Probate Revision Notes

EMM- PROBATE REVISION NOTES
God is able to do exceeding abundantly above all that we ask or

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Probate and Administration of Estates- Testate Succession
(The Nature and Functions of Wills)

Nature of Wills
In the context of succession a Will refers to the document of

documents in which a person expressed their wishes on death. It
means therefore a Will is a record of a deceased persons wishes
and intentions pertaining to the devolution of his property upon
death.
It is defined under S3(1) as the legal declaration by a person of

his intentions or wishes regarding the disposition of his property
after death duly made and executed in accordance with the Act.
A Will being a testamentary document has no legal effect until the

maker dies. While he is alive, it neither limits his rights or
ownership nor confers any benefits to anyone.
A Will has five essential characteristics:
1. The wishes expressed in a Will are intended to take effect upon or

after death. Any document made or executed in accordance with
the law, may take effect as a Will if the intention was that it
should not operate until the death of the maker.
2. A will only takes effect after death. The wishes expressed in a will
are intended to take effect upon or after death.
3. A will only operates as an expression of intention. The execution of

a Will does not affect the way in which the testator deals with his
property during their lifetime. A testator is free to dispose of the
property given in the Will by sale or gift during his lifetime.
4. A will is ambulatory. The fact that a will takes effect upon death
makes it ambulatory. It is capable of dealing with property that is
acquired after the date of the Will.
5. A will is always revocable. Because a Will takes effect upon death

and because it is a mere declaration of intention it is always
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revocable. It may be revokes even where it expressly says it is not
revocable.
The wishes in a Will must be expressed simply and clearly without any
trace of ambiguity. Serious ambiguity can lead to the Will being
challenged on the ground of uncertainty.
The Advantages of Making a Will

1. Maintaining control over property
2. Avoiding the rules of intestacy
3. Enabling the deceased to appoint personal representative of their

own choice
4. Administrative convenience- through a will a testator ensures that

his estate may be dealt with immediately upon his death
5. Full disclosure of deceaseds property
6. Avoiding disputes over the estate
7. Benefiting persons outside the immediate family
8. Appointment of testamentary guardians
9. Directions regarding disposal of the deceaseds body
Pauline Ndete Kinyota Maini v Rael Kinyota Maingi- held that there is
no property in a corpse, which a testator can validly dispose of by will,
the executors obligation is to give effect to the deceaseds wishes in
relation to the disposition of his corpse as far as practicable.
(Conditional and Joint /Mutual Wills)
Conditional Wills
This refers to a Will that is intended to operate only upon the
happening of some event unspecified in the Will. If the event fails
to occur the Will would be ineffective e.g. a testator providing that
his Will is to operate if the wife predeceases him.
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Note: it is difficult to decide whether the danger faced is merely

the motive for making the will or whether death in the envisaged
circumstances is the pre-condition for the operation of the Will. If
it is a motive to making the will it will be enforceable, but if it is a
pre-condition it will be ineffective.
o RE Spratts Goods: an army officer made a privileged Will,

which took the form of a letter to his son leaving him
everything should anything happen to the officer. He did not
die in the war but lived on for 32 years without making a new
Will or revoking the privileged Will. Held that the privileged
Will was admissible to probate and the son was entitled to
take all his fathers estate.
o Cf. In the Goods of Dobson: testators will commences with

the words in case of any fatal accident happening to me
being about to travel by railway, I leave held that it was
not a conditional Will. His belief that he might die in the
course of the journey was merely the motive in making the
Will, it was not a precondition that he dies on the journey
before the Will operates.
o Whether a will is conditional or not is a matter of

construction: Lindsay v. Lindsay a will commenced if I
should dies at sea or abroad held as a matter of
construction to be conditional.
Joint Wills
This is created where two or more persons express their wishes on death
in one document. It will take effect as separate wills for each of the
parties who made it.
(Creation of a Valid Will)
Capacity
At common law, a will is invalid unless a person who at the time of
making the Will has the capacity to do so makes it. As a rule
infants and persons of unsound mind are incapable of making a valid
Will.
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S5(1) provides 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.
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 of
codicil confirming it. When a minor dies, his estate should pass
according to the rules of intestacy.
Mental or testamentary capacity
Persons of unsound mind are incapacitated from making a valid Will,

although this does not mean that they are destined to die
intestate. If such a person makes a Will before becoming of
unsound mind or makes it during a lucid moment such a will is valid-
Vijay Shah v. The Public Trustee the deceased was very sick with
syphilis and diabetes at the time of executing the Will. Held that
the Will was executed 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- Banks v. Goodfellow: he must(a) 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 engages, (b) a recollection of the
property he means to dispose of, and (c) of the persons who are
the objects of his bounty and the manner it is to be distributed
between them. i.e.:
o Must have a sound mind enabling him to understand the act

of making a Will and its effects
o He must have a sound memory enabling him to have a

recollection of the property of which he is disposing.
o He must have a sound understanding. He should appreciate

the moral claims upon him, and be able to remember the
persons he is morally bound to provide for having regard to
their relationship to him.
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Harwood v. Barker: testator executed his will on his death bed

and left all his estate to his second wife to the exclusion of his
other family members. He was at the time suffering from a disease
that affected his brain. Held that based on the evidence, he did
not have sufficient recollection of his other family members.
Therefore he lacked capacity to make the will.
S5 (3) (4) LSA provide that the burden of proving testamentary

