DEFINITION OF TERMS
Administrator: A person appointed by the court to manage and take charge of the assets and liabilities of a decedent who has died without making a valid will. An administrator is appointed by the court where the testator had made an incomplete will without naming any executors or had named incapable persons, or where the executors named refuse to act.
Beneficiary: Is a person who inherits the properties of the deceased under a Will. In a broad definition for any person or entity (like a charity) who is to receive assets or profits from an estate, a trust, an insurance policy or any instrument in which there is distribution.
Contentious: This relates to a cause or legal business that is contested or opposed in court.
Estate: An estate is the net worth of a person at any point in time alive or dead. It is the sum of a person’s assets, legal rights, interests and entitlements to property of any kind less all liabilities at that time.
Executor/Executrix: A person who administers the estate of a deceased person. The executor (if male) or executrix (if female) is responsible for gathering all of the deceased’s assets and giving them to the appropriate beneficiaries. He/she is often a family member or lawyer who is either appointed in the deceased’s will or by a court. The executor/executrix has a fiduciary responsibility to act on behalf of the deceased and to fulfill, as closely as possible, the wishes set forth in the will.
Grant of probate: authorization by a court for the executor of an estate to begin to administer the assets of a deceased person. This contrasts with a grant of administration, which is a similar authorization given to a person if the deceased dies without a Will.
Intestate succession: When a person dies without leaving or writing a valid and Enforceable Will.
Succession: Is the process of passing over ownership of property from the deceased to other people who are either named in a Will or entitled to inherit the assets and estate of the deceased person.
Testate Succession: When one die having written a valid and enforceable Will is said to have died testate. Testate succession occurs where a person desirous of retaining absolute or limited control over his property after death, arranges to ensure that upon his death the property passes to a person or persons of his choice. These arrangements are made through a valid and enforceable will.
Testator: A person who writes and, if necessary, registers a will. The will states how and to whom the testator wants his/her property transferred after death. In addition to transferring property, the testator may specify how certain responsibilities are to be performed.
Viva voce: By word of mouth
Will: a will is a record of a deceased person’s wishes and intentions pertaining to the devolution of his property upon his death. It is the legal declaration by a person of his intentions or wishes regarding the disposition of his property after his death duly made and executed in accordance with the Act.
FAMILY LAW AND SUCCESSION.
Family Law and Succession is a thematic area in law that forms the backbone of Law since the basic unit of a society is family and the processes of transferring rights of any properties that have been left behind by any member of a family is known as succession. Society has over the years been having its own rules and guidelines which keeps it in check for a smooth transition in the day to day activities. These rules and guidelines have over the years turned into laws that govern society and in which Family Law and Succession was conceptualized to guide the dynamics of this area of law. Law of Succession Act deals with the inheritance of the deceased person, Inheritance is the practice of passing on property, debts, rights & obligations on the death of an individual.
Succession arises out of 3 basic considerations; upon death a person does not take with them property and therefore the property left behind has to pass to those who are living; Human beings need to acquire some property for their own sustenance to satisfy their basic human needs. Inheritance is seen as one of several ways of acquiring property; People desire to have control over their property even upon death. Those who acquire property, don’t want it wasted and succession provides a mechanism for retaining control by a dead person over their property particularly through testate succession.
Succession provides the mechanism by which property devolves from the dead owner to those left behind. It also provides the mechanism for determining the rightful claimant to the property i.e who should be entitled and to what share? How such claimants will be determined and what procedure should be followed by such claimant to access the deceased’s property by heirs or dependants.
The three corners of succession with the Kenyan legal system are:
- Death-death of the owner of property; identity of the heirs only known then..consider the Kirima case;
- Property-whether real or personal
- Administration-by trust, individuals, government
Occurs where a person desires to retain control over his property after death. He/She makes arrangements to ensure that upon his death the property passes to persons or a person of his choice. These arrangements are made through a valid will whether oral or written.
This is the document that provides how the property of the deceased will be distributed upon death; Section. 3(1) of the Law of Succession Act defines a Will as-“will” means the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed according to the provisions of Part II, and includes a codicil.Therefore refers to all that a person wishes to happen after their death with respect to property. A will may therefore be defined as a record of the deceased person’s wishes and intentions pertaining to the devolution of his property upon his death.
A Will being a testamentary document i.e. a document meant to take effect upon death has no legal effect until the maker dies. While the testator is alive a Will does not limit his rights of ownership nor confer any benefits to anyone. Before the testator’s death the Will is a mere declaration of intention with no legal effect whatsoever.
VALIDITY OF A WILL
The requirements of making a valid Will, are predicated upon two (2) factors, namely capacity and form. A Will is only valid if it is made in the proper form by a person of testamentary capacity, i.e. a person who is capable of making a Will or disposing of his property by a will.
Under Kenyan Law no specific form of a will is required. Section 8 of the Act provides that a Will may be either oral or in writing and it may therefore take any form provided it satisfies the laid down requirements of formal validity and this requirement to execution and attestation.
section 9 provides for the formal requirements for an oral will while Section 11 deals with written wills and testimonies.
