Law of Succession

Introduction

This is the sctor of law that deals with devolution or passing of property. Inheritance is basic and it arises
out of three basic considerations:

1. Man needs acqui

The term is commonly used followinga person’s death, the deceased person’s property passes according
to hthe will or in case there is no will, according to the law of intestacy. Where the peroperty passes
according to a will, it is called testate succession while intestacy refers to death without havinf made a
will or where a will declared invalid. Rules of intestacy determine which relatives inherit the property of
intestate. Only blood relatives benefit except a spouse. Intestate is often to refer to the person who dies
without a valid will.

Representation- this refers to the role of the person who is authorized in law to dispose or distribute the
property of the person who has died. Such a person is said to represent the deceased. A person cannot act
as a personal representative of the deceased without a grant of representation. Grant of Representation is
an order issued by the court to confirm that a particular person is to act as a personal representative. In
testate succession, this is called grant of probate. In intestacy, it’s a called a grant of letters of
administration. The personal rep is the person appointed to administer the estate of a decaesd person. A
person who is nominated through a will by a deceased person is called the executor. The court merely
confirms the executor. In intestacy, the personal representative who is appointed by the court is called an
administrator. Administration of the estate generally refers to the management and distribution of the
estate of a deceased person. It entails the collection of the assets that comprise the estate oef the deceased.
After collection of the estate, then there is paying out of the debts and liabilities of the deceased. Lastly
the estate is distributed among the person’s entitled if after paying the debts the eseate remains bare, then
that is the end of the matter.

Bequest- Gift of a personal property in a will. Its specific in the sense that its named in the will that its
given to a specific person.

Legacy- remainedr of a dea person’s estate once all debts and funeral expenses are paid and all gifts are
distributed. The person’s who recieves the redual is called the residually legatee. One a person is named
as a legatee, then property will be dtsributed according to the will without which the residual will be
distributed according to the will.

Codicil- this is a document which is prepared by a testator in order to alter, explain or add to will which
testator he had previously executed or prepared. A testator does not have to cancel the old will. For a will
to be valid, all legal requirement must be complied with.

Testate Succession

Testate succession occurs where a person who deisres to maintain absolute or limited control over the
property after death, makes arrangement to ensure that upon his death, the property passes to the person
of choice. This is done through making a valid will. The will refers to all that a person wishes to happen
to his or her property upon his death. In the context of law of succession, it refers to documents upon
which a person expresses his or her wishes of death pertaining to devolution of their property upon death.
Essential characteristics

1. The wishes expressed are intended to take effect upon death.

2. A will only takes effect upon death
3. A will only operates only as a declaration of intention.
4. A will is ambulatory
5. A will is revocable.

Wishes expressed are intended to take effect upon death

Any document or executed in accordance o the law may take effect as a will provide the intention is that
it shud not operate till death of maker. Where there is nothing showing this intention such a document
should be considered invalid. The test is the time that the gift takes effect. If the gift is to rake effect after
the death of the maker, then the document will be a will.

It only takes effect upon death

Beneficiaries under a will do not acquire interest inn the property before the testator death. Wishies are
only to take place after death. A gift to a beneficiary who dies between the making of the will and the
death of the testator lapses under the law of succession.

A will is only a declaration of intention

A will does not affect a way in which a testator delas with his property during his life time. He may for
example dispose of the property by way sale. The making of a will does not restrict the teatsror freedom
to deal with the property as he pleases in any case, the tsetor cannot be certain that a beneficiary will
reciveve a particular asset in the will. The executors are under an obligation to settle all debts and
liabilities which take precedence over the gift. Its possible therefore that if debts of the estate are large,
the gift of a particular purpose will be utilized. A will is therefore mere declaration of intention and there
is no guarantee that such intention will be guarded.

Will is Ambulatory

A will is capable of dealing with property acquired after it has been made. A example is where mutua
executed a will in 2007 containing the following: all my land will pass to my son Mutisya. All land
acquired by mutual thereafter will pass to Mutisya upon his death. This only applies where a will is
worded generally.