incapacity is on the person alleging that the testator was not of
testamentary capacity or was of unsound mind at the time of
making the Will.
S5 (3) creates the presumption that the person making the Will is
of sound mind unless the contrary is proved.
o Common law: The burden of proving testamentary capacity

is on the executor to prove that at the time of execution
the testator was having a lucid moment.
Insane delusions
The fact that the testator is labouring under insane delusions is

not necessarily fatal to the validity of a Will so long as the
delusions leave the testators powers of understanding unimpaired.
According to Dew v. Clark a person suffers from an insane

delusions 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 testators capacity to make a

will if it in some way affects the way he disposes of his property.
Daw v Clark- the testator made a will which excluded his daughter
from benefit. The daughter brought extrinsic evidence to show
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.
Re Nightingale- a son was excluded from his fathers will because

the father wrongly and insanely believed that the son was trying to
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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
breath in a hospital after an operation on his lungs.
Banks v Goodfellow- 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, it 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 valid.
Sometimes delusions may only affect part of the will.
Re Bohermanns Estate- a testator made three codicils to his will

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 councils
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 four codicils excluding only the
clause in the fourth codicil on American charities, which was
declared invalid for lack of testamentary capacity on the part of
the testator.
Knowledge and approval
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 in his own volition and not because of coercion or
undue influence of another.
John Githinji v. Githua Kiarie and others: Court held 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.
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Note S7 provides that a Will caused by fraud, coercion,
importunity or mistake is void.
Burden of Proof
The common law position on the issue of burden of proof to

establish knowledge and approval is that the onus lies with 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 execution of Will have
been complied with. Note that the presumption will not arise where
the testator is blind, dumb or illiterate or the Will is signed on
behalf of the testator and where there are suspicious
circumstances.
S11(a) provides that for a Will to be valid and properly executed

in must be signed by the testator or by someone else in the
presence of and by direction of the testator.
Rule 54 (3) Probate and Administration Rules provide that where

a 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 that the testator had knowledge, by requiring
an affidavit showing that the contents of the will had been read
and explained to and appeared to be understood by the testator
immediately before the execution of the Will.
Karanja and another v Karanja- the burden of proving that a will

was caused by fraud or coercion or importunity was on the person
alleging the same.
Its 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.
Suspicious circumstances
Where a person who prepares the Will takes a substantial benefit

under the Will, this will be regarded as a suspicious circumstance.
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Vijay Shah v. Public Trustee the court 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 following the contra preferendum rule.
Barry v Bultin- a testator made a will at the home of his solicitor,

in the solicitors handwriting and left of the estate to the
solicitor and the rest to friends. The testators son challenged the
will on grounds of suspicious circumstances. It was held that the
circumstances were suspicious on the face of it but the suspicion
was dispelled by two factors: the fact that the will was executed
before two independent witnesses and the fact that the testators
son was excluded from the will because of his criminal conduct.
Note: Where you are the advocate and the client wants to give you
a gift, simply get another advocate to draft the will. Alternatively
he can swear an affidavit that you explained to him that the gift
would raise suspicion but he went ahead and decided to bequeath
you.
Mwathi v Mwathi and another- two days before his death the
testator made a will that bequeathed property to his brother.
Sister challenged. Brother had moved deceased form his mothers
house to his house. At the time deceased dictated the Will he was
quite ill and could not walk without support. Held the circumstances
excited suspicion and the will was therefore invalid.
Mistake
Knowledge and approval may be absent because of a mistake on the

part of the testator or of a person employed by him to draft it. A
mistake relating to the whole will renders it invalid, while a partial
mistake may be corrected or otherwise that part of the Will
revoked. In the Goods of Hunt the mistake related to the whole
Will. By mistake she executed the Will of her sister rather than
her own Will. 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.
Coercion and Influence

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Knowledge and approval may be absent owing to coercion or undue
influence being exercised on the testator.
Undue influence occurs when the testator is coerced into making a

Will that they dont want to make. It is proved if it can be shown
that the testator was induced or coerced into making dispositions
they did not want. It is common where the testator is of weak or
impaired mental capacity or failing health.
In the Matter of the Estate of James Ngengi Muigai court held

that 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.
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.
Undue influence is common in confidential relationships,

particularly those of a religious nature. In Parfitt v Lawless 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 gave rise to a
presumption of undue influence. It was held however that there
was no positive evidence of undue influence.
In Re Harden, a testatrix left property to a medium after he

allegedly transmitted messages from the other side to her. The
messages dictated to her caused her to execute two wills that
made the medium a substantial beneficiary of her estate. It was
held that the medium had taken control of the testators mind to
the extent that she had written what he wanted rather than the
record of her mind. The will was invalidated on grounds of undue
influence.
Fraud
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Knowledge and approval will 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 beneficiarys
character or conduct.
In the Estate of Posner a gift made to a beneficiary who

fraudulently misrepresented herself to be the testators wife was
invalidated.
In Pauline Nedete Kinyota Maingi v Rael Kinyota Maingi 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 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 marriage is potentially
polygamous. Held that the appointment of the said woman 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.
Forgery
A Will will also be void if it is forged. The burden of proving forgery lies
with the person alleging it. Elizabeth Ndolo v. George Ndolo CA stated
that the charge of forgery or fraud is a serious one, the standard of
proof being upon the balance of probabilities but not beyond reasonable
doubt.
Married Women
S5(2) addresses the case of married women, and adopts the position
under the Married Womens Property Act by providing that any female,
whether married or unmarried is capable of making a valid will.
Form of a Valid Will

