Under Kenyan law, no specific form of a will is required. S 8 provides that a will may either be oral or in writing and may thus take any form provided it satisfies the laid down requirements of formal validity. S 9 provides the formal requirements for an oral will, while S 11 deals with written wills. S 10 provides that where a conflict arises between the contents of a written and an oral will the contents of the written will shall prevail.
(a) Oral will
In the case of an oral will, according to S 9, it must be made in the presence of two or more competent witnesses and it cannot be valid unless the testator dies within three months after it is made. The rationale behind the provision in S 9(b), the time stipulation, is that being oral there is a danger that some details may be forgotten or misreported where a longer period is allowed. The other reason is that such wills are usually made in a state of panic, fear, or anxiety. The three-month period is intended to allow them time to reconsider the terms of the will and, if possible, reduce the same to writing.
A proviso to section 9(1) provides an exception to these requirements. The exception covers persons in active service in the armed forces or merchant marine. An oral will made by such persons is valid if the persons die in active service notwithstanding that the will was made more than three months before their death. Such wills, which do not comply with the formal requirements, are called privileged wills.
Kenyan courts have held that where a deceased person gives instructions regarding the disposal of his assets and the instructions are reduced into writing by the persons recording them such written instructions amount to an oral will, provided the instructions are given in the presence of two or more persons. In Re Rufus Ngethe Munyua (Deceased) Public Trustee vs. Wambui (1977) KLR 137 (Harris J) the deceased gave instructions on the disposal of his properties to his wives and children. The persons receiving the instructions wrote the instructions on a piece of paper. The deceased died a few days later. It was held that the writing disposing the property was an oral will.
(b) Written will
S 11 provides that no written will shall be valid unless:
-it is signed by the testator or he affixes his mark to the will or it has been signed by some other person in the presence of and by the direction of the testator;
-it appears that the testator intended by his signature or mark or signature of the person signing for him to give effect to the will;
-the signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time;
-each witness must attest and sign the will in the presence of the testator but not necessarily in the presence of the other witnesses
Since the LSA does not prescribe a particular form of the written will it is presumed that the will maybe handwritten, typed, printed or in lithographed form. The writing may be that of the testator or of any other person. It may be in any language. Case law shows that it may even be in a code so long as the code can be deciphered. In the case of Kell vs. Charmer a will written in a jeweller’s code was admitted to probate. It may be written on any material provided the material produces a visible form. In Hodson vs. Barnes a will written on an eggshell and in Murray a will written on a cigarette packet were admitted to probate.
The term “signature” is not defined in the Act, but the courts have widely interpreted it to cover any mark of the testator which is intended as a signature e.g. thumb print, initials, assumed name, mark by a rubber stamp with the testator’s name have all been held to amount to valid signatures. It need not even consist of a name at all. In Re Cook’s Estate (1960) the words “your loving mother” placed at the end of the document were held to be a valid signature. Part of a signature may in some cases be sufficient to validate a signature. In Re Chalcraft’s Goods (1948). A testatrix, on a point of death, started to sign her normal signature “E. Chalcraft” but after writing “E. Chal”, she became too weak to continue. It was held that the signature was valid.
Where the will is signed by another person this should be done in the testator’s presence and under his direction. The concept of “presence” has a physical and mental dimension. Since the signature has to be made under the testator’s direction, the testator’s physical and mental condition must be such that he could either object to or assent to the signature made on his behalf. A will will normally be signed on behalf of a testator in circumstances where he is too weak through illness to sign for himself.
The person who signs on behalf of the testator may sign his or her own name or in the testator’s name and the person may be one of the witnesses to the will. It would be more prudent for the person signing on behalf of the testator to sign his own name and to state that he is signing on behalf of the testator, in the testator’s presence and under his direction. This would obviate any uncertainty as to whether the person is signing for the testator or as an attesting witness.
