STREAM: TWO

GROUP: SIX

UNIT; LAW OF SUCCESSION

UNIT CODE: LPL205

LECTURER: MR NZUKI MWINZI

KIRIMA LINET KINYA L95S/11759/2022

CHARLES MUGENI L95/1948/2022

MBITA
BETT ALVIN KIPKOECH L95S/11460/2022

WAHINYA LINET L95/1914/2022

WANGARI
NGWARE SHELLY L95/1889/2022
WANJIRU
JALDESA DUBA JARSO L95S/12338/2022

IBRAHIM ISSAK L95/1885/2022

HASSAN
SUSAN KAVULANI L95/1935/2022

ISSACK SULEIQA L95S/11085/2022

BILLOW
WHITNEY KEMUNTO L95S/11553/2022
ORINA
FRESIA WAMORO L95S/15984/2015
NGARUIYA

1
Contents
Introduction to the principle of Testamentary Freedom.............................................................................3
1. Testamentary freedom and ability of court to interfere with written wills.........................................5
a) when dependents not adequately provided for..................................................................................5
b) Fraud and Undue Influence.................................................................................................................6
c) Gifts to Charities..................................................................................................................................6
d) Public Policy Considerations................................................................................................................6
2. Age being a Limitation of testamentary freedom................................................................................7
3. MENTAL AND PHYSICAL INCAPACITY TO MAKE A FREE WILL..............................................................7
4. Knowledge and Approval...................................................................................................................10
a) Time of knowledge and approval..................................................................................................11
b) Who is to be included in the will as a beneficiary..........................................................................11
c) In situations where some beneficiaries are not provided for........................................................12
5. Limitation of Testamentary Freedom and writing wills as per section 11 of the law of successions
act 13
IN CONCLUSION.........................................................................................................................................14
Bibliography...............................................................................................................................................15
National laws.........................................................................................................................................15
Cases.....................................................................................................................................................15
Other authorities....................................................................................................................................15

2
Introduction to the principle of Testamentary Freedom
This is the freedom that a testator has to dispose the property according to his or her wishes.
Section 5(1) of the Law of succession act grants testamentary freedom to a testator and states as
follows;

(1) Subject to the provisions of this Part and Part III, every person who is of sound mind and not
a minor may dispose of all or any of his free property by will, and may thereby make any
disposition by reference to any secular or religious law that he chooses.
Testamentary freedom is not limited to men only but can also be exercised by the female gender
due to the fact that evolution of society has occurred, and women can also hold property that
they may dispose at will.1 This is called freedom of testation or testamentary freedom.

The rationale for this freedom is that the testator should be capable of doing what he likes with
his property by way of a will just as he could have had during his lifetime.2

Testamentary freedom may not be absolute freedom as the court may alter the provisions of the
will subject to provisions of section 26 of the Act which provides that where a person dies after
the commencement of this Act, and so far as succession to his property is governed by the
provisions of this Act, then on the application by or on behalf of a dependent, the court may, if it
is of the opinion that the disposition of the deceased's estate effected by his will, or by gift in
contemplation of death, or the law relating to intestacy, or the combination of the will, gift and
law, is not such as to make reasonable provision for that dependent, order that such reasonable
provision as the court thinks fit shall be made for that dependent out of the deceased's net estate. 3

The argument behind lack of absolute freedom is to limit irresponsibility’s in the wills where a
testator may deny his family the whole of the property leaving it to outsiders.

