The deceased person whose estate is the subject of this matter died on 14th June 2011 at Mewa Hospital. At the time of his demise, he was 90 years old.
2. The Petition for the Probate of his Written Will was filed by the Respondent on 2nd March 2012 in her capacity as the executor named in the Will dated 24th August 2024.
3. Vide an application dated 2nd May 2012 the Applicant sought to have the estate of the deceased preserved pending the hearing and determination of the application, investigations into how two death certificates were issued in respect of the same deceased person and also into the validity of the will of the deceased and costs.
4. The application dated 2nd May 2012 was not prosecuted. Consequently, on 19th June 2017, the same was dismissed for non-attendance. Being aggrieved by the said decision, the Applicant filed an exparte Chamber Summons application dated 24th May 2022 seeking, inter alia, the reinstatement of the application dated 2nd May 2012.
5. On 28th March 2023, by the consent of the parties, the application dated 24th May 2022 was allowed in part. The orders that this Court made on 17th June 2017 were set aside and the application dated 2nd May 2012 was reinstated. The Court directed that the objection be canvassed through viva voce evidence.
6. The hearing proceeded in open Court. The Applicant, Ms Irene Bunatal, was the first witness. She testified that the deceased did not leave a will because his health was not good, so he could not have written one. She stated that the deceased did not inform her of any will but requested that she take care of her stepmother and siblings.
7. She further stated that Fredrick Okanga, advocate, witnessed the impugned will and that she had never been to his chambers.
8. She stated that the deceased had two wives: Joyce Margaret Weziah, mother to her and also to Stephen Bunatal (deceased), and Farida Ismael, mother to Miriam Bunatal and Ismael Bunatal. Irene indicated that it was her wish that all the beneficiaries get an equal share of the estate of the deceased.
9. It was her evidence that she never intended to sell the estate property and that she only wanted to prevent the Respondent from selling the same.
10. The Applicant’s second witness was Joyce Margaret Weziah. Ms Weziah told the court that she was married to the deceased. Their marriage was blessed with two children. She also testified that she was the only wife of the deceased.
11. It was the evidence of Ms Weziah that the Will propounded by the Respondent was not genuine, whereas that with the Applicant was genuine.
12. The third witness for the Applicant was Daudi Juma Suleiman. Mr Suleiman testified that he was the nephew of the deceased and was brought up by Ms Joyce Weziah, the widow of the deceased. He denied knowledge of the Will.
13. He stated that the deceased's first wife was Jane Bunatal, who was blessed with one child, Sheila Bunatal.
14. The first witness for the Respondent was Patrick Terence Bunatal. Patrick Bunatal testified that he is the son of the deceased, his mother is Jane Bunatal, and his siblings are Sheila Bunatal and Peter Bunatal (deceased).
15. He stated that he met the Applicant twice, in her restaurant, Kingfisher, and at her house, where he also met her husband, Thomas Buckle and her son, Drew. He also met Irene’s mother, Joyce, as they used to visit her when she was staying at Port Reitz.
16. He stated that he was born and raised in Majengo and that his father informed him that the house in Majengo would remain in the family’s name. It was his testimony that the Respondent and her mother stay in the house, which is habitable.
17. Mr Patrick Terence Bunatal testified that the signature on the impugned Will is that of the deceased, thus making the will genuine. He stated that he has no claim over the estate of the deceased.
18. The Respondent was the second witness. She told the Court that the signature on the will belongs to her father, and the will refers to the wishes of the deceased. Miriam testified that the deceased left the will at Mr Okanga’s office as it was his secret and that she got to know about it after the demise of the deceased when Mr Okanga called her. She further testified that Mr Okanga was the only witness of the will. She stated that didn’t know why the Applicant was not included in the will.
19. The third witness for the Respondent was her mother, Ms Farida Ismail Jamal. Ms Jamal stated that she was customarily married to the deceased. She was familiar with the deceased’s handwriting as she had witnessed him signing documents; thus, in her opinion, the will is genuine. She averred that the deceased had the capacity to execute a will as, at the time of the making of the will, he was in good health.
20. Fredrick Okanga, advocate, was the fourth witness for the Respondent. Counsel testified that he was the one who prepared the deceased’s will and witnessed the same as it was signed in his presence. He stated that the signature on the will was that of the deceased, and the will expressed his wishes. He was categorical that the deceased was in good health and knew what he was doing when he executed the Will. Counsel further stated the deceased was his good friend. Thus, he knew him personally. He averred that when he learnt of his death, he reached out to the Respondent and informed her of the said will and asked them to visit his office after the mourning period was over.
