FIRM 13: PROBATE AND ADMINISTRATION ASSIGNMENT

  
Table of Contents
FIRM 13: PROBATE AND ADMINISTRATION ASSIGNMENT......................................................0
QUESTION................................................................................................................................................2
Firm 13.......................................................................................................................................................2
TYPES OF WILLS....................................................................................................................................2
WRITTEN WILLS................................................................................................................................2
ORAL WILLS.......................................................................................................................................3
PRIVILEGED WILLS..........................................................................................................................4
OTHER TYPES OF WILLS UNDER COMMON LAW.......................................................................5
CONDITIONAL WILLS......................................................................................................................5
TESTAMENTARY TRUST WILLS...................................................................................................6
Benefits of a testamentary trust will.................................................................................................7
Disadvantages of a testamentary trust will......................................................................................7
Requirements for a valid testamentary trust will............................................................................8
JOINT WILLS.......................................................................................................................................9
MUTUAL WILS..................................................................................................................................10
MIRROR WILLS................................................................................................................................11
What are the problems with mirror wills?....................................................................................12
How to protect your estate - Mirror will with trust......................................................................12
MIRROR WILLS V. MUTUAL WILLS...........................................................................................12
MIRROR WILLS V. JOINT WILLS................................................................................................14
PHYSICAL REQUIREMENTS OF WILLS.........................................................................................14
Signature or affixation of a mark.......................................................................................................14
Signatures.............................................................................................................................................15
Witnesses..............................................................................................................................................16
Attestation by witnesses......................................................................................................................17
SAMPLE WILL......................................................................................................................................18
QUESTION
Firm 13: You have been given a consultancy by a firm in Mombasa give a presentation on the
issues below.

The types and physical requirements of wills.

Attach to it a properly drafted will.

TYPES OF WILLS
There are three types of wills provided for under the Law of Succession Act Cap 160 Laws of
Kenya (LSA) i.e., written wills, oral wills and privileged wills. Section 8 of the Law of
Succession Act, provides for two main types of wills: - Oral and written. 

An oral will is spoken by word of mouth while a written will is written down (handwritten or
typed) on paper. An oral will can also be reduced to writing. Section 9(1)(b) then goes on to give
an exception to the formal requirements for the formation of oral wills; this is the basis for
privileged wills in Kenya.

WRITTEN WILLS
The validity of wills is dependent on the capacity of the maker and whether the same was made
in proper form. A will is defined as valid if made by a person with the relevant capacity in proper
form. The law on testamentary capacity is set out in Section 5 of the LSA.

Section 11 of the act provides that no written will shall be valid unless:

 it is signed by the testator or he affixes his mark to the will or it has been signed by some
other person in the presence of and by the direction of the testator;
 it appears that the testator intended by his signature or mark or signature of the person
signing for him to give effect to the will;
 the signature is made or acknowledged by the testator in the presence of two or more
competent witnesses present at the same time;
 each witness must attest and sign the will in the presence of the testator but not
necessarily in the presence of the other witnesses.
The LSA does not prescribe any form that a written will should take, it is presumed that the will
maybe hand written, typed, printed or even in code. The writing need not to be of the testator. It
may be in any language as implied by rules 52(2) and 54(3) of Probate and Administration rules.
In case of a will written in a language with which the testator was not wholly familiar with; an
affidavit is required to show that the testator was aware of its contents and appeared to
understand them.

A will may be written on any material provided the material produces a visible form. In Hodson
v Barnes (1926) 43 TLR 71, a will written on an eggshell and in Murray [1963] CLY 3621
(Canadian), a will written on a cigarette packet, were admitted to probate1

ORAL WILLS
According to section 9 of the Law of Succession Act Cap 160 Laws of Kenya for an oral will to
be valid it should be made before two or more competent witnesses; and the testator should die
within a period of three months from the date of making that will.

In re Estate of Evanson Mbugua Thong’ote (Deceased) [2016] Eklr, the court while
discussing the requirements of a valid oral will stated that an oral will is made simply by the
making of utterances orally relating to disposal of property. In assessing whether the deceased
had made a valid oral will, it needs to be considered first whether there was an utterance of the
will. The question being whether there was an oral utterance of the terms of the will. The other
consideration is that the utterance ought to be made in the presence of two or more persons.

With regards to the three-month time pan, the rationale behind it is that being oral, there is
danger that some instructions may be forgotten or misreported if a longer period is allowed.
Another reason is that majority of oral Wills are often made in a state of panic, fear or anxiety
when the investor is on his/her deathbed or imminent danger. The law presumes that people in
such state could be irrational in their decisions and express intentions that they may not hold on
free thoughts. Therefore, the three-month period is mostly intended to allow them time to
reconsider their Wills and if possible, reduce them to writing.

In In re Estate of Kevin John Ombajo (Deceased) [2021] eKLR, a visual recording was made
before three witnesses, two of whom gave evidence in support of the averments in the recording.