In re estate of Ng’etich where an objection was filed to the application by the executor of the will
of the deceased for grant of probate. The objector claimed that she was not consulted and the
petition was filed and furthermore as the wife of the deceased she was the one entitled to the
grant of representation. The court held that the petitioner had approached the court by the wrong

1
S,5(2) law of succession Act Cap 160
2
William M Musyoka Law of Succession Law Africa Publishing (K) Ltd [2010] 293
3
S,26 law of succession Act Cap 160

3
procedure but nevertheless looked at the provisions of the will in determining the dispute. The
court was of the view that a will is not absolute by virtue of Section 26 of the Law of Succession
Act; where there is contention that the court can interfere with the will and make provisions out
of the estate. The court proceeded to apply Section 26 and guided by Section 28 of the Act made
provisions for the beneficiary under the will, the objector and her son. In his judgment,
Nambuye J stated, “A will is not absolute; the court can under Section 26 of the Law of
Succession act interfere with it to make provision for those not adequately provided for.” 4

Section 27 of the act provides that In making provision for a dependent the court shall have
complete discretion to order a specific share of the estate to be given to the dependent, or to
make such other provision for him by way of periodical payments or a lump sum, and to impose
such conditions, as it thinks fit taking into consideration the following factors5;

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

(b) any past, present or future capital or income from any source of the dependent;

(c) the existing and future means and needs of the dependent;

(d) whether the deceased had made any advancement or other gift to the dependent during his
lifetime;

(e) the conduct of the dependent in relation to the deceased;

(f) the situation and circumstances of the deceased's other dependents and the beneficiaries under
any will;

The discussion about lack of absolute testamentary freedom brings about the testamentary
limitations which are stated and discussed below.

4
in re estate of Ng’etich [KLR 84 2003]
5
S,28 Law of Act Cap 160

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 1. Testamentary freedom and ability of court to interfere with written wills
a) when dependents not adequately provided for
Testamentary freedom is not an absolute freedom, since after the testator’s death the terms of the
will may be altered by the court following an application under section 26 in Part III of the Law
of Succession Act.131 The dependency and family provisions of the Law of Succession Act deal
with provisions for persons who were dependent on the deceased before his death, but after his
death find themselves inadequately provided for in his will or intestacy or by gift in
contemplation of death. These provisions act as a fetter to the operation of the doctrine of
testamentary freedom.

The Court of Appeal in Elizabeth Kamene Ndolo vs. George Matata Ndolo stated that under the
provisions of section 5 of the Law of Succession Act, every Kenyan adult has an unfettered
freedom to dispose of his or her property by will in any manner he or she sees fit. This freedom,
like all others, must be exercised responsibly and a testator exercising the freedom must bear in
mind that in the enjoyment of that freedom, he or she is not entitled to hurt those for whom he
was responsible during his or her lifetime. According to the court, the responsibility to the
dependents is expressly recognized by section 26 of the Act. In the words of the Court of Appeal,
section 26:

… puts limitations on the testamentary freedom given by section 5. So that if a man by his will
disinherits his wife who was dependent on him during his lifetime, the court will interfere with
his freedom to dispose of his property by making reasonable provision for the disinherited wife.
Or if a man at the point of his death gives to his mistress the family’s only home and makes no
reasonable provision for his children who were dependent on him during his lifetime, the court
may well follow the mistress, under section 26, and make reasonable provision for the dependent
children out of the house given to the mistress. So though a man may have unfettered freedom to
dispose of his property by will as he sees fit, we do not think a man in Kenya can leave all his
property for the maintenance and up-keep of an animal orphanage if the effect of doing so would
be to leave his dependents not provided for.6

6
Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995 (Gicheru, Omolo, and Tunoi JJ)

5
 Koome J in the Matter of the Estate of James Ngengi Muigai stated that although the testator has
the power to dispose of his property by will, the freedom is not absolute.7 Section 26 stipulates
that a will is not absolute, where there is contention the court can interfere and make provision
for a dependent left out of inheritance. Shah JA in John Gitata Mwangi and others vs. Jonathan
Njuguna Mwangi and others however, pointed out that in exercising the power given by section
26 the court should not re-write the wills of deceased persons. In the opinion of Shah JA, section
26 provides only the power to make reasonable provision for a dependent who has not
adequately been provided for in the will of the deceased.8

