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Law Of Succession Act

This Act Provides For Matters Relating To Inheritance Where There Is A Will And Where A Person Has Died Without A Will. It Defines Who Can Inherit And Sets Out The Process Of Applying For Succession In Order To Transfer Property From The Deceased To Dependants Or Survivors.

Under section 3 of the Act, a Will means the legal declaration by a person of his wishes or intentions regarding the disposition/ distribution of his property after his death, duly made and executed and includes a testamentary instrument made in relation to a Will, explaining, altering or adding to its dispositions or appointments, and duly made and executed as required by the provisions of this Act for the making and execution of a Will;

According to section 5; in order to write a will a person must be;

  • Of sound mind (not mentally or physically ill or drunk)
  • Above 18 years

According to section 8 a Will may be made either orally or in writing.

In order for an Oral Will to be valid, section 9 & 10 provide that;

  • It should be made before 2 or more competent witnesses
  • The person making it should have died within 3 months of making it
  • In case of a member of Army or a Merchant Marine, should have died during the same period of duty when he made the Will
  • It should not contradict a written Will which has not been revoked or destroyed
  • The account/ evidence of the witnesses should not conflict each other

In order for a written will to be valid, section 11 provides;

  • It must be signed/ marked by the maker
  • (The maker can direct someone to sign in his/ her presence)
  • The Will must be signed by two competent witnesses

A competent person can witness a will. Section 3(1) provides for a competent witness, that is;

  • A person of sound mind (not mentally or physically ill or drunk)
  • Must be of full age (above 18 years)

Section 17 provides that the process of changing a will can be undertaken by the maker of it at any time when he is competent to dispose of his free property by will.

Requirements; According to section 20

  • The will itself cannot be altered by obliteration (rubbing out), interlineation (writing between lines) after the will has been signed, unless the alteration is signed by the person making the will and the two competent witnesses in the same way as for the whole will.
  • All signatures to the alteration must be made as close as possible to the alteration itself; done in the margin or is referred to in a memorandum written at the end or some other part of the will and so signed and attested.

How to change the will

  • Making a new will and revoking other wills made. Under section 18 provides that a will is revoked by making a new will or codicil with an intention to revoke an earlier made will, burning or tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some other person at his direction.
  • Making a codicil to an existing will, altering part of the existing will. A codicil is defined under section 3(1);- an addition to an earlier will that also confirms the remaining provisions of that will. It must conform to all the requirements outlined above in relation to the requirements of a valid written will.

 

Section 29 provides that a dependant means;

  • The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death
  • Such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
  • Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

Section 26 provides that under such circumstances upon application to the court by the dependant or someone acting on their behalf make an order that such reasonable provision be made out of the deceased’s net esate.

Section 27 further provides that-In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose

The Circumstances under section 28 considered by the court in making an order for reasonable provision for dependants are;

  • The nature and amount of the deceased’s property;
  • Any past, present or future capital or income from any source of the dependant;
  • The existing and future means and needs of the dependant;
  • Whether the deceased had made any advancement or other gift to the dependant during his lifetime;
  • The conduct of the dependant in relation to the deceased;
  • The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;
  • The general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.

These are explained under the first schedule of the Act.

  • The words in a will do not have to be technical. They should only be able to show the intention of the person making the will.
  • A will is to be read as a whole and provisions read in connection to each other. However where they do not relate, the last provision shall prevail.
  • A will speaks from the date of death unless a contrary intention appears by the will.
  • Negative words in a will shall not be sufficient to exclude a person entitled on intestacy and in order to effect such an exclusion there must be an actual gift to some other definite object
  • Any technical words used in a will shall be interpreted to give their technical meaning unless the context clearly differs.
  • Words generally used in a will shall be interpreted in their ordinary and grammatical sense.
  • Words used more than once shall be assumed to give the same meaning unless context differs.
  • Where a person making a will uses an additional word or phrase, an additional meaning shall be presumed unless the context clearly indicates the contrary.
  • Words used in a will shall be interpreted to provide meaning thus making them relevant.
  • The construction of a will shall not be varied by events subsequent to its execution, but in determining the meaning of particular expressions regard may be had to circumstances which, at the date of execution, were capable of arising subsequent to that date.
  • Unless a contrary intention appears from the will, where a testator declares that his property shall devolve according to Islamic law, the Islamic law applicable shall be the law of the sect or school of Islamic law to which the deceased belonged.

Section 23 provides that;- Testamentary gifts and dispositions shall fail by way of lapse or ademption in the circumstances and manner and to the extent provided by the Second Schedule

  • By lapse
  • Ademption

Under paragraph 1 of the second schedule, a gift is said to lapse if the beneficiary dies before the person who made the will bequeathing the gift to him.