1
W Musyoka, Law of Succession, p. 61
However, the deceased did not die within a period of three months from the date the recording
was made. The deceased died seven (7) months after the making of the alleged will. The court
decided that, in the given circumstances, the alleged will did not qualifyy to be a valid oral will
of the deceased made under the Law of Succession Act, even though the facts as narrated,
pointed to an attempt to make a will.

Where a deceased person gives instructions regarding the disposal of his assets and the
instructions are reduced into writing by the persons recording them, such written instructions
amount to an oral will, so long as the instructions are given in the presence of two or more
persons

According to section 10 of the LSA, when there is a conflict between contents of a written Will
and an oral one, contents of the written Will prevail. In the case of Re Rufus Ngethe Munyua
(Deceased) Public Trustee v Wambui [1977] KLR 137, the deceased gave instructions on
disposal of his estate amongst his wives and children. The person who received the verbal
instructions wrote them down before Munyua died a few days later. The High Court ruled that
the writing amounted to an oral Will

PRIVILEGED WILLS
Privileged wills refer to wills deemed valid despite failure to adhere to strict formalities on wills;
for instance, according to section 9 of the Law of Succession Act Cap 160 Laws of Kenya, an
oral will by a soldier or merchant marine made more than 3 months before the death of the
soldier in active service shall be valid even though it was made outside of the period prescribed
for oral wills. Acts of service in this case refers to service with the armed forces or merchant
marine on a field of military operations or at sea, or proceeding to or from or such field or sea, or
under orders to proceed to such field or sea, or in being in some place for the purpose of
proceeding to such field.

Under section 297 of the Kenya Defence Forces Act, a will made by a member of the Defence
Forces who has the legal capacity to make a will, shall be validly executed if it is in writing and
is signed by the member in the presence of an officer, who subscribes the officer's name as
witness in the member's presence; or it is executed with the formalities prescribed by any other
written law for the execution of a will. This means a soldier can make a written will if witnessed
by one witness, in this case an officer of the regiment. This is a privilege from the formalities
under section 9 and 11 of the Law of Succession Act, which state that a will is invalid unless it is
made before two or more competent witnesses

Privileged wills are made in circumstances that do not allow the opportunity to make a normal
Will. For soldiers who die at war, most Common law jurisdictions rely on the case Re Stable
[1919] R 7 case where a lieutenant promised a woman his fortunes. According to the landmark
ruling, the lieutenant told the woman before he left for war that; “If I stop a bullet, everything
of mine will be yours.” The woman inherited the estate of the late soldier as he had uttered the
words in the presence of one man who was called as a witness.

In In Re Wingham’s [1949] P 187 at 195, a soldier was on operational duties as a trainee pilot in
Saskatchewan, Canada, during World War II. Saskatchewan was only a day’s flying from the
enemy. During this time, he made an oral will leaving his property to the plaintiffs. He survived
the war and joined one of the colleges in his home town and become a pilot instructor, where he
later on got injured in an aircraft accident and died in hospital after five months. The will made
by the deceased was found to be still valid.

OTHER TYPES OF WILLS UNDER COMMON LAW

CONDITIONAL WILLS
Conditional wills are rare and not covered by the Law of Succession Act, Cap 160. English law
is applied in the event where conditional wills are contested in Kenya by virtue of Common Law
being a source of law. A conditional will refers to one that’s only operative where death occurs
in a specified way, period or place. Non-occurrence of the event renders the will inoperative or
ineffective meaning the event is a pre-condition to the operation of the will. For example, a
testator may make a provision in his will that the same operates only if he dies on a dangerous
journey that he is about to undertake.

The condition will be satisfied if he dies on the trip hence the will rendered effective. For
Conditional wills to be valid, it has to be testamentary in nature. This means that the testator
must have made the pre-condition in his will prior to his death therefore ruling out the possibility
of claimed intestate succession.
Determining whether a will is conditional or not depends on the construction of the same and this
was held in the case of Lindsay v Lindsay (1872)27 L.T. 322. The issue before the court was
whether the will was effective or not- was it a conditional will or was it motivated by the fact
that the testator made the will when he was about to leave England by sea. The will commenced
with the words ‘If I should die at sea or abroad’. It was held, as a matter of construction, to be
conditional. The court explained that when the testator died in England, while not at sea or
abroad, the will was ineffective as the pre-condition was not satisfied.

Determination of whether a will is conditional or not also depends on the circumstances that led
to the construction of the will. It is sometimes difficult to decide whether the danger to be faced
is merely the motive for making the will or whether death in the envisaged circumstance is the
pre-condition for the operation of the will. If it was a motive, the will would be effective but if it
was a pre-condition, it would be ineffective. The latter would render the will conditional contrary
to the prior circumstance.

