In re Estate of Kevin John Ombajo (Deceased) (Succession Cause 555 of 2018) [2021] KEHC 459 (KLR) (7 July 2021) (Judgment)

Key Facts

Deceased Name

Issues

• Whether electronic wills (audio-visual) can be accepted in Kenya absent explicit statutory provisions governing their validity?
• Whether an audio-visual recording qualifies to revoke an existing written will under sections 17 and 18(2) of the Law of Succession Act?
• How does an electronic audio-visual recording fit within Kenya's legal framework distinguishing between written and oral wills?
• What circumstances would render a will maker lacking testamentary capacity based on mental soundness, particularly considering medical conditions and evidence of manipulation?

Date of Death

Holdings

• The court held that the audio-visual recording made by the deceased on December 23, 2016, did not meet the legal threshold to qualify as a valid oral will under the Law of Succession Act. Although the recording was made in the presence of three witnesses and intended to amend the 2015 written will, the deceased died seven months later, exceeding the three-month validity period for oral wills. The court also found no evidence of testamentary incapacity.
• The written will dated February 20, 2015, was declared valid as it fulfilled all formal requirements under the Law of Succession Act. The respondent did not challenge its validity or the deceased's testamentary capacity at the time of its execution.
• The court emphasized that oral wills cannot revoke written wills under section 18(2) of the Law of Succession Act. The audio-visual recording, even if considered an oral will, could not override the 2015 written will.
• The objection and cross-petition filed by the respondent were dismissed. The petitioner's petition for probate of the 2015 written will was granted, and the estate was ordered to be distributed according to its terms.

Remedies

• The court ordered the distribution of the deceased's estate as per the February 2015 will.
• The court dismissed the respondent's objection and cross-petition challenging the validity of the deceased's 2015 will.
• The court declared the deceased's written will dated February 20, 2015 to be valid.
• The court made no orders regarding costs.
• The court granted probate for the deceased's written will dated February 20, 2015.

Will Type

Probate Status

Legal Principles

• The audio-visual recording was admitted as evidence under sections 78A and 106B of the Evidence Act, meeting the conditions for admissibility.
• The court applied the presumption of testamentary capacity under section 5 of the Law of Succession Act, which presumes a person is of sound mind unless proven otherwise. The petitioner failed to provide evidence that the deceased lacked capacity at the time of the audio-visual recording.
• The court held that the burden of proving lack of testamentary capacity lay with the petitioner. No medical reports or professional evidence were presented to support this claim.
• The court considered sections 17 and 18(2) of the Law of Succession Act, which state that a written will cannot be revoked by an oral will unless specific conditions are met. The audio-visual recording did not meet these conditions.
• The written will dated February 20, 2015 was deemed valid as it met the formal requirements under section 11 and the respondent did not challenge its validity.

Succession Regime

Precedent Name

• Estate of Grant Patrick Carrigan
• Estate of Elizabeth Wanjiku Munge (deceased)
• Frizzo v Frizzo
• Gulzar Abdul Wais vs Yasmin Rashid Ganatra & Another
• Beth Wambui & Another V Gathoni Gikonyo & 3 Others
• In Re Rufus Ngethe Munyua (Deceased) Public Trustee v Wambut
• Re Estate of Murimi Kennedy Njogu (Deceased)

Executor Name

• Jacqueline Vivian Akinyi
• Tracy Kamene

Cited Statute

• Law of Succession Act, Cap 160
• Evidence Act

Executor Appointment

Judge Name

Passage Text

• Under section 9 of the Law of Succession Act, an oral will had to be made before two competent witnesses and the testator had to die within three months of the making of the will. The audio-visual recording was made before three witnesses, two of whom gave evidence in support of the averments in the recording. However, the deceased did not expire within a period of three months from the date the recording was made. The deceased died seven (7) months after the making of the alleged will.
• Under section 18(2) of the Law of Succession Act, a written will shall not be revoked by an oral will. The audio-visual recording is not a codicil within the meaning of section 3(1) of the Act. Furthermore, none of the actions contemplated by section 18 took place to revoke the deceased's written will.
• The audio-visual recordings made by the deceased were intended to be a will and they were to be reduced into writing and witnessed before Christmas but the deceased died before that could be done. Although there was an attempt at making a will, the legal threshold enabling it to be considered a valid will capable of being enforced by the court, was not met.

Beneficiary Classes

• Spouse / Civil Partner
• Other