Revocable

A will can be revoked at any time by the testator. This is because a will is a mere declaration of intention
and it does not take effect before the death of the testator.
Importance of will other distribution of property

A will can be used for other purpose including:

1. Appointment of an executor. Failure to appoint one does not invalidate the will
2. The will can be used to appoint trustees to administer trusts set up under the will. Its not
obligatory for the testator to appoint trustees.
3. A will can be used to appoint guardians of children of testator who are minors by the time of
death. This is particularly important when the testator is single parent.
4. Giving direction as to the manner of disposal of deceased body.

Merits of making of will

-avoid wastage of property

-avoid squabbles

-Providing for beneficiaries’ care

-By providing how and to whom the property is to be passed, it avoids squabbles

-It avoids rules of intestacy. In testacy provisions ensure that the next of in benefit from the estate. Under
intestacy, shares which the next of in are arbitrary and often not suited to the need of that next of kin. In
making a will, the testor knows the needs of a particular next of kin and therefore best placed to distribute
the property. The rules of intestacy only makes provisions for blood relatives the tstator can only benefit
other people through the will.

-making of a will enables testator to maintain control over the property even after the death. This is
especially important if one has a spouse and children. An example is hwere leaves all property to the
husband. She loses control over the ultimate destination of peipperty in event of death, she can only hope
the property will go to her children. Its possible that such a husband will remarry and combined estate to
his wife. To achieve control, the wife should simply give the husnabd a life interest with the remainer
passing onn to his children

-making of a will allowis the testator to appoint personal reps of choice. He can appoint person who
understand the estae.if ine dies intestate, the adminstrators are appointed by the court and the deceased
has no choice in the matter. Administrators get authority for grant of letters for letters of administration
while executors who appointed by stator derive their aouthority from the will. Since executors derive
authority from the will, they are able to take over immediately after detah of testtor. The grant of probate
merely confirms their authority. In case of grant of letters o administration, there is always cndierable
lapse of time before a grant is made. An estate cannot be adminiistreted until such grant. Its an offense for
one to handle an estate without gramt. In case of intestate sucession dependnts are exposed to
inconvinjnbce, the making of a will ensures that the estate can be administer without a hitch. Directions
regarding disposal of body are not binding.

-making of will enables testator to make full disclosure of all property that one has, not possible in
intestacy. In intestacy, a lot of property may be lost. A will is not the place of pholiso[hcal reflections or
expressing emotions such as love. Its upon the death of testator that its made public. Testor should
therefore guard his will from being exposed to avoid chaoss in family, wishes must eb expressed clearly,
no ambiguity, serious ambiguity can eb declared invalid. Testor is not abliged to make any explanation or
apology for dealing with property

A majority die intestate for various reasons, thfese include

1. Many people are relucattnt to contemplate their won death

2. Pple believe thata will is pointless as they don’t own a lot
3. Ignorance of the importance ofa will

Property Passing ‘/rwithout A will

-survivorship

-nomination

-donatio mortis causa-canis v moon

Survivorship

Applies in cases of joint tenancy where a co-owner of property is a beneficial joint tenant of the property
whether real or personal. Their interest will automatically pass to the surviving joint tenants upon their
death by virtue of the principle of survivorship. This is also known as the principle of jus accrescendi.
Upon the death of one of the tenants, the deceased tenants’ interest merges with that of the surviving
tenant. The interest of co-owners in a joint tenancy is not clearly defined. They are therefore not divisible.
An example is where the matrimonial home is held jointly by husband and wife. If the husband dies
before the wife, the house will automatically pass to the wife by reason of her survivorship. The principle
of survivorship operates to remove jointly owned property from the operation of law of succession. Upon
death of a spouse who jointly owns the property with the other, their interest will be unite and the
property passes to the survivor. Such property does not form part of the property of the deceased spouse.
The deceased spouse cannot dispose such property by will.