A gift does not lapse where;

  • The gift or disposition is made in discharge of a moral obligation recognized by the person making the will; or
  • The gift or disposition is in favour of any child or other issue of the person making the will, for any estate or interest not determinable at or before the death of the child or other issue and the child or other issue, as the case may be, leaves issue surviving the person making the will, but in either case the gift or disposition shall take effect as if the deceased legatee had died immediately after the person making the will.

Paragraph 8 of schedule 2 provides;

If property which has been specifically bequeathed does not belong to the testator at the time of his death, or has been converted into property of a different kind, the gift cannot take effect, by reason of the subject thereof having been withdrawn from the operation of the will; and where a gift fails on this account, it is said to be "adeemed".

For a gift to be adeemed;- There must be a substantial change in the subject of a specific legacy.

This is provided under section 51 of the Act read together with Rule 7 to 14 of the Probate and Administration Rules.

One first needs to qualify to apply for grant under section 56(1) of the Act;- No grant of representation shall be made to;

  • A minor
  • A person of unsound mind
  • Bankrupt
  • More than four persons in respect of the same property

Application forms/documents required;

· Petition in the appropriate form

· Certificate of death (certified copy by commissioner for Oaths).

· Affidavit in support of the Petition duly executed.

· Letter from the chief or any authority confirming the Beneficiaries of the deceased estate

· Guarantors/sureties (where necessary)

· Banking slips for advertisement in the special issue of the Kenya Gazette (for full Grants)

· Evidence of ownership of assets (copies of title documents).

· Consent from adult beneficiaries not applying in cases of intestate succession

· More than One (1) Petitioner to apply in the event that the estate comprises of minors

· Original Will and two (2) copies in matters of testate succession

· Certified true copy of grant (for resealing of grant made outside Kenya)

  • Contact details: physical address, E-mail, telephone number and postal address.

This is contained in section 67 to 73 of the Act.

  • The application in the form of a petition will be advertised in the Kenya Gazette as a succession cause for not less than a thirty (30) day period whereby any objections may be received from persons who feel entitled to the estate. Notice of application is also to be exhibited conspicuously at the court house or any other place the court directs.
  • Objections are lodged by way of petition and they suspend the advertisement until their determination.
  • Whether or not there is a dispute as to the grant, every court shall have power, before making a grant of representation to—
    • examine any applicant on oath or affirmation; or
    • call for further evidence as to the due execution or contents of the will or some other will, the making of an oral will, the rights of dependants and of persons claiming interests on intestacy, or any other matter which appears to require further investigation before a grant is made; or
    • issue a special, citation to any person appearing to have reason to object to the application.
  • If there is no objection after the notice elapses the person whose name appeared on the cause gets a temporary grant for the administration of deceased’s estate which lasts for six months during which this person is referred to as ‘personal representative’ and cannot distribute the estate of the deceased but collects and preserves the assets of the deceased.
  • After six months have elapsed from date of deceased’s death, one can petition the court for confirmation of grant of letters of administration to empower distribution  of any capital assets.

What are they?

A gift in contemplation of death refers to a gift made by a person during their lifetime that is conditional upon their death.

 

When are they valid?

According to Section 31,they are valid if;

  • The person making the gift is at the time expecting the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger; and
  • A person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will; and
  • There is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title of the gift and
  • A person makes a gift in such circumstances as to show that he intended it to revert to him should he survive that illness or danger; and
  • The person making that gift dies from any cause without having survived that same illness or danger; and
  • The intended beneficiary survives the person who made the gift to him:

A gift in contemplation of death is not valid if:

  • The person making the gift commits suicide
  • The person making the gift may, at any time before his death, lawfully request its return.

This is referred to as intestacy.

Section 34 of the Act provides for the meaning of intestacy;

A person is deemed to die intestate (without a will) in respect of all his free property of which he has not made a will which is capable of taking effect.

  1. Where deceased has left one spouse and child/ children

Section 35 provides that in such a case the surviving spouse shall be entitled to—

  • The personal and household effects of the deceased completely; and
  • A life interest(ends upon death or remarriage to another person) in the whole residue of the net intestate estate:
  • During the continuation of the life interest have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date. A child may challenge the appointment under if he deems it unreasonably exercised by applying to the court either by himself or through a representative if he is a minor by applying to court for the appointment of his share. In considering such an application, the court shall considers;
    • the nature and amount of the deceased’s property;
    • any past, present or future capital or income from any source of the applicant and of the surviving spouse;
    • the existing and future means and needs of the applicant and the surviving spouse;
    • whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;
    • the conduct of the applicant in relation to the deceased and to the surviving spouse;
    • the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and
    • the general circumstances of the case including the surviving spouse’s reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section
  1. Where deceased has left one spouse and no child

Section 36 of the Act provides that in such a case the surviving spouse shall be entitled out of the net intestate estate to—

  • The personal and household effects of the deceased absolutely; and
  • The first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and
  • Life interest in the whole of the remainder: Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person.
  1. Where deceased has left a child/ children but no spouse

Section 38 of the Act provides that in such a case the net intestate estate shall devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.

