British families in legal battle over Sh210m Kwale estate

Sand Beach Cottages at Tiwi in Kwale County. The property is at the centre of a legal dispute before the High Court in Mombasa. [Photo: Maarufu Mohamed, Standard)

A British national has disputed a will that gives him and his siblings 40 per cent of his uncle’s Sh210 million estate in Kwale County.

Mr Anthony Patrick Rowan, his wife, and his two siblings have asked the court to discard their uncle, John Francis Foster’s will, claiming that he was either coerced into writing it or it was altered before he died.

Rowan said he does not understand why he and the other complainants only got 40 per cent of the estate. He claimed that Foster, who never had a family or children, had said that he would give the four of them 50 per cent of the estate at Sand Island Beach in Tiwi and the other half to his cousins.

Mentally ill

The petitioners told Justice Mugure Thande of the High Court in Mombasa that Foster was mentally ill and was on medication at the time he made the disputed will.

Rowan, who lives in Tanzania, said he was shocked to learn that his cousins, Susan Brendon and Anne Forgan, were left 60 per cent of the estate.

He claims that Brendon and Forgan misled Foster into altering an initial arrangement that shared his wealth equally between his two sisters and their children.

Foster had a sister, Mary Roken Smith, and half-sister, Nevile Mary Rowan. Nevile was Rowan’s mother while Mary Roken Smith’s children were Sally Roken Smith, Zoe Keller, Jane Van Derkum, and Anne Forgan.

Although Brendon is named as Rowan’s cousin in the court papers, her parents are not identified.

Rowan claims Foster had said he would share his wealth 50-50 between Neville Mary Rowan’s and Mary Rooken Smith’s children.

Change his mind

He claims the arrangement was altered when Brendon and Forgan unduly influenced Foster to change his mind to give Neville Mary Rowan’s children 40 per cent of the wealth. Foster’s only brother, Robert, had died earlier.

Rowan’s brother was identified as Simon Hugh Rowan and and sister as Heather Lil Stach.

Now Rowan is seeking a review of the will of the property, sitting on 124 acres, and a 99-year lease effective June 26, 1973.

“The said will does not make fair, reasonable, and adequate provision for me and my siblings as regards the provisions of Section 28 of the Succession Act. The deceased’s net estate, including the FUZZ Trust, should be distributed equally between me and my cousins,” said Rowan in an affidavit.

Rowan claims his uncle (Foster), who died on December 30, 2015 aged 83, was not in his right frame of mind when the will was written.

“My uncle died on December 30, 2015, at an advanced age of 83 years. He was a half-brother of my late mother, Neville Mary Rowan. He never married and as far as I am aware, never had any children,” said Rowan.

Rowan claimed that Brendon and Forgan exploited Foster’s advanced age to secure a 60 per cent share of his property in the will dated June 19, 2015.

The petitioner further alleges that the defendants incited Foster against him and his siblings, causing him to replace him as an executor of the will.

Rowan claims that while on a visit to Kenya in 2013, Zoe Keller asked Foster to meet his lawyer and encouraged him to nominate her a director of Sand Beach Island firm and remove Hugh and Heather as members of one of the boards managing the property.

Rowan alleges there was a verbal agreement between the two families and Foster that each would get 50 per cent of his wealth.

Testamentary capacity

“I would have been comfortable with the 50-50 arrangement as agreed before, verbally, but he was coerced to change it to 60-40,” said Rowan.

He added: “The will purportedly made by Francis John Foster is void and invalid on account of lack of testamentary capacity and such importunity as to take away the free agency of the testator.”

He told the court that his uncle suffered mental problems, including failing memory and anxiety disorders during the last five years of his life, in the period he allegedly made the will.

Court documents show that in 2012, Foster had majority shares in Sand Island Beach Cottages and Sanctuary Limited while Heather had 83 shares, the same as Simon Hugh. Rowan had 84 shares in the company.

Mary Rooken Smith, a US resident, received her 25 per cent after signing the necessary documents in 2013 which amounted to 250 shares.

Rowan said there was an agreement that Mary Rooken Smith be involved in the management of the property because she co-owned the land on which it stands.

Rowan denied that he was motivated by greed and animosity. He also denied refusing to attend Foster’s funeral.

“I never knew the dates of the funeral and I had a job to attend to in Tanzania. There was resistance by Foster against my ideas but it did not mean I hated him,” said Rowan.

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