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THE CREATION OF A VALID WILL


A will is only valid if a person of sufficient age and of sound mind makes it in the proper form. The validity of a will is predicated upon capacity and form.

Capacity
At common law, a will is invalid unless made by a person who at the time of making it has the capacity to do so. As a rule infants and persons of unsound mind are incapable of making a valid will. The common law position regarding testamentary capacity is reflected in section 5 of the Law of Succession Act. Section 5(1) essentially embodies the principle of testamentary freedom; by providing that any person is capable of disposing of all or any of his free property by will so long as he is of sound mind and not a minor.

(a) Age
A will made during infancy is invalid unless the testator upon reaching the age of majority re-executes it or makes a new will or codicil confirming it. When a minor dies, his estate should pass in accordance with the rules of intestacy.

(b) Mental or testamentary capacity
Persons of unsound mind are incapacitated from making a valid will, although this does not mean that such persons are destined to die intestate. If such a person makes a will before his mind becomes afflicted or makes, it during a lucid interval such a will is valid. In Vijay Chandrakant Shah vs. The Public Trustee Nairobi CACA No. 63 of 1984 (Kneller JA, Platt and Gachuhi Ag. JJA), the deceased was very sick from syphilis and diabetes at the time he executed his will, but it was held by the Court of Appeal, on the evidence, that he executed the same during a lucid moment and therefore the will was valid.

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)          L.R. 5 Q.B. 549 in the following terms:

“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 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.”

This test requires three things of the testator:
1).     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 capacity 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.
2).     He must have a sound memory enabling him to have a recollection of the property of which he is disposing.
3).     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.

In In the Matter of the Estate of James Ngengi Muigai Nbi HCSC No. 523 of 1996 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.

In Harwood vs. Baker (1840) 3 Moo PC 282 a testator executed his will on his death bed 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. It was held that based on the evidence, he did not have sufficient recollection of his other family members.

Under the common law the burden of proving testamentary capacity is on the executors. The LSA takes a 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 testamentary capacity or was of unsound mind at the time of making the will. Section 5(3) of the LSA creates the presumption that a person making a will is of sound mind unless the contrary is proved

(c) Insane delusions
The fact that the testator is labouring under insane delusions at the time of making the will 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 court in the case of Dew vs. Clark (1826) 3 Add 79 a person suffers from an insane delusion if he holds a belief of a particular matter which no rational person could hold and the belief cannot be eradicated from his mind by reasoning with him.

An insane delusion will only affect the testator’s capacity to make a will if it in some way affects the way he disposes of his property. In Dew vs. Clark (1826) 3 Add 79 the testator made a will which was rational superficially, but which excluded his daughter from benefit. The daughter showed by way of extrinsic 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 he had made her sleep with an insane woman. It was held that the will was invalid because the delusion affected the manner of the testator’s disposition of his property.

In Re Nightingale (1974) 119 Sol. Jo. 189 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 by reason of the fact that the son had on two occasions pushed him back on the pillow as the father was struggling for breathe in a hospital after an operation on his lungs.

In Banks vs. Goodfellow (1870) LR 5 QB 549 the testator believed that evil spirits and a person who was already dead were pursuing him.  The court found that although the testator suffered from an insane delusion the same did not affect his testamentary capacity as the delusion did not affect the way in which he disposed of his property by will.  The will was held to be valid.

Sometimes the delusion may only affect the validity of part of a will.  In such a case probate will be granted to such parts of the will as are not affected by the delusion.
In In Re Bohrmann’s Estate (1938) 1 All ER 24 a testator made three codicils to his will all giving substantial gifts to various charities.  He later began to suffer from an insane delusion that the London County Council was persecuting him.  The insane belief arose out of the council’s attempt to acquire part of his land to build a hospital on it.  As a result of the delusion the testator executed a fourth codicil of which one clause provided that all references to English charities should be read as referring to corresponding American charities.  Probate was granted of the will and the four codicils excluding only the clause in the fourth codicil on the American charities, which was declared invalid for lack of testamentary capacity on part of the testator.

