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CONTENTIOUS PROBATE

It refers to the process where there are disputes relating to either the grant (the making or confirmation of a grant, revocation of grant) or administration in general. Contentious proceedings, are dealt with mainly by the High Court, with limited power to resident magistrate to deal with some matters. They are usually commenced under the provisions of P&A Rules, but with respect to some matters, they may be commenced under Order 37 rule 1 & 5 of the CPR so that parties can get orders.

CPA provisions don’t apply where there’s an order. Contentious proceedings arise where there is:
-          a dispute as to validity of will
-          who is entitled to grant or revocation of a grant (entitlement of grant)
-          application for reasonable provision

Objections to the making of grants
Objections are made before the grant is issued and they relate to the question of entitlement to the grant. Where applicant says that a person applying for a grant is unqualified and he (the applicant) is the most suitable person. They are brought by persons who would like to be involved in the administration of the estate. The procedure is set out in Rule 7(4) & 17(1) of P&A Rules and the application is filed in the Registry in which the pending application has been made or at the principal registry at Nairobi. The rules aren’t clear on nature of pleadings initially filed (i.e. by the objector). It would appear that any document which indicates an intention to object is sufficient.

Upon receipt of objection, court should notify the person who had made application for grant that an objection has been lodged and at the same time require the objector to file an answer to the petition and a petition by way of cross-petition applying for a grant to be made to them. The matter should then be set down for the hearing of the petition, answer and cross application. The hearing of the dispute may take the form formal submissions or oral evidence. If dispute is fairly contentious, it is preferable to use oral evidence. If not so complex, court may ask parties to make oral submissions. If the objector does not file an answer or a cross-petition if notified, the court should make a grant based on original petition.

Grounds for Objection

The Act does not set out grounds on which objection process may be premised.  But they point to:

a) Validity of the will
Objector argues that the will the subject of application is not valid and therefore there is no basis upon which the court should grant probate. Karanja and another vs. Karanja, Nyanjugu and another vs. Karanja (2002) 2 KLR 22

In the Matter of Manubhai Kishabhai Patel alias Manibhai Kishabhai Patel, deceased Nairobi (Milimani) HCSC No. 2340 of 1996 objection to an application for a grant of probate was founded on the grounds that the purported signature of the deceased on the will was a forgery, the alleged will had not been properly executed and the property disclosed in the petition had been grossly undervalued, effectively saying that the person had died intestate and so the person applying for grant was not entitled but persons entitled under intestacy in S 66. After hearing oral evidence, the court found that the will had been properly executed and dismissed the objection.  In In the Matter of the Estate of Philly Nyarangi Otundo, (deceased) Nbi HCSC No. 2078 of 1997 the objectors to the application for grant of probate claimed that the subject will was a forgery and described the executors as strangers. The objection was dismissed as the court found that the will had been made freely and properly.

b) Right to administration or entitlement to a grant
Objector may argue that they are entitled to grant of representation because they are wives of deceased, children etc. In majority of the cases, the objectors move the court on the basis of them being wives of deceased. In the following cases, objectors were claiming on the basis of being customary law wives and left out of administration of will.

Atemo vs. Imujaro (2003) KLR 435, Muigai vs. Muigai and another (1995-1998) 1 EA 206 , In the Matter of the Estate of James Mberi Muigai Kenyatta Nairobi HCSC No. 2269 of 1998, In the Matter of the Estate of Francis Kiarie Ndirangu Nairobi HCSC No. 82 of 2002

In all the cases, applicants argued that they were not only beneficiaries but also entitled to the grants. The court, using discretion may order their names to be included in the list of beneficiaries and excluded in grant or list objectors as both beneficiaries and entitled to the right of administration of estate.

An objector alleging the existence of a customary law marriage must prove the fact to the required standard under R 64 of the P&A Rules:  by production of oral evidence or by reference to a recognised treatise or other publication on the matter. It was held in Mwagiru vs. Mumbi (1967) EA 639 that the onus of proving customary law marriage is on the party who claims it, which is on a balance of probabilities.

