In re Estate of Moses Kelly Marete (Deceased)
The bottom line
#Even if a will is legally valid, the court can change how assets are distributed if it unfairly discriminates against dependants.
What this practically means
#Executive summary
#Key legal issues
#Validity of the will
The will is valid under Sections 5 and 11 of the Law of Succession Act; the dating error was corrected by the advocate in the presence of the testator and witnesses.
The drafting advocate (PW1) and an attesting witness (PW2) both testified that the testator signed and thumb-printed the will on 18/05/2015, that the advocate accidentally wrote 18th June 2015, and that the error was corrected by countersigning, stamping and dating in the presence of the testator and witnesses. The protestor produced no contrary evidence of lack of testamentary capacity.
Reasonable provision for dependants
The will failed to make reasonable provision for the daughters and the children of the deceased predeceased sons, contrary to Sections 26 and 28 and Article 27 of the Constitution.
The court found the dependants said to have been provided for inter vivos actually received benefits from the first wife's estate, not the deceased's estate, and the will gave no explanation for omitting the grandsons. The executrix's testimony was found not candid. The court invoked Section 28 to vary the distribution.
Credibility of the executrix
The executrix feigned ignorance of the grandsons despite having earlier sought orders against one of them, undermining her evidence.
Grace Moses Marete denied knowing Kelvin Boss Marete and Kenneth Muchai Gatobu, yet in her application of 14th June 2016 she had sought an order that Kelvin return 40 bags of fertilizer. The court drew the inference that Kelvin is the son of James Mutembei and a beneficiary entitled to provision.
Legal principles established
#- A will is valid where it complies with the formalities of Section 11 of the Law of Succession Act, and a clerical error in dating corrected by the drafting advocate in the presence of the testator and witnesses does not invalidate it.
- Testamentary freedom under Section 5 is limited by the duty to make reasonable provision for dependants under Sections 26 and 28, and a will that discriminates against daughters and grandchildren may be varied by the court.
- Grandchildren of a deceased child are entitled to provision by representation under Section 41 of the Law of Succession Act.
Court orders
#- 1.The grant of probate made to the Executrix of the estate, Grace Moses Marete on 2/08/2018 be and is hereby confirmed with the dependants and children of the deceased who are not provided for being provided as follows
- 2.LR. No. Nkuene/Uruku/1764 to be shared equally amongst Titus Kinoti Marete, Lucy Muthoni Marete, Charles Mwirigi Marete, Edith Nkatha Kinyua, Florence Kagwiria Marete, Catherine Kanana Marete, Henry Gatobu Marete (deceased) - his share to be inherited by his children including Muchai Gatobu Marete, and James Marete (deceased) - his share to be inherited by his children including Kelvin Boss Marete
- 3.L. R. No. NKUENE/TAITA/466 (0.030 Ha) to be shared equally amongst the surviving sons of the deceased
- 4.L.R No. NKUENE/TAITA/3095 (0.0296Ha) to Grace Moses Marete and her sons
- 5.L. R. No. NKUENE/TAITA/461 (0.121Ha) to Grace Moses Marete and her sons
- 6.L.R. No. NKUENE/TAITA/467 (0.030 Ha) to Grace Moses Marete and her sons
- 7.Kenya Commercial Bank Limited, Nkubu Branch Account No. ***** to Grace Moses Marete
- 8.Kenya Commercial Bank Limited, Meru Branch Account Nos. **** and **** to Grace Moses Marete
- 9.Kshs. 891,000/- worth of shares in Yetu Sacco Ltd to Grace Moses Marete
- 10.Yetu Housing Shares to Grace Moses Marete
- 11.Motor Vehicle Reg No. KAL 591 Subaru and Nissan X-Trail Reg. No. KBX 366U to Grace Moses Marete
- 12.No orders as to costs of application
- 13.Certified copy of ruling to be supplied to Applicant's counsel upon paying copying charges; application for stay to be filed and served formally
- Jurisdiction invoked
- Law of Succession Act (Cap 160) - probate and administration of estates; Sections 5, 11, 26, 28 and 41 invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Moses Kelly Marete (Deceased)", Case Analysis (2020). Succession Cause (number not stated in judgment). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.