In the case of Re Spratt’s Goods (1897)49 So.3d 872, the issue before the court was whether
the written will was conditional or not. An army officer serving in New Zealand during the
Maori War made a will. It took the form of a letter leaving everything to his son should anything
happen to him at war. He did not die in the war but lived for 32 years without making a new will
or revoking the will. The court held that since the father was motivated by war, the will was
admissible to probate and the son was entitled to take all of his father’s estates. Rendering the
will effective meant that it was not a conditional will.

In the case of Goods of Dobson (1866) LR 1 P&M, the issue before the court was whether the
will in question was conditional or not. The testator’s will commenced with the words, ‘In the
case of any fatal accident happening to me being about to travel by railway. I leave…’ It was
held not to be a conditional will because his belief that he might die in the course of his journey
was merely the motive for making the will. It was not a pre-condition that he died in the journey
before the will was operated on.

TESTAMENTARY TRUST WILLS

A testamentary trust will is a will that establishes a trust. It occurs when an individual dies and
details in their last will and testament the establishment of a testamentary trust. Trusts are
considered legal entities that allow a party (beneficiaries) to benefit from an asset(s) without
necessarily being the legal owner. Within a testamentary trust will, a testamentary trust is
established and a trustee is appointed to manage the trust on behalf of the beneficiaries. A
testamentary trust will defers from a lifetime trust in that it is established through a will and only
takes effect after the death of the testator, whereas a lifetime trust is established during one’s
lifetime.

Benefits of a testamentary trust will

a. Avoids sideways inheritance

When a first partner dies, leaving children from a marriage, a testamentary trust will is
established to ensure that the children of the marriage benefit from the assets of the deceased,
even after the surviving partner remarries. This helps protect the children of the initial marriage,
in the instance the surviving partner fails to make provision for the children in a new will.

b. Creation of a life interest in a property

A testamentary trust will allows for the testator to give a life interest in a property to the
beneficiaries. A beneficiary thereby gains a right to occupy or use the property, during their
lifetime. At the end of their lifetime the trust comes to an end, and the property is dealt within in
accordance to the will of the testator.

c. Care of underage children

A testamentary trust will is used to hold assets exclusively for children. In most cases, the
appointed trustee is the guardian of the children. This will allow for the children to be cared for
and benefit from the assets of the deceased parent, under the supervision and care of their
guardian.

Disadvantages of a testamentary trust will

 Mismanagement

The role of a trustee under a testamentary trust will is one that carries a lot of responsibility, with
little to no reward. Given this, a trustee may determine to mismanage the assest(s) held under the
trust or to handle the assets in such a way as to only benefit themselves.

 Requires legal advice

The legal requirements set out under the Trustee Act (Cap 167) must be followed in order to set
up and manage a trust as a trustee. It is therefore, important to seek legal advice during this
process for the proper establishment and management of the trust, this may be costly and time
consuming for the trustee.

Requirements for a valid testamentary trust will

A testamentary trust will that is created by express terms by the testator (in comparison to an
implied trust will) must contain three certainties as established under Knight v Knight (1840) 49
ER 58. The legal test established under this case by Lord Langdale MR states that there are three
requirements to creating a valid testamentary will trust, that is:

a. Certainty of Intention

The words stated in a will must show that the testator intended to create a trust within their will.
It is not enough for the testator to merely hope to create a trust, the testator must clearly intended
to create a trust. The court will objectively look at the meaning of the wording in a will to
determine whether the testator intended to create a trust.

b. Certainty of subject matter

It must be clearly identifiable what estate, whether tangible or not that the testator intends to be
held under the trust. In Palmer v Simmonds (1854) 2 Drewry 221, 61 ER 704 the court held
that the words ‘leave the bulk of my said residuary estate…’ did not clearly identify what estate
is to be put in trust and what is not to be put in trust. In recent years, however, the courts have
taken a liberal approach following the determination of Lord Jessel MR in Repington v
Roberts-Gawen (1881-82) LR 19 Ch D 520 that stated a testamentary trust will shall not be
held void of uncertainty of subject matter unless it is utterly impossible to put meaning to the
subject matter referred to. The duty of the court seems to put fair meaning on the defined subject
matter and not impose an easy pillow saying that the whole testamentary trust will is void for
uncertainty of subject matter.

c. Certainty of objects

The beneficiaries of the trust must be clearly identifiable or at least be ascertainable. In recent
years, the courts have followed the precedent set in McPhail v Doulton (1970) UKHL 1, AC
424, prior to this, a complete list of beneficiaries was required for the testamentary trust will to
be considered valid under this limb.
JOINT WILLS
A Joint Will is a legal document executed by multiple people and serves as the testament of the
parties involved; two or more persons express their wishes upon death in one document. It is a
single document that parties make and sign together. It can be said that a joint will merges the
individual wills of the parties into a single, combined last will. A Joint Will merges the wishes of
all participants into one document that cannot be changed without permission from one another.
Therefore, if one party dies, a Joint will automatically become irrevocable. 