S 11 (b) states that the signature or mark should be so placed as to make it appear that he intended by the signature or mark to give effect to the will. Under this provision the signature can theoretically be placed anywhere on the document so long as it is apparent from the position that it is intended to give effect to the will
In Weatherall vs. Pearce a testator made a will on a printed form purchased from the stationers. She signed her name in the middle of the attestation clause, but not at the end of the will. The issue was whether this constituted a signature for the purpose of S 17 of the U.K Act. It was held that since she had intended her name as signed to be her signature the will was properly signed. In Wood vs. Smith a testator wrote in his own handwriting at the top of his will and before writing the rest of the will “My will by Percy Winterborne”. He did not sign his name at the foot of the document. Evidence was adduced that the testator regarded his name at the top to be his signature. It was held that by writing his name and the dispositive provisions in one single operation the deceased had provided clear evidence that he intended to give effect to the provisions. The will was held to have been duly executed.
The point was addressed in the Kenyan case of Beth Wambui and another vs. Gathoni Gikonyo and others Nairobi CACA No. 82 of 1993 where the court found that the fact that the deceased thumb printed last the witnesses having signed first did not invalidate the will as the testator does not necessarily have to sign the will it could be signed on his behalf and still be valid.
Sometimes a testator may place his signature on a separate piece of paper or on an envelope containing the otherwise unsigned will. In such situations, whether the will is validly signed or not will depend on the intention of the testator. If the intention is to ratify the will, it should be valid. If the intention is to identify the will the same would be invalid. The intention of the testator is a question of fact to be gauged from the evidence adduced.
In In the Estate of Bean (1944) P. 83 a testator forgot to sign his will but wrote his name and address on the envelope. It was held that the will was not valid. He had written his name on the envelope to identify rather than ratify the will. Probate of the will was refused. In Re Mann’s Goods (1942) P. 146 a testatrix forgot to sign her will, but put it in an envelope and wrote on the envelope, “Last will and testament of J. C. Mann”, signed the envelope and had it witnessed. The envelope was then placed in a larger envelope. It was held that the testatrix intended the signature to give effect to the will, which was therefore admissible to probate.
S 11 (c) of the LSA provides that the testator’s signature must be made in the presence of two witnesses who need not be present at the same time. In In the Matter of the Estate of James Ngengi Muigai (1996) Koome J stated that the law allows the will to be witnessed by two or more witnesses at different times, but each should sign in the presence of the testator. The provision is unhelpfully drafted. It requires that the will be attested by two or more witnesses each of whom must have seen the testator sign or affix his mark to the will, and at the same time say that it shall not be necessary that more than one witness be present at the same time. It is not conceivable how the witnesses can each see the testator sign the will if both are not present at the same time , unless the will is signed twice by the testator. A will signed by one witness, as was the case in In the Matter of the Estate of Susan Kanini Kilonzo (deceased) Nairobi HCSC No. 2669 of 2002), would be in contravention of s 11(c) and therefore null and void. To be present at signing means the witnesses must be capable of seeing the testator sign. The witnessing is of the signature i.e. the fact of signing. The witnesses need not look at the signature or even know that the document is a will.
If the witness is present but unaware of what the testator is doing, the attestation will be invalid. In Brown vs. Skirrow (1902) P 3 a testatrix took her will to a grocer’s to be executed. She asked two shop assistants to act as witnesses. As she was signing the document, one of the assistants was busy serving a customer. The will was held invalid. In Re Colling (1972) 1 WLR 1440 it was stated obiter that if a witness left the room before the testator completed his signature, the attestation will also be invalid.
S 11(c) of the LSA refers to the acknowledgement of a signature. Instead of being present when the testator is executing the document, the witnesses may be called after he has signed the document, in which event the testator should acknowledge his signature or mark or the signature of the person signing on his behalf and at his direction, to the witnesses. Both witnesses must be present at the acknowledgement at the same time.
