Validity of Mr.

Nyanke’s will

Introduction

A will is defined as a legal declaration by a person of his wishes or intentions regarding the
disposition of his property after his death.1 Sir. J.P. Wilde in Lemage v Goodban stated that
the will of a man is the aggregate of his testamentary intentions, so far as they put into writing
and duly executed according to the law of the land and that every persons has inherent
testamentary freedom to dispose of his net.2

Testamentary Capacity.

Section 5(1) Law of Succession Act Cap 160 prescribes the testamentary freedom of the
testator as follows;

“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 capacity requires that the testator is an adult of sound mind. The court in Banks v
Goodfellow3, held that for a testator to have mental capacity, he must: be of sound mind which
enables him understand the nature of making a will and its effects; have a sound memory to
enable him to have a recollection of all his property which he is disposing and; have a sound
understanding so as to appreciate the moral claims upon him particularly to be able to
remember all the persons that he is morally bound to provide for through a will.

Insane Delusions.

The Court in Vaghella vs. Vaghella (1999) 2 EA 351 held that a testator shall understand the
nature of the act and its effects, shall understand the extent of property of which he is disposing
and shall be able to comprehend and appreciate the claims to which he ought to give effect.
Further, 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
1
Law of Succession Act, 1981, s. 3 (1)
2
Law of Succession Act, 1981, s.5
3
Banks v Goodfellow [1870] LR 5 QB 540
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.

Under the law of Succession, insane delusions only affect the testator’s capacity to make a valid
will only if the delusions impair the testator’s power of understanding. The court in Dew v
Clark4, held that a person suffers from insane delusion if he holds a belief of a particular matter
which no rational person could hold and the belief cannot be eradicated from his mind by
reasoning with him. An insane delusion only affects the testator’s capacity to make a valid will if
it in some way affects the way he disposes of his property as was held in Smee and Others v
Smee and Corporation of Brighton.5 Therefore, the statement by Mr. Nyanke’s that the two
angels will come from heaven to sign it does not amount to insane delusion as the same does not
affect the disposition of his property.

Knowledge and Approval

At the making of the will, it is material that the testator must know and approve the contents of
his will as was as was affirmed. The court in John Kinuthia Githinji v Githua Kiarie and 2
others6 the court held 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, for where a will, rational on the face of
it, is shown to have been executed and attested in the manner prescribed by law it is presumed,
in the absence of any evidence to the contrary, to have been made by a person of competent
understanding; but if there are circumstances in evidence, which counterbalance that
presumption, the decree of the court must be against its validity.” Mr Nyanke was aware of the
contents of his will as he was able to recollect his properties and identify the same accordingly.
Mr Nyanke only declined to sign the will but did not disapprove its content.

4
(1826) 3 Add 79
5
(1879) 5 PD 84
6
John Kinuthia Githinji v Githua Kiarie & 2 others [1996] eKLR