Knowledge and Approval
These affect the validity of a will. In addition to having testamentary capacity, a testator must know and approve the contents of their will. A testator knows the contents of the will if he is aware and understands the terms of the will. He need not understand the precise legal effect of the terms. A testator approves the terms of the will if he executes it in those terms on his own volition and not because of coercion or undue influence of another. The knowledge and approval of the testator may also be absent because of mistake or fraud. This requirement is of particular significance when the will is drawn up for the testator by a third party e.g. a friend, a relative or an advocate.

Gicheru JA stated in John Kinuthia Githinji vs. Githua Kiarie and others Nairobi CACA No. 99 of 1988 that it is essential to the validity of a will that at the time of its execution the testator should know and approve of its contents: for where a will, rational on the face of it, is shown to have been executed and attested in the manner prescribed by law it is presumed, in the absence of any evidence to the contrary, to have been made by a person of competent understanding; but if there are circumstances in evidence, which counterbalance that presumption, the decree of the court must be against its validity.

The relevant law is found in S 7 of the LSA which provides that a will caused by fraud, coercion, importunity or mistake is void (the Kenya law).

(a) Time of knowledge and approval
The point at which the testator must know and approve the contents of their will is at the time of execution.  There is an exception to this general rule set out in the cases of Parker vs. Felgate (1883) 89 PD 171 and In the Estate of Wallace (1952) 2 TLR 925 that a will may be valid despite lack of knowledge and approval at the time of execution so long as:

a)       The testator knew and approved the contents of the will at the time at which he gave instructions to the advocate to draft their will;
b)       The will was prepared in accordance with his instructions and, at the time the will was executed the testator understood that he was executing a will for which he had earlier given instructions;

In In the Estate of Wallace (1952) 2 TLR 925 the testator who was seriously ill had written and signed a document entitled “last wish”.  At the time of execution, he knew and approved the contents of the document.  A solicitor then prepared his will in accordance with the document.  At the time when the testator executed the will, a day before he died, he did not know and approve the contents of the will that were not read over to him.  It was held that the will was valid.

(b) Burden of proof
The LSA is silent on the issue of burden of proof to establish knowledge and approval, the common law position is that the onus lies on the propounder of the will.  A presumption of knowledge and approval arises once it is established that the testator had testamentary capacity and that the proper formalities for the execution of the will have been complied with. The evidential burden shifts to the person attacking the will to provide evidence to rebut the presumption.

The Kenyan law on knowledge and approval is section 11(a) of the LSA and Rule 54(3) of the P&A Rules. Section 11(a) of the Act provides that for a will to be valid and properly executed it must be signed by the testator or by someone else in the presence of and by the direction of the testator. Rule 54 (3) of the P&A Rules provides that where the testator is blind or illiterate or where a will is signed by another person by the direction of the testator or where it appears to be written in a language with which the testator is not familiar evidence is required before the will is admitted to probate.

In Karanja and another vs. Karanja (2002) 2 KLR 22, Githinji J stated that the burden of proving that a will was caused by fraud or coercion or importunity was on the person alleging the same.

To ease the matter it would be prudent at the time of drafting the will to include as part of the attestation clause words to the effect that the will was read over to the testator and that they thoroughly understood and approved the contents.

(c)  Suspicious circumstances
Where a person who writes or prepares the will takes a substantial benefit under the will, this will be regarded as a suspicious circumstance because a suspicion is likely to develop as to whether the testator knew the contents of the will.

In Vijay Chandrakant Shah vs. The Public Trustee Nairobi CACA No. 63 of 1984, Platt JA stated that where the propounder of the will is the principal beneficiary under it, it is the duty of the court to scrutinise the evidence of the propounder vigilantly and jealously. Similarly, where a person suggested the terms of the will to the testator, that is other than writing the will himself, and takes that testator along to the advocate of that person’s choice the circumstances will be regarded as suspicious.

In Tyrell vs. Painton (1894) P 151, 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.

In Wintle vs. Nye (1959) 1 All ER 552 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.  Lord Reid at page 561 quoted Sir, J. P. Wilde in Atter vs. Atkinson (1869) LR 1 P & D 665 where it was said;

“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”.