S 11 (c) requires that the witnesses must be capable of seeing the signature and understanding what they are doing. This provision therefore makes the blind and the illiterate unsafe witnesses. Minors, drunks and insane persons should not be chosen. A witness competent to attest a will is defined in s 3(1) as a person of sound mind and full age (John Kinuthia Githinji vs. Githua Kiarie and others Nairobi CACA No. 99 of 1988
S 11 (c) provides that each witness must sign the will in the presence of the testator. They need not necessarily sign in the presence of each other.
Under S 54 of the Indian Succession Act, 1865 a beneficiary under a will cannot attest the execution of a will. If he so does he loses his bequest and the will is deemed to be improperly attested. This is also the common law position. In the Estate of Bravda (1968) 1 WLR 479 testator made a will leaving his estate to his two daughters. He signed the will in the presence of the two daughters and two other witnesses. He explained the reason of making the will as being that he wished to see his daughters provided for. After the two witnesses had signed the will after the testator, the testator out of sheer enthusiasm asked the daughters to also sign, “to make it stronger”. They signed. It was held that since the daughters put their signatures under the words “witnessed by” they had signed as witnesses. It was held that the will was invalid.
The LSA at S 13 takes a slightly different position. Under S 13 a will should not be considered as insufficiently attested merely by the fact that it is attested by a beneficiary provided that where that is done the signatures of such beneficiaries are further attested by at least two additional competent and independent witnesses.
(v) Presumption of due execution
According to Githinji J in Karanja and another vs. Karanja (2002) 2 KLR 22 where a will is regular on the face of it with an attesting clause and the signature of the testator there is a rebuttable presumption of due execution (omnia esse riteatta). The court was convinced that the deceased made the wills and codicils and duly executed them in accordance with the provisions of S 11 of the LSA; and there were no circumstances which disturbed the conscience of the court about the same.
The Doctrine of Incorporation by Reference
S 12 of the Act provides for incorporation of papers by reference embodying the doctrine that allows documents that satisfy certain conditions to be regarded as part of a will even though the documents themselves are not executed. Such documents if incorporated into a will are admissible to probate as part of the will. For incorporation to be effective the document must be in existence at the date the will is executed, referred to in the will as existent and clearly identified. Re Keen (1937) Ch. 236.
Validity of Wills Outside the Scope of the Law of Succession Act
The LSA also provides for the validity of wills made outside the scope of the LSA. S 15 deals with wills made before the commencement of the Act while S 16 deals with wills made outside of the jurisdiction. S 15 provides that written wills executed prior to the commencement of the Act, regardless of whether testator died before or after the commencement, shall be treated as properly executed if they were executed to the requirements of the law in force at the time of execution.
A privileged will is one that is deemed valid notwithstanding the failure to comply with the strict legal formalities required of a will under Ss 8, 9 & 11 of LSA. Privileged wills are made in circumstances that by their very nature do not allow the opportunity of making a normal will. The LSA provides for the making of oral or nuncupative privileged wills. The statute makes no provision for written privileged wills. Written privileged wills are provided for in the Armed Forces Act.
S 9 of the LSA provides that an oral will made by a member of armed forces and merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he dies more than three (3) months after the date of the making of the will.
In the Goods of Hale (1950) 2 Irish Reports 362 the court held that typist working with the marines on a ship was entitled to make a privileged will. In Gattward vs. Knee (1920) P 99 the deceased, a battalion soldier, after receiving instructions to go to war, wrote an undated letter which was received by the plaintiff in England. The writer died in the war. The letter contained expressions such as: ‘if you have a letter to say that I am killed, then the lot is for you’ and ‘you will receive the lot if I am killed in action, for I shall make out my will in your favour’. No other document in the nature of a will was ever received or discovered and the father of the deceased took out a grant of letters of administration since the deceased was single. The plaintiff propounded the letter as a will and applied for the revocation of the grant of letters of administration made to deceased’s father on the grounds that the deceased had not died intestate. It was held that letter constituted a testamentary document capable of taking effect as a soldier’s will within the meaning of the Will’s Act. The letter was a privileged will and therefore admissible to probate.