The principle of tenancy in common applies where interest of common tenants are clear, distinct and
divisible. In the event of death of one tenant, no merger and therefore the interests of deceased common
tenants is capable of passing under the will. Survivorship is contained under section 43 of law of
succession Act which provides that for the purposes of determining survivorship n the event of one or two
persons dying simultaneously, it shall be presumed that the death occurred in the order of seniority. The
older shall be presumed to have predeceased the younger. In case of spouses, it’s presumed that they died
simultaneously.

Nomination

Defined as a direction by a person called nominator to another who is holding the investment on their
behalf to pay the parts on nominator’s death to a third party called the nominee. The direction is made by
nominator during his or her lifetime but like a will, the deed takes effect after nominator’s death. A
nomination operates under the rules of a particular scheme although it disposes property upon death. It
does not require compliance with the formalities of law of succession Act such those relating to a will.
The property which is the subject of the nomination does not form part of nominator’s estate therefore
cannot pass under a will. The property does not est in the personal reps of a deceased as it is not part of
the nominators estate. As a sequence, the pair does not require a grant of representation. The pair
therefore wants to see the nominator’s death certificate. As with beneficiaries under a will the nominee
does not have interest during the lifetime of the nominator. The nominator is therefore free to deal with
his property as he pleases. A nomination may be revoked in 3 ways:

 Through a later nomination

 By the subsequent marriage of the nominator
 By the death of nominee prior to the nominator

A will/codicil can’t be used to revoke nomination as it operates outside the law of succession. In Kenya
nominations are mainly made with respect to savings and investments in cooperative societies. The
cooperative societies Act no 12 of 1987 provides in section 39 (1) that ‘on the death of a member of a
coop society, the cooperative society may transfer shares of the deceased member to

1. A person nominated in accordance with the rules

2. If no person has been nominated, to such person as appears to be a personal rep of the deceased’

Donatio mortis causa

This is a gift made by one during their lifetime which conditioned upon their death. It is neither an
intervivous gift nor a testamentary gift. Delivery of the gift is during donor’s lifetime but becomes
effective upon death of donor. Its similar to a lifetime gift in that the subject matter of the gift is delivered
to the done during the donor’s lifetime. The difference between a lifetime gift and donatio mortis causa
however is that the gift takes effect upon the death of the donor. A donatio mortis causa cannot be
revoked by a subsequent will. It may not be given away under a will by someone else, it is not property
and cannot be subject of the will. If a donor makes a donation mortis causa, and purports to will away the
property then the beneficiary will get nothing. Donatio mortis causa must satisfy the conditions outlined
in Cains V Moon (1896) 2QB p283

 gift must be made by donor in contemplation of death

 Gift must be conditional on donor death
 Subject matter of the gift must be delivered to the donee by donor during his lifetime
 The property must be capable of forming subject of donatio mortis causa. If the gift is not capable
of deliver, then it cannot form the subject of donatio mrtis causa.

The burden of proof that conditions of mortis causa is satafied lies with the donee . DMC is recognized
under section 31 of Law of Succession Act and it incorporates the conditions set out in Cains V Moon.
 1. Gift should be in Contemplation of Death

A gift in contemplation of death would be valid if the person making is at the time contemplating
possibility of his or her death as a result of persistent illness, imminent danger. The death of donor may
not be imminent but the donor must belief that they are likely to die in a funny way. It is generally
irrelevant that the donor dies from the same or other cause than the one he contemplates so log as the
condition that he tought he was dying continue up to the date of donor’s death i.e never really out of
danger.

Will v Allinngton (1931) 2CH 104

A condition on contemplation of death cannot be met if the donor contemplates death by suicide.

Section 31 (1) provides that no gift made incontemplation of death shall be valid if death is caused by
suicide. Death must result from natural causes or accidents.