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There is no specific form of Will required. S8 provides that a Will can be
oral or written provided it meets the requirements of formal validity. S9
deals with formal requirements of an oral Will, while S11 deals with
written Wills.
S10 provides that where a conflict arises between the contents of a

written will and an oral will, the contents of the written will shall prevail.
Oral Wills
S9 provides that an oral Will 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 is
that being an oral will there is a danger that some details may be
forgotten or misreported where a longer period is allowed, and also
that such Wills are made in a state of panic, in which case the
testator may be irrational in their decision making.
Provision to S9 (1) provides an exception to these requirement-

oral Wills made by persons who are in active service in the armed
forces of merchant marine are valid if the person dies in active
service notwithstanding that the Will was made more than three
months before their death- these are called Privileged Wills given
that they do not comply with the formalities.
Where written instructions regarding the disposal of assets are

reduced to writing by the persons recording them, such written
instructions amount to an oral will, provided that they are given in
the presence of two or more persons.
Re Rufus Ngethe Munyua v. Public Trustee- the deceased gave

instructions on the disposal of his properties to his wives and
children. The persons receiving the instructions wrote this 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.
Written Wills
S11 provides that no written will shall be valid unless:

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a. 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;
b. It appears that the testator intended by his signature or

mark or signature of the person signing on his behalf to give
effect to the will;
c. The signature is made or acknowledged by the testator in

the presence of two or more competent witnesses present at
the same time; and each witness must attest and sign the
will in the presence of the testator but not necessarily in
the presence of the other witnesses.
Writing
The LSA does not prescribe a particular form of the written will so
it is presumed that it can be hand written, typed, printed etc. the
writing may be that of the testator or of any other person.
Kell v Charmer- A will written in jewellers code was admitted to
probate. May be written on any material provided the material
provides a visible form.
Will written on eggshells; cigarette packet was admitted to
probate.
Signature
Signature is not defined in the Act, but the courts have

interpreted it to cover any mark of the testator which is intended
as a signature e.g. thumb print, initials, assumed name, mark by
rubber stamp with testators name.
Where the Will is signed by another person, this should be done in

the testators presence and under his direction.
S11(b) states that the signature or mark should be placed as to

make it appear that the testator intended by the signature to give
effect to the Will.
Weather v Pearce- testator signed her name in the middle of the

attestation clause, but not at the end of the will. It was held that
since she had intended her name as signed to be her signature, the
Will was properly signed.
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In the Estate of Bean- 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.
Re Manns Goods- testatrix forgot to sign her will, but put it in an

envelope and wrote on the envelope Last will and testament JC
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
admissible in probate.
Witnesses
S11(c) provides that the testators signature must be made in the
presence of two or more competent and independent witnesses who
need not be present at the same time.
o A competent witness is defined in S3(1) as a person of sound

mind and full age.
The same section also refers to the acknowledgement of the

document. Instead of the witnesses being present when the
executor is executing the document, the witness 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.
Daintree v Bytcher- a testatrix simply said she had a document

that she needed two witnesses to sign and the court found that
the acknowledgement was sufficient.
S11(c) requires that the witnesses must be capable of seeing the

signature and understanding what they are doing. This provision
makes the blind and illiterate unsafe witnesses. Minors, drunks and
insane persons should not be chosen.
Brown v Skirrow- a testratirx took her will to the grocers 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.
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Re Colling- It was stated that if a witness left the room before

the testator completed his signature, the attestation will be
invalid.
Attestation
S11 (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. Attesting requires that the witnesses put
their signature in the will with the intention of validating the
testators signature.
There is no particular form of attestation, nor do the witnesses

signatures need to be in a particular place in the will, but it should
be so placed or positioned as to show intention to ratify the
testators signature.
A will should not be considered insufficiently attested merely by

the fact that it is attested by a beneficiary or spouse of such
beneficiary.
o S13(2) provides that a bequest to an attesting witness or a

bequest to his or her spouse shall be void unless it is also
attested by at least two additional competent and
independent witnesses in which case the bequest shall be
valid.
Presumption of due execution

Karanja and another v Karanja- 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).
(Revocation, Alteration and Revival of Wills)

SEE HAND WRITTEN NOTES
(Privileged Wills)
(Property passing on death other than by Will)
Survivorship
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This applies in cases of joint tenancies. Where a co-owner of a
property is a beneficial joint tenant of the property, whether real
or personal, their interest will automatically pass to the surviving
joint- tenant(s) on death, by virtue of the principle of survivorship-
jus accrescendi.
Upon the demise of one of the tenants, the tenants interest would
merge with that of the surviving tenant.
This principle operates to remove jointly owned property from

the operation of the law of succession, upon the death of a
spouse who jointly owns property with the other spouse, their
interests unite and the property passes to the surviving spouse.
S43 LSA provides that for the purposes of determining

survivorship in the event of two or more persons dying
simultaneously it shall be presumed that the deaths occurred in
order of seniority with the younger person surviving the older
person, but in the case of spouses, it shall be presumed that they
died simultaneously.
o In the case of non-spouses, property will devolve to