In Julius Wainaina Mwathi vs. Beth Mbene Mwathi & Anor C. A.C.A. No. 123 of 1992, the deceased died on 9.3.87 at 65.  He never married and left behind no wife or children.  A brother and two sisters survived him.  He owned real property.  On 7.3.87 (2 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.  The sisters sought a revocation of the grant on the grounds of suspicious circumstances.  It emerged that shortly before the execution of the alleged will; the brother had removed the deceased from their mother’s house to his (the brother’s) house for baptism and then shifted him back.  It also emerged that when he (the brother) wanted the deceased to dictate and execute the alleged will he moved the deceased again from their mother’s house to his own house.  At the same time, the brother exhibited considerable animosity towards the sisters whom he prevented from entering his house.  At the time, the deceased allegedly dictated the will he was quite ill and could not walk without support.  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.
The sisters were still the losers because the property fell under the rules of intestacy and Kikuyu customary law was applied where the brother inherited the property

(d)  Mistake
The knowledge and approval of the testator may be absent because of a mistake on the part of the testator or of a person employed by him to draft the will.  The mistake may relate to part or whole of the will.  A mistake relating to the whole will renders it invalid, while a partial mistake may be corrected or otherwise that portion of the will revoked.

In In the Goods of Hunt (1875) LR P & D 250 the mistake related to the whole will.  A woman living with the sister prepared two wills in similar terms for their respective execution.  By mistake, she executed the will of the sister rather than the will she had prepared for her own.  Probate of the will was not granted on the grounds that the woman would not have executed the will had she known it had the content of the will she had drawn up to her sister. She was deemed to have died intestate.

If the testator does know and approve the contents but is mistaken as to the legal effects of the words the will shall still be considered valid and admissible for probate. In Collins vs. Elstone (1893) P.1 the testatrix was given incorrect information as to the extent to which a revocation clause in her will operated but she executed the will.  It was held that the will was valid and admissible to probate, as she knew about and had approved the contents the words notwithstanding.

(e)  Coercion or undue influence
The knowledge or approval may be absent owing to coercion or undue influence being exercised on the testator. Undue influence occurs when a testator is coerced into making a will or some part of it that he does not want to make. Undue influence is proved if it can be shown that the testator was induced or coerced into making dispositions that he did not really intend to make.  It is common where the testator is of weak or impaired mental capacity or in failing health. The circumstances in the case of Julius Wainaina Mwathi vs. Beth Mbene Mwathi and another demonstrate the exercise of undue influence or coercion on a deceased person.  At the High Court Bosire J (as he then was) said: “The petitioner was obliged but did not demonstrate that the deceased freely and consciously dictated and executed the alleged will.  He did not call evidence to exclude the possibility of having unduly influenced the deceased to will his property to him”.

A distinction should be drawn between undue influence and persuasion. Lord Penzance in Hall vs. Hall (1869) brought out the distinction as follows: “Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgement of the testator will constitute undue influence though no force is either used or threatened.”

Persuasion is lawful, that is where a person is pressurized through persuasion to dispose of and disposes of property in a particular way.  In Wingrove vs. Wingrove (1885) it was remarked that if a young man became caught in the toils of a harlot who was able to exert much influence over him and induced him to make a will in her favour to the exclusion of his wife and children, this would not amount to undue influence. In Wingrove vs. Wingrove (1885) it was said at Page 83: “To make a good will a man must be a free agent.  But all influences are not unlawful.  Persuasion appeals to the affections or ties of kindred, to a sentiment of gratitude for past services or pity for future destitution or the like – these are all legitimate and may fairly be pressed on a testator. On the other hand, pressure of whatever character whether acting on the fears or hopes if so exerted as to overpower the volition without convincing the judgement is a species of restraint under which no valid will can be made.  Importunity or threats such as the testator has no courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these if carried to a degree in which the free play of the testator’s judgement, discretion or wishes is overborne will constitute undue influence though no force is either used or threatened.  In a word a testator may be led but not driven and his will must be the offspring of his own volition and not the record of someone else’s”.

