LAW OF Succession - Lecture notes 1 PDF

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LAW OF SUCCESSION Protected wife. Sec 5 TESTACY SUCCESSION A will is legal intru or a legal decla by a prsn of his wishes or intention regarding desposition of his pro after his death this has to be dully made and executed as the provisions of the Act. This defitinition includes a codicil. Nature an...

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LAW OF SUCCESSION Protected wife. Sec 5 TESTACY SUCCESSION A will is legal intru or a legal decla by a prsn of his wishes or intention regarding desposition of his pro after his death this has to be dully made and executed as the provisions of the Act. This defitinition includes a codicil. Nature and characteristics of wills. 1. Takes effect only after the death of the testator- cannot be challenged after the death of the testator. 2. It’s revocable entirely or partially. Testator can alter or completely remove some aspects of it. 3. Only a declaration of intention. 4. It is ambulatory. What can be put in a will?    

Can appoint a guardian to a minor List your liabilities. Appointment of executors. The manner in which you want the property to be disposed.

A will can be created in any manner- testamentary freedom sec 5.

The creation of the will. The essential validity. Capacity Knowledge and approval. 1. Capacity (section 5) mental capacity=testamentary capacity.  Age Infants can make will. That can be done by a trustee holding property on his behalf. The will can only take effect upon reexecution by the child when he attains the age of majorty.

 If the infant dies b4 attaining the age of majority, the property will be disposed of in accordance with the rules of intestate.  Mental capacity- testamentary capacity- a will created during lucid moments can be used.Vijay Shah v Public Trustee.- the deceased had contracted syphilis and diabetes. Syphilis causes mental incapacity. Mental capacity – the ability to understand the contents of the will. Banks v GoodFellow – Harwood v Baker. Sec 5- it is always assumed that the testator of sound mind unless proved otherwise.- John Kinuthia Githinji v Githua Kiarie- at the time of execution it was stated that she mentally alert.- will was valid. Not evidence that it had affected her mind.  Insane Dilutions. Dew v Clark- testator had disinherited his daughter- she challenged on grounds of insane delutions- in case of ID- they suffer to ID if they hold a belief that no rational person could believe. Broughton v Knight- there has to be an insane dilutions and the will. Re Borhmann Estate- 4th Codicil was invality on grounds of IDlook at the impact of the Dilution for you to invalidate the will.

2. Knowledge and Approval of the will. This is were upon the execution of the contents of the will. Instance were knowledge and approval maybe absence.  Parker V Jelgate.  Person challenging the will has burden of proof to prove the testator did not not have knowledge and approval. 3. Suspicious circumstances. A person drafting the will has a substantial benefit from the will. Winntle V Nye- testator had no money experience- relied heavily on the family solicitor. Tyrell v Painton

2. Mistake- Partial Mistake. Correction can be done by leave of court or the entire clause be removed. Where the mistake touches on the entire will. E.g. were the testator signs the whole will. He is considered intestate.(Re Morris- error regarding a figuresolicitor was allowed to correct the figure.) Collins v Wellstone (testator was given wrong infor regarding operation of a clause- cannot invalidated on basis of legal effect of the terms or contents).

 In terms of Knowledge and approval a will Can be invalidated on basis of undue influence and coercion. Undue is illegal, persuasion is legal. – Paul V Paul. Mwathi v Mwathi.  Unnecessary pressure so as to over prower them so that they can do what they want. – Harden  Undue influence- some sort of relationship- Parfit v Lawless. Held that due to the confideential of their r/ship –there was undue influence.  Harden- Spirit medium- undue influence. Fraud.-and approval can be absent- testator fails to pass some property due to –(Posner) Forgery- a forged will is void. The burden of proof is on the person alleging that fact. Higher than that of civil matters. NDOLO V NDOLO.

Formal requirement s of will making (sec 8). Can Oral Or Written. Oral Privileged wills do not need to meet requirements. Not valid here. Requirements of an Oral Will-(section 9)  2 or more competent witnesses.  Made within 3 months before the death of the testator. Has a time frame.  It has to be Oral. Argument- such are made in a state of fear or panic. Active service- only provided for those in the army- should not be written. An oral will can never invalidate a written will. Written Will. Dec 11 of the Act.

Requirements for a valid written will. It must be written. a) No prescribed form of writing a will. b) Can be inform of code as long as it can be deciphered- Kell v Charmer. c) Hodson v Barnes. It must be properly executed - someone may execute in your presence. Presence is both mentally and physically. Execution makes it legally binding. Signature can be in any form- the words “your loving mother” were enough. Re Chalkratt- was the signature valid- a signature need to be placed in a manner that it gives effect to the particular case. Wood v smith – signature on top of the will- dully executed. In the estate of Ben-wrote his name on the envelop- held invalid. Re forgot to sign the will- signed the envelop and witnessed- attested and placed the envelop in a larger envelop- held to be valid. 2 competent witness- competence- in the sense of mental capacity and age. (Section 11c). No particular of attestation is required. If a will is witnessed by one person – void. You have to see the mark being placed but not necessarily to see the signature. Not even the contents of the will. Just know a mark has been placed. Brown v Skirrow. Re Colling – witness left before testator signed and came back after. Had to be present throughout the presence of a testator. Minor/intoxicated- cannot attest a will. They lack capacity to do so. Purpose of attestation is to authenticate/ validate the testator’s signature. Signature of the witness must be placed in a manner that it gives effect to the doc. A beneficiary can be a witness. And signatures of two competent and independent witnesses. If the same is not done- the beneficiary’s interests/gift will be invalidated upon distribution of the property.

The doctrine of incorporation by reference Where a gift or piece of property is mentioned, the document that accompanies that property is incorporated as point of reference. (Section 12.). in order for the doctrine to take effect, the document be must be in existence today. Wills Valid Outside the Requirements. Wills executed b4 the law came into force. Wills created outside Kenya. That will has to be read in accordance with the laws of their place of domicile.

REVOCATION OF A WILL. Section 17 -19. Revocation. All wills are revocable. If revoke some parts you can create a codicil on those specific parts and make sure that the same is dully executed and attested. Cn only be revoked by the testator. Two ways: Voluntarily Involuntarily. Capacity, intention to revoke. Express revocation – codicil. S.18- intention is paramount- absence of it there can be no revocation. Implied revocation- creation of a new will means the previous will has been impliedly revoked. A new will with new provision. Implied by destruction- burning or tearing with an intention to revoke. The testator is allowed to ask someone to destroy the will on his behalf. (Intention to destroy) Actual destruction – Cheese v Lovejoy- testator Hobbs v Knight. Mortion’s Goods Case- signature was scratched out.

Re Adams- some parts of the will were scratch outWhether the whole will has been destroyed depends on the part that has been scratched out. Destruction by another person. Re Dadd’s Good. –must be done in the presence of the testator. Gill v Gill- destroyed out of anger Must be done in the presence and through the directive of the teststor.

Revocation by a letter. The letter must be attested by 2 competent witness. Capacity –Aynsley- destroyed into 40 pieces. Re Jones.-

Involuntary revocation of a will 1. Marriage -by operation of the law-automatically revoked upon marriage. At the time of creation of the will- you did not have these new dependents. 2. Divorce- does not take place in Kenya....