In England suicide was decriminalised through the suicide Act of 1961. A gift in contemplation of death
is therefore valid in England but not Kenya. In Kenya its considered gainst public policy to uphold the
gift

Look at the cases below

Agnewus v Belfast Banking (1896) Irish Republic 204

ReDudwar

The contemplation of death can be express or implied on the circumstances. in one case the donor
expressed opinion that he was done for and court inferred he was contemplating death

2. Gift must be Conditional on Donor’s Death

If the donor does not die, the gift will not take effect and the donor recovers possession from the donee.
this is because the condition for making the gift has not been met. A gift can be experessely stated by the
donor as conditional on death or implied from the circumstances. Courts imply this condition if the gift is
made in the last few days of the donor’s illness. A donation mortis causa should be made orally and not in
writing. If in writing, the court assumes it is an attempted lifetime gift or failed testamentary gift.

Edward v Jones (1836) 1 My and Cn 226

Section 31(b) of the law of succession Act states that a gift in the contemplation of death would be valid
if the donor makes the gift in such circumstances as to show that he intended it to revert back to him
should he survive the contemplated illness or danger.. section 31(2) state that the donormay at any time
before his death lawfully request the done to return the gift. This means that DMC is revocable at the
donor’s instance. It is revocable because its conditional on donor’s death and if he does not die,he can
recall the gift.

3. There must be delivery of possession during the donor’s lifetime

There should be actual delivery during donor’s lifetime to donee. Transfer should be before death and not
after but ownership rests with the donee. Under section 31(c) of the law of succession Act, a gift in
contemplation of death is valid if there is delivery to the intended beneficiary of possession of property or
of the documents or other incidents of title.

READ THE CASES BELOW:

Wildish v fowler (1892) 8 TLR 457-TAKE NOTE OF ‘take care of this’

Woodward v woodward (1992) RTR 35

Cains v Moon (1896) 2 QB

Donor originally delivered a deposit note to her mother for safe custody. She later became very ill and at
a time when it was likely that he was going to die, she told the mother that the deposit note along with
other property was to be the mother’s if Cains Dies. Court held that there was effective delivery of
property even though such delivery was doen long before point of death. The relationship between the
donor and the donee is central in determining intention.

4. The subject matter should be capable of being donated

Section 31(b) of the law of succession Act states that a gift incontemplation of death would be avlid if
a person gives movable property which he could otherwise dispose off by will. This really means that
a DMC is a movable property. English case laws shows that cheques and promissiory otes drawn by
the donor cannot form a DMC. In the case of Re Beaumont (1902) 1 CL 188 and Re Leaper (1916)
the court held that cheques and promissory notes are not enforced without consideration.

Reaserach more on the concept of Movable property..to be discussed next week esp. land

A DMC will not be effective if done predeceases the Donor. Estate of Donee cannot claim from the
donor a gift which was given in contemplation of death.

Conditional Will/Testament

Sometimes a will is expressed or inetended to operate only upon the happening of some events
specified therein. The venet then becomes the pre-condition of the will. If the event does not happen,
then the will be defective. An example, if a testator provides in his will that the doeumnet is to
operate only if the wife predeceases him. Should the wife survive him, then the will will be defective.
Another example, if testator says that if he dies in a dangerous trip he is about ti undertake, should
this precondition not be satisfied, he will be deemed to have died intestate.

Its sometimes difficult to decide whether the danger to be faced is merely the motive for making the
will or whether death in the circumstances is the precondition. This depends on the wording of the
will. If the danger to be faced is the motive for making the will, then the will will be effective whether
the event occurs or not. If death under those circumstances is a pre-condition then the will will not be
effective if death does not occur.
 Re Spratt’s Goods (1897)

Army officer serving in New Zealand during the Maori war made a privileged will. Only a small class
of people can draw a privileged will such as soldiers engaged in combat. The will took a form of a
letter to his son leaving everything to him should anything happen during combat. He did not die in
the war and he lived on for 32 years. The issue was whether the privileged will was admissible to
probate and whether the son was entitled to take his entire father’s estate. If the father was motivated
by dager he faced in the Maori war, tehn the will would be effective not withstanding the fact that the
father did not die in the war. However, if hid death under those circumstances was the precondition,
then the will would be ineffective coz he survived the war. Court held the will was tsill effective as he
was motivated by the dangers of Maori war.