It’s common among couples who sign one will, leaving all their assets to each other. If the wife
dies first, the document is admitted to probate as the wife’s will in the first instance, then when
the husband dies, it would be admitted to probate as the will of the husband.

The terms of a joint will e.g., executor, beneficiaries, and other provisions, cannot be changed
after the death of one of the testators. This can become problematic for the surviving spouse, as
their wishes may change. However, this inflexibility acts a form of checks and balance since the
estate is protected from rash decisions if a marital dispute arises. It also offers protection when
there’s any mistrust in the marriage, or potential for foul play. 

In the case of Dr. K.S. Palanisami (Dead) vs Hindu community in general and citizens of
Gobichettipalayam and others before the Supreme court of India, the judges set out to
distinguish a joint will from a mutual will. 2 The case involved one, Mr Palaniappa Chettiar and
his wife who jointly executed a Will (First Will). The First Will stated that on the death of either
of them, the survivor shall enjoy the entire property absolutely. Separately, the First Will
enumerated various charities to be undertaken from the income derived from the properties listed
in the First Will.3 After his death, the wife alienated some of these properties by separate sale
deeds which were in her name as well as few properties which were in the name of her deceased
husband.4

2
Civil Appeal No. 5924 of 2005, Dr. K.S. Palanisami (Dead) vs Hindu community in general and citizens of
Gobichettipalayam
3
Bijal Ajinkya , Shabnam Shaikh and Aman Dwivedi Khaitan & Co, India: Supreme Court Rules On Right Of
Alienation In A Joint And Mutual Will, https://www.mondaq.com/india/wills-intestacy-estate-planning/599488/
supreme-court-rules-on-right-of-alienation-in-a-joint-and-mutual-will
4
Ibid
The court while deciding the mater opined that the First Will was clearly irrevocable after the
death of the husband; however, given that it expressly granted 'absolute' right to the survivor to
enjoy the properties, the alienation of the properties by wife couldn’t be barred by law, unless the
alienation was in complete breach of object of trust and fraud on trust which wasn’t the vase

In distinguishing joint wills from mutual wills, it was stated that mutual Wills as opposed to
joint wills, are separate Wills of two or more persons which are reciprocal in their provisions
and executed in pursuance of an agreement between two or more persons to dispose of their
property to each other or to third persons in a particular mode or manner.

Joint wills are not to be confused with joint tenancy which is another form by which property
can pass upon death. Joint tenancy refers to the holding of an estate or property jointly by two or
more parties, where the interest of a co-owner who dies automatically passes to the surviving
joint tenant(s) by virtue of the principle of survivorship. The principle of survivorship seeks to
remove jointly owned property from the operation of the law of succession, upon the death of a
spouse who jointly owns property with another person or the other spouse.

MUTUAL WILS
Mutual wills are wills made by at least two people, usually spouses or otherwise committed
couples. The purpose of a mutual will is to grant the survivor of the two the property contained
in the wills and then to specified individuals after the death of the survivor. Further mutual wills
can contain clauses that they are not revocable without the consent of both parties.

In Murphy V. Glenn, the court stated that mutual wills are not one will, but two separate wills
that are reciprocal, identical, or substantially similar. The purpose of this type of will is often to
ensure that assets pass to children rather than a new spouse if the living partner remarries. In a
mutual will, the terms remain binding for the remaining party after the first partner dies. If a
mutual will has been properly created, a surviving spouse cannot later change the terms of the
will or make any transfer of funds. Prior to the death of the first spouse, however, either spouse
can make change to their will as long as they first notify the other spouse that they have done so.

In the case of Brewer V. Simpson, a husband and wife, pursuant to an oral agreement, executed
separate wills with reciprocal provisions, under which each left his entire estate in the
community property to their survivor with reasonable use for life. Both wills provided that on the
death of the survivor the remaining property will be divided, one-half going to certain named
relatives of the wife and the other half to certain named relatives of the husband. Each Will
stated that it was made in consideration of a mutual Will.

Upon the husband’s death, the wife received his entire estate. Subsequently she remarried and
transferred all of her properties into joint tenancy with her new husband. Suit was brought by the
wife’s named relatives to compel an accounting and to have a constructive trust imposed upon
the transferred property. Claiming the status of express beneficiaries, the plaintiffs contended
that the transfer into joint tenancy violated the wife’s agreement to leave a mutual Will. The trial
court upheld the plaintiff’s argument and imposed a constructive trust upon the property. On
appeal, its decision was affirmed.

MIRROR WILLS
A mirror will is a legal document which reflects the contents of another will. They are essentially
2 almost-identical wills that state what will happen to the other upon death; virtually identical
wills where one person in a couple leaves their estate to the other in the event of their passing
away. However, as much as the couple's wishes may be identical, their respective wills are theirs
alone. This means either of them is free to change their wills at any time.