Kuloba J in in the Matter of the Estate of Sadhu Singh Hunjan cautioned that the will of the
departed must be honored as much as is reasonably possible. Readjustments of the wishes of the
dead by the living must be spared for the wills of eccentric and unreasonably harmful testators
and, what he called, weird wills.9

b) Fraud and Undue Influence

Kenyan courts have acknowledged that a testator's testamentary freedom may be violated if they
are unjustly persuaded or forced to include particular terms in their will. Fraudulent or undue
influence cases may render the will or some of its terms void. In the Matter of the Estate of Rose
Bella Wangui Njoroge, for example, the court invalidated a will because one of the beneficiaries
had unduly influenced the testator.10

c) Gifts to Charities
Succession Act Sections 45–47: While it is legal for people to leave charity bequests in their
wills, there are certain restrictions and legal requirements. For example, the non-profit
organization receiving the bequest must be duly designated and able to accept it, and the
charitable objective of the gift must be legitimate and legal.

d) Public Policy Considerations

In Kenya, courts have the authority to step in and nullify will clauses that go against the public
interest. This could involve clauses that support illicit activity or transgress basic justice
standards. Courts have the authority to administer public policy in the context of testamentary
7
in the Matter of the Estate of James Ngengi Muigai (deceased) Nairobi HCSC No. 523 of 1996
8
John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997
9
in in the Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of 1994
10
Estate of Rose Bella Wangui Njoroge (Deceased) [2016] eKLR

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freedom even in the absence of explicit statutory provisions, as demonstrated by case law and
legal principles.

2. Age being a Limitation of testamentary freedom

Testamentary freedom is a concept in the law of wills that refers to a person's right to allocate his
assets as he sees fit, without regard for societal constraints.

Before a will can take effect it must first be proved as a valid testamentary disposition.
Therefore, it is necessary to consider whether the testator had capacity to make the will.

At common law a will is invalid unless made by a person who at the time of making it has the
capacity to do so. As a rule, a minor is incapable of making a valid will.

A minor is referred to person below the age of 18. The common law position regarding
testamentary capacity is reflected in sect. 5 of the law of succession act.

Section 5(1) essentially embodies the freedom of testamentary freedom by providing that any
person is capable of disposing of all or any of his free property by will so long as he is of sound
mind and not a minor.

Consequently, the above section set a limitation of testamentary freedom, in regards to the age of
person making a will. A will made during infancy is invalid unless the testator upon reaching the
age of majority re-executes it or makes a new will or codicil confirming it. Thus when a minor
dies his estate should pass in accordance with the rules of intestacy.

Under section 2 of the Age of Majority Act, a person is full age and cease to be under any
disability by reason of age upon attaining the age of eighteen years.

3. MENTAL AND PHYSICAL INCAPACITY TO MAKE A FREE WILL

The Black’s Law Dictionary (Eighth Edition) defines ‘mental illness’ as: -

“1. A disorder in thought or mood so substantial that it impairs judgement, behavior,

perceptions of reality, or the ability to cope with the ordinary demands of life.

2. Mental disease that is severe enough to necessitate care and treatment for the affected
person’s own welfare or the welfare of others in the community.”

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Section 5 of the law of succession act states that, any person making or purporting to make a will
shall be deemed to be of sound mind for the purpose of this section unless he is at the time of
executing the will, in such a state of mind, whether arising from mental or physical illness,
drunkenness, or from any other cause, as not to know what he is doing. 11

It is a serious allegation to refer to a testator as of unsound mind.12

The starting point is the presumption that must always exist, until it is proved otherwise, that
every person is of sound mind. It is a logical presumption. Otherwise no one would be held
responsible for their actions. 13

In dealing with the question of mental capacity the courts follow the certain essentials laid down
in the case of Banks v Goodfellow14 and reiterated in a Tanzanian case of Vaghella V Vaghella 15
that:

“ A testator shall understand the nature of the act and its effects, shall understand the
extent of the property of which he is disposing; shall be able to comprehend and
appreciate the claims to which he ought to give effect; and, with a view to the latter
object, that no disorder of the mind shall poison his affections, pervert his sense of right,
or prevent the exercise of his natural faculties – that no insane delusion shall influence
his will in disposing property and bring about a disposal of it which if the mind had been
sound, would not have been made.”