  1. Where deceased has left no spouse or children

Section 39 provides that in such a case the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority

  • Father; or if dead
  • Mother; or if dead
  • Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
  • Half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
  • The relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
  • Failing survival by any of the persons mentioned above, the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.
  1. Where deceased was polygamous

Section 40 of the Act provides that in such a case;

  • His personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
  • The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38 (discussed above)

 On this aspect Section 91 of cap 160 provides that;

Where a person not having his domicile in Kenya has died leaving assets both in Kenya and in the country in which he had his domicile at the time of his death, and there has been a grant of representation in Kenya with respect to the assets there, and a grant of representation in the country of domicile with respect to the assets in that country, the personal representatives in Kenya, after having given such notices as are required by paragraph 5 of the Sixth Schedule and after having discharged, at the expiration of the time therein named, such lawful claims as have come to their notice, may, instead of themselves distributing any surplus or residue of the deceased’s property to persons residing out of Kenya who are entitled thereto, transfer, with the consent of the personal representatives in the country of domicile, the surplus or residue to those personal representatives for distribution to those persons.

This process is done through the sealing of the foreign grant to have effect within Kenya. This procedure is provided under section 77 of the Act and rule 42 of the Probate and Administration Rules.

Note: Forms are contained in the Probate and Administration Rules

  • Every such application shall be brought by petition in Form 81 or 82 supported by affidavit in Form 7 and shall be dealt with by a judge of the High Court.           
  • There shall be produced on every such application either—
  1. The original grant; or
  2. A duplicate of the grant sealed with the seal of the court or other authority which issued the grant; or
  3. A copy of the grant certified by or on behalf of such court or authority; or
  4. The original power of attorney (if any) in exercise of which the application is made.
  • There shall be filed in the registry with every such application—

(a) a certificate from the Estate Duty Commissioner either to the effect that all estate duty payable to him has been or will be paid or to the effect that no such duty is payable, or alternatively such evidence as the registrar shall require that no such duty is payable;

(b) unless the registrar otherwise directs, a full inventory of the assets and liabilities of the estate of the deceased in Kenya;

(c) such evidence (if any) as the court may require as to the domicile of the deceased; and

(d) such proof (if any) as the registrar may require of or in relation to the death of the deceased.

  • Where it is sought to seal a grant of representation issued in another country the court may on the application of a creditor require the applicant to give, within a time to be limited and in accordance with section 77(2)(c) of the Act, adequate security in Form 58 specifically for the payment of debts due from the estate to creditors residing within the jurisdiction.
  • The registrar shall cause to be inserted in the Gazette and to be exhibited conspicuously in the courthouse attached to the registry a notice in Form 71 of the application for the sealing, inviting objections thereto to be made known to that registry within a period to be specified in the notice of not less than thirty days from the date of such respective publications.
  • At the expiry of the notice, if there is no objection and all the necessary requirements have been complied with, the court may make an order for sealing the grant.
  • A limited or temporary grant may be sealed only upon the filing of a certificate from the issuing court or authority that the grant to be sealed is, on the date of application, still valid and in force.
  • Every grant lodged for sealing shall include or be accompanied by a copy of any will to which the grant relates certified as correct by or under the authority of the court or authority by which the grant was made, which copy shall be filed in the registry.
  • If prior to the expiration of the notice referred to in subrule (5) an objection in writing has been filed in the registry through which the application for sealing is made, the registrar shall forthwith submit the objection to the court for directions whereupon the court shall require the objector within a time to be limited to file evidence by affidavit in support of the objection, in default of which the objection shall be deemed to have been withdrawn:

Provided that the judge may for reasons to be recorded extend such time prior to its expiration.

  • Where an objector has filed his objection and affidavit as required by subrule (10) the court shall give directions for the hearing of the objection.
  • On sealing a grant the registrar shall endorse on the grant under the seal of the High Court a certificate confirming that the grant has been sealed for use within Kenya by an order of the High Court and giving the date of the order.
  • The registrar shall send notice in Form 72 of the sealing to the court or authority which made the grant.
  • Where notice is received in the principal registry of the sealing in another country of a Kenya grant, notice of any amendment or revocation of the grant shall forthwith be sent by the principal registrar to the court by which it was sealed.