The most common mirror wills are where, one spouse leaves everything to their spouse and then
to their children. The other spouse’s will is similar, in that they leave everything to the other
spouse and then to the children. The result is that when one of them dies, the other is protected,
and upon the second death, the children inherit the assets. The main ways in which they can
differ is, of course, the name of the testator (the person who has written the will) and any specific
funeral requests.

While a mirror will reflects the same wishes as those stated in your partner’s will, each will
remains separate to the other - they are not combined legal documents. Therefore, if any
significant changes occur in your life, such as a birth, divorce, death or a change of mind, that
will should be updated and so must your partner’s. This is to ensure both wills state identical
wishes for their estate and children
 What are the problems with mirror wills?
As stated earlier, either party is free to change their will at any time. Therefore, trusting your
partner is vital because if you decide to change your will, you do not have to tell your partner
(and they do not have to tell you either). This can be problematic if, after one’s death, the partner
remarries or has children with somebody else and decide to change their will to subsequently
pass on your assets to people you may not approve.

How to protect your estate - Mirror will with trust

One way in which you can avoid your partner passing on any of your estate to people you don’t
want, you can set up a trust in your mirror will. Getting a mirror will with a trust is simply an
additional arrangement where you can give some or all of your estate to the trust and appoint a
trustee to be in charge of the trust in the event of your death. 

A trust includes a beneficiary (or beneficiaries) who is/are legally entitled to the contents of the
trust - whether that’s a portion of money, bank account or property, etc. - it is the trustee’s duty
to make sure that the beneficiaries receive what is stated in the trust, as per the instructions
stated. The trustee must adhere to the exact terms as stated in the trust, depending on what the
testator wished for.

MIRROR WILLS V. MUTUAL WILLS

While very similar, there are key differences between mirror and mutual wills. One of these is
that mutual wills contain conditional language that would make them irrevocable. The will
may state in the event of one spouse’s death, the surviving spouse has certain limitations on the
way they can distribute personal items or other property.

Another difference is that with mirror wills, the survivor can make a new will after a partner
dies without any constraints or due regard to their will while with mutual wills, the contents
of the wills are irrevocable without the consent of the other party. Therefore, if an individual
dies without having altered the mutual will, the surviving testator cannot alter their own will.
Indeed, if there is any later will made, it would be ineffective to the extent that its provisions
are different to the mutual will.

The main reason why individuals make mutual wills is where both testators wish to ensure that
specific intended beneficiaries benefit from their estate after the second testator dies.  This is
often what the testators will be adamant about despite the fact that the arrangement is totally
inflexible after the first of them dies. It would be usual to have something in writing confirming
that the will is intended to be mutual. Conversely, very often in a mirror will there will be a
provision confirming that the will is not intended to be a mutual will. 

In the recent case Legg and Others v Burton and Others5 the Court found the wills to be
mutual despite an apparent contrary wording in them. The judge also stated that mutual wills
might not require a contract and that they could be based on proprietary estoppel.6 

In this case, a couple made mirror wills each giving their estate to the surviving spouse or if the
spouse did not survive then to their two daughters in equal shares. The wills also appointed the
two daughters as executors and trustees. When the husband died his estate passed to his widow
without the need for probate. Subsequently the wife made several wills altering the provisions of
the mutual wills to the detriment of her daughters which prompted the children to seek legal
action. They claimed that the parents had made an agreement not to change their wills and this
was explained to both of them as well as to the rest of the family at the time the wills were made.

Despite there being no direct evidence that an agreement for mutual wills was entered into, the
Judge decided based on the witness statements, that an agreement had been made and that a
promise not to change the wills given orally to the daughters was binding.  The outcome of
the case was that the two daughters inherited the entire estate and the beneficiaries named in the
later will received nothing.

Even if the wills do not expressly state that they are mutual wills and there is an apparent
provision that the survivor is to take absolutely and beneficially, this may not be enough to
declare a will merely a mirror will.  If there is a dispute, the Court is entitled to take into account
extrinsic evidence and the reliability or otherwise of any witnesses will be of paramount
importance. It is therefore important to explain that what is said about the will provisions may be
just as important as what is written. 

5
Legg and Others v Burton and Others [2017] EWHC 2088 (Ch) (United Kingdom Case)
6
Estoppel is an equitable rule which applies in English law whereby a court may prevent, or "estop", a person from
going back on a promise they have made.
 MIRROR WILLS V. JOINT WILLS
While mirror wills are completely separate legal documents, a joint will is actually a single legal
estate planning document signed by more than one party, usually a married couple. In the
past, joint wills were a tool of convenience. The couple would agree on how to distribute jointly
owned property, but also allowed them to outline how they wished their separate property to be
distributed as well. Each party would then sign the same document to make it effective.

