Suspicious Circumstances that can lead to the invalidation of your will.
A Will is a legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death. A testator should not only have testamentary capacity, they should also know and approve of the contents of their Will. To this end, section 7 of the Law of Succession Act (Cap. 160, Laws of Kenya) provides that “a Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake is void”. However, there are certain circumstances under which a Will is prepared that can excite suspicion of fraudulent activity, and consequently lead to invalidation of a Will. In this article, we will discuss these circumstances and look at the courts approach in previously decided cases.
Knowledge and Approval of a Testator
Where a testator understands the terms of his or her Will and executes the Will, it is presumed that the testator is aware of and approve of the contents of a Will. However, this presumption can be rebutted where there appear to be suspicious circumstances, particularly in instances where the Will has been drafted by a third party.
Accordingly, In re Estate of Julius Mimano (Deceased)  Eklr, the court held that:
‘The fact that the circumstances of the making of a will were suspicions would suggest that the making of the will was procured by fraud or fraudulent means. The principle being that a testator must not only know the contents of the document that he signed as his will, he must also have approved of those contents. The approval being indication that it reflected his wishes and intention. The suspicion would arise if it appears from the circumstances that the testator did not either know of the contents or, knowing of the contents, did not approve them. It would particularly arise in cases where the person propounding the will takes a substantial benefit under the will.’
‘… the question of lack of knowledge and approval, and execution of a will under suspicious circumstances, would usually arise in cases where the testator is in a weakened condition or state caused by either old age, illness, disease, intoxication or the like.’
Suspicious circumstances in preparation of Wills
Where the validity of a Will is challenged in court due to suspicious circumstances, the courts have the power to either uphold or invalidate the Will. The circumstances that have been deemed suspicious include, but are not limited to, instances where the propounder of the Will takes a substantial benefit under the Will or where the testator is in a weakened condition or state caused by either old age, illness, disease, intoxication or the like.
Below, we have provided examples of the courts approaches in these circumstances:
- The person who prepared the Will takes a substantial benefit under the Will
In Wanjau Wanyoike and four other v Ernest Wanyoike Njuki Waweru and another Nairobi High of Court civil case number 147 of 1980 (Cotran J), the deceased was aged ninety years old when he died. Three days before his death, he made a codicil to his Will which substantially altered the terms of his Will to the effect that his grandson took a substantial benefit. At the time of execution of the codicil, evidence showed that the testator was bedridden and appeared to lack the mental or physical capacity to issue instructions regarding his Will. The grandson claimed that the testator dictated the terms of the codicil, which he noted down and gave to the advocate who drafted the codicil. In determining the circumstances that excited suspicion, the court considered the age of the deceased, the proximity in time of his death to the making of the codicil and the fact that the grandson, who was involved in preparation of the codicil, benefited mostly under the codicil. The court therefore held that the deceased did not know or approve the contents of the codicil, therefore the codicil was void.
In John Kinuthia Githinji v Githua Kiarie & Others Civil Appeal No.99 of 1988, the testatrix was seriously ill with cancer of the duodenum and consequently admitted in hospital. She sent for her advocate, whom she gave instructions to draw a Will with details of how she wished to dispose of her property. The advocate drew the Will in accordance with the instructions and thereafter explained its contents to the testatrix in the company of a nurse on duty. At the time of execution, the testatrix was said to be mentally alert and appeared to understand the advocates explanations of what was contained in the Will. The testatrix executed the Will by signing it. In determining the validity of the Will, the court held that in the absence of evidence that the illness had affected her mind so as not to know what she was doing when she signed the Will, the Will was valid.
- Old Age
In re Estate of Abenge Lububi (Deceased)  eKLR, the testator/deceased, Abenge Lubibi, was aged eighty years old and a resident of Lugari. He was burdened with various illnesses associated with old age such as diabetes, high blood pressure and hypoglycemia among others. His Will, dated 30th August 2011, appointed the executor and listed the beneficiaries as the testator, one of the testator’s sons, the testator’s four daughters and two grandsons and the executor. The Will was signed in Nairobi and witnessed by the executor’s two neighbors. A Grant of Probate in respect of the Will was issued to the executor upon the testator’s death.
The applicants, being two sons of the deceased who were not listed as beneficiaries in the Will, filed a summons for revocation of the grant made in favour of the executor. They claimed, among other things, that:
- the testator was illiterate for he had no formal education; hence the Will was forged and fraudulent;
- the Will was never at any point disclosed or read to them and the existence of the probate proceedings in court were brought to their attention by their neighbor who heard the matter being called out in court;
- at the time the testator was alleged to have made the Will in Nairobi, he was in hospital with the applicants in Eldoret;
- the executor was trying to inherit the estate by dubious means; and
- the signature on the Will did not belong to the testator for he could not sign any documents.
In response, the executor claimed, among other things, that:
- every family member was aware of the Will and how the estate was to be handled;
- the testator had insisted on travelling four hundred kilometers to Nairobi to get an advocate, thus the executor arranged for his travel to Nairobi and accommodated him;
- the testator randomly picked one of the city advocates known as Kennedy Arum;
- he took the testator to an advocate in Nairobi on 30th August 2011, though he did not sit with the testator and advocate as they made the Will;
- he did not know whether the testator and two witnesses were acquaintances before the signing of the Will and denied introducing them; and
- he only came to have possession of the Will after the testator died.
The courts held that the executor’s claims were not believable and that the circumstances suggested that the executor’s intention was to take the testator far away from the rest of his family in order to facilitate the making of a Will favorable to the executor. The court also considered the fact that the Will attached to the Petition was dated 30th August 2011 (hand-written) on the cover page, but was dated 15th August 2011 (type-written) on the next page. Though the executor had not provided any explanation for this discrepancy, it could have suggested that the Will was prepared earlier on 15th August 2011 and the deceased was brought on 30th August 2011 to sign it, contrary to the story given by the executor.
The court thus held that the Will could not be valid as it was made in suspicious circumstances where it would appear that the deceased came under the sole control and influence of the executor to the total exclusion of the family. The court declared the Will to be invalid and nullified the same.
Challenging a Will on grounds of suspicious circumstances
- Burden of proof– Once it is established that a testator had testamentary capacity and adhered to the formal requirements of a Will, there is a presumption that the testator had knowledge and approval of the contents of their Will. If a party challenges the validity of a Will, the onus to provide evidence to rebut this presumption shifts to the challenging party.
- Standard of proof– In determining the standard of proof in proving fraud in preparation of a Will, the court in Ndolo vs Ndolo (2008) 1 KLR (G & F) 742, held that: –
“We start by saying that it was the respondent who was alleging that the Will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases…”
It appears from the above that the standard of proof in proving fraud in preparation of a Will lies somewhere between upon a balance of probabilities and not beyond a reasonable doubt.
A testator must ensure that they are aware of and approve of the contents of their Will. In order to avoid any instances of suspicion of fraudulent activity, it is advisable to engage a lawyer to assist in preparation of your Will. Failure to do so may result in the successful challenging of your Will once you have passed away, thus rendering your estate intestate and the preparation of your Will a futile exercise.
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