What May Invalidate Testamentary Gifts?

Even where the will is, for all intents and purposes on face value,
there are situations that, when attested to, will go to show that the
testator did not intend to make the gifts s/he made or, at least, give
a gift s/he purportedly gave. Such attestation is fatal to
testamentary gifts if it evidences circumstances showing that the
testator did not know and/or approve of the contents of the will.

In such a case, then the will is invalidated. See statements of
Gicheru JA in John Kinuthia Githinji –vs– Githua & others. Nairobi
CACA No. 99 of 1998.

Rationale

The rationale is that testate gifts should be as a result of the
voluntary doing of the testator. Otherwise, we would encourage a
situation where unscrupulous people take to disenfranchising hapless
beneficiaries by use of unacceptable means. In addition, such acts are
generally illegal and the law is that no will should profit from his
wrong doing. The case is not different from one where a beneficiary of
a testate gift shortens the life of the testator to enjoy the gift
sooner that nature would have have do.

Knowledge and approval

As a general rule, the testator is deemed to know if s/he is aware and
understands the terms of the will. Approval means that the testator
executed the will of his own free will without any coercion or undue
influence being exerted on him. The requirements of testator's
knowledge and/or approval is especially paramount where the document
is drawn up by a third party.

Section 7 of the Law of Succession Act covers the factors that may
vitiate knowledge and approval of the testator. The section provides:

"7.A will or any part of a will, the making of which has been caused
by fraud or coercion, or by such importunity as takes away the free
agency of the testator, or has been induced by mistake, is void."

In case of fraud

Any deception exerted on the testator which affects the content of his
will may amount to fraud. For instance, in the case of Wilkinson –vs–
Joughin (1866) Lr 2 Eq 319 the court concluded that a testamentary
gift to a married woman on representation to the testator that she was
free to marry him and who proceeded to marry him be omitted from
probate for fraud. The court's decision is justifiable in that had the
testator been privy to the married status of the lady, chances are he
will have acted differently.

It is important to remember in considering what is or is not deception
to remember that wills are propounded after the death of the maker and
he is not available for comments! Fraud thus arises where the testator
has been prompted by the deception to make provisions or exclusions in
his will against a beneficiary. A false statement made to testator in
relation to that beneficiary will suffice here.

If there a Suspicious Circumstances

One circumstance Probate courts take as suspicious where the drafter
of the will takes a substantial benefit. The logic of this is in the
likelihood that the testator was never made privy of the drafter's
gift. This is especially the case where the draftsperson is a trusted
son.

Even gifts to the lawyer drafting the will may be found to be
embroiled in suspicious circumstances and as a result fail. The
rationale is that not all lawyers can be trusted to remain honest.
Given their superior knowledge of law over the clients, some may opt
to misrepresent that the law requires that certain sum be left to the
drafts person!

In Wintle –vs– Nye [1959] P 1 ALL ER 552, involved a testatrix who had
left a chunk of her estate to her solicitor. The evidence showed that
she was not very educated and for most of her life, she had relied on
the solicitor to make business decisions. It was held that the
circumstances were suspicious and the gift failed as a result.

It is also a suspicious circumstance where the beneficiary had
suggested the term(s) of the will to the testator. The point here is
the likelihood that the testator would not have made the gift but for
the suggestion. And likely, the suggestion was titled in favour of the
suspicious beneficiary.

In Vijay Chandrakant Shah –vs– Public Trustee Nairobi CACA No. 63 of
1984, Platt JA seems to hind at another possible suspicious
circumstance. The learned judge stated that where the propounder of
the will is the principal beneficiary under it, it is the duty of the
court to scrutinize the evidence of the propounder vigilantly and
jealously. In other words, a suspicious circumstance may be inferred
where the propounder of the will is the principal beneficiary.

However, the old case of Barry –vs– Butlin (1838)2 Moo Pcp 480 remains
an authority that the profounder can allay the suspicion and sustain
the gift. It was held in that case that where it was a gift to an
advocate, he had managed to allay the suspicion. In the case, the
learned friend had ensured that the will was executed before two
independent witnesses.

Where Coercion or Undue Influence is involved

This is said to occur when a person is said to be coerced or forced
into making a will or some part of which he does not want to make. It
is common where the testator is of weak mental capacity or cannot
withstand pressure. It may be exhibited by physical force or incessant
talking to a testator who is frail, sick or of failing health.

However, persuasion is not unlawful unless pressure is exerted as to
overpower the volition without convincing the judgment of the
testator. See the holding in Hall -vs- Hall (1869) LR 1P and D 481r.
For instance, a gift prompted by a threat will likely fail while one
had because of persuasion on the part of beneficiary will usually be
sustained.

The justification why the court refuses to sustain a gift had because
of a threat issued by the testator to be the same the courts are quick
o punish terrorism and kidnapping. As for persuasion, it is allowable
probably because there is nothing wrong and maybe the testator
encourage and enjoyed it.

Where the Will is Improperly Attested

Section 13 of the Act provides:

"13. A bequest to an attesting witness (including any direction as to
payment of costs or charges) or a bequest to his or her spouse shall
be void unless the will is also attested by at least two additional
competent and independent witnesses, in which case the bequest shall
be valid."

"Competent" means that the witnesses are not minors or persons of
unsound mind and "independent" means that the witnesses are not
beneficiaries under the will.

In Re Estate of Bravda (1968) 1WLR 479 the testator's will was
witnessed by two witnesses and the testator's two daughters. The court
held that the will was invalidly attested as the daughters' signatures
had not been attested further.

The rationale, besides the fact that the law requires it, is the
suspicion that such execution arouses. It, as a result of such
execution becomes hard to know whether the testator signed the will
out of voluntary will.

Conclusion

The four vitiating factors that may fail testamentary gifts have been
amply analyzed here above. Basically these are fraud, suspicious
circumstances, coercion or undue influence and improper attestation as
required by the Law of Succession Act of Kenya. These factors come in
handy when one needs to challenge a gift in a will or even to help
avoid the pitfalls they present in drafting and executing a will.