A major drawback to the joint will, however, is its revocability issues. Once one spouse dies, the
will officially goes into effect and it cannot be changed at all by the surviving spouse. Due to the
many issues that often arise with joint wills, most estate planning attorneys do not recommend
them to their clients. In fact, some states do not recognize joint wills at all, so check your
jurisdiction to see if this is the case.

PHYSICAL REQUIREMENTS OF WILLS

A will refers to legal declaration by a person of his wishes or intentions regarding the disposition
of his property after his death. Under the Kenyan jurisdiction, the physical requirements of a will
are outlined under the provisions of the Law of Succession Act (LSA). They include:

 The will must be signed, or a mark fixed by the testator

 The will must be attested, or a mark affixed by two witnesses who sign in the presence of
the testator.

Signature or affixation of a mark

Apart from that, section 11 of the law of succession Act requirement for a written will to be valid.
It requires the testator to sign or affix his mark or some other person in the presence and by the
direction of the testator to sign or affix their mark. As per section 11(b) of the Law of Succession
Act, this mark or signature is supposed to be placed to appear that it was intended to give effect
to the writing as a will. Furthermore, section 11(c) of the same act outlines that the will is to be
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 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. It shall not be necessary that more than one witness be
present at the same time, and no form of attestation shall be necessary.
Signatures
What constitute a signature has not been defined by the LSA. However, as outlined In the Estate
of Finn [1936] 52 TLR 153, it may be widely interpreted to cover any mark of the testator which
intended as a signature such as a mark by a rubber stamp with testator’s name, thumb print,
initials or assumed name. It need not to consist of a name at all. In Re Cook’s Estate [1960] 1 All
ER 639, the words “you’re loving mother” placed at the end of the document were held to be a
valid signature. Part of a signature may in some cases be sufficient to validate a signature. In Re
Chalcraft’s Goods, a testatrix, on a point of death, started to sign her normal signature “E.
Chalcraft” but after writing “E. Chal”, she became too weak to continue. It was held that the
signature ways valid. It was the best she could manage in her weak condition.

Where the will is signed by another person, this should be done in the testator’s presence and
under his direction. The concept of “presence” has a physical and mental dimension. Since the
signature must be made under the testator’s direction, the testator’s physical and mental
condition must be such that he could either object to or assent to the signature made on his
behalf.7

According to section 11(b) of the Act, the signature or mark should be so placed as to make it
appear that he intended by the signature or mark, to give effect to the will. Under this provision,
the signature can theoretically be placed anywhere on the document, so long as it is apparent
from the position that it is intended to give effect to the will as also outlined in Karanja and
another v Karanja (2002) 2 KLR 22 . The point was addressed in Wambui and another v Gikonyo
and others [1988] KLR 445, where the court found that the fact that the deceased thumb printed
last, the witnesses having signed first did not invalidate the will as the testator does not
necessarily have to sign the will; it could be signed on his behalf and still be valid.

A testator or testatrix may sometimes place his or her signature at in a separate document than
the will. In such situations, whether the will is validly signed or not will depend on the intention
of the testator. The intention of the testator is a question of fact to be gauged from the evidence
adduced. In the Estate of Bean (1944) at 83, a testator forgot to sign his will but wrote his name
and address on the envelope. It was held that the will was not valid. He had written his name on
the envelope to identify rather than ratify the will. Probate of the will was refused. In Re Mann’s

7
Musyoka W, Law of Succession, LawAfrica, 1st ed, 2006, Nairobi, 61
Goods (1942) at 146 a testatrix forgot to sign her will but put it in an envelope and wrote on the
envelope, “Last will and testament of JC Mann”, signed the envelope and had it witnessed. The
envelope was then placed in a larger envelope. It was held that the testatrix intended the
signature to give effect to the will, which was therefore admissible to probate.

Witnesses
Section 11(c) of the Law of Succession Act provides that the testator’s signature must be made in
the presence of two witnesses who need not be present at the same time. In the Matter of the
Estate of James Ngengi Muigai (deceased), Koome J stated that the law allows the will to be
witnessed by two or more witnesses at different times, but each should sign in the presence of the
testator. To be present at signing means the witnesses must be capable of seeing the testator sign.
The witnessing is of the signature that is the fact of signing. The witnesses need not look at the
signature or even know that the document is a will. This was highlighted in, In the case of
Benjamin (1934) 150 LT 417.

If the witness is present but unaware of what the testator is doing, the attestation will be invalid.
In Brown v Skirrow (1902) P 3, a testatrix took her will to a grocer’s to be executed. She asked
two shop assistants to act as witnesses. As she was signing the document, one of the assistants
was busy serving a customer. The will was held invalid. In Re Colling (1972) 1 WLR 1440, it
was stated obiter that if a witness left the room before the testator completed his signature, the
attestation will also be invalid.

