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Court of AppealDismissedCivil Appeal No. 5 of 2015

Erastus Maina Gikunu & another v Godfrey Gichuhi Gikunu & another [2016] KECA 126 (KLR)

Court of Appeal of Kenya
4 November 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a terminal illness does not invalidate a will, and challengers must prove incapacity or undue influence.

What this practically means

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Executive summary

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This appeal arose from a family succession dispute over the estate of Francis Gikunu Wanjohi, who died on 8 May 2001 leaving a written will made some five months earlier, naming two sons from his second marriage as joint executors. When the executors sought confirmation of the grant of probate, three sons from the first marriage protested, contending that the deceased, who had undergone surgery for prostate cancer in 1993 and stomach cancer in 2000, lacked the mental capacity to make a will; they also alleged unequal provision between the two houses and sought re-distribution. The High Court (Musyoka, J.) dismissed the protest with costs and confirmed the grant, holding that the appellants had failed to discharge the burden of proving incapacity, coercion or undue influence. On appeal, the Court of Appeal re-evaluated the evidence under rule 29 of the Court of Appeal Rules. It noted that the appellants did not dispute the deceased's signature or the making of the will, only his state of mind. The testimony of the attesting witnesses and the drafting advocate showed the deceased was lucid and physically mobile, and the reports of all three doctors - Dr. Somen, Dr. Loefler and Dr. Devani - were consistent that he suffered no mental impairment. The court expressly approved and adopted the Banks v Goodfellow test of testamentary capacity, holding that severe physical illness does not automatically negate capacity. It held that undue influence is not established by inequality of provision or by cohabitation with favoured beneficiaries, and that no conflict of interest in the advocate's evidence would have altered the outcome. All twenty grounds of appeal failed and the appeal was dismissed, with no order as to costs, the court considering it inappropriate to condemn the appellants with costs in a family matter.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the deceased had testamentary capacity at the time of making the will, given his terminal illness
  2. 2.Whether the evidence of Dr. Loefler and Dr. Somen was credible and properly relied on by the learned Judge, versus that of Dr. Devani
  3. 3.Whether the will was invalid for not meeting legal requirements and standards
  4. 4.Whether undue influence vitiated the distribution of the estate
  5. 5.Whether the advocate who drew the will was conflicted and his evidence ought to have been discounted
  6. 6.Whether the learned Judge erred by confining himself to section 71 of the Law of Succession Act and Rule 40 of the Probate and Administration Rules

Key legal issues

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01

Testamentary capacity despite terminal illness

Holding

The deceased had capacity when he made the will; his cancer did not impair his mental faculties

Reasoning

The court re-evaluated the evidence as first appellate court. Witnesses to the will and the drafting advocate described the deceased as lucid, travelling and climbing stairs unaided. A rational, comprehensive seven-page will raised a presumption of rationality. All three doctors' reports were consistent that he suffered no mental impairment. Applying Banks v Goodfellow, the deceased understood the nature, content and effect of the will.

p. 5
02

Burden and standard of proof on capacity

Holding

The appellants, alleging incapacity, bore the burden on a balance of probabilities and failed to discharge it

Reasoning

Section 5(3) of the Law of Succession Act deems any person making a will to be of sound mind. The state of mind necessary to vitiate a will must render the testator incapable of knowing what he is doing, akin to the McNaughton rule. The appellants did not dispute the signature or the making of the will, only the state of mind, and medical evidence did not support incapacity.

p. 4
03

Undue influence

Holding

Not established; inequality of provision and cohabitation with the second house do not prove undue influence

Reasoning

The court held that a testator's freedom to dispose of property as he pleases means unequal provision is not evidence of undue influence, nor is the mere fact of living with certain beneficiaries. The will's final paragraph disinheriting children who challenged the distribution showed the deceased deliberately exercised his testamentary freedom, foreseeing family division.

p. 6
04

Weight of the drafting advocate's evidence

Holding

Even excluding the advocate's evidence, the outcome on capacity would not differ; no conflict of interest existed on the only issue in contention

Reasoning

While courts encourage advocates to avoid conflicts of interest, the only contested issue was the deceased's capacity. The advocate's account of the deceased's demeanour was corroborated by the two attesting witnesses and the medical evidence, so its exclusion would not change the result.

p. 6
05

First appellate court's duty to re-evaluate evidence

Holding

The Court of Appeal must revisit, analyze and evaluate the evidence afresh and reach its own conclusions, allowing for the trial judge's advantage in observing witnesses

Reasoning

Under rule 29 of the Court of Appeal Rules, the Court as first appellate court from the High Court's original jurisdiction must re-appraise the evidence and draw inferences of fact, as stated in Seascapes Limited v Development Finance Company of Kenya Ltd, while giving allowance for the trial court's advantage of seeing and hearing witnesses.

p. 3

Legal principles established

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  • The burden of proving that a testator lacked testamentary capacity lies on the person alleging it, and is a factual question often determined by medical evidence
  • Testamentary freedom is unfettered for an adult of sound mind, subject only to the limitations in the Law of Succession Act
  • The Banks v Goodfellow test of testamentary capacity is approved and adopted in Kenya
  • Severe physical illness does not automatically deprive a person of testamentary capacity; only illness rendering the testator incapable of knowing what he is doing does
  • Undue influence is not established merely by inequality of provisions for dependants or by the fact that the testator lived with the favoured beneficiaries

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs - each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority
William Ouko
W. OukoJA
Currently serving
majority
KM
majority
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 1064 of 2003
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (rule 29) from the High Court exercising original jurisdiction in a succession cause

Relief refused

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Setting aside the confirmation of the grant of probate and re-distribution of the estate per the appellants' proposals

The appellants failed to discharge the burden of proving lack of testamentary capacity or undue influence; the deceased was of sound mind

p. 6

Costs against the respondents

This being a family matter, the court declined to condemn the appellants with costs

p. 6

Costs

No orders as to costs - each party to bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We come to the conclusion that all the grounds proffered in this appeal lack merit. The appeal fails and is dismissed. We do not think, this being a family matter, it is appropriate to condemn the appellants with costs. Accordingly, we make no orders as to costs.
p. 6Disposition and costs in family succession appeals
We approve and adopt this test.
p. 5Adoption of the Banks v Goodfellow test of testamentary capacity
It must be remembered that not even severe physical illness can automatically deprive a person of a testamentary capacity.
p. 6Effect of physical illness on testamentary capacity
A written will made in accordance with the law cannot be questioned. It can only be altered or revoked by another will made by the testator himself, if he is competent in terms of soundness of mind to do so.
p. 4Finality of a validly made will
As the first appeal, the Court of Appeal was enjoined to revisit the evidence that was before the High Court afresh, analyze it, evaluate it and arrive at its own independent conclusion
p. 3Duty of the first appellate court

Issues in the judgment

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minor

The first respondent's name appears as 'Godfrey Gichuhi Gikunu' in the title but as 'Godfrey Gichuki Gikunu' in the body of the judgment

minor

The judgment records that three appellants (including Bernard Chege Gikunu) protested, yet only two appellants are named in the appeal title

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Erastus Maina Gikunu & another v Godfrey Gichuhi Gikunu & another [2016] KECA 126 (KLR)", Case Analysis (2016). Civil Appeal No. 5 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/126/eng@2016-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.