The burden of proof shall be upon the person alleging that the testator was not of sound mind at
the time of making the will. This was established in the case of Re Estate of Gatuthu Njuguna
(Deceased) where it stated that:

11
The Law of succession act 2012, s 5(3)
12
Patrick Machira –v- Patrick Kabiaru, HCCC NO. 113/1999 [2000] eKLR
13
N W M v J M M & another [2017] eKLR
14
Banks V Goodfellow [1870] LR5QB 549
15
Vaghella V Vaghella [1999] EA 351

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“As regards the testator’s mental and physical capacity to make the will, the law presumes that
the testator was of sound mind and the burden of proof that the testator was not of sound mind is
upon the person alleging lack of sound mind, in this case the applicant ….16

However in Volume 17 of Halsbury’s Laws of England 17 illustrates that, where there a question
about the sanity of a testator, the appointed successor shall have to establish and prove
affirmatively the testator’s capacity, and that where the objector has proved incapacity before the
date of the will, the burden is shifted to the person propounding the will to show that it was made
after recovery or during a lucid interval. The same writing further shows that the issue of
testator’s capacity is one of fact which can be proved by medical evidence, oral evidence of the
witnesses who knew the testator well or by circumstantial evidence and that the question of
capacity is one of degree, the testator’s mind does not have to be perfectly balanced and the
question of capacity does not solely depend on scientific or legal definition. It seems that, if the
objector produces evidence which raises suspicion of the testator’s capacity at the time of
execution of the will which generally disturbs the conscience of the court as to whether or not the
testator had necessary capacity, he had discharged his burden of proof and the burden then shifts
to the person settling up the will to satisfy the court that the testator had the necessary capacity.”

If an objector does not discharge the burden of proof that the testator was physically ill and that
the will made if invalid, then the court is likely to dismiss the claim and rule in favor of the
selected person. This was seen in the case of in re Estate of Wilfred Koinange Gathiomi
(Deceased) where the court stated: “I find their claims unsupported by evidence and dismiss
them. Based on the Petitioner’s evidence, it is evident that though ailing during the material
period the deceased remained lucid.”18

This approval should be done through medical reports from an authorized psychiatrist and it shall
be upon the judge after being satisfied that the testator is incapable of managing and
administering his property and affairs by reason of mental disorder declare that the will made by
the testator is invalid.19 Production of medical reports may at times not suffice mostly where the
16
Re Estate of Gatuthu Njuguna (Deceased) (1998) e KLR
17
Halsbury's law of England, vol 17
18
In re Estate of Wilfred Koinange Gathiomi (Deceased) [2020] eKLR
19
Re S (FG) (Mental Health Patient) [1973] A11 ER Ch.D. 273

9
patient has demonstrated before the court that he understands the consequences of his actions and
that he can recall all he did. this is because disease of mental disorder varies quite widely where
some persons of unsound mind may be able to make competent decisions and be able to
appreciate the quality of what they are doing. For example, In the case of N W M v J M M &
another where the petitioners presented before the court all the medical report that the testator
was suffering from arthritis, blood clot and kidney failure, among other conditions. Despite the
fact that the deceased had all these diseases and sufferings that would prove his will invalid, he
still made a valid will according to the court emanating from the fact that the judge performed
his duty of calling the deceased, before he died, to respond and own if he understands the
consequences of his actions

4. Knowledge and Approval

In addition to having testamentary capacity, a testator must know and approve the contents of
their will. A testator knows the contents of the will if he is aware and understands the terms of
the will. He need not understand the precise legal effect of the terms. A testator. approves the
terms of the will if he executes it in those terms on his own volition and not because of coercion
or undue influence of another.