21. Upon the closure of their cases, the court directed parties to file their written submissions. Subsequently the Applicant filed her written submissions dated 20th December 2023.
22. She submitted that the deceased did not have testamentary capacity to make any will, as he was ailing at the time he was supposed to have executed the will. For that reason, she urged that the impugned Will be invalidated. She further urged that the fact the impugned Will made bequests to Farida Ismael Jamal, Miriam Bunatal and Esmael Bunatal bespoke of undue influence on the part of the said persons as they played a central role in the execution of the will. The Applicant submitted that Farida and Miriam are the ones who took the deceased around, procured an advocate and or took him to an advocate of their choice for the purposes of making and executing a will. She urged that the deceased, in his rightful state of mind, would not have excluded her from the will.
23. She relied on Section 7 of the Law of Succession Act and the case of Banks v Goodfellow [1870] LR 5 QB 549 and submitted that every beneficiary of the estate of the deceased has a right to a share of the property of the deceased.
24. She also relied on Section 66 of the Law of Succession Act and urged the court to appoint administrators from the two households and proceed to distribute the property with priority to the two widows.
25. The Respondent, through her advocates Were Geoffrey & Co. Advocates, filed her written submissions dated 24th January 2024.
26. Counsel submitted that the applicant’s application is not merited, that it is an abuse of the court process, and that it ought to be dismissed with costs.
27. Counsel reiterated the respondent’s position and submitted that the deceased was in his right frame of mind and in good health as he took himself to the advocate’s office to sign the same.
28. Counsel further submitted that the Applicant had not proved her claim that the will was obtained through undue influence, fraud and or coercion and urged the court to find the will to be lawful and valid.
29. I have considered the application, the oral evidence of the parties and their rival submissions and it is now my duty to determine whether the will dated 24th August 2007 is valid.
30. Validity of a will is provided for under Section 11 of the Law of Succession Act which provides:
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.
31. I have carefully perused the impugned Will. It is evident that it was witnessed by only one witness, Mr Okanga. The said counsel confirmed this while testifying before this Court.
32. Section 11 of the Law of Succession Act is couched in mandatory terms. It states in no uncertain terms that “no written will shall be valid” unless the 3 conditions in subsections (a), (b) and (c) of Section 11 of the Act are met. If one condition is absent the Will is invalid, notwithstanding the fact that the testator had testamentary capacity.
33. In the circumstances, I find and hold that the impugned Will is invalid for want of form. Consequently, I find and hold that the deceased died intestate and that his estate will devolve to his beneficiaries under the law applicable to intestate successions.
34. Although I have found that the Will is invalid, I will nevertheless consider whether, had the impugned Will been formally valid, the testator/deceased had the testamentary capacity to execute it. I will undertake this enquiry as the signature of the deceased has been questioned, and several reports have been filed in respect of the same.
35. Section 5 of the Law of Succession Act provides;
(1) Subject to the provisions of this part and part iii, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses;
(2) A female person, whether married or unmarried, has the same capacity to make a will as does a male person;
(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing;
(4) The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.
36. The court in the case of In Re Estate of Krishna Kumari Bhatti (Deceased) [2018] eKLR held that:-
“the law on capacity is stated in section 5 of the law of succession act. The maker ought to be a person of sound mind, who is not a minor. The provision goes on to state that the soundness of mind of the maker shall be presumed unless at the time of executing the will he was not in a state of mind as not to know what he was doing, on account of either mental or physical illness, or drunkenness, or any other cause. The burden of proving lack of capacity on account of lack of a sound mind is cast on the person alleging that the deceased lacked such capacity. Related to that is the provision in section 7 of the said act, with regard to wills caused by fraud or coercion or importunity or mistake. Such wills are stated to be void.”
37. Further, the court in the case of In Re Estate of Julius Mimano (Deceased) [2019]eKLR stated that:-
The testator must be in a weakened or feeble condition, and therefore easily amenable to manipulation. It also bespeaks undue influence. For a person raising the issue to succeed, it must be established that the testator was in a weaken position on account of old age or disease or intoxication, he made a will while in that condition, and the propounder of the will played the central role in the process of the execution of the will. That role would include being the person in general control of the testator, being the one who took him around, being the person who prepared the will or procured his own advocate to do it, or the person who took him to an advocate of his own choice for that purpose.
