of inherent powers. In the Matter of the Estate of Kitema Mutiso The court granted interim injunctive orders directed at intermeddlers. The decision, unhelpfully, does not indicate the provisions on which it was premised.7 Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua sections 45 and 46 of the Act provide detailed protective provisions concerning intermeddling with the estates of deceased persons. Furthermore, the probate court is empowered by section 47 to give all necessary orders, including injunctions where appropriate, to safeguard the deceaseds estate. In the courts opinion an application for restraining orders brought outside the provisions of the Law of Succession Act, in this case under Order XXXVI of the Civil Procedure Rules, is incompetent. It was emphasised that Order XXXVI does not empower the court to grant injunctions in deceased estates outside the provisions of the Law of Succession Act. In any event a beneficiary, although entitled to bring an action under Order XXXVI, is not empowered under Order XXXVI to institute suit and to obtain an injunction to stop intermeddling without in the first place obtaining a full or limited grant of representation. Miano should take into consideration the above reasoning to ensure property is not meddled with pending the grant of an administrator.

2. Public officers and the protection of estates Miano should report the matter to the police or the local authorities to ensure the said measures below are taken by them. Police or administrative officers are obligated to forthwith report the fact of the death of any person to the local assistant chief or chief or any other administrative officer of the area where the deceased had his last place of residence. The public officer to whom the report is made should, upon the request of any person who appears to have a legitimate interest in the estate of the deceased person or if no one has made an application for representation within one month, proceed to the deceaseds place of residence, ascertain his free property and preserve it. He should also ascertain all the persons who appear to have an interest in succession to or administration of the estate, and guide the prospective executors or administrators on the
7

See also In the Matter of Estate of Gerald Kuria Thiari Nakuru HCSC No. 127 of 1995 (Lessit J).

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formalities and their duties relating to the administration of estate. The public officer should thereafter report the fact of the death, as well as the steps he has taken with regard to the estate, to the Public Trustee. Where the last known place of residence of the deceased is within a municipality, or the deceased dies abroad regardless of where his property is situated, the public officer to whom the report is made should not take any steps unless he first reports the death to the Public Trustee. The Public Trustee may, upon receipt of the report take up the matter. 3. The public trustee and the protection of estates The Public Trustee, upon receipt of a report made to him by virtue of section 46 of the Law of Succession Act, should, under section 6 of the Public Trustee Act, make further inquiries as to the estate of the deceased. Where after making the inquiries, it appears to the Public Trustee that: the person died intestate; the deceased, having made a will, has omitted to appoint an executor; the persons appointed as executors in the will of the deceased are dead or have renounced probate or are unable to act; or the deceased has appointed the Public Trustee as the executor of his will, he may apply for a grant of representation under the Law of Succession Act. Under section 8(1) of the Public Trustee Act, where the estate of a deceased person consists of property whose gross value does not exceed Kshs. 20,000.00 and the deceased has died intestate or left a will in circumstances that require the Public Trustee to apply for a grant under section 6 of the Public Trustee Act, the Public Trustee may take possession of the estate and administer the same without having to make an application to the court, under the Law of Succession Act, for a grant of representation. The other circumstance where the Public Trustee is expected to protect an estate is in relation to property of a person who resides abroad. Under section10 of the Public Trustee Act, where the agent in charge of any such estate dies leaving the property without any responsible person in charge, the Public Trustee should, upon being notified of the fact, apply to the court for an order allowing him to take charge of the property. 4. Protection under the penal code The penal code in section 276 makes the stealing of a testamentary instrument, whether the testator is living or dead, a crime, punishable by imprisonment for ten years. Concealing a will, with intent to defraud, is an offence under section 287 of the Penal Code.

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Conclusion and Grant letters Miano should take the steps above and finally obtain the grant letter as the matter (estate of the deceased) requires a valid administrator to administer the estate. The grant letter should be the grant of administration. This shall be used if the estate in question is a big estate but if its a small estate with a residuary value below Ksh 20 000 there will be no need for a grant. YES, Miano has a valid claim.

REFERENCES W.Musyoka,Law of Succession Succession Act. Class Notes.

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