different people upon the tenants death; it is therefore
necessary to determine who died first. In the case of
spouses, the property should pass to their children or to the
same dependants, it would not matter therefore who died
first.
S 102(1) RLA (Now provided in the Land Act)-states that where

land is jointly owned, no proprietor is entitled to any separate
share on the land, and consequently a disposition may be made only
by all the joint proprietors and on the death of a joint proprietor
his interest shall vest in the surviving proprietors jointly.
Cf. tenancy in common- the interests of common tenants are clear
and distinct. Their interests are not united. In the event of the
death of one tenant, there is no merger or union of the interests.
Nomination
This is a direction by a person (nominator) to another who is
holding investment on their behalf, to pay funds on the nominators
death to a third party (nominee), nominated by the nominator
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during his lifetime. The gift only takes effect upon the death of
the nominator.
Nominations operate under the rules of a particular scheme and

although it does dispose of property upon death, it does not comply
with the formalities of the LSA. The property the subject of a
nomination does not form part of the nominators estate, and it
cannot therefore pass under a Will. Therefore the prayer does not
require a grant before paying funds to the nominee.
A nomination may be revoked: by later nomination; subsequent

marriage of the nominator; and the death of the nominee prior to
the death of the nominator. It cannot be revoked by subsequent
Will or codicil.
Donatio mortis causa
(Gifts in contemplation of death)
(Construction of Wills)
S22 LSA provides that wills are to be construed in accordance with the
rules made under the First Schedule to the Act. Theses are based on
basic general principle of the construction of wills, which are discussed
below.
The court construes wills and does not remake them
The duty of the court is to interpret the words used by the

testator in the will regardless of whether they produce an unfair
result, provided that was the intention of the testator.
Rationale is to guard against the tendency to impute a meaning to a

will that was never intended by the testator and thereby defeat
his intentions. It also acts as a caveat against sloppy drafters using
words and phrases carelessly without considering whether they
express the testators true intentions.
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Perrin v. Morgan: held the question is not of course what the
testator meant to do when he made his will, but what the written
words he uses mean in particular case- what are the expressed
intentions of the testator
Words are construed in their ordinary natural sense
The golden rule is that wills should be read so as to lead to testacy

rather than intestacy.
Words in a will are attributed their primary meaning, regardless of
whether the construction will produce a capricious meaning or
unreasonable result- Gorringe v. Mahlstedt held that there is a
presumption that in construing a will, the ordinary and usual
meaning of the words should be applied.
Ways in which this general principle may be departed from (this is

where the testator used a particular word or phrase in some
special sense:
o Dictionary principle: applies in circumstances where the

testator has set up his own dictionary in the will by defining
words he uses in a particular way. This would apply of the
testator has a definition clause saying how particular words
are used in the will.
o Ordinary meaning does not make sense: a secondary meaning

which makes sense can be applied. Re Smalley: testator
bequeathed all his property to my wife E.A.S. The woman
named believed herself to be his wife and was generally
reputed as such, but in fact he had committed bigamy in
marrying her, for he was already married. The court
construed the word wife to mean reputed as opposed to
lawful for the circumstances showed that he had used the
words in this secondary sense.
o Where a word has more than one meaning the court adopts
the meaning it regards as the most probable. Which in
effect leaves the court with wide discretion.
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o Where special or technical words are used in a Will, they are
presumed to be employed inn their technical sense, unless
the context clearly indicates the contrary.
The will must be read as a whole

The meaning of clauses if to be collected from the entire will.
Since the paramount purpose of construction is to give effect to
the testators intention as expressed in the will, the meaning of any
clause in a will is to be ascertained from the entire document and
not in isolation.
Re Hammond: where two clauses or provisions are irreconcilable or

mutually inconsistent to the extent that they cannot possibly stand
together, the last one prevails as this is the last expression of the
testator.
Re Potters wills trust- it was described as the rule of despair.

Courts therefore try not to apply the above rule at all.
The will must speak for itself
As a general rule, courts must ascertain the testators intention

from the words of the will itself.
Where there is ambiguity on the face of a will, extrinsic evidence
as to the intention of the testator is not admitted.
Re Feather, the testator bequeathed $2,000 to his servant if
still in my employment. The servant was conscripted into the army
and was still serving when the testator died. Evidence was adduced
that shortly before he died, the testator affirmed to one of his
executors that he wished this legacy to stand and regarded the
servant as still in his employment. It was held that such evidence
was not admissible to prove that the testator intended the servant
to have the legacy whether still in his employment or not.
The armchair rule

