Families are now using dementia as a reason to discount and disregard wills, in an emerging trend that has rocked the rich and the poor alike.
From billionaire families to the poor, dementia — often confused with senility — is the new excuse that disgruntled relatives are using to challenge wills, alongside forgery.
While there is no data on how many succession cases in court are based on claims of dementia at the time of making wills, we established that there are thousands of disputes currently before various judges and magistrates around the country.
Some of the recent high-profile cases based on dementia included that of President Uhuru Kenyatta’s uncle James Ngengi Muigai, real estate billionaire Gerishon Kirima, former Defence minister Njenga Karume and former judge Jackson Kasanga Mulwa.
In the battle for Mr Muigai’s property, his ex-wife Elizabeth Mumbi challenged a will that named his first son with another woman — Minneh Ngina — as the executors of his last wishes.
Ms Mumbi and Mr Muigai parted ways in 1942 after the latter took Ms Ngina as a second wife. Ms Mumbi claimed that, at the time of signing the will, Mr Muigai was demented.
After the split, Ms Mumbi had two children, Peter Nyoike and Peter Mugo. Mr Nyoike laid claim to Mr Muigai’s fortune as well and pushed on with the fight after his mother’s death.
High Court Judge Martha Koome dismissed the dementia claim in 2005 but ordered that Ms Mumbi’s son Peter Nyoike be provided for as a beneficiary. Mr Muigai’s son and President Kenyatta’s cousin Ngengi Muigai challenged the decision.
The Court of Appeal in June last year ruled that Mr Nyoike is not entitled to anything and reduced his allocation to five acres of land in Mr Muigai’s Ichaweri farm from the initial 10 acres.
Before the family of former Defence minister Karume agreed to sit and resolve their differences out of court, three of his children had challenged their father’s will as they sought to kick out trustees that were left to manage his multibillion-shilling business empire.
Lucy Wanjiru, Albert Kigera and Samuel Wanjema claimed that their father’s mental health legally barred him from signing the contested June 6, 2011 will.
One of his granddaughters, Michele Wariara, had initially come out to support the incapacity claim before withdrawing and claiming she had been coerced into calling for invalidation of Mr Karume’s will.
Discussions and reconciliation between the family members have been going on since August last year with the aim of withdrawing all court action.
In Mr Kirima’s case, the tycoon’s third wife, Teresia, challenged his second will, arguing that he had even been sedated and flown out of the country for treatment at the time the document was allegedly signed. But the family eventually struck an out-of-court deal.
For former Judge Kasanga Mulwa, his first wife Mary has challenged a will distributing his Sh5 billion estate. She argues that the former judge was not of sound mind at the time the document was sworn and that several properties have been left out of the disputed will. The case is still going on.
With dementia mostly prevalent in people over the age of 70 years, several applications for custody, management and control of assets owned by affected persons are always being filed in the courts.
Under the Mental Health Act, relatives of individuals diagnosed with mental disorders are required to apply to the High Court for custody as caregivers and estate managers.
The Law of Succession Act bars anyone unaware of their actions, whether as a result of mental illness or drunkenness, from stating their last wishes in a will.
In the simplest terms, dementia is a chronic and persistent disorder of mental processes characterised by memory loss and decline in brain functions, which hinders an individual’s ability to perform basic tasks.
Under the Law of Succession Act, the next of kin of anyone suffering from mental illness are free to ask the High Court for permission to manage assets or businesses owned by patients.
This has opened the door for mischief in some instances, as some individuals attempt to wrest control of family assets by playing the dementia card.
On December 21, 2017 High Court Judge Farah Amin made a decision that anyone looking to get orders for custody and management of a demented individual’s estate should certainly look at.
Before the judge were the son and daughter of a Murang’a-based businesswoman.
The two claimed that their three siblings gave them the authority to apply for orders to have custody over their mother and become managers of her estate.
They, however, did not file any evidence of the consent, which Justice Amin pointed out. Being a family matter, identities of the litigants were only documented as initials.
In her ruling, Justice Amin dismissed the case, arguing that the businesswoman’s two children showed more concern for the assets she has acquired over the years, rather than caring for their mother.
The judge also noted that the evidence before court was not entirely clear and neither the businesswoman nor her children took the stand to allow Justice Amin confirm claims made in the suit.
The businesswoman’s children — AKG and ANG — claimed that their mother had a history of mental illness which had seen her admitted at Chiromo Lane Medical Centre.
As evidence, the businesswoman’s children filed a medical report. But Justice Amin faulted the report because it was a photocopy which was not entirely legible. The court also questioned its author and intentions.
Even more suspect to the judge was the fact that the report stated that the dementia was diagnosed after brain scans.
“Further, the court takes judicial notice that both dementia and mood disorders manifest themselves in behavioural characteristics and are not usually diagnosed from electronic brain mapping,” Justice Amin said.
In cases of custody, if a demented person is too far done by the condition, the court can make a ruling on custody and management of their estate without necessarily hearing from patients.