As for acknowledgement as outlined in section 11(c) of the Act, the witnesses instead of being
present when the testator is executing the document, the witnesses may be called after he has
signed the document, in which event the testator should acknowledge his signature or mark or
the signature of the person signing on his behalf and at his direction, to the witnesses. The
witnesses need not be present at the acknowledgement at the same time. Acknowledgement may
be by words or by conduct. It is however preferable that the acknowledgement be express. Older
English decisions show that the witnesses need not even see the signature being acknowledged.
In Daintree v Butcher (1888) 13 P and D 102 a testatrix simply said she had a document that she
needed two witnesses to sign, and the court found that the acknowledgment was sufficient.

As per section 14 of the LSA, the fact that a person has been named in the will as an executor
does not disqualify him from signing the will as a witness.
Attestation by witnesses
Section 11(c) outlines that each witness is to sign the will in the presence of the testator. They
need not necessarily sign in the presence of each other. As highlighted In the Matter of the Estate of
Susan Kanini Kilonzo (deceased) Nairobi High Court succession cause number 2669 of 2002 (Koome J)
opined that attesting the will requires that the witnesses put their signatures in the will with the
intention of validating the testator’s signature. Under section 11(c) no particular form of
attestation is necessary. The witnesses’ signatures need not be in a particular place in the will,
but it should be so placed or positioned as to show the intention to ratify the testator’s signature.
In Re Beadle (1974) 1 All ER 493, witnesses signed the envelope containing a will but the will
itself was unattested. It was held that the will was invalidly attested.

A signature can be widely interpreted. In the Goods of Sperling (1863) 3 Sw and Tr 272, a witness
attested by writing “servant to Mr. Sperling”. It was held that the same was a signature as it was
intended to identify the witness as the person attesting. The will must be signed by the witness
and not a third party.8

Under section 13, a will should not be considered as insufficiently attested merely by the fact
that it is attested by a beneficiary or spouse of such beneficiary, provided that where that is done
the signatures of such beneficiaries are further attested by at least two additional competent and
independent witnesses. Section 13(2) makes a bequest to an attesting witness void where the
signature of such witness is not attested. In re estate of Nyoro Julia Nguhi Wanjiru (2019) eKLR,
the court held that even though the bequest to the beneficiary was not sufficiently attested, it did
not affect the whole will but the residue that was to vest in the petitioner who is the attesting
beneficiary.

8
Musyoka W, Law of Succession, 65.
SAMPLE WILL
Mr. Moses Omano a businessman in Nairobi who died in April 2022 is married to two wives,
Ruth Omano and Alice Omano. The marriages from the two wives bore seven children. Abraham
Omano, Isaac Omano, Agnes Omano and Prudence Omano from his first wife Ruth while Carol
Omano, Jayden Omano and Stacey Omano are from his second wife Alice. Mr. Omano had
further taken in his late brother’s son Kyle as his own.

He has the following properties;

1. Two matrimonial homes in Karen and Lang’ata occupied by his two wives, Ruth and
Alice consecutively.
2. Three apartment buildings in Kilimani, Lavington and Kileleshwa.
3. Ten acres of land in Limuru.
4. Three personal cars ; A Range Rover Sport, Mercedes E Class and a Land cruiser
5. Two lorries registered under his company
6. Safaricom Shares worth Kshs.1,000,000
7. He was the director of his company, Moses & Co. Investment located at Prism Towers on
3rd Ngong Avenue. His favourite child Prudence Omano is a co-director in the company.
8. Range Rover Vogue in the United Kingdom
9. A rental house in the United Kingdom
10. A joint tenancy property with his first wife Ruth sitting on one acre of land in Runda
11. Mr. Omano was in the process of acquiring 5 acres of land in Kajiado. All the necessary
payment had been done awaiting transfer of the title.
12. Omano had taken life insurance worth Kshs.50M with ICEA Lion Insurance Company.
13. He has a personal savings account with Equity Bank with Kshs.40M

Omano’s last Will and Testament was written on 16 th April 2022. He wishes to leave one acre of
the Limuru land to his favourite child Prudence Omano in addition to what she gets under the
Will.
Mr. Omano wishes the property to pass as follows;

1. Matrimonial property to remain with his two wives as they are i.e.
 Karen home to Ruth Omano
 Lang’ata home to Alice Omano

2. Apartment buildings
 Kileleshwa building to Abraham Omano.
 Kilimani building to Isaac Omano.
 Lavington Building to Jayden Omano.

3. 10 acres in Limuru
 2 acres to adopted son Kyle.
 2 acres of land to Prudence.
 Every other child to receive one acre each.

4. Personal cars
 Range Rover Sport to Carol Omano.
 Mercedes E Class to Stacey Omano.
 Land cruiser to Agnes Omano.

5. Range Rover Vogue in the United Kingdom to go to Abraham Omano

6. Life insurance to be distributed equally among all his children and the two wives. Each
person will receive Kshs.5M.
7. The land in Kajiado upon completion of transfer of documents should be given to his two
wives in equal proportions.

