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Forced wills are null and void

REAL ESTATE
By Harold Ayodo | January 28th 2016

Harold Ayodo

In 2010, a will purportedly written by politician-cum-real estate tycoon Gerishon Kirima while undergoing treatment in the United Kingdom was challenged in court.

Teresia Wairimu, the widow of the late Kirima, told High Court Judge Justice Isaac Lenaola that her husband could not have written the will when he was flown out of the country to undergo treatment Wellington Hospital.

“He had been sedated and could not even communicate with his personal doctor,” Wairimu said when challenging the will produced in September 2010.

Former Starehe MP and property mogul the late Gerrishom Kirima. A will he purportedly wrote when he was ailing was contested in court. (PHOTO: FILE/ STANDARD)

She wanted the High Court to accept a will Kirima allegedly prepared in 2006 and amended in 2008 when her co-wife Ann Waruguru passed on.

Amendment

“I urge this court to allow the will prepared in 2006 and amended in 2008 by my late husband when he was in good health,” Wairimu told Justice Lenaola.

The court ruled that the London will was invalid. That was in keeping with the Law of Succession Act that says that a will made under coercion or fraud is null and void

There are other conditions to be met before a written can be wholly implemented upon the death of its maker.

For instance, the writer of the will must sign or affix his or her finger print on the document or direct any person to sign in his or her presence.

The will must be attested by two or more competent witnesses who saw the property owner sign or affix his or her finger print to the will or seen other people do that under his direction and presence.

However, the witnesses who append their signatures on the will must not be present at the same time.

Many other litigants that challenge the validity of wills on grounds of health rely on legal arguments raised in the case of Julius Wainaina Mwathi v Beth Mbene Mwathi Civil Appeal No 123 of 1992 where the will was ruled invalid for having been drawn by a sick person.

Some of the objectors claimed that the deceased was mentally ill and lacked the capacity to make the will.

Mentally fit

Section 5(1) of the Law of Succession Act expresses the principle of testamentary freedom by providing that any person is capable of disposing of his or her property by will so long as they are mentally fit.

The law of succession describes testamentary capacity as the ability to understand the nature of will-making.

Courts have – in rulings and judgments – stated that property owners should be capable of making wills with an understanding of the nature of business they are engaged in and investments they mean to dispose of.

There are succession disputes whereby courts declare as valid wills made by bedridden investors.

For instance, in the case of John Kinuthia Githinji v Githua Kiarie & Others Civil Appeal No 99 of 1988, the deceased who was admitted to hospital seriously ill with cancer of the duodenum sent for her advocate whom she gave instructions to draw a will.

The lawyer drew the will in accordance with the instructions and thereafter explained its contents to the client in the presence of a nurse on duty.

At the time, the patient was said to be mentally alert and appeared to understand the lawyer’s explanations of the contents of the will before signing.

In succession disputes, the burden of proving that a will was drafted under coercion is on the person making the allegations.

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