In construing the will, the court can put itself in the testators
position at the time he or she made the will, in order to understand
the words of the will itself- Boyes v. Cook. The objective is so
that the court can make itself aware of the facts that were known
to the testator at the time of the execution of the will.
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This rule can only be used to shed light on vague terms but not to
alter the effect of the words used in the will if those words are
clear and unambiguous.
Ambiguous words
Where words are ambiguous on the face of the will, either direct
or circumstantial evidence is admissible to explain the words used.
Words are said to be ambiguous on the face of the will where the
words have more than one normal meaning, as in the terms money
and my effects, or where the words used are equally applicable to
two or more persons or items. Either direct or circumstantial
evidence is admissible to explain the words used.
Latent ambiguity
Occurs where the will is ambiguous in the light of the surrounding
circumstances e.g. where a testator gives property to my nephew
Onyango and the testator has several nephews named Onyango. If
this cannot be solved with the aid of extrinsic evidence the gift
will fail for uncertainty.
Meaningless provisions
This is a provision is one where the court cannot without extrinsic

evidence give any meaning to the word or phrase.
Extrinsic evidence is not admissible on the basis that a provision is

meaningless, in order to complete a blank space in a will. The
rationale for admitting extrinsic evidence is to assist in the
interpretation of the will, and arguably one cannot interpret a blank
space.
Exception: evidence may be led as to the circumstances in which the

testator was situated when he made the will e.g. if he refers to this
house number in Bahati estate and there is clear evidence that the only
house he had in Nairobi is No. 71 in Bahati estate, the evidence is
admissible.
Ascertaining the subject matter of gifts
Para 3 First Schedule provides that, as regards property, a will

speaks from the date of death unless a contrary intention appears
imagine
Eph 3.20
in the will. E.g. a gift of shares will be taken to mean shares owned
by the testator on the date of his death, rather than being
confined to shares owned at the date the will was executed.
Cf. where property is described in a very specific way. Re Sikes: in
deciding whether there was a contrary intention to Para 3 where
terms such as now and at present are used. Whether such words
amount to a contrary intention depends on whether the reference
to the present time is construed as an essential part of the
description of the subject matter of the specific gift. If it is, this
will operate as a contrary intention to para 3.
Ascertaining the beneficiaries

References to people as a general rule is construed to refer to
people at the date the will was made, unless there is a contrary
intention.
Where no person fulfils the description at the date of the will, the
gift lapses.
The class closing rules
A class gift is a gift to be divided amongst individuals who fulfil a

general description, where the amount that each individual gets
depends on the number of beneficiaries falling within the class.
The class closing rules are designed to allow Personal

Representatives to distribute the estate at the earliest
opportunity. They originate from Andrews v. Parington. They only
apply to gifts made by will and operate so that the class closes at
the date on which the first member of the class becomes entitled.
How the rules operate depends on the nature of the gift.
Four types of class gifts:

a. Immediate class gift
This takes the form of a gift say to the children of Akinyi. if

Akinyi has a child living at the testators death, the class closes at
the testators death and includes all of Akinyis children alive at
that date.
b. Deferred class gift

imagine
Eph 3.20
This would take the form of to x for life with the remainder to
the children of y. If y has no children at the testators death, the
class remains open until y dies, and includes all children
subsequently born to y. If y has a child before the death of x, the
class closes at cs death, and includes all children of y alive at that
date. It will however close at the testators death if x predeceased
the testator.
c. Contingent class gift
This would be a gift say to the children of x who attain 21 years.

If x has a child who reaches 21 before the testators death, the
class closes at the testators death and includes all children of x
alive at that date who subsequently reach 21. If x has no child who
has reached 21 by the date of the testators death then the class
only closes when the first child reached 21 years and includes all
children alive at that date.
d. Contingent and deferred class gift
It would take the form of to x for life with the remainder to the
children of y who attain 21 years. If y has a child who has reached 21 by
the date of ys death, or the testators death if this is later, the class
closes at this date. The class will include all children alive at the date the
first child reached 21 those who subsequently reach 21. If no child of y
has reached 21 by the date of xs death or that of the testator if later,
then the class remains open until the first child reached 21 years and all
children alive at that date who subsequently reach 21.
(Wills and Codicils)

What is a codicil?
This is a document that is a supplement or an addition to a Will. It
may amend, explain, add to, subtract from, qualify, alter, or revoke
existing provisions of a will.
S3 (1) states that a codicil means a testamentary instrument made
in relation to a will, explaining, altering or adding to its dispositions
or appointments, and duly made and executed as required by the
provisions of the Act for the making and execution of a will.
Discovery of codicil after grant

imagine
Eph 3.20
S61 (1) provides that in the event that a codicil is discovered

after the grant of probate that a separate probate may be
granted to the executor, if that codicil does not repeal the
executors of the will.
S75 provides if a codicil is discovered after a grant of letters of
administration with will annexed or after its confirmation, then
upon proof and identification the codicil will be added on the grant,
and the grant will be altered and amended accordingly to suit the
codicil.
Procedure for an application brought where a codicil is discovered.
Rule 47 of The Probate and Administration Rules, provides for the

procedure for an application brought for a grant of probate of a
codicil discovered after the will has been proved. Such an
application shall be brought by way of summons in the cause in
which the will was proved and shall be filed in the registry in which
the original grant was made to the applicant. The codicil is then
lodged in the appropriate registry with or prior to the filling of the
summons. Once summons are entered, they shall be supported by an
affidavit of the applicant which shall identify the codicil and shall
also state the reasons so far as is known to him or her why it was
not submitted together with the will for proof and such other
facts as may be necessary for consideration by the court.
The procedure for submitting a codicil after a grant of letter of
administration with will annexed or its confirmation is the same
under Rule 47. The only variation is that, should the applicant be
different from the person(s) who applied for grant of letters of
administration and its confirmation, then in the citation of the
summons, the applicant must indicate them as respondents.
Thereafter, he or she should serve them with copies of the
summons, the discovered codicil, and affidavits within 21 days
before the hearing of the application.
Probate and Administration of Estates- Intestate Succession
(Meaning of Intestacy)
imagine
Eph 3.20
This is defined in S34 as where a person is deemed to die intestate
in respect of all his free property of which he has not made a will
which is capable of taking effect.
This can occur where a person fails to make a will, the persons
attempt to die testate fails upon the invalidation of his will or the
person revokes his will and subsequently dies without having made
another will.
The rules of intestacy determine the question of who is entitled to

