Requirements of a valid will.

Turning to the crucial issue of attestation, for a Will to be valid it must be attested.

http://kenyalaw.org/caselaw/cases/view/95155/

James Maina Anyanga v Lorna Yimbiha Ottaro & 4 others [2014] eKLR succ cause no.1 of 2002.

OF WHETHER THE WILL WAS PROPERLY EXECUTED

21. Section 11 of the Law of Succession Act, provides for the formal requirements of a valid will. It
states

11. No written will shall be valid unless-

(a) the testator has signed or affixed his mark to the will, or it has been signed by some
other person in the presence and by the direction of the testator;

(b) the signature or mark of the testator, or the signature of the person signing for him,
is so placed that it shall appear that it was intended thereby to give effect to the writing
as a will;

(c) the will is attested by two or more competent witnesses, each of whom must have seen

the testator sign or affix his mark to the will, or have seen some other person sign the

will, in the presence and by the direction of the testator, or have received from the testator
a personal acknowledgement of his signature or mark, or of the signature of that other
person; and each of the witnesses must sign the will in the presence of the testator, but it
shall not be necessary that more than one witness be present at the same time, and no
particular form of attestation shall be necessary.

22. From the above it is required that the testator must append his signature on the will with an intention of
giving it effect as his last will and testament. The fact that the same was typed by another person, acting on
the instruction of the deceased, does not invalidate the will as long as he signed the same acknowledging
the typed will as containing his wishes. The deceased then placed his mark on the typed document in the
presence of two witnesses and the Executor thus acknowledging his signature. There was no evidence that
the signature of the deceased on the typed will had been forged and PW2 confirmed that the signature on
the typed will was his father's although it appeared dragged.

Section 11(c) 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 the Matter of the Estate of James Ngengi Muigai, HCSC No.523 of
1990 it was held 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.

In Re Estate of G.K.K (Deceased] [2013] eKLR succ cause no.1298 of 2011.

http://kenyalaw.org/caselaw/cases/view/98909

As I understand it, before a Will can be declared lawful, it must be proved as a valid testamentary disposition
of the testator. In proving so, a Court must examine whether the formal requirements in making a Will have
been complied with, such as; whether the testator had the legal capacity to make the Will and whether it
was made voluntarily without any duress, undue influence or mistake. It would also be important to
consider whether the testator revoked the alleged Will before his death. I will deal with each of these issues
shortly in the context of this case.

Attestation

To my mind and from my reading of Section 11(c) of the Law of Succession Act, any person can witness
the execution of a Will so long as they are capable of seeing the signature and understand what they are
doing. A witness competent to attest a Will is defined by Section 3(1) of the Act as “a person of sound
mind and full age”. Clearly, it matters not what the social standing of the testator or the witness in the
society may be and their circumstances, I hold and find that the Kahari Will and Codicil cannot fail on
this ground alone. The witnesses, to that extent only, were competent witnesses.

From a clear reading of Section 11(c) of the Act, to be present at signing means that the witness must be
capable of seeing the testator sign the Will and thereafter attest to that fact. The witnessing is to the
signature of the testator and cannot be anything else. In Re Colling (1972) 1 WLR 1440, it was held that
if a witness left the room before the testator completed his signature, the attestation will also be invalid. I
agree and in my view, the attestation of a Will validates the testator\\\'s signature and in this case, the
witnesses allegedly saw the deceased sign one page of a document and they also signed one page of the
same document.

Testamentary capacity.

This test was set by Cockburn CJ in Banks v Goodfellow where he stated as follows;
“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, applied and set in Banks v Goodfellow (supra), was applied with approval by the Tanzania
Court of Appeal in Vaghella v Vaghella (1999) 2 EA 351), where it was stated that the validity of a Will
derives from testamentary capacity of the testator and from the circumstances attending to its making. This
has also been applied in the Kenyan cases of In the Matter of the Estate of James Ngngi Muigi HCSC
No.523 of 1996 and also in Mbugua v Mbugua Civil Appeal No.23 of 1982.

In Broughton v Knight (1873) 3 P and D 64, the Court held that the testator must have;

“a memory to recall the several persons who may be fitting objects of the testator\\\'s bounty, and an
understanding to comprehend their relationship to himself and their claims upon him so that he can
decide whether or not to give each of them any part of his property by Will.”

In Mwathi vs Mwathi (1995-1998) 1 EA 229, the Court held that;

“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.”

However, it is important for me to mention that there is a rebuttable presumption under Section 5 (3) of the
Law of Succession Act[6] that a person making a will is of sound mind and that the will has been duly
executed. There is no doubt in the present case that the deceased had the requisite capacity to make the
will in question.

The essentials of testamentary capacity were laid out in the case of Banks vs. Goodfellow[7] as cited with
approval in the case of Vaghella Vs. Vaghella-

“a testator shall understand the nature of the act and its effects, shall understand the extent of property
of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to
 give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections,
pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall
influence his will in disposing property and bring about a disposal of it which if the mind had been
sound, would not have been made.”

The burden of proof in the first instance lies upon the person alleging lack of capacity. Once it is
established to the satisfaction of the court that in fact the testator was not of sound mind then the onus is
shifted to the person propounding the will to prove the existence of mental capacity. This was the holding
of the court in the case of In Re Estate of Gatuthu Njuguna [1998] eKLR (Deceased) where it quoted an
excerpt from Halsbury's Laws of England, 4th Edition vol 17 at page 903-904-

“Where any dispute or doubt or sanity exists, the person propounding a will must establish and prove
affirmatively the testator's capacity and that where the objector has proved incapacity before the date
of the will, the burden is shifted to the person propounding the will to show that it was made after
recovery or during a lucid interval. The same treatise further shows that the issue of a testator's
capacity is one of fact to be proved by medical evidence, oral evidence of the witnesses who knew the
testator well or by circumstantial evidence and that the question of capacity of is one of degree, the
testator's mind does not have to be perfectly balanced and the question of capacity does not solely
depend on scientific or legal definition. It seems that if the objector produces evidence which raises
suspicion of the testator's capacity at the time of the execution of the will which generally disturbs the
conscience of the court as to whether or not the testator had necessary capacity, he had discharged
his burden of proof, and the burden shifts to the person setting up the will to satisfy the court that the
testator had necessary capacity.”

There was no allegation that the above section was not complied with. There are four main requirements
to the formation of a valid will:-

a. The will must have been executed with testamentary intent;

b. The testator must have had testamentary capacity;

c. The will must have been executed free of fraud, duress, undue influence or mistake; and

d. The will must have been duly executed.

Testamentary intent involves the testator having subjectively intended that the document in question
constitute his or her will at the time it was executed. There is nothing before me to show that the deceased
never intended the said document to be his will. In addition to testamentary intent, the testator must have
the testamentary capacity, at the time the will is executed. Generally, it takes less capacity to make a will
than to do any other legal act. As guidance, a four-prong test is often used. The testator must:-

a. Know the nature of the act (of making a will);

b. Know the “natural objects of his bounty”;

c. Know the nature and extent of his property;

d. Understand the disposition of the assets called for by the will.

Since the deceased was polygamous the distribution of the estate is provided by Section 40 of Law of
Succession Act, not equal but equitable distribution as per the Units. The 1st wife was married from 1987
and the 2nd wife from 1990. The 1st wife has 5 children and the 2nd wife 3 children of the deceased as
provided by Section 3(2) of Law Of succession Act Cap 160. These are pertinent factors to distribution
of the deceased's estate.