The knowledge and approval of the testator may also be absent because of mistake or fraud. This
requirement is of particular significance when the will is drawn up for the testator by a third
party e.g. a friend, a relative or a professional person such as an advocate.

Section 7 of the Law of Succession Act provides that a will caused by fraud, coercion,
importunity or mistake is void.

In John Kinuthia Githinji vs. Githua Kiarie and others the court was of the view that it is
essential to the validity of a will that at the time of its execution the testator should know and
approve of its contents.20

20
John Kinuthia Githinji vs. Githua Kiarie and others Nairobi CACA No. 99 of 1988

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 a) Time of knowledge and approval
The point at which the testator must know and approve the contents of their will is at the time of
execution. There is an exception to this general rule set out in the cases of

Parker vs. Felgate (1883) 89 PD 17121 and In the Estate of Wallace (1952) 2 TLR 92522 the court
was of the view that a will may be valid despite lack of knowledge and approval at the time of
execution so long as:

(a) the testator knew and approved the contents of the will at the time at which he gave
instructions to the advocate to draft their will.

(b) the will was prepared in accordance with his instructions; and, at the time the will was

executed the testator understood that he was executing a will for which he had earlier

given instructions.

In the Estate of Wallace (1952) 2 TLR 925 the testator who was seriously ill had written and
signed a document entitled “last wish”. At the time of execution, he knew and approved the
contents of the document. A solicitor then prepared his will in accordance with the document. At
the time when the testator executed the will, a day before he died, he did not know and approve
the contents of the will that were read over to him. It was held that the will was valid as per thee
exception rules.

b) Who is to be included in the will as a beneficiary

Section 5 of the Law of Succession Act gives the deceased freedom of testation, to dispose of his
property as he pleases to whomsoever he pleases. It was within his freedom or discretion to
determine who was to benefit from his bounty. The mere fact that a will left out children from
benefit and benefited the spouse substantially should not be grounds for invalidation of a
will. A party aggrieved by such provision had a remedy in section 26 of the Law of Succession
Act, but not in the nullification of the will.

21
Parker vs. Felgate (1883) 89 PD 171
22
Estate of Wallace (1952) 2 TLR 925

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In the case of Re Estate of Julius Mimano (Deceased) [2019] eKLR23, The applicant filed
summons for revocation of the grant of probate disputing the validity of the will on the grounds
that: the will did not provide for the children of the deceased, and especially himself, being the
only son of the deceased. The court held that under Section 5 of the Law of Succession Act gave
the deceased freedom of testation, to dispose of his property as he pleased to whomsoever he
pleased. It was within his freedom or discretion to determine who was to benefit from his
bounty.24 The mere fact that a will left out children from benefit and benefited the spouse
substantially should not be ground for invalidation of a will. A party aggrieved by such

provision had a remedy in section 26 of the Law of Succession Act, but not in the nullification of
the will.

c) In situations where some beneficiaries are not provided for.

In Re Estate of Robert Otieno Guya, a will has omitted the 3 daughters from the First House; and
the 3 daughters from the 2nd House. The court held that failure to include any one or more
dependents in the Will does not invalidate it. 25

Section 26 of the Law of Succession Act, provides the Court with the discretion to make such
reasonable provision for the dependent who had been left out of the Will. An application may be
brought to the Court, by or on behalf of the dependent who had been left out of the Will.
Therefore, the remedy is not through the invalidation of the Will, but through an application
seeking a reasonable provision.

In conclusion, the validity of a will with regards to testamentary freedom of a testator, where a
will is written to the exclusion of the children of the deceased cannot be invalidated for failure
to provide for the beneficiaries of the deceased however, the party aggrieved by such
situation has a remedy in section 26 of the Law of Succession Act.

