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High CourtAllowed· [2019] KEHC 10961 (KLR)

In re Estate of the late Kuria (Revocation of Grant of Probate) - Objectors v Danson Ndau Kuria

High Court of Kenya
17 January 2019
ALALI-ARONI
1,253 words in judgment
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·~5 min to read original · ~4 min brief

The bottom line

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If a will appears suspicious—made while someone is ill or under duress—the person who presented it must prove it is valid.

What this practically means

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Executive summary

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The Objectors applied by two applications (21st October 2016 and 2nd December 2016) for revocation and annulment of a grant of probate issued to Danson Ndau Kuria on 23rd October 2015 and confirmed on 26th October 2016. The second application was withdrawn at hearing, leaving the first for determination. The Objectors alleged the will produced by the Respondent was a forgery: only a copy was produced, the attesting witnesses were not called, the deceased's other dependants were concealed, the relationship between father and son was bad, and the will was made while the deceased was ill. The Respondent denied forgery, asserting the will was properly executed and that the witnesses had died, and that no expert evidence supported the forgery allegation. The court, applying section 5 of the Law of Succession Act, held the burden of proving forgery lay on the Objectors, but that circumstantial evidence - two wills with markedly different signatures, the deceased's illness, and undisputed evidence from the assistant chief that the deceased was angry, had his ID stolen, and chased the Respondent from home - raised suspicious circumstances. Citing Wanjau Wanyoike and a Court of Appeal decision, the court held the burden then shifted to the Respondent to prove the testator's capacity, which he failed to discharge. The court found no valid will, held the deceased died intestate, revoked the grant of probate, and awarded costs to the Objectors.

Key legal issues

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01

Burden of proving forgery/lack of capacity of a will

Holding

The burden lay on the Objectors, but once suspicious circumstances were shown the burden shifted to the Respondent to prove capacity, which he failed to do.

Reasoning

Section 5(4) of the Law of Succession Act places the burden of proving lack of sound mind on the person alleging it. The Objectors relied on circumstantial evidence: two wills with differing signatures, the deceased's illness, and undisputed evidence that the deceased was angry and chased the Respondent from home. This raised suspicion, shifting the burden to the Respondent, who produced no expert evidence or witnesses to the will.

p. 2
02

Validity of the will

Holding

The will was executed in suspicious circumstances while the deceased was ill; no valid will existed and the deceased died intestate.

Reasoning

The court found the circumstances surrounding the will suspect: two versions of the will with markedly different signatures, the deceased's illness at the time, and undisputed evidence that the deceased was annoyed by the Respondent's conduct, had his ID stolen, and chased the Respondent from home. The will purported to disinherit all other beneficiaries, deepening the suspicion.

p. 2

Legal principles established

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  • Where circumstances excite the suspicion of the court as to a testator's capacity, the burden shifts to the person propounding the will to satisfy the court of capacity.

Court orders

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  1. 1.Revocation of the grant of probate issued to the Respondent
  2. 2.Finding that the deceased left no valid will and died intestate
  3. 3.Costs of the suit granted to the Objectors

Authorities

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Legislation

  • Law of Succession ActSection 5(1), 5(3)
  • Law of Succession ActSection 5(4)

Cases cited (2)

  • Wanjau Wanyoike & 4 others vs Ernest Wanyoike and Another
    HCCC No. 147 of 1980

    Burden of proving suspicious circumstances lies on the challenger; burden of removing suspicion lies on the person propounding the will.

  • Civil Appeal No. 126 of 2016

    Where an objector raises suspicion of testator's capacity, the burden shifts to the person setting up the will to prove capacity.

Jurisdiction invoked
Law of Succession Act (succession cause - revocation/annulment of grant of probate)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of the late Kuria (Revocation of Grant of Probate) - Objectors v Danson Ndau Kuria", Case Analysis (2019). . Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.