the property of the estate of in intestate.
(Excluded Property)
S32 empowers the minister to misapply by notice in the official gazette,

agricultural land and crops on such land or livestock in some areas from
S32. By legal notice 94/1981 exempted property in Maradbit, Narok,
Tana River, Samburu, West Pokot, Turkana, Isiolo, Mandera, Wajir and
Kajiado where excluded from provisions under S32.
Law applicable to excluded property
S33 provides that the law applicable to the distribution on

intestacy of the categories of property specified in S32, shall be
the law or custom applicable to the deceaseds community or tribe.
Under S44 the HC is vested with the jurisdiction in relation to the
property exempted under S32.
(Classes of Survivors)
Rights of Surviving Spouse
For the purposes of intestacy, a divorced spouse has no rights to

the intestates estate, a judicially separated spouse is, however
entitled. Under s3(1) a wife only includes a person who is
separated from her husband.
A divorced wife may claim under S26 for reasonable provision from
the estate., as being a dependant (former wife) under S29.
imagine
Eph 3.20
A spouses exact entitlement under the rules of intestacy depends

on the closeness of any other surviving relative of the intestate.
One of three situations apply: the intestate leaves a spouse and
issue; intestate leave a spouse and parent or brother and sister of
whole blood, or the intestate leave spouse but neither issue, nor
parents, nor siblings of whole blood or issue, nor issue of their own
is surviving.
Intestate leaves spouse or children
S 35 provides that Subject to the provisions of section 40, where an

intestate has left one surviving spouse and a child or children, the
surviving spouse shall be entitled to -
(a) the personal and household effects of the deceased absolutely; and
(b) a life interest in the whole residue of the net intestate estate:
Provided that, if the surviving spouse is a widow, that interest shall

determine upon her re-marriage to any person.
(2) A surviving spouse shall, during the continuation of the life interest
provided by subsection (1), have a power of appointment of all or any part
of the capital of the net intestate estate by way of gift taking immediate
effect among the surviving child or children, but that power shall not be
exercised by will nor in such manner as to take effect at any future date.
(3) Where any child considers that the power of appointment under
subsection (2) has been unreasonably exercised or withheld, he or, if a
minor, his representative may apply to the court for the appointment of
his share, with or without variation of any appointment already made.
(4) Where an application is made under subsection (3), the court may
award the applicant a share of the capital of the net intestate estate
with or without variation of any appointment already made, and in
determining whether an order shall be made, and if so what order, shall
have regard to
(a) the nature and amount of the deceased's property;

imagine
Eph 3.20
(b) any past, present or future capital or income from any source of the
applicant and of the surviving spouse;
(c) the existing and future means and needs of the applicant and the
surviving spouse;
(d) whether the deceased had made any advancement or other gift to the
applicant during his lifetime or by will;
(e) the conduct of the applicant in relation to the deceased and to the
surviving spouse;
(f) the situation and circumstances of any other person who has any
vested or contingent interest in the net intestate estate of the deceased
or as a beneficiary under his will. if any; and
(g) the general circumstances of the case including the surviving spouse's
reasons for withholding or exercising the power in the manner in which he
or she did, and any other application made under this section.
(5) Subject to the provisions of sections 41 and 42 and subject to any

appointment or award made under this section. the whole residue of the
not intestate estate shall on the death, or, in the case of a widow, re-
marriage, of the surviving spouse, devolve upon the surviving child, if
there be only one, or be equally divided among the surviving children.
Section 40- polygamous marriages
This provides that Where an intestate has married more than once
under any system of law permitting polygamy, his personal and
household effects and the residue of the net intestate estate
shall, in the first instance, be divided among the houses according
to the number of children in each house, but also adding any wife
surviving him as an additional unit to the number of children.
The distribution of the personal and household effects and the

residue of the net intestate estate within each house shall then be
in accordance with the rules set out in sections 35 to 38.
Intestate leaving spouse and no children of their own

imagine
Eph 3.20
Under S36 where the intestate has left one surviving spouse but
no children, the surviving spouse is entitled out of the net
intestate estate to:
o Personal and household effects of the deceased absolutely;
o The first KES 10,000 out of the residue of the net intestate
estate or 20% of the residue which ever is greater; and
o A life interest in the whole of the remainder.
Note that the life interest is lost on re-marriage of the surviving

spouse.
The provision is silent on what becomes of the rest of the property

i.e. the remaining 80% and the subject of the life interest in the
event of the termination of the life interest. The assumption is
that the property devolves upon the other surviving relatives of
the deceased as set out in S39.
S39 provides that where an intestate has left no surviving spouse

or child, the net intestate shall devolve upon the kindred of the
estate in the following order or priority:
o Father; or if dead;
o Mother; or if dead;
o Brothers and sisters, and any children of deceased brothers

and sisters in equal shares; or if dead;
o Half brothers and sisters any of their children; or if dead;
o The relatives who are in the nearest degree of consanguinity