Goods of Dobson (1866) Lr 1pnm 58

Testator’s will commned with the words “in case of any fatal accident happening to me being about
to travel by railway, I will” the question that arose was whether this was a conditional will. If it was a
condtional will, then it would only be fefctive if the testator decides in the accident. Court held that
this was anot a conditional will, testor’s belief that he might die in the course of the journey was
merely the motive in making the will and it was not a precondition that if he die during the jourbey
before the will operated

Lindsay v Lindsay (1)

A will commenced, “if I should die at sea or abroad” the question was whether the will was
conditional. It was held that as a matter of construction, it was held conditional. When the testator
died in England (not at sea or abroad), his will was held not to be effective as the pre-condition of
dying at sea/abroad was not satisfied.

Whether a will is conditional or not depends on wording or structure.

Joint Will/Testament

Created when two or more express their wishes or death in one document. The joint will takesa effct as
separate taestments of persons who made it. These are commonly made by spouses. If the wife
predeaceases husband, the will will be admitted to probate as the wife’s will while the husband dies, the
same will follow.

Mechanics of making a Valid Will ()

Will will be valid if made in proper form and by a person of suffient gae and proper mind. Before a will
can take effect, it must first be proved as a valid. It is necessary to consider the form of the will and
determine whether formal requirements have been complied with. Iht may also be necessary to consider if
the testator revoked the document alleged to be the will.

- reovaction-testaor, invalidation -court

Capacity

At common law, a will is invalid unless the person making it at the time had no capacity. Persons of
unsund innd, infants lack capacity. This positionis contined in section 5 of the law of succession Act
which embodies testamentary freedom by providing that any person is capable of disposing ofproperty
by will so long as he is of sound mind and not a minor. In far as age is concerned, a will which is made
during infancy is invalid but the stestor can validate the will upon reaching the age of majority by either
re-executing the will or by makinga new will or codicil confirming the old will. When a minor dies, his
estate should be governed by intestate rules. In the case of unsound mind

Bauks v GoodFellow (to be handled next week)

-facts

-test

Insane

Approval

This test was set out by CockBird Cj in Bauks v Good Fellow 1870 LR 5QB 549 “he must jave and
siposimg mine and memory, in other words he oughtto be capable of making his will with an understning
of the ature of business in which he is engaged. A recollection of the property he needs to dispose off and
persons who are the object of his bounty and hthe manner in which is to be distributed among such
persons”

This test requires 3 things in the mind of tEstator

1. Sound mind enabling him to understand the nature of making a will and its effect
2. Sound mind enabling him to have a recollection
3. Sund understanding to appreciate the moddling around him and the persons he is morally bound
to provide for

In the case of Harwood v Baker (1840) 3 Moo Pc 282, the testator executed his will on bed and left all his
estate to his second wife with exclusion of other family members. He was at the time suffering fromm a
disease that effected his brain. Court held on the basis of evidence that the will was invalid as he did not
have sufficient recollection of other family members.

At common law, the burden of probing testamentary capacity lies on executor. In the event that the
validity of the will is contested, on grounds of alleged mental incapacity, executor must prove that athe
time the will was made, testator was having a lucid moment and his mind was sufficiently clear about
what he was doing. That he knew the property he had, names of dependents etc. The law of succession
takes a differenjt position. Under s,5 (3n 4) burden of proof lies on the person alleging that the testator has
no testamentary capacity. S. 5 (3) creates the presumption that the onne making will is of sound mind
until contrary proven.

Effect on Insane Delusion on Testamentary capacity

The fact that the testator is suffering from insane delusion is not necessary fatal to the validity of the will
unless the delusion affects testator’s power to draw a will. This has to be shown by evidence.