38. The court further stated that:-
“Section 7 covers situations where the testator at the time of making the will is of the requisite testamentary capacity. That would be to say that the testator was of age and of sound mind at the material time, but the circumstances of the making of the will detract from or undermine its validity. Fraud would arise in cases where the making of the will is procured by deceit or similar underhand methods. Coercion would refer to circumstances where a person is literally forced to make a will in a certain way, either under duress or threats to life or limb. The will, though made by the deceased himself, in terms of the same being executed by him, would not reflect his will or wishes or intentions in the circumstances, but those of the person driving him to make it in that particular way. Importunity refers to what is often described as undue influence. In such cases there would be no coercion or force or duress as such, but pressure would be brought on the testator of such nature that he cannot resist. He would bend to the pressure, not so much because he is persuaded or convinced that he should make his will in such manner, but because he would be tempted to rid himself of the pressure by capitulating to it. Mistake would refer to cases where the testator signed the wrote document, such as that meant for someone else believing it to be meant for him.”
39. The Court in Banks v Goodfellow [1870] LR 5 QB 549 established the test for testamentary capacity, stating that a person making a will must:
1. Understand the nature and effect of making a will;
2. Comprehend the extent of the property they are disposing of;
3. Be aware of those who might have a claim to their property;
40. Applying the test in the above case I am not convinced that the Will, even if it was formally valid, expressed the true intentions of the deceased. It does not appear to me that he knew the extent of his estate or was aware of those, like the Applicant, who would have moral claims to his estate. The Will, in fact, makes no mention of them. That, it would appear to me, was because he lacked mental capacity at the time he executed the impugned will.
41. From the foregoing it is clear that I have found merit in the objection. The alleged will dated 24th August 2007 is invalidated. I find and hold that the deceased died intestate. Therefore, the disposition of his estate will be governed by the laws of intestacy.
42. To preserve the estate of the deceased, I direct Irene Bunatal and Miriam Bunatal to file a joint petition for letters of administration intestate within 30 days of the date hereof.
43. This being a succession dispute between close family members I make no orders as to costs.
44. Orders accordingly.
Dated and signed at Mombasa this 1st day of March 2024
2. The Petition for the Probate of his Written Will was filed by the Respondent on 2nd March 2012 in her capacity as the executor named in the Will dated 24th August 2024.
3. Vide an application dated 2nd May 2012 the Applicant sought to have the estate of the deceased preserved pending the hearing and determination of the application, investigations into how two death certificates were issued in respect of the same deceased person and also into the validity of the will of the deceased and costs.
4. The application dated 2nd May 2012 was not prosecuted. Consequently, on 19th June 2017, the same was dismissed for non-attendance. Being aggrieved by the said decision, the Applicant filed an exparte Chamber Summons application dated 24th May 2022 seeking, inter alia, the reinstatement of the application dated 2nd May 2012.
5. On 28th March 2023, by the consent of the parties, the application dated 24th May 2022 was allowed in part. The orders that this Court made on 17th June 2017 were set aside and the application dated 2nd May 2012 was reinstated. The Court directed that the objection be canvassed through viva voce evidence.
6. The hearing proceeded in open Court. The Applicant, Ms Irene Bunatal, was the first witness. She testified that the deceased did not leave a will because his health was not good, so he could not have written one. She stated that the deceased did not inform her of any will but requested that she take care of her stepmother and siblings.
7. She further stated that Fredrick Okanga, advocate, witnessed the impugned will and that she had never been to his chambers.
8. She stated that the deceased had two wives: Joyce Margaret Weziah, mother to her and also to Stephen Bunatal (deceased), and Farida Ismael, mother to Miriam Bunatal and Ismael Bunatal. Irene indicated that it was her wish that all the beneficiaries get an equal share of the estate of the deceased.
9. It was her evidence that she never intended to sell the estate property and that she only wanted to prevent the Respondent from selling the same.
10. The Applicant’s second witness was Joyce Margaret Weziah. Ms Weziah told the court that she was married to the deceased. Their marriage was blessed with two children. She also testified that she was the only wife of the deceased.
11. It was the evidence of Ms Weziah that the Will propounded by the Respondent was not genuine, whereas that with the Applicant was genuine.
