Description

Probate and Administration

1. Mr. Rocher owned a fifty acre piece of land in Olesafi where he built a palatial home. He also practiced some farming.

One month ago, Mr. Rocher, his wife Nasita and three children, Mercia, May and Juma decided to travel from Nairobi to their rural home for a week-end rest. Upon their arrival, they were shocked to see huge rocks and mud on the location where their home stood. At that juncture, they decided to rush to a police station, five kilometers away, to inquire about what had caused the disappearance of their house, staff, cows, chicken and goats.

At the police station, Mr. Rocher and his family were informed that after a recent heavy downpour, all the homes, people, animals, poultry and trees were swept away by floods. Mr. Rocher could not believe that his favourite home was no more. He began to mutter incoherently. His wife and children tried to console him in vain. Consequently, they decided to return to their city home. Unfortunately, Mr. Rocher died of a heart attack on the way to Nairobi.

Two weeks before Mr. Rocher’s demise, he had displayed strange behavior and believed that he was about to die as he had been having nightmares that his family and friends were organizing his funeral at Panganisa Cemetery, at which time he decided to write a will. Subsequently he went to his Advocate’s chambers to give her instructions on the contents of his will as he had many properties in the whole country and did not want his relatives to wrangle over them.

Mr. Rocher’s instructions were as follows:

• That he wished to bequeath to his two lovely daughters, Maria and May, all his houses in Karen and nothing to his naughty son Juma or his wife Nasita because she had stopped cooking him his favourite dish of Omena and Wimbi-Ugali.
• That he was bequeathing his wheat crop in his Transkele farm in Kilimali to his sister Rim.
• That he was bequeathing his neighbor Jirani his house in Runda because Jirani had been begging him every time they met for a drink to leave him some property to remember (him) Rocher by.
• That he was bequeathing his uncle Telokoman his hotel, Zaka in Westlands because Telecoman had been telling him that if he (Rocher) did not leave him some property, Telecoman would ensure that Rocher burned in hell for eternity, as he would hire witchdoctors to bewitch him.
• That he wishes to bequeathe his brother Tomano all his ties, shirts, shoes and suits.

Finally, Mr. Rocher told his Advocate that since he was about to die he wished to leave her his Prado, Registration No. KYZ 120C for being a friend in need. He proceeded to give the Advocate the car keys to keep.

After giving instructions, Mr. Rocher left his Advocate’s chambers and promised to return with witnesses to sign the will. The next day, Mr. Rocher returned with his two daughters. He signed the will and his daughters signed as witnesses against his advocate’s advice as he did not want anybody else to sign it.

Upon Mr. Rocher’s demise, the immediate family members started to organize his funeral. During the burial arrangements, a woman came to the home with a two year old boy who was the spitting image of the deceased. On being asked why she had come, she said that she was Mr. Rocher’s girlfriend during his lifetime and he had sired her son; she therefore regarded herself as his widow. Nasita was infuriated and chased her and her son away.

Before long, two other women arrived at the home. The first woman, Jerusha, claimed that she was married by the deceased but divorced twelve years ago, and that in fact, the court had awarded her the deceased’s farm in Kari, Nakuru where she lived. She therefore regarded herself as his widow.

The second woman, claimed that she was the deceased’s stepmother and that she used to depend on him for her upkeep since her husband (Mr. Rocher’s father) had died five years She requested that the same assistance be upheld and further stated that she needed school fees urgently for her grandchildren who were due to return to school in two weeks’ time.

After Mr. Rocher’s burial, his Advocate read the will to Nasita and her children, but Nasita dismissed the contents of the will, and took the car keys from the Advocate by force. However, family members requested Nasita and her children to approach you as a prominent Advocate, for legal advice on the following:

• The validity of the will under the Law of Succession Act (Chapter 160, Laws of Kenya).

(7 marks)

• The entitlements or otherwise of all the persons named in the above narrative vis-à-vis the estate of the deceased, having regard to the undernoted statutes as well as case law:-

2013. i) The Constitution of Kenya, 2010; ii) The Law of Succession Act iii)        The Marriage Act, 2014; iv)        The Matrimonial Property Act, 2013.

(10 marks)

• The specific steps the above claimants should take to pursue their claims, taking into consideration the key given to the Advocate. (7 Marks)

Advise them accordingly.

ATP 102 Probate and Administration r 2015-1