NAME: CHAKA VICTOR BORA

REGISTRATION NO. : LSG201-C002-0069/2018

LSC 2211: LAW OF SUCCESSION

TAKE-AWAY CAT
QUESTION 1

REPUBLIC OF KENYA

MILIMANI LAW COURTS

P.O BOX 20420, NAIROBI

EMAIL: milimanilawcourts2020@gmail.com

TELEPHONE: 020-1265-587

FROM:

VICTOR BORA

P.O BOX 23156

NAIROBI, KENYA

14th October, 2020

TO:

HON. LADY JUSTICE MAKINI

P.O BOX 250678

NAIROBI, KENYA

Dear Madam,

RE: LEGAL OPINION ON SCOPE OF CLAIM BY ALEXANDRE’S CHILDREN AND

THEIR MOTHERS IN THE MATTER OF THE ESTATE OF ALEXANDER

In view of my duties as a research assistant in your office, the following is my opinion on the
matter of the estate of Alexander involving his wives and children.

Facts in Summary
Alexander, the deceased, was a student in JKUAT pursuing engineering. Here, he got involved
with a lady, Salome, and bore a child, Steve.

In U.S.A Alexander lived with Jane, a Swahili lady and the two bore twin daughters, Rukia and
Fatma.

After getting a high paying consultancy job in South Sudan, he married Halima and the two got a
son, Jackson in 2012.

Apart from these, Alexander had a chain of women in almost every town in Kenya.

Alexander died without a will leaving behind an estate of a well-furnished house in Malindi and
three plots in Kitengela worth Ksh. 30,000,000.

The matter before the court is to establish whether the claimants, Alexander’swives and children
are entitled to a provision from the estate.

Applicable Law

Succession as guided by law of succession act, cap 160 laws of Kenya read together with family
law which helps in determining the relationship between alexander and the above-mentioned
claimants.

The will is a record of person's wishes and intentions pertaining to the devolution of his property
upon his death. The owner of the property arranges to ensure that upon his death, the property
passes to a person or persons of his choice through a valid will succession. This is inheritance of
the form of testate succession. Succession can also be intestate if there is no will.

The Act in section 29 provides the Meaning of dependent. It states that:

For the purposes of this Part, “dependent” means—

(a) The wife or wives, or former wife or wives, and the children of the

Deceased whether or not maintained by the deceased immediately

Prior to his death;

(b) Such of the deceased’s parents, step-parents, grand-parents,

Grandchildren, step-children, children whom the deceased had taken

Into his family as his own, brothers and sisters, and half-brothers

And half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c) Where the deceased was a woman, her husband if he was being maintained by her
immediately prior to the date of her death.

In this case, Alexander’s estate will pass down to the beneficiaries intestate. Devolution will be
done per the rules of intestacy as applied under the Law of Succession Act. Section 35 of the Act
provides that;

Where intestate has left one surviving spouse and child or children

(1) Subject to the provisions of section 40, where an intestate has left one Surviving spouse
and a child or children, the surviving spouse shall be entitled to—
(a) The personal and household effects of the deceased absolutely; and
(b) A life interest in the whole residue of the net intestate estate:

Provided that, if the surviving spouse is a widow that interest shall determine upon her re-
marriage to any person.

(2) A surviving spouse shall, during the continuation of the life interest

Provided by subsection (1), have a power of appointment of all or any part of the capital of the
net intestate estate by way of gift taking immediate effect among the surviving child or children,
but that power shall not be exercised by will nor in such manner as to take effect at any future
date.

(3) Where any child considers that the power of appointment under subsection (2) has been
unreasonably exercised or withheld, he or, if a minor, his representative may apply to the
 court for the appointment of his share, with or without variation of any appointment
already made.

(4) Where an application is made under subsection (3), the court shall have power to award
the applicant a share of the capital of the net intestate estate with or without variation of
any appointment already made, and in determining whether an order shall be made, and if
so, what order, shall have regard to—

(a) The nature and amount of the deceased’s property;

(b) Any past, present or future capital or income from any source of the applicant and of the
surviving spouse;
(c) the existing and future means and needs of the applicant and the surviving spouse;
(d) Whether the deceased had made any advancement or other gift to the applicant during his
lifetime or by will;
(e) the conduct of the applicant in relation to the deceased and to the surviving spouse;
(f) the situation and circumstances of any other person who has any vested or contingent
interest in the net intestate estate of the deceased or as a beneficiary under his will (if any);
and
(g) the general circumstances of the case including the surviving spouse’s reasons for
withholding or exercising the power in the manner in which he or she did, and any other
application made

Conclusion

It is my legal opinion that you consider the provisions of section 35 of the Law of Succession
Act in deciding this matter.

The estate of Alexander will pass interstate since there was no will.

Halima as a legal wife is entitled to benefit from the estate. Also all of Alexander’s children are
entitled to provision from the net estate left behind by Alexander. These are the legitimate
dependants. The other wives must show that they were provided for by Alexander before his
death.

Yours faithfully,

Victor Bora

Legal Assistant.
QUESTION 2; Discuss the grounds that may lead to the nullification of a written will.

A will is a legal declaration by a person of his wishes or intentions regarding the disposition of
his property after his death, duly made and executed according to the provisions of Part II, and
includes a codicil.

You can't challenge or contest a will simply because you don't like its terms. There are four legal
reasons for a will contest in most states, and it can be very difficult to prove any one of them.
That translates to a great deal of expense in many cases, from attorney's and expert's fees to court
fees. But if one of these four reasons for a contest does exist, a last will and testament can
be invalidated.

It's not a matter of invalidating just one provision. The entire will is effectively thrown out, and
the estate proceeds as though the decedent had never left a will at all.

1. The Will Wasn't Signed in Accordance with Applicable State Laws

The will must be signed by the testator—the person who created and is leaving the will.

2. Testator Lacked Testamentary Capacity to Sign a Will

The testator must understand the nature and value of her "bounty" or assets and that she
understands the natural objects of that bounty—who should logically inherit her assets. She must
understand the legal effect of signing a will.

3. Testator Was Unduly Influenced

Did the alleged influencer exert such extreme pressure and put the testator under such severe
duress that it caused him to lose his free will and instead succumb to the will of the influencer?

4. The Will Was Procured by Fraud

A will procured by fraud is one that the testator is tricked into signing without his knowledge and
acceptance.

5. Another Will Trumps the One Being Executed

If the executor is trying to carry out the provisions of an outdated will, the newer will can trump

this older will.