up to and including the sixth degree in equal shares.
o Failing the survival by any of the persons mentioned above,

the net intestate estate shall devolve upon the State and be
paid into the consolidated fund.
imagine
Eph 3.20
Rights of Children
Where the intestate leaves a surviving spouse, the children are not
entitled absolutely to property, but the surviving spouse holds the
estate in trust for the children- In The Matter of The Estate of
Johana Leseya
On the death of the surviving spouse S35 (5) provides that the
whole of the residue of the net estate (that is the portion subject
to the life interest), devolves upon the surviving children in equal
shares, taking into consideration any property held in trust for a
child or any previous benefits or any power of appointment or any
award of the court made under S35(3) (4).
o The same applies if the spouse re-marries.
Under S35(2) a surviving spouse has the power of appointment,

that is the power to dispose of the capital of the intestate by way
of gift taking effect immediately among surviving children. The
power cannot be exercised by way of will or to take effect at a
future date. S35 (3) (4) allows a child aggrieved by the exercise
of the power of appointment to move to court for appropriate
orders.
Where the intestate has left surviving children but not spouse S38
applies to the effect that the net intestate estate shall devolve
upon the surviving children equally.
The share of the estate to which children, who are below age, are
entitled is held on statutory trust, on terms set out in S41. This
provides that the share of the children is to be divided equally
between the children of the intestate living, subject to such
children fulfilling the contingency of attaining the age of 18 or, in
the case of a female child, marrying under eighteen.
S41 provides that if the child of an intestate pre-deceases the

intestate or dies before attaining 18 years, then that childs issue
(intestates grandchild) alive at the date of the intestates death
imagine
Eph 3.20
will take in equal shares contingent on attaining the age of
majority, or if female marrying before turning 18.
S42 requires that in determining the final share of a child,

grandchild account should be taken of a previous benefit that is:
property settled or given during lifetime, or by will, and any
property appointed or awarded to any child or grandchild under
S26 and 35.
Rights of other relatives

The effect of S35 (where there is a living spouse and child) is
that, if the intestate is survived by a spouse or child, then no other
relative of the intestate will benefit. Other relatives can only
access the estate through S26 for reasonable provision if they can
show that they were dependant on the intestate immediately prior
to his death.
Where S36 applied (living spouse but no children), upon

determination of the life interest the property devolves upon the
kindred of the intestate as set out in S39.
Where there is no surviving spouse or children, then S39 applies.
(Protection of the Estate)
Intermeddling
S45 provides that no person should handle, take possession,
dispose of, or otherwise intermeddle with the free property of a
deceased unless authorised by law to do so or by a grant of
representation.
S45(2)(a) it is an offence to intermeddle with an estate without

legal authorisation, punishable by a fine or imprisonment or both.
The intermeddler who is also known as an executor den son tort

(executor by his own wring), may be required to apply for a grant
of representation. If he does not apply for representation, he will
be answerable to the rightful executor or administrator to the
imagine
Eph 3.20
extent with which he has intermeddled, after deducting any
payment made in the due course of his administration- S45 (2)(b).
Public officers and protection of estates

S46 vests authority on public officers with regard to protection of
estates of persons who die within the public officers area of
jurisdiction.
This section provides that police or administrative officers are

obliged to forthwith report the fact of the death of any person to
the local assistant chief or any other administrative officer of the
area where the deceased had his last place of residence.
o 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.
o 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 of
the formalities and their duties relating to the
administration of the estate.
The 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.
The officer should not take any steps unless he first reports the death
to the PT. The PT may, upon receipt of the report take up the matter.
The public trustee and protection of estates

The PT upon receipt of a report made to him by virtue of S46,
should, under S6 Public Trustee Act, make further inquiries as to
the estate of the deceased. Where it appears that: the person
dies 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 PT as executor, he may
apply for a grant of representation.
imagine
Eph 3.20
S8(1) PT Act provides that where the estate of the deceased
consist of property whose gross value does not exceed 20,000 and
the deceased died intestate, the PT may take possession of the
estate and administer the same without having to make an
application to the court under the LSA for a grant of
representation.
S8(2)PT Act provides that where an estate of a deceased consists

of property whose gross values does not exceed KES 5000 the PT
may issue a certificate of summary administration on the
application of any person to whom probate or letters of
administration may be granted. This would entitle the person
holding the certificate to administer the estate without a grant of
representation, and pay out of the estate and debts or charged,
and any surplus to the person or persons who are entitled.
Protection under the penal code

S350 Penal code provides that any person who forges a will is liable to
imprisonment for life and the court may in addition order that any such
document be forfeited.
(Probate Jurisdiction)
Original Jurisdiction
High Court
Under S47 the HC is vested with jurisdiction over probate and
administration matters, specifically to entertain any application and
determine any dispute under the LSA and to pronounce such
decrees and make such orders as it may consider expedient.
This provision if reinforced by S48 which provides that where
there is a HC, the resident magistrates court shall have no
jurisdiction, but the HC shall have exclusive jurisdiction to make all
grants of representation and determine all disputes under the LSA.
Resident magistrates
S47-For judicial stations where there is no HC, the CJ may appoint
a resident magistrate to represent the HC. The resident
magistrate so appointed exercises the same powers of the HC,
imagine
Eph 3.20
including the power, in cases of apparent urgency, to make grants
limited to the collection of assets and payment of debts with
respect to property within its jurisdiction.
S48 compounds the jurisdiction of the resident magistrate, as it