12. The third witness for the Applicant was Daudi Juma Suleiman. Mr Suleiman testified that he was the nephew of the deceased and was brought up by Ms Joyce Weziah, the widow of the deceased. He denied knowledge of the Will.
13. He stated that the deceased's first wife was Jane Bunatal, who was blessed with one child, Sheila Bunatal.
14. The first witness for the Respondent was Patrick Terence Bunatal. Patrick Bunatal testified that he is the son of the deceased, his mother is Jane Bunatal, and his siblings are Sheila Bunatal and Peter Bunatal (deceased).
15. He stated that he met the Applicant twice, in her restaurant, Kingfisher, and at her house, where he also met her husband, Thomas Buckle and her son, Drew. He also met Irene’s mother, Joyce, as they used to visit her when she was staying at Port Reitz.
16. He stated that he was born and raised in Majengo and that his father informed him that the house in Majengo would remain in the family’s name. It was his testimony that the Respondent and her mother stay in the house, which is habitable.
17. Mr Patrick Terence Bunatal testified that the signature on the impugned Will is that of the deceased, thus making the will genuine. He stated that he has no claim over the estate of the deceased.
18. The Respondent was the second witness. She told the Court that the signature on the will belongs to her father, and the will refers to the wishes of the deceased. Miriam testified that the deceased left the will at Mr Okanga’s office as it was his secret and that she got to know about it after the demise of the deceased when Mr Okanga called her. She further testified that Mr Okanga was the only witness of the will. She stated that didn’t know why the Applicant was not included in the will.
19. The third witness for the Respondent was her mother, Ms Farida Ismail Jamal. Ms Jamal stated that she was customarily married to the deceased. She was familiar with the deceased’s handwriting as she had witnessed him signing documents; thus, in her opinion, the will is genuine. She averred that the deceased had the capacity to execute a will as, at the time of the making of the will, he was in good health.
20. Fredrick Okanga, advocate, was the fourth witness for the Respondent. Counsel testified that he was the one who prepared the deceased’s will and witnessed the same as it was signed in his presence. He stated that the signature on the will was that of the deceased, and the will expressed his wishes. He was categorical that the deceased was in good health and knew what he was doing when he executed the Will. Counsel further stated the deceased was his good friend. Thus, he knew him personally. He averred that when he learnt of his death, he reached out to the Respondent and informed her of the said will and asked them to visit his office after the mourning period was over.
21. Upon the closure of their cases, the court directed parties to file their written submissions. Subsequently the Applicant filed her written submissions dated 20th December 2023.
22. She submitted that the deceased did not have testamentary capacity to make any will, as he was ailing at the time he was supposed to have executed the will. For that reason, she urged that the impugned Will be invalidated. She further urged that the fact the impugned Will made bequests to Farida Ismael Jamal, Miriam Bunatal and Esmael Bunatal bespoke of undue influence on the part of the said persons as they played a central role in the execution of the will. The Applicant submitted that Farida and Miriam are the ones who took the deceased around, procured an advocate and or took him to an advocate of their choice for the purposes of making and executing a will. She urged that the deceased, in his rightful state of mind, would not have excluded her from the will.
23. She relied on Section 7 of the Law of Succession Act and the case of Banks v Goodfellow [1870] LR 5 QB 549 and submitted that every beneficiary of the estate of the deceased has a right to a share of the property of the deceased.
24. She also relied on Section 66 of the Law of Succession Act and urged the court to appoint administrators from the two households and proceed to distribute the property with priority to the two widows.
25. The Respondent, through her advocates Were Geoffrey & Co. Advocates, filed her written submissions dated 24th January 2024.
26. Counsel submitted that the applicant’s application is not merited, that it is an abuse of the court process, and that it ought to be dismissed with costs.
27. Counsel reiterated the respondent’s position and submitted that the deceased was in his right frame of mind and in good health as he took himself to the advocate’s office to sign the same.
28. Counsel further submitted that the Applicant had not proved her claim that the will was obtained through undue influence, fraud and or coercion and urged the court to find the will to be lawful and valid.
29. I have considered the application, the oral evidence of the parties and their rival submissions and it is now my duty to determine whether the will dated 24th August 2007 is valid.
30. Validity of a will is provided for under Section 11 of the Law of Succession Act which provides:
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.
31. I have carefully perused the impugned Will. It is evident that it was witnessed by only one witness, Mr Okanga. The said counsel confirmed this while testifying before this Court.
