Question 1.

Discuss all the issues surrounding the will including but not limited to bequests, attestation and its
validity.

Facts

During a Christmas holiday visit to Kenya, Bareta wrote a will. In his will, he bequeathed all his Kenyan
property to Mariarosa except for the money in his Sacco and retirement fund from his place of work,
which he bequeathed to Loreta. The adduced facts previously mention that Bareta had some Sacco
money and work benefits from his job in the Ministry of Roads and he had nominated his first two
children, Elvina and Musa as the inheritors of the Sacco money and work benefits.

Despite having first disagreed and after much talk, Bareta also ended up bequeathing his fish pond in his
farm in Karenkata to Jacobo. He wrote all of this in the will, signed it and thereafter called Mariarosa,
Musa and Jacobo to sign the will as witnesses. All the witnesses except for Jacobo signed in Bareta’s
presence.

It is noteworthy that the will written by Bareta had neither included his first two children, Elvina and
Musa nor Tarebo, a child whom he had with Loreta. The will also did not include Jayjay whom to
Bareta’s best knowledge was his legal step-son.

Two days after formulating his will, Bareta tore his will and threw it in a safe, announcing that he would
write another will the next day which would not include Musa. This happened after Bareta overheard
Musa tell Elvin that all they had to do was wait as Bareta had written a will and was ready to die.

Issues

1. Whether Bareta had formed a valid will

2. Whether the manner in which the will was attested would affect the instructions provided in the
will
3. Whether Bareta could bequest his Sacco money and retirement benefits to Loreta despite
having previously nominated Elvina and Musa as the inheritors of the Sacco money and work
benefits.
4. Whether Bareta’s will had adequately provided for all dependants.
5. Whether Bareta’s actions of tearing the will amounted to its revocation.
6. Survivorship?

Rules and Application

1. Whether Bareta had formed a valid will

Section 5 of the Law of Succession Act provides that every person who is of sound mind and not a minor
may dispose of all or any of their free property by will and may thereby make any disposition by
reference to any secular or religious law that they choose.1 A person making a will shall be deemed to be
of sound mind unless at the time of executing the will, they are in such a state of mind as not to know
what they are doing, due to mental or physical illness, drunkenness or any other cause. 2

1
Section 5(1, Law of Succession Act
2
Section 5(3), Law of Succession Act
The set on mental capacity required in making a will was determined in Banks v Goodfellow where
Cockburn CH averred, “The person must have a sound and disposing mind and memory. In other words,
he ought to be capable of making a will with an understanding of the nature of the business in which he
is engaged, a recollection of the property he means to dispose of, and of the persons who are the
objects of his bounty and the manner it is to be distributed between them.” 3 The standard set under
section 5 of the Law of Succession Act requiring a testator to be aware of what they are doing is
reiterated while noting the exceptions in Parker v Felgate4 and in the Estate of Wallace. In these cases, it
was held that a testator was required to know and approve the contents of their will at the time of
execution. However, a will could remain valid despite the testator not knowing and approving the
contents of the will at the time of execution so long as they had known and approved the contents of
the will when they gave instructions for its drafting or of the draft document they executed.

Aside from age and mental capacity, the Law of succession act also sets standards which are to be met
or shown in order for written wills for written wills to be considered valid. Written wills are only valid
where:5

a) The testator has signed or affixed their mark to the will or it has been signed by some other
person in the presence and by the direction of the testator.
b) The signature or mark of the testator, or the signature of the person signing for him, is so placed
that it shall appear that it was intended to give effect to the writing as a will.
c) The will is attested by two or more competent witnesses, each of whom must have seen the
testator sign or affix his mark to the will, or have seen some other person sign the will, in the
presence and by the direction of the testator, or have received from the testator a personal
acknowledgement of his signature or mark, or of the signature of that other person; and each of
the witnesses must sign the will in the presence of the testator, bust it shall not be necessary
that more than one witness be present at the same time, and no particular form of attestation
shall be necessary.

Section 2 of the Law of succession Act defines competent witnesses as persons of sound mind and full
age. Section 13 of the Law of Succession Act provides further information on attestation, stating how a
will should be attested to in the instance that the attesting witnesses were beneficiaries included in the
will. Consequently, according to section 13(1), a will is not considered as insufficiently attested by reason
of benefit given by way of bequest or by way of appointment to the person attesting to it. There are
however repercussions that arise as a result of not following the provisions on wills in which attesting
witnesses have been bequeathed property;6 this shall be discussed in the next issue as they do not affect
the validity of the will.

