Automated Summary
Key Facts
Claudio Tosoni applied to proceed with letters of administration using a copy of the deceased's 1984 will. The original will is unlocated after the advocate who stored it died. The court accepted the authenticity of the will copy and approved the application. The will bequeaths the estate to Anna Concina Tosoni if she survives the deceased for 30 days; otherwise, to Claudio Tosoni.
Deceased Name
Giovanni Tosoni
Issues
- The court's assessment of the authenticity of the will copy submitted by Claudio Tosoni, which was attached to a letter from Archer & Wilcock Advocates and stored in the strong room by the original lawyer, Mr. P.D.B. Walker, who has since passed away.
- Whether the court should exempt Claudio Tosoni from filing the original will of Giovanni Tosoni and allow him to proceed with letters of administration based on a copy of the will, under section 51(3)(a) of the Law of Succession Act and Rule 49 of the Probate and Administration Rules.
- Whether Claudio Tosoni, as the sole executor named in the will, is entitled to administer the estate of Giovanni Tosoni, particularly since the wife, Anna Concina Tosoni, is to inherit the estate if she survives the deceased, and Claudio is the heir if she does not.
Holdings
The court allowed the applicant to rely on a copy of the deceased's will for the petition of letters of administration, as the original will could not be located despite efforts. The court found the copy to be authentic and accepted the applicant's evidence regarding the unavailability of the original will.
Remedies
The court allows the applicant to rely on the copy of the will to petition for letters of grant of administration.
Will Type
Attested Will
Probate Status
Letters of administration granted based on a copy of the will
Legal Principles
The court allowed reliance on a copy of the will when the original could not be located, provided the copy was proven authentic. This applies under section 51(3)(a) of the Law of Succession Act and Rule 49 of the Probate and Administration Rules.
Succession Regime
Governing succession under Kenya's Law of Succession Act through testamentary disposition
Executor Name
Claudio Tosoni
Cited Statute
- Law of Succession Act
- Probate and Administration Rules
Executor Appointment
Appointed as sole executor in the deceased's will dated 3rd December 1984.
Judge Name
L.A. ACHODE
Passage Text
- I hereby allow the Applicant to rely on the copy of the will herein filed, to petition for letters of grant of administration.
- The application is brought under section 51(3) (a) of the Law of Succession Act and Rule 49 of the Probate and Administration Rules.
- I have carefully perused the pleadings filed in this matter and in view of the circumstance, I am persuaded that the deceased indeed left a will which cannot be located and the copy appended on record is authentic.
Beneficiary Classes
- Spouse / Civil Partner
- Child / Issue