Dew Vs Clerk 1826

A person suffers from insane delusion is he holds a belief of a particular matter which no rational person
would hold. Further, the belief cannot be eradicated by reasoning with him. An example is where holds an
erroneous belief that he is being bewitched. An insane delusion will only affect the testaor’s capcity to
make w ill if in some way it affects the way he disposes off the property.

In this case, testor made w ill which was rational superficially but it exluded his daughter from benefiting.
The daughter challenged the validity of the will on the ground that the diseased did not have requisite
testamentary capacity at the material time. She showed by way of extrinsic evidence that the testator had
an insane version of her. She showed that he had redused to see her for the last 3 years of her life and also
she had her sleep with an insane woman. Court held that the testator had an insane delusion at the time of
making the will which affected the way in which he disposed the peroperty.

Re Nightingale (1974) 119 SOL 89

Lack of mental capacity in this case was shown when a son was excluded from his father’s will because
the father wrongly and insanely believed that his son was trying to kill him. This was based on two
occasions when a son pushed his father back on pillow as the father was struggling for breath ina hospital
after an operation his lungs. For this reason, the father left the son out of the will as he thought that he
wanted to strangle him and could not be convinced otherwise.

Bauks v Good fellow

Testator believed that he was being pursued by evil spirit and by a person who was already dead. The
court came to finding that although the testator suffered from an insane delusion, the same did not affect
testamentary capacity or the way in which he disposed of the property by will. The will was therefore
held to be valid.

Sometimes the delusions will not affect part of the will. In that case, probate should be granted in regard
to such part of the will.

Re Bohrmanns Estate

What happens there is no approval by testator of the contents of the will?

Testamentary Capacity and Absence of Approval

In addition to having testamentary capacity, a testator must know and approve the contents of the will.
Approval is required where the will is prepared by another person on behalf of the testator. If the testator
does not approve the contents of the will, then the will be valid.
A testator knows and approves the content if the is aware of and understands the form of the will. If the
will is self-prepared, this principal does not apply. The testator did not understand the precise legal effect
of the term what is important is the content of will. He is deemed to have approved the terms if he
executes the terms on his own volition. If the testator signs as a result of coercion, he is deemed not to
have approved the will. Knowledge and approval may be absent on account of the following

1. Mistake in drawing the will.

2. Fraud
3. Coercion/undue influence

S. 7 of the law of succession provides that will prepared by coercion, fraud is void. The point at which the
testator must know and approve is at that point he signs the will. A will may be valid despite lack of
knowledge and approval so longs as:

1. Testator means and approves contents at the time at which he gave instructions. An example is where
he writes a letter to his advocate on how the will should be prepared, the mere fact that he has not had
opportunity to read the will does not invalid.

2. Where the will was prepared in accordance with the testator’s instructions

3. Where at the time the will was executed, the testator understood that he was executing a will of which
he had earlier given instructions.

These 3 conditions were set out in the case of Parker V Felgate and in the case of Estate of Wallace

Estate of Wallace

Testator was seriously ill and at that time he wrote and signed document titled, last wish. At the time of
execution, he knew and approved the content of the document. A solicitor then prepared the will in
accordance to the document. At the time the testator executed the will which was one day before he died.
He did not know and did not approve the contents of the will. The will was not read to him. The question
that arose was whether the will was valid. Court held that it was valid as it was prepared on the strength
of a document that he had prepared.

S. 11 (a) provides that for a will to be valid and properly executed, it must be signed by testator or
someone else’s in presence off and in direction of testator. The assumption is that the one who signs on
behalf of the testator has approved the contents of will. Rule 53(3) of probate and administration rules
provides that when a will is signed by another person under the direction of testator or where it appears to
be written in a language unfamiliar to the testator, evidence of knowledge and approval is required before
the will is admitted to probate. Rule 54(3) makes it mandatory for the court to satisfy itself that the
testator had knowledge, showing that the contents had been read to testator and he appeared to understand
the terms.