Section 51 - Application for grant of representation

Types of application

  • Application for grant of probate-where deceased left a valid will
  • Application for grant of letters of administration with will annexed- ‘Letters of administration with the will annexed’ are issued where the deceased has left a valid will but the executor cannot, or will not, apply for a grant. Generally, the grant is made in favour of the persons with the greatest interest under the will.
  • Application for grant of letters of administration where deceased died without a will

Who can be an administrator where there is no will (list in order of priority)

Section 66 provides for the order of priority;

  • Surviving spouse or spouses, with or without association of other beneficiaries;
  • Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
  • The Public Trustee; and
  • Creditors:

 

Section 82 provides for the powers of an administrator. They are;

  • To enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
  • To sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—
    • any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and
    • no immovable property shall be sold before confirmation of the grant;
  • To assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;
  • To appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation:

Provided that except so far as otherwise expressly provided by any will—

  • no appropriation shall be made so as to affect adversely any specific legacy;
  • no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required.

Personal representatives shall have the following duties—

  • to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him;
  • to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;
  • to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);
  • to ascertain and pay, out of the estate of the deceased, all his debts;
  • within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;
  • subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;
  • within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration;
  • to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;
  • to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

Powers and responsibilities in relation to the Act have been awarded to the administrator/personal representative. The beneficiaries of the deceased can be said to have certain rights  exercised against the administrator, interpreted from the duties and responsibilities of the administrator/personal representative. These include the right to;

  • Be informed whether or not the deceased left a valid Will
  • Be informed if there is a liability that attaches to the entitlement of a beneficiary, including tax and costs as a result of being a beneficiary, the administrator must notify the beneficiary of these liabilities.
  • Be informed if there is going to be a delay in the distribution of assets from the Estate, and provide reasoning for the delay.
  • Be informed of any legal claims or proceedings against the estate
  • Be informed of the status of the estate

 

Section 76 provides for the revocation or annulment of a grant;

A grant of representation may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

  • That the proceedings to obtain the grant were defective in substance;
  • That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
  • That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
  • That the person to whom the grant was made has failed, after due notice and without reasonable cause either—
    • to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
    • to proceed diligently with the administration of the estate; or
    • to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
  • That the grant has become useless and inoperative through subsequent circumstances

 

Process of Revoking a Grant(Rule 44 of the Probate and Administration Rules)

  • Process can be invoked by an interested party under section 76 of the Act
  • Apply to the High Court by summons in Form 107 and, where the grant was issued through the High Court, such application shall be made through the registry to which and in the cause in which the grant was issued or, where the grant was issued by a resident magistrate, through the High Court registry situated nearest to that resident magistrate’s registry.
  • There shall be filed with the summons an affidavit of the applicant in Form 14 for revocation or annulment identifying the cause and the grant and containing the following particulars so far as they are known to him—
    • Whether the applicant seeks to have the grant revoked or annulled and the grounds and facts upon which the application is based; and
    • The extent to which the estate of the deceased has been or is believed to have been administered or to remain unadministered, together with any other material information.
  • The summons and affidavit shall without delay be placed by the registrar before the High Court on notice in Form 70 to the applicant for the giving of directions as to what persons (if any) shall be served by the applicant with a copy of the summons and affidavit and as to the manner of effecting service; and the applicant, upon the giving of directions, shall serve each of the persons so directed to be served with a notice in Form 68, and every person so served may file an affidavit stating whether he supports or opposes the application and his grounds therefor.
  • When the persons (if any) so directed to be served (or such of them as the applicant has been able to serve) have been served with a copy of the proceedings, the matter shall be placed before the High Court on notice by the court to the applicant and to every person so served, and the court may either proceed to determine the application or make such other order as it sees fit.
  • Where the High Court requires that notice shall be given to any person of its intention of its own motion to revoke or annual a grant on any of the grounds set out in section 76 of the Act the notice shall be in Form 69 and shall be served on such persons as the court may direct.

 

SECTION

OFFENCE

PENALTY

45

Intermeddling with the property of a deceased person

Maximum Fine Kshs.10,000/- OR Maximum 1 year imprisonment OR both

52

Willful and reckless statements in application for grant

Maximum Fine of Kshs 10,000/= or Maximum 1 year imprisonment or both

95(1)

Any personal representative who, as regards the estate in respect of which representation has been granted to him—

(a) wilfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or

(b) wilfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of section 83; or

(c) wilfully or recklessly produces any such inventory or account which is false in any material particular; or

(d) knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy.

Maximum Fine of Kshs 10,000/= or Maximum 1 year imprisonment or both

95(2)

 

 

 

 

 

Any personal representative who, as regards the estate in respect of which representation has been granted to him if at any time there is a continuing trust and he is the sole surviving administrator, wilfully fails to apply to the court within three months in accordance with section 75A for the appointment of further administrators shall be guilty of an offence and shall be liable to a fine not exceeding five thousand shillings.

Maximum fine of Kshs 5,000/=

94

Neglect or misapplication of assets by personal representatives

He shall, whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.

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