THE CASE OF AN ORAL WILL
It must be made in the presence of two or more competent witnesses, competent in the sense that the witnesses must have capacity to make a will in their own right. In addition to this is the requirement that the testator should die within 3 months after it is made for it to be valid.
There is a time stipulation of 3 months. The other reason is that such wills are made in a state of panic or fear or anxiety e.g. when the testator is very ill or in a state of imminent danger and persons in such circumstances tend to be irrational in their decisions. The 3 months period is intended to allow them time to reconsider the terms of the will and if possible reduce the same into writing.
There is a proviso to Section 9 (1) (b) which provides an exception to these requirements. The exception covers persons in active service in the Armed Forces or the Merchant Marine in active service. An oral will made by such persons is valid if the person dies in active service, notwithstanding that the will was made more than 3 months before their death. This exception is given to this category of persons on the basis that their conditions of work i.e. their being in active service would normally not allow them the opportunity to comply strictly with the requirements of Section 9.
The Kenyan Courts have held that where a dead person gives instructions regarding the disposal of his assets and the instructions are reduced into writing by the persons recording them such written instructions amount to an oral will provided that the instructions are given in the presence of two or more witnesses.
FORMAL REQUIREMENTS OF A WRITTEN WILL
Section 11 of the Law of Succession Act Cap 160 provides that no written will shall be valid unless it satisfies the following requirements:
- It is signed by the testator or he affixes his mark to the will or it has been signed by some other person in the presence of and by the direction of the testator;
- Unless it appears that the testator intended by his signature or mark or the signature of the person signing for him to give effect to the will i.e. it is not enough that the document must be signed but must be signed in such a way that the testator meant it to give effect and this depends on where the signature is affixed;
- Unless the signature of the testator or the person signing on his behalf is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time; it is acceptable that the document be signed by the testator away from the witnesses and in this case the testator should show the signature to the witnesses and acknowledge it as his.
- Each witness must attest and sign the will in the presence of the testator but not necessarily in the presence of the other witness. The witness is there to attest or to witness the testator signing the document and is not there to witness other witnesses signing the document.
- Since the Act does not prescribe a particular form of the Will it is presumed that it may be handwritten, typed or printed. The handwriting may be that of the testator or of any other person. It may also be in any language. This is clearly implied by Rules 52 (2) and 54 (3) of the Probate and Administration Rules.
GRANTS OF REPRESENTATION
A grant of representation is an order in the form of a certificate issued by the court to confirm that a particular person is to act as a personal representative of the dead person. A grant should be made only in respect to the estate of one deceased person i.e one grant cannot apply to different deceased’s estates. A personal representative steps into the shoes of the deceased such that he/she is able to do the things the deceased would have done if he was alive. Section 53 provides for 2 forms of Grant: A grant of probate and a Grant of Letters of Administration.
GRANT OF PROBATE
Issued in respect of the Estate of a Testate where it is proved that the deceased left a valid will whether oral or written. The Grant of Probate should be in respect of all the property which the Will provides for; which means property that is not provided for in the will is the subject of intestacy. A grant of Probate is made to the executor or executors named in the Will. A grant of probate merely confirms the authority of the executor which authority is given by the Will. A properly drafted Will should name an executor. Persons who can be named executors include; spouses, children of deceased, banks, advocates, friends and the public trustee.
When applying for a Grant of Probate, the following documents should be included in the Petition by the Petitioner:
- Forms P & A 78 (The Petition)
- P & A 3 (Affidavit in support of petition of probate)
- Original Will
- Original death certificate of the deceased
- Form 37 (Consent)
Intestacy occurs where:
- A person dies without having made a Will
- Where a Will is rendered invalid by court whether partially or wholly
- Where a person revokes his Will and subsequently dies without having made another one.
Rules of intestacy determine who is entitled to the property of a person who dies intestate and these rules are contained in Part 5 of the Law of Succession Act (Section 32-42). The rules of intestacy do not apply where the deceased died testate, even if the Will seems unfair. The court should not
disregard the Will even if it’s unfair. If a survivor feels that the Will is unfair they should apply to court for redistribution of the property.
Administration of the estate of the deceased entails 3 main things:
- The collection and preservation of the Estate, bringing the assets together and preserving them. Collection may involve litigation.
- Payment of deceased’s funeral, testamentary and administration expenses and all the deceased’s debts and other liabilities.
- The distribution of the Estate.
These 3 are the stages of administration. The administration of the estate is the responsibility of the personal representative of the deceased whether the deceased died testate or intestate. Section 45 of the Law of Succession Act makes it an offence for any person to handle, take possession dispose of or otherwise intermeddle with the property of a deceased person unless authorized by law so to do i.e. by a grant of representation or some other legal authority.
GRANT OF LETTER OF ADMINISTRATION
Is given in two instances:
- Where the deceased left a will but there is no executor either because the will has not named an executor ;or the executor died before the testator; or the executor is unwilling to act; or has failed to take out a grant