Law of Succession

Assignment

Answer the questions using the IRAC (Issue, Rule, Analysis and Conclusion) method.

Q1

Mr. Wafula died testate two (2) months ago, survived by his widow Rehema and two

grown up sons, Mahe and Zaki. A month prior to his demise, he drew a will and kept

it in his safe. Thereafter, he continued to cultivate his farm and supervise his workers.

One day, Mr. Wafula called his wife and sons for a family meeting. At the meeting,

he disclosed to them that he was suffering from cancer, but they had nothing to worry

about, because he had made a will in their favour. He also told them that he had

deposited a substantial amount of money for their use in the London Barclays Bank,

Midland Branch. After the meeting, he went for a walk around his large farm.

Two hours later, Mr. Wafula returned to his farm-house. On reaching the courtyard he

heard his sons talking animatedly to each other. Zaki was telling Mahe that he was

getting impatient because the old "buda" was taking too long to die. He went on to

say that he wanted to get his share of the estate immediately, especially the money in

London, as he wished to fly to Mali Island in the Indian Ocean for a fun-holiday with

his friends.

When Mr. Wafula heard his son call him "buda" he walked away crestfallen,

muttering to himself that his good-for-nothing sons would not inherit any of his

properties, as he was going to delete their names from his will. At that juncture, he

went to his safe, removed the will and tore it into several pieces, after which he put

the pieces in an envelope and threw the envelope into to the safe. Mr. Wafula died

that night.

After the burial, the widow and her two sons approach you as the family Advocate.

a) Advise them on the following issues:

(i) The status of the will. (10 MARKS)

(ii) How they can urgently access the funds in Barclays Bank, Midland Branch. (10 MARKS)

b) Discuss the jurisprudence generated by the courts on the issue of the capacity of a testator to make a will. (10 MARKS)

Q2

a) Citing the relevant statute and caselaw, discuss the legal imperatives that distinguish summons filed by spouses and children of a deceased person as compared to summons filed by the next of kin.

(15 Marks).

b) Discuss the court's position on the opportune time to file for reasonable provision ? (5 marks)

Q3

Titus Mbonza who hails from Meru died without a will in January 2024. He left behind 3 wives and 9 children. The first wife had 4 children, a son and 3 daughters. The second wife had 3 sons, while the third wife had 2 daughters.

The letters of administration were applied for and issued to Titus' brother Ndongalu. The judge has divided the property based on the Meru customary law which she finds applicable to property within the Meru area. Consequently, the second wife who has 3 sons has received the lion's share of the property at 70% . The first wife and her four children receive a 20% share since she has one son. The third wife and her 2 daughters receive 5 % of the property on account of their gender. The reminder of the 5% goes to Ndongalu, the eldest brother to Titus.

The second and third wives are dissatisfied with the division of the property and seek to appeal.

As their lawyer, advise them on the key issues citing the relevant statutory and case law on distribution in an intestate succession. (20 Marks)

Q4

Contrast the position of an executor with that of an administrator with particular reference to their respective powers to act before obtaining a formal grant of probate or letters of administration.

Q5

Miss Brenda Kamau was an infantry soldier attached to Lanet Army Base. Seven (7)

months ago, she was sent to Somalia to fight Al-Shabab under the African Union

Mission in Somalia (Amisom).

On the way to Somalia their convoy was ambushed by Al-Shabab and an exchange of

fire ensured. Miss Kamau was fatally injured, but before she succumbed to her injuries, she told Fondi, a fellow soldier that if she died, all her property should belong to Kassimu. Kassimu was Brenda's fianc. Brenda died three hours later.

Upon the demise of his daughter Mr. Kamau (Brenda's father) applied for Grant of

Letters of Administration claiming that his daughter died intestate. However, Kassimu on the other hand, applied for Grant of Probate arguing that Brenda died

testate.

(a) The two cases have been consolidated and all the matters fully canvassed before

you (Justice A. B. Awuor). Write your considered judgment citing the

relevant statutory provisions and case law. (10 MARKS)

(b) Kimberley walks into your chambers with the following instructions:

"I was married to one Mzee Mwanzia. We lived happily for 12 years. We have three

(3) children. Unfortunately, Mzee died 3 months ago. He had several properties. He

had rental houses in Kilimani, some money in the bank and a car. He also bought our

matrimonial home in which I am still living. Immediately upon is death, his elder

brother Musa came and took away the car, the fridge and the television. He also

carried away the deceased's clothes. He has since been collecting rent and keeping it

all for his own use. I reported the matter to the local chief, but the Chief said it was

not his duty to intervene. Musa even wrote a letter to my husband's employer telling

them not to release his work benefits to me and to the Insurance Company also asking

them not to release the life insurance money to me. I knew Mzee wrote my name as

the next of kin at both his workplace and at the Insurance Company and nominated

me as his beneficiary in the Insurance Company, in the event of his demise. Musa is

now even threatening to evict me and my children from the matrimonial home. I have

children who need to be fed and clothed and they need school fees as schools are

about to open."

(i) Advise Kimberly on the applicable law and the specific legal steps required to

enforce her rights. (6 MARKS)

(ii) If Kimberly goes to court, what specific legal action can Musa take to assert

whatever claims he has against his brother's estate? (4 MARKS)