Description

Probate and administration

QUESTION ONE

Mr. and Mrs. Mbwa Mwitu were married at the Registrar of Marriages. They own their palatial home as joint tenants. Mr. Mbwa Mwitu owns two ten (10) acre farms half of which was acquired forty (40) years ago in Sokwe Mtu County, two (2) cars a Porsche Cayenne and a Range rover, he keeps one hundred (100) exotic birds and fifty (50) horses while Mrs. Mbwa Mwitu owns a rental property in her name alone that she inherited from her mother. The rental income is deposited into an investment account in her name.

The beneficiaries named on Mrs. Mbwa Mwitu’s investment account are Pomboo and Paa who are the biological children of Mr. and Mrs. Mbwa Mwitu.

In 1991 Mr. and Mrs. Mbwa Mwitu went to their advocate’s chambers with instructions to prepare their will. Mr. Mbwa Mwitu stated that upon his death, his estate should be distributed to his wife Mrs. Mbwa Mwitu, if she survives him and if she fails to survive him then the will provides that his estate be distributed equally between their biological children. Mrs. Mbwa Mwitu’s will contains reciprocal provisions to that of Mr. Mbwa Mwitu.

Mr. and Mrs. Mbwa Mwitu have been living and caring for an orphan Swala and he is not mentioned anywhere in their wills. The Advocate prepared the wills. Mr. and Mrs. Mbwa Mwitu reviewed and signed the wills at the Advocate’s offices with the Advocate Court Clerk and Secretary signing the wills as witnesses.

Subsequent to execution of their wills Mr. and Mrs. Mbwa Mwitu were blessed with a daughter Farasi who was born in 1995. Mr. and Mrs. Mbwa Mwitu instructed their advocate to prepare new wills and they booked an appointment with their Advocate to execute their wills which would include and provide for Farasi as they had provided for Pomboo and Paa. However the Advocate was always held up in court and as time passed they forgot to update their wills to include Farasi.

Two years ago, Mrs. Mbwa Mwitu comes across her will and believing that it is invalid for not providing for Farasi tears it in half and leaves it in the safe. She promises to visit her lawyer to make a new will including Farasi but has no intention of changing anything else in the will contents. She goes to the bank and updates records of her investment account and adds Farasi as beneficiary alongside her brothers Paa and Pomboo.

One month ago Mr. and Mrs. Mbwa Mwitu were driving home from work late in the evening when their car was swept away by floods after heavy downpour and they both died as a result of drowning. Prior to his death, Mr. Mbwa Mwitu had promised to give his daughter the Porsche Cayenne as a gift if she passed her Bar Exams which she has since passed.

After the funerals a woman arrived at the home claiming that she was married to the deceased Mr. Mbwa Mwitu but divorced thirty (30) years ago and that in fact, the court had awarded her half (1 / 2) acre in one of the farms in Sokwe Mtu County belonging to Mr. Mbwa Mwitu where she lived. She therefore regarded herself as Mbwa Mwitu’s widow.

Not long thereafter another woman visited the home with a two (2) year old boy who resembled Mr. Mbwa Mwitu. She introduced herself as Fisi a girlfriend to Mr. Mbwa Mwitu for five (5) years and she had sired a son Fisilet with Mr. Mbwa Mwitu. She therefore regarded herself as his widow. Family members have now requested the children Pomboo, Paa and Farasi to approach you for legal advice on the following:

1. a) Validity of the wills under the Law of Succession Act (Chapter 160, Laws of Kenya)

(7 marks) b The entitlements or otherwise of all persons named in the above narrative vis-à-vis the estate of the deceased’s having regard to relevant Kenyan statutes and case law. (10 marks) c) The specific steps and legal processes to be taken to pursue the children’s claims to their parent’s estate.      (3 marks)

Advise the children Pomboo, Paa and Farasi accordingly.