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;
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;
In order for a written will to be valid, section 11 provides;
A competent person can witness a will. Section 3(1) provides for a competent witness, that is;
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
How to change the will
Section 29 provides that a dependant means;
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;
These are explained under the first schedule of the Act.
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
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;
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;
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)
This is contained in section 67 to 73 of the Act.
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;
A gift in contemplation of death is not valid if:
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.
Section 35 provides that in such a case the surviving spouse shall be entitled to—
Section 36 of the Act provides that in such a case the surviving spouse shall be entitled out of the net intestate estate to—
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.
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
Section 40 of the Act provides that in such a case;
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
(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.
Provided that the judge may for reasons to be recorded extend such time prior to its expiration.
Section 51 - Application for grant of representation
Types of application
Who can be an administrator where there is no will (list in order of priority)
Section 66 provides for the order of priority;
Section 82 provides for the powers of an administrator. They are;
Provided that except so far as otherwise expressly provided by any will—
Personal representatives shall have the following duties—
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;
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—
Process of Revoking a Grant(Rule 44 of the Probate and Administration Rules)
Intermeddling with the property of a deceased person
Maximum Fine Kshs.10,000/- OR Maximum 1 year imprisonment OR both
Willful and reckless statements in application for grant
Maximum Fine of Kshs 10,000/= or Maximum 1 year imprisonment or both
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
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/=
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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