The case in point is Nyeri Civil Appeal Number 100 of 2019: Evelyn Wanja & Naomi Mwendwa Majau –v- Gladys Nkirote M’Itunga.
Some background to put the case into context.
In re Estate of M’itunga M’imbutu (Deceased) [2018] eKLR, available at http://kenyalaw.org/caselaw/cases/view/165280, the High Court sitting in Meru ruled that, “… a will that offends the law and the Constitution is invalid. I find that this will offends the law and the Constitution. Therefore, on the basis of this finding, I declare the will herein invalid…”
The court invalidated the will and directed that the deceased’s estate will devolve in accordance with the law on intestacy. Even as the court so ordered, it is important to note that the court never faulted the testator’s mental capacity to make the will.
The court was perturbed by the fact that the testator, in his will, gave the bulk of his estate to his sons. The testator gave lesser share to his daughters for the reason that the daughters were already married. To the court, the testator’s acts of bequeathing lesser share to the daughters for the reason that they are married was unfair and discriminatory. It is for this reason that the court found that the will offended the law and the constitution.
The Appeal
One of the deceased’s daughter-in-law and her daughter were aggrieved by the court’s findings. They lodged the present appeal against the judgment. In their Memorandum of Appeal, they principally faulted the court for failing to defer to the testator’s testamentary freedom.
The Court of Appeal, identified the germane issue for determination to be the extent, if at all, a court can interfere with testamentary disposition of a deceased person.
The Court of Appeal posed the question whether it was right for the court to invalidate the will and redistribute the deceased’s estate in accordance with the law on intestacy on the grounds that the will was unfair and discriminated against the deceased’s daughters.
The learned judges reproduced in part section 5 of the Law of Succession Act, Cap 160 Laws of Kenya which legislates testamentary freedom in these terms:
“Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will…”
To the judges’ minds, the law recognizes a testator’s power to distribute his/her property as they deem fit. That a testator may give unequal shares to his/her children, be they boys or girls. The testator can even opt to give the estate to charity.
The judges reckoned that the only occasion a court can interfere with testamentary freedom is where a testator has failed to make reasonable provision for his/her dependant(s). Under Section 26 of the Law of Succession Act, the court is allowed, on application and where it is satisfied that the testator has not done so in the will to intervene by making what it deems reasonable provision. Even in such instance, the court does not intervene to invalidate the will. The court steps in to order reasonable provision in the peculiar circumstances of the case.
To the judges, to interfere with the deceased’s will and proceed to distribute the property as if the deceased had died intestate amounts to a mockery of a deceased’s free will so long as the testator has made reasonable provision for their dependant(s).
To the judges, the fact that distribution was unequal is not tantamount to discrimination. Besides, the issue of unfairness or discrimination had not been raised by any party. It was therefore overreach on the part of the trial court to pick up such issue of its own motion and proceed to determine the issue in the matter it did.
The judges reaffirmed that a testator is at liberty to distribute their estate as they deem fit as long as they have made reasonable provision for their dependant(s). It is not within the province of the court to step into the shoes of the testator and substitute for the will what it thinks the testator should have done. Here is the full case