provides that, subject to the provisions of S49, a resident
magistrate shall have jurisdiction to entertain any application other
than an application under S76 (revocation or annulment of grant)
and to determine any dispute under the LSA and pronounce such
decrees and make such orders as may be expedient in respect of
any estate the gross value of which does not exceed KES
100,000.
S49 does limit the jurisdiction of the resident magistrate, in that

it provides that if the gross value of the estate of the deceased
does not exceed KES 100,000 it shall have jurisdiction, provided
that:
o The magistrate may, with the consent or direction of the HC,

transfer the administration of an estate to any other
resident magistrate where it appears that the greater part
of the estate is situated within the area of that other
magistrate or that there is other good reason for the
transfer;
o If the deceased had his last known place of residence
outside of Kenya, the HC shall determine which magistrate
shall have jurisdiction under this section.
Kadhis court
S48 (2) provides that the Kadhis courts shall continue to have and
exercise jurisdiction in relation to the estate of a deceased Muslim for
the determination of questions relating to inheritance in accordance with
Muslim law and of ant other question arising under the LSA in relation to
such estates provided that for the purpose of this section in any place
where both the HC and resident magistrates are available, the HC shall
have exclusive jurisdiction to make all grants of representation and
determine all disputes under the LSA.
Appellate Jurisdiction
imagine
Eph 3.20
S50(1) provides that an appeal from the decision of a resident
magistrate lies with the HC, and the decision of the HC on appeal is
final.
S50 (2) provides similarly for appeals from the decision of a
Khadis court, but the decision of the HC on appeal from the
Khadis court is not final as there is provision for a further appeal
to the CA, in respect of an point of Islamic law.
Court of Appeal
The LSA does not provide for an appeal from the decision of the
HS in the exercise of its original jurisdiction to the CA.
The CA, however has held that an appeal does lie in the CA from a
decision of the HC in probate matters: Makhangu v. Kibwana:
according to the court under S47, the HC has jurisdiction on
hearing any application to pronounce decrees or orders. Any order
or decree made under this section is appealable under S66 of the
Civil Procedure Act.

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EMM- PROBATE REVISION NOTES

God is able to do exceeding abundantly above all that we ask or

Probate and Administration of Estates- Testate Succession

(The Nature and Functions of Wills)

In the context of succession a Will refers to the document of

It is defined under S3(1) as the legal declaration by a person of

A Will being a testamentary document has no legal effect until the

A Will has five essential characteristics:

1. The wishes expressed in a Will are intended to take effect upon or

3. A will only operates as an expression of intention. The execution of

5. A will is always revocable. Because a Will takes effect upon death

The Advantages of Making a Will

2. Avoiding the rules of intestacy

3. Enabling the deceased to appoint personal representative of their

4. Administrative convenience- through a will a testator ensures that

5. Full disclosure of deceaseds property

6. Avoiding disputes over the estate

7. Benefiting persons outside the immediate family

8. Appointment of testamentary guardians

9. Directions regarding disposal of the deceaseds body

(Conditional and Joint /Mutual Wills)

Note: it is difficult to decide whether the danger faced is merely

o RE Spratts Goods: an army officer made a privileged Will,

o Cf. In the Goods of Dobson: testators will commences with

o Whether a will is conditional or not is a matter of

Mental or testamentary capacity

Persons of unsound mind are incapacitated from making a valid Will,

The test of mental capacity to make a Will is not directly linked to

o Must have a sound mind enabling him to understand the act

o He must have a sound memory enabling him to have a

o He must have a sound understanding. He should appreciate

Harwood v. Barker: testator executed his will on his death bed

S5 (3) (4) LSA provide that the burden of proving testamentary

o Common law: The burden of proving testamentary capacity

The fact that the testator is labouring under insane delusions is

According to Dew v. Clark a person suffers from an insane

An insane delusion will only affect the testators capacity to make a

Re Nightingale- a son was excluded from his fathers will because

Banks v Goodfellow- the testator believed that evil spirits and a

Sometimes delusions may only affect part of the will.

Re Bohermanns Estate- a testator made three codicils to his will

Knowledge and approval

A testator must know and approve the contents of their Will. A

A testator approves the terms of the Will if he executes it in

John Githinji v. Githua Kiarie and others: Court held that it is

The common law position on the issue of burden of proof to

S11(a) provides that for a Will to be valid and properly executed

Rule 54 (3) Probate and Administration Rules provide that where

Karanja and another v Karanja- the burden of proving that a will

Its prudent at the time of drafting the will to include as part of

Where a person who prepares the Will takes a substantial benefit

Barry v Bultin- a testator made a will at the home of his solicitor,

Knowledge and approval may be absent because of a mistake on the

Coercion and Influence

Undue influence occurs when the testator is coerced into making a

In the Matter of the Estate of James Ngengi Muigai court held

Coercion amounting to undue influence can take various forms-

Undue influence is common in confidential relationships,

In Re Harden, a testatrix left property to a medium after he

Knowledge and approval will be absent if the testator makes a gift

In the Estate of Posner a gift made to a beneficiary who

In Pauline Nedete Kinyota Maingi v Rael Kinyota Maingi the

Form of a Valid Will

S10 provides that where a conflict arises between the contents of a