In this instance, it is observable that the testator, Mr. Newton Bareta satisfied both the requirements of
age and sound mind set under Section 5 of the Law of Succession Act. Mr. Bareta was an individual that
had attained the age of majority who furthermore, was married with children. Mr. Bareta was a civil
engineer who later went on to become a Kenyan Ambassador to the state of South Africa; from his
conduct and way of life, it could be inferred that Mr. Bareta was indeed a person of sound mind.

3
Banks v goof fellow (1870) LR 5 QB 549
4
Parker v Felgate (1883)
5
Section 11, Law of Succession Act
6
Section 13(2), Law of Succession Act
Additionally, under no instances is the mental capacity of Mr. Bareta questioned by any of his family
members.

With regards to the provisions set under section 11 of the Law of Succession Act, it is observable that
Mr. Bareta satisfied provision (a) of the same by personally signing the will which he had written. With
regards to provision (c) of section 11, the adduced facts inform us that it was after Mr. Bareta had added
Jacobi’s wish to his will, that he signed the will and called Mariarosa, Musa and Jacobo to sign as
witnesses. Therefore, it is discernible that Mr. Bareta executed the document while he was alone, after
which he invited the witnesses to sign the document. Provision (c) of section 11 requires the testator to
acknowledge his signature when asking the competent witnesses to execute the will. Despite the facts
not expressly stating that Mr. Bareta acknowledged his execution of the will, there remains a strong
presumption that Mariarosa, Jacobo and Musa had received Mr. Bareta’s acknowledgement that he had
executed the will. This is due to the fact that the drafting of the will by Mr. Bareta was an ongoing task
that was known to the family members and friends who were also within Mr. Bareta’s close
surroundings. From Daintree v Butcher, where a testatrix simply said that she had a document and
needed two witnesses to sign it (it was found that acknowledgement was sufficient), it is discernible that
acknowledgement of execution by the testator could either be done expressly or through conduct. 7

As required by section 11(c) of the Law of Succession Act, the will was attested to by two competent
witnesses, Mariarosa and Musa, who signed the will in Mr. Bareta’s presence. The manner in which Mr.
Bareta’s will was executed satisfy the requirements set in In the Matter of the Estate of Susan Kanini
Kilonzo where it was stated that attesting witnesses are required to put their signatures in the will with
the intention of validating the testator’s signature.8

2. Whether the manner in which the will was attested would affect the instructions provided in the
will

Section 13(2) of the Law of Succession Act provides that bequests made to attesting witnesses or to the
spouse of the attesting witness shall be void unless the will is also attested by at least two additional
competent and independent witnesses, in which case the bequest shall be valid. This provision under
section 13(2) of the Law of Succession Act is reiterated in In the Matter of the Estate of George Mbugua
Ngare,9

3. Whether Bareta could bequest his Sacco money and retirement benefits to Loreta despite
having previously nominated Elvina and Musa as the beneficiaries of the Sacco money and work
benefits.

A nomination is defined as a direction given by a nominator to another person or entity who or which is
holding funds on her behalf, to pay the funds on the nominator’s death to a nominee appointed by the
7
Daintree v Butcher (1888) 13 P and D 102
8
In the Matter of the Estate of Susan Kanini Kilonzo, Nairobi High court sccession cause number 2669 of 2002.
9
In the Matter of the Estate of George Mbugua Ngare Nairobi High Court probate and administration numer 855 of
1995.
nominator during the nominator’s lifetime.10 In re Estate of Faith Muita, Justice Musyoka found
nominations to be devices operating outside the law of succession.11 Nominations are devices that
operate under the rules of a particular scheme and neither comply with the requirements of a will nor
subject to the law of succession; these devices are meant to be paid to the nominee of the nominator
and do not form part of the nominator’s estate.12 Whereas the Sacco Societies Act, Act No. 14 of 2008
remains silent on the rules governing nominees of their members, The Sacco societies regulations
acknowledge the presence of nominees, providing for their involvement in the instances that a
member’s account becomes dormant or where their funds have been considered abandoned. 13

Nominated funds only fall for distribution in accordance with the law of succession where a nomination
has been revoked by subsequent marriage of the nominator or where the nominee dies before the
nominator.14

10
Parry and Clark, The Law of Succession, 11th edition, Thomson/Sweet & Maxwell, London, 2002, pg. 4
11
In re Estate of Faith Muita (2016) eKLR.
12
In re Estate of Faith Muita (2016) eKLR.
13
Section 27, Sacco Societies (Deposit-Taking Sacco Business) Regulations, 2010 and Section 27, Sacco Societies
(Non-Deposit-Taking Business) Regulations, 2020 and
14
In re Estate of Faith Muita (2016) eKLR.