Mr. Omano had taken a loan with NCBA worth Kshs.20M and wishes that all his debts be settles
using the money in his personal account with Equity Bank and the remainder be distributed
equally among his children.
Executor: Prudence Omano

Attestation: 1. Alice Omano

2. Barclay (Mr. Omano’s lawyer)

LAST TESTAMENT OF MOSES OMANO

I MOSES OMANO of Post Office Box Number 20-4001 Nairobi in the Republic of Kenya, an
adult of sound mind hereby revoke all my previous wills, codicils and testamentary disposition
made by me and declare, on this 16th day of April 2022, that this is my last will.

PERSONAL INFORMATION

I am married to Ruth Omano and Alice Omano. All references to ‘my wives’ are to them. I have
eight children namely: Abraham Omano, Stacy Omano, Carol Omano, Prudence Omano, Isaac
Omano, Agnes Omano, Jayden Omano and Kyle Omano (adopted). All references to ‘my
children’ are to them.

MY ESTATE

1. Two matrimonial homes in Karen and Lang’ata occupied by my two wives, Ruth and Alice
respectively.

2. Three apartment buildings in Kilimani, Lavington and Kileleshwa.

3. Ten acres of land in Limuru.

4. Three personal cars; A Range Rover Sport, Mercedes E Class and a Land cruiser

5. Two lorries registered under his company

6. Safaricom Shares worth Kshs.1,000,000

7. I own and direct the company Moses & Co. Investment located at Prism Towers on 3rd Ngong
Avenue. My favorite child Prudence Omano is a co-director in the company.
8. Range Rover Vogue in the United Kingdom

9. A rental house in the United Kingdom

10. A joint tenancy property with my first wife Ruth sitting on one acre of land in Runda

11. I am in the process of acquiring 5 acres of land in Kajiado. All the necessary payment had
been done awaiting transfer of the title.

12. I have a life insurance worth Kshs.50M with ICEA Lion Insurance Company.

13. I have a personal savings account with Equity Bank with Kshs.40M and 18M in the Kenya
Commercial Bank.

BENEFICIARIES

I bequeath my property to my wives and my children.

BEQUEST

I bequeath my matrimonial home in Karen to my first wife Ruth Omano and the matrimonial
home in Lang’ata to Alice Omano my second wife.

My Kileleshwa apartment building I give to Abraham Omano, the one in Kilimani I give to Isaac
Omano and the one in Lavington I give to Jayden Omano.

I give 2 acres of the 10 acre land in Limuru to my adopted son Kyle Omano, 2 acres to my
favourite child Prudence and the remaining acres shared equally among my other children.

I bequeath Carol Omano my Range Rover Sport and my Mercedes E Class to Stacy Omano and
my Land Cruiser goes to Agnes Omano.

The Range Rover Sport in the United Kingdom goes to Abraham Omano.

My life insurance of 50 Million shall be distributed equally among all my beneficiaries.

My debts and funeral expenses shall be settled using the money in my personal savings account
of Ksh. 40M in the Equity Bank.
Kshs. 200,000 from the personal account shall be given to Good Grace Charity Organization.

The remainder of the amount from my account shall be shared equally among all my children.

RESIDUAL ESTATE

I bequeath the remainder of my estate, property and effects, whether movable or immovable,
wheresoever situated and of whatsoever nature to my first wife Ruth Omano to hold in trust for
all my children until such a time they attain the age of 24 upon which she shall divide it equally
amongst them.

APPOINTMENT OF EXECUTORS/PERSONAL REPRESENTATIVE

I hereby nominate, constitute and appoint Prudence Omano as the executor of my estate and in
the event that this executor is unwilling or unable to serve, then I appoint Barclay Palmer as
alternate executor. My Executor and alternate shall have all powers granted by applicable laws to
carry out all provisions of this Will. They shall use provisions and procedures for the simplified
handling of my estate and shall hold in trust the share of any minor beneficiary until they attain
age of 18.

MY LIABILITIES

All my debts shall be settled using the money in my Equity Account, Account Number
1101638053.

TESTATOR

I MOSES OMANO, hereby sign this will on the 16th day of April 2022 at Lavington Nairobi in
the presence of the undersigned witnesses.

Signature: …………………..

WITNESSES

As witnesses, we declare that we are of sound mind and of legal age to witness a will and that to
the best of our knowledge, MOSES OMANO, the creator of this will, is of legal age to make a
will, is of sound mind and signed this will free of duress and undue influence. We declare that he
signed this will in our presence on this 16th day of April 2022 at Lavington Nairobi.

EILEEN MUOKI ]

Of P.O. Box 567-00100, Nairobi ] ….………………………

On thisday 16th day of April 2022 ]

BARCLAY PALMER ]

Of P.O. Box 567-00100, Nairobi ] ……………………………

On thisday 16th day of April 2022 ]