Some objections are founded on the claim that the objector was the wife of the deceased on account of marriage presumed from long cohabitation. The principle for determining this has been set out in a number of cases which were actually succession cases e.g. Hortensiah Wanjiku Yawe vs. Public Trustee CAEA CA No. 13 of 1976 and  Njoki vs. Mutheru (1985) KLR 871. In above cases, oral evidence was required to prove cohabitation.

c) Entitlement to Grant
Objectors may base their claims on the ground that they are kids or relatives of the deceased hence entitled to grant. The objectors would be saying that their interests wouldn’t be catered for properly if not involved in the administration. In Chelang’a vs. Juma (2002) 1 KLR 339 the objections were by the mother and the siblings of the deceased, respectively. The mother’s complaints were that, she had not been notified of the petition, one of the petitioners was not an heir and therefore he was not entitled to apply, and that she and two illegitimate children of the deceased were dependants of the deceased and should have been listed in the petition as survivors. It was found that the surviving mother of the deceased was entitled to a share of his deceased son’s estate, but illegitimate children have no inheritance rights under Islamic law. With respect to the siblings who were all non-Muslims, it was held that under the relevant law non-Muslim cannot inherit in intestacy from the estate of a deceased Muslim.

Where the deceased died intestate, objector alleges that there was a will and therefore the person applying for letters of administration is not the right person to make the application. Where there’s proof that there’s a will, application for objection would be allowed.

d) Suitability or Competence of the proposed Administrators
Objectors would be saying that the petitioners are incompetent either because of educational background or because of their age. In Chelang’a vs. Juma (2002) 1 KLR 339 the objections were that one of the petitioners was a brother-in-law of the deceased. Though competent, he wasn’t suitable because he couldn’t have priority over the brothers and sisters of the deceased. In the Matter of the Estate of Aggrey Makanga Wamira Mombasa HCSC No. 89 of 1996 the father of the deceased objected to an application for grant of letters of administration by his daughter-in-law and granddaughter in respect of his son’s intestate estate. He argued that the petitioners were unsuited as administrators as the daughter-in-law was young and inexperienced and could not administer the estate properly. He also said that she was likely to remarry. He further argued that his granddaughter was just a minor. The court held that the widow was suited to manage the estate, and that the daughter was of age and thus qualified for appointment as administrator. In Swaboa Nassor Salim Hadi vs. Swaleh Salim Hadi HCP&A No. 52 of 1990 the petitioner was the eldest daughter of the deceased intestate, while the objector was her uncle who, under the Islamic law of inheritance, was entitled to a portion of the intestate estate of his late brother. The petitioner had just turned eighteen, the age of majority, before applying for the grant.  The objector opposed the petition on the ground that the petitioner was too young, that she could be prone to manipulation and that she lacked experience to manage the vast estate. The petitioner argued that the respondent did not have interest in administering the estate for the benefit of the minor beneficiaries of the estate; his interest was to plunder the estate. The court found that none of them had the competence to administer the estate.  The grant was made to the Public Trustee.

Note: these proceedings are brought before grant is issued, once issued, proceedings are incompetent. If one is unhappy with grant after it has been issued, they can bring revocation proceedings.

Protests to the confirmation of grant
Confirmation proceedings are under S 71. During confirmation proceedings, those not happy with administration of estate or proposed distribution of estate may file an affidavit protesting the proposed confirmation of the grant. Protests may be brought under Rule 40(5) and (6) of P&A Rules. Procedure is that where an application for confirmation of a grant is filed in a matter where caveat has already been launched, the probate registry should notify the caveator of the filing of application for confirmation of grant. He can file an affidavit of protest setting out his grounds of protest to the confirmation. Protests are not limited to caveator and can be filed by any other person interested in the estate of the deceased. Upon the filing of such affidavit, the matter should proceed for the hearing of confirmation during which protestor should be heard.

In the Matter of the Estate of Kinyuru Karanja (deceased) Nairobi HCSC No. 2361 the protestors were two children of the personal representative who were opposed to their mother’s proposed distribution of their father’s estate. Their main quarrel was that their mother favoured one of the other children by giving him more than the others. Her explanation was that that particular son assisted her and the deceased with the money used to purchase the land the subject of the estate. It was held that the property be shared equally between all the children.

In the Matter of the Estate of Patrick Mungai Kugega (deceased) Nbi HCSC No. 1374 of 2000 a similar protest was field. Protests was on ground that one of the assets had been bequeathed to him by the deceased and the other children should give up possession of that asset. Protest dismissed because there was no evidence that asset had been given to him.

 
 
 

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