Coercion amounting to undue influence can take various forms – actual physical force or the incessant talking to a sick, frail or elderly testator.  The burden of proof lies with the person alleging coercion or undue influence. In In the Matter of Philly Nyarangi Otundo (deceased) Nairobi HCSC No. 2078 of 1997, a will was challenged on the grounds that it was a forgery and the executors named in the will were strangers to the family of the deceased. The will had been executed by the deceased while on her sick bed and it was held to have been made freely and that the applicants had not proved their case.

In the Matter of the Estate of James Ngengi Muigai Nbi undue influence was alleged in the matter because it was the eldest son of the deceased who suggested that he should write a will and got the family priest to convince the deceased to make the will. The objectors also pointed out that the deceased was living in the house of the said eldest son and therefore the eldest son must have driven the deceased into making the will in the manner he made it. The court was not convinced that the eldest son had exercised undue influence on the deceased as the deceased had previously donated a power of attorney to the son to act on his behalf during his lifetime, the deceased was convinced by a respected citizen a priest to write the will, the advocate who drafted the will visited the deceased 3 times to discuss the will, and that it was normal for an elderly person to live with their eldest son.

Undue influence is common in confidential relationships, particularly those of a religious nature. In Parfitt vs. Lawless (1872) LR 2 P & D 462 the testatrix left her residuary estate to a Roman Catholic priest who was her confessor and who lived with her and her husband.  It was alleged that the confidential relationship between them gave rise to a presumption of undue influence. It was held however that there was no positive evidence of undue influence.

In Re Harden (1959 CYLB) 3448, The Times 30th June 1959 a testatrix left property to a spiritualist medium after he allegedly transmitted messages ‘from the other side’ to her as to what she should do with her property on death.  The messages were dictated to her and resulted in her executing two wills that made the medium a substantial beneficiary of her estate. It was held that the medium had taken control of the testator’s mind to the extent that she had written what he wanted rather than the record of her mind. The will was invalidated on the ground of undue influence.

(f)  Fraud
Knowledge and approval will also be absent if the testator makes a gift by will or excludes a person from benefit as a result of false statements which have been made about an intended beneficiary’s character or conduct. In the Estate of Posner (1953) P. 557 a gift made to a beneficiary who fraudulently misrepresented herself to be the testator’s wife was invalidated.

In Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi Nairobi CACA No. 66 of 1984 the deceased appointed a woman he described as his wife the executrix and trustee of his will. He had married the woman under statute while still married under customary law to the first wife. He also stated falsely that he was divorced from his first wife and purported to disinherit her completely. The Court of Appeal held that the purported statutory marriage was null and void by virtue of the Marriage Act and the African Christian Marriage and Divorce Act, because the deceased was already married under customary law, he could only lawfully contract another marriage according to customary law under whose procedure a marriage is potentially polygamous. It was further held that the appointment of the said woman as an executrix was both fraudulent and illegal in the circumstances, as the testator relied on deliberate falsehood. The appointment of the executrix and trustee was therefore void for fraud and illegality rendering the executorship impossible.    

(g) Forgery
A will shall also be void if it is forged. The burden of proving forgery lies with the person alleging it. In Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995, the Court of Appeal stated that the charge of forgery or fraud is a serious one, the standard of proof required of the alleger is higher than that required in ordinary civil cases, that is proof upon a balance of probabilities, but certainly not beyond a reasonable doubt as in criminal cases.  In that matter the Court of Appeal held that the eyewitness evidence of attesting witnesses was preferable to that of the handwriting experts, which is really only opinion evidence.

In the Matter of the Estate of James Ngengi Muigai Nairobi HCSC No. 523 of 1996 (Koome J), the allegedly forged will was submitted to the Criminal Investigations Department at the request of the objectors following a criminal complaint. The document was subjected to examination and the alleged forged signature of the deceased was compared with the deceased’s known signatures. The expert document examiner concluded that the signature on the document was that of the deceased. The court held that the will was not a forgery.

The Position Of Married Women
Section 5 (2) of the LSA addresses the case of married women and adopts the position under the Married Women’s Property Act, 1882 by providing that any female, whether married or unmarried, is capable of making a valid will.

At common law, married women suffered a disability similar to that of infants and idiots, chiefly because upon marriage the husband automatically acquired rights over her property. 

 
 
 

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