Court rejects Big Kev’s video will but says it's time to adopt e-wills

When celebrated city DJ Kevin John Ombajo, popularly known as ‘Big Kev’, died in 2018, he was clear how he wanted his wealth to be shared. He made a written will but later revoked it and replaced it with a ‘video’ will.

Yesterday, after about three years, his dying testament has been disregarded.

In a landmark case before the family court in Nairobi, where his widow and his sister were fighting for control of his estate, the court declared that the written will is superior to the recorded video.

Three years before his death, on February 20, 2015, Big Kev had written a will appointing his wife Tracy Kamene and sister Jacqueline Vivian Akinyi as joint executors of the will.

A year later, the former CEO of Trublaq revoked the written will and in its place, he recorded a video of his dying wishes. In the video, he disinherited his widow and appointed Akinyi as the only executor.

Aggrieved, Kamene challenged the contents of the video, saying they were a complete departure from the written will, which was uncharacteristic of the deceased, and was skewed to portray her in bad light even though they had no differences with Big Kev when he was alive.

Afterthought

She claimed that prior to his demise, the DJ had directed her to fully implement his wishes in the written will. According to Kamene, the video only surfaced as an afterthought and had too many inconsistencies.

Akinyi had a different story. She told the court that Big Kev was diagnosed with a brain tumour in 2010 and five years later, he informed her that he had a written will.

Justice Lydiah Achode heard that the entertainer’s condition deteriorated, leading to loss of his eyesight. Akinyi explained the deceased took her to his bankers and made her a signatory to his account.

She also claimed that he handed her the keys to his safe deposit box and gave her instructions to handle all his affairs related to his family and business.

According to Akinyi, on December 23, 2016, her brother informed her that he had been to his lawyer, Rosalinda Njeri Nduati, and had made a video will that specified his last wishes on how he wanted his property to be distributed. He wanted his previous will changed.

Nduati testified that when Big Kev died, she invited his family members, disclosed the contents of the two wills and also handed them the video. However, they could not agree on which of the two was a valid will.

It emerged that the video had been recorded using a mobile phone and partly on an iPad.

James Ngugi, also an advocate, told the court he knew Big Kev since 1989. According to him, in November 2016, his health had deteriorated but he informed him that he needed to amend his 2015 will.

He explained that Nduati recorded the video, which was then transcribed and signed immediately after the 2016 Christmas season.

Kamene argued that although the deceased made the video before three witnesses, he did not die within three months after making it, but more than six months later.

Life of an oral will

At the same time, she said he was neither a member of the armed forces nor a member of the merchant marine who are allowed to make an oral will. According to her, the life of an oral will is only three months, unless a mariner makes it.

She asserted that a recording could not revoke a written will.

The widow submitted that there was reasonable apprehension that at the time of making the audio-visual recording, Big Kev’s mental health had deteriorated.

She asserted that the property allegedly distributed by video was not available for distribution. Kamene told the court that she contributed to the success of Big Kev’s firm, Trublaq, as a family business though she was not a shareholder.

Although Big Kev had left the shares to Akinyi, the widow asserted she was entitled to his shares in the company.

Akinyi, on the other hand, told the court that her late brother was clear on what he wished for in the video.

From the Judiciary’s data, only 16 per cent of cases filed before the court have written wills.

Justice Achode observed that the contest was whether the video is a valid will of the deceased and if it can displace the written will.

She noted that Kenya does not recognise videos as wills. However, they can be submitted before a court as evidence.

“In the Kenyan context, no recognition of audio–visual recordings has been provided for in the Law of Succession Act. However, the Evidence Act, sections 78A, 106A and 106B provides for the conditions upon which electronic records are admissible in court,” said the judge.

“Having so stated, the audio visual recording must be strongly tested with regard to the well-established principles of wills. The validity of wills is dependent on the capacity of the maker and whether the same was made in proper form.”

The judge said there was no evidence to show that Big Kev was so ill that he could not make the video. She noted that there was no medical report showing that he also did not have the mental capacity to dictate how he wanted to be inherited.

Legal threshold

“In view of the above, it is my conclusion that there is no material before me upon which I can hold that the deceased did not have the requisite testamentary capacity on December 23, 2016 when the audio-visual recording was made,” she ruled.

Achode however dismissed the video, noting that Big Kev did not die within three months after the recording.

“The deceased herein died seven months after the making of the alleged will. I do not think, in the given circumstances, that the alleged will qualifies to be a valid oral will of the deceased made under the Law of Succession Act, even though the facts as narrated, point to an attempt to make a will,” she said.

She said although the video contains the deceased’s wishes, it does not meet the legal threshold to be adopted as a will.

The judge said it is time for Kenya to amend the law to recognise electronic wills. According to her, the virtual world should enable people to remotely modify wills virtually and make new wills or be witnesses.

However, there should be regulations in place.

“Although not formally recognised in many jurisdictions, including Kenya, electronic wills and the use of technology as a medium of documenting evidence is on the rise. As a result of the Covid-19 pandemic, they are more relevant than ever,” she said.

“Just like conducting of court sessions virtually, there is need to have policies and regulations in place to ensure that these processes are guarded against the challenges that are already there such as cyber security, obligations to assess capacity, understanding, undue influence and duress.”

According to Justice Achode, Australia, for instance, legislated the Covid-19 Omnibus (Emergency Measures) Act 2020, which provides for electronic execution and remote witnessing of certain documents by modifying the application of statutes such as the Wills Act 1997.

In the United Kingdom audio-visual recordings have been accepted as a step to solidify written wills.

In the state of New Jersey in the US, the Covid-19 (Signing of instruments) (Jersey) Law Regulations 2020 (Regulations), which came into force on April 23, 2020, provides temporary arrangements to enable wills to be witnessed safely using audio and visual links if the required conditions are met.