Suspicious Circumstances
1. When one who writes a will takes a substantial interest in the will. This will be regarded as
suspicious circumstances. The existence of suspicious circumstances suggest undue influence,
coercion or even fraud. Similarly, where a person suggests the form of the will to the testator and
therefore takes him to an advocate of that person’s choice, such circumstances will be regarded as
suspicious especially if he takes substantial interest. In Tyrell v pointon the court stated that it
would be suspicious circumstances if the will is written or prepared by close relative or
substantial beneficiary. In Wintle v Nye (1959) 1All ER testatrix was an elderly woman who had
no experience in dealing with money. She placed heavy reliance on family solicitor. She left most
her sizeable property to him. The court held that the circumstance was suspicious. Court ruled on
the decision of Atter v Attikinson (1969) where J. P Wilde said “|that the proposition is
undoubted that if you have to deal with the will in which a person who made it takes a large
benefit, you ought to be satisfied from evidence to exclude all doubts that the testator not only
signed the will but that he knew and approved of its contents.”
In Julius wainaina Mureithi v Berth Bene mwangi and another civil appeal no 123 of 1992
Bary v Butlin
Testor made a will at the home of solicitor in solicitor’s handwriting and left a quarter of his
estate to solicitor and the rest to friends. He excluded the rest. The son challenged the will on
suspicious circumstances. The court held that the circumstances were of the face of it suspicious
but the suspicion was dispel by two factors:
1. Will executed in presence of independent witnesses
2. Son was excluded because of his criminal conduct.

Wanjau Wanyioke and 4 others v Earnest wanyoike and 2 others HC 147 of 1980

Deceased died aged 90 years, 3 days earlier deceased made a codicil to will made two years
before. Letters of administration were granted to the public trustee and two other persons in terms
of the will. The window of the deceased and 4 sons sought for revocation of grant of probate and
a declaration that the codicil was null and void. The circumstances regarding the first will were
that the deceased asked Earnest to find him a lawyer. Earnest was a sonn of decsead eldest
daughter who died when was aged 8 years. During the preparation of the will, instructions were
taken by the lawyer at the home of the deacsaed. The deceased also signed the will at his own in
the presence of two witnesses. In the will, he gave his property to his wife, sons, daughter’s and
earnest. The window was given six acres in the will and another land measuring 9 acres where he
matrominoial property was situated. The nine acres was given jointly with earnest.

Circusmtances of codicil

Two years later, deceased was alleged to have pressed Earnest in order to pepare a codicil,
Earnest was unable to get the same lawyer and got a new one. The codicil was prepared and
executed at the home of deaceased. Deceased is allged to have introduced changes affecting
Earnest and tteh window. 9 acres earlier belonging to the window were given to Eranest including
the matrimonial home. There was a condition that Eranest would allow the window occupy the
same during lifetime. All the property earlier given to window were given to Eranest accrdinng
to codicil. In their application, window and sons indicated that deceased did not know ofots
contents, they also said that his state of mind was such that he did not know what he was doing or
the effects of the condicil. Court noted that the deaceased was very old and weak when he made
 the codicil. He had been bedridden for 6 months, he had suffered a stroke which paralysed him
and herefore he could easily be influenced by other persons. Court conlcuede that there existed
circumstances which existed suspicions. The following:
1.The fact he had died 3 days to the making of the codicl

3. Earnest didi everything in relation to the condicl and he is the one who ebnefited mostly
4. Decased had made his will only two yrears earlier in which earnest had recived substantial
property and there was no reason why the deaceased wou;d want to give more
5. Codicil gave earnestmore than double of what recivede at the expense of the window.
6. The cidicl reduced the window to a mare licensee in her matrimonial home
Court therefore held that there was suspicouas and testor did not know what he was doing

Look at Mistake, coercion and undueinflucnce and oral wills. (next lesson)