Section 26 of law of succession Act provides for dependents not adequately provided for by will
or on intestacy. It states that where a person dies and so far as succession to his property is
governed by the provisions of this Act, then on the application by or on behalf of a dependent,

23
Re Estate of Robert Otieno Guya (Deceased) [2021] eKLR
24
Re Estate of Robert Otieno Guya (Deceased) [2021] eKLR
25
Re Estate of Robert Otieno Guya (Deceased) [2021] eKLR

12
the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his
will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of
the will, gift and law, is not such as to make reasonable provision for that dependent, order that
such reasonable provision as the court thinks fit shall be made for that dependent out of the
deceased’s net estate.

5. Limitation of Testamentary Freedom and writing wills as per section 11 of the law
of successions act
Testamentary freedom refers to the freedom a person has to will his or her property as he or she
thinks fit. This can be in form of written wills as provided for in section 1126. However, a
limitation on this testamentary freedom with regards to written wills is as follows;

No written will shall be valid unless-

 the testator has signed or affirmed his mark to the will, or it has been signed by some
other person in the presence and by the direction of the testator.
 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 thereby to give effect to the writing as a
will;
 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 hi signature or mark, or of the signature of that other
person, and each of the witnesses must sign the will in Prescence of the testator, but it
shall not be necessary that more than one witness be present at the same tm e, and no
particular form of attestation shall be necessary

It was held that if a witness left the room before the testator completed his signature, the
attestation of the will be invalid27 In another case it was also held that the will in question
was invalid as it failed to meet the threshold of section 11 of the law of succession act as the

26
Law of Succession Act, Cap 160
27
Re Colling [1972] 1 wlr 1440

13
 witnesses who had had allegedly witnessed signing of the will were no in the same room as
the testator when he was completing his signature28

The above information shows instances where testamentary freedom is limited for reasons of
not complying with the laws regarding creation of a formal, valid and written will despite the
testator having distributed the property as he or she deemed fit.

IN CONCLUSION
As much as testamentary freedom is provided for in the law of succession, it’s not absolute and has
certain limitations that are also provided for in law, as well as remedies for persons affected by the
written wills.

Bibliography
National laws
1. Constitution
2. Law of succession act
3. Age of majority act
4. Matrimonial properties act
Cases
1. in re estate of Ng’etich [KLR 84 2003]

28
Rahab Nyakangu Waithanji v Fredrick Thuku Waithanje [2019] eKLR

14
 2. Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995
(Gicheru, Omolo, and Tunoi JJ)
3. in the Matter of the Estate of James Ngengi Muigai (deceased) Nairobi HCSC No.
523 of 1996
4. John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi
CACA No. 213 of 1997
5. in in the Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No.
107 of 1994
6. Estate of Rose Bella Wangui Njoroge (Deceased) [2016] eKLR
7. Patrick Machira –v- Patrick Kabiaru, HCCC NO. 113/1999 [2000] eKLR
8. N W M v J M M & another [2017] eKLR
9. Banks V Goodfellow [1870] LR5QB 549
10. Vaghella V Vaghella [1999] EA 351
11. Re Estate of Gatuthu Njuguna (Deceased) (1998) e KLR
12. In re Estate of Wilfred Koinange Gathiomi (Deceased) [2020] eKLR
13. Re S (FG) (Mental Health Patient) [1973] A11 ER Ch.D. 273
14. John Kinuthia Githinji vs. Githua Kiarie and others Nairobi CACA No. 99 of 1988
15. Parker vs. Felgate (1883) 89 PD 171
16. Estate of Wallace (1952) 2 TLR 925
17. Re Estate of Robert Otieno Guya (Deceased) [2021] eKLR
18. Re Estate of Robert Otieno Guya (Deceased) [2021] eKLR
19. Re Colling [1972] 1 wlr 1440
20. Rahab Nyakangu Waithanji v Fredrick Thuku Waithanje [2019] e

Other authorities
1. William M Musyoka Law of Succession Law Africa Publishing (K) Ltd [2010] 293
2. Black’s Law Dictionary (Eighth Edition)

15