32. Section 11 of the Law of Succession Act is couched in mandatory terms. It states in no uncertain terms that “no written will shall be valid” unless the 3 conditions in subsections (a), (b) and (c) of Section 11 of the Act are met. If one condition is absent the Will is invalid, notwithstanding the fact that the testator had testamentary capacity.
33. In the circumstances, I find and hold that the impugned Will is invalid for want of form. Consequently, I find and hold that the deceased died intestate and that his estate will devolve to his beneficiaries under the law applicable to intestate successions.
34. Although I have found that the Will is invalid, I will nevertheless consider whether, had the impugned Will been formally valid, the testator/deceased had the testamentary capacity to execute it. I will undertake this enquiry as the signature of the deceased has been questioned, and several reports have been filed in respect of the same.
35. Section 5 of the Law of Succession Act provides;
(1) Subject to the provisions of this part and part iii, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses;
(2) A female person, whether married or unmarried, has the same capacity to make a will as does a male person;
(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing;
(4) The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.
36. The court in the case of In Re Estate of Krishna Kumari Bhatti (Deceased) [2018] eKLR held that:-
“the law on capacity is stated in section 5 of the law of succession act. The maker ought to be a person of sound mind, who is not a minor. The provision goes on to state that the soundness of mind of the maker shall be presumed unless at the time of executing the will he was not in a state of mind as not to know what he was doing, on account of either mental or physical illness, or drunkenness, or any other cause. The burden of proving lack of capacity on account of lack of a sound mind is cast on the person alleging that the deceased lacked such capacity. Related to that is the provision in section 7 of the said act, with regard to wills caused by fraud or coercion or importunity or mistake. Such wills are stated to be void.”
37. Further, the court in the case of In Re Estate of Julius Mimano (Deceased) [2019]eKLR stated that:-
The testator must be in a weakened or feeble condition, and therefore easily amenable to manipulation. It also bespeaks undue influence. For a person raising the issue to succeed, it must be established that the testator was in a weaken position on account of old age or disease or intoxication, he made a will while in that condition, and the propounder of the will played the central role in the process of the execution of the will. That role would include being the person in general control of the testator, being the one who took him around, being the person who prepared the will or procured his own advocate to do it, or the person who took him to an advocate of his own choice for that purpose.
38. The court further stated that:-
“Section 7 covers situations where the testator at the time of making the will is of the requisite testamentary capacity. That would be to say that the testator was of age and of sound mind at the material time, but the circumstances of the making of the will detract from or undermine its validity. Fraud would arise in cases where the making of the will is procured by deceit or similar underhand methods. Coercion would refer to circumstances where a person is literally forced to make a will in a certain way, either under duress or threats to life or limb. The will, though made by the deceased himself, in terms of the same being executed by him, would not reflect his will or wishes or intentions in the circumstances, but those of the person driving him to make it in that particular way. Importunity refers to what is often described as undue influence. In such cases there would be no coercion or force or duress as such, but pressure would be brought on the testator of such nature that he cannot resist. He would bend to the pressure, not so much because he is persuaded or convinced that he should make his will in such manner, but because he would be tempted to rid himself of the pressure by capitulating to it. Mistake would refer to cases where the testator signed the wrote document, such as that meant for someone else believing it to be meant for him.”
39. The Court in Banks v Goodfellow [1870] LR 5 QB 549 established the test for testamentary capacity, stating that a person making a will must:
1. Understand the nature and effect of making a will;
2. Comprehend the extent of the property they are disposing of;
3. Be aware of those who might have a claim to their property;
40. Applying the test in the above case I am not convinced that the Will, even if it was formally valid, expressed the true intentions of the deceased. It does not appear to me that he knew the extent of his estate or was aware of those, like the Applicant, who would have moral claims to his estate. The Will, in fact, makes no mention of them. That, it would appear to me, was because he lacked mental capacity at the time he executed the impugned will.
41. From the foregoing it is clear that I have found merit in the objection. The alleged will dated 24th August 2007 is invalidated. I find and hold that the deceased died intestate. Therefore, the disposition of his estate will be governed by the laws of intestacy.
42. To preserve the estate of the deceased, I direct Irene Bunatal and Miriam Bunatal to file a joint petition for letters of administration intestate within 30 days of the date hereof.
43. This being a succession dispute between close family members I make no orders as to costs.
44. Orders accordingly.
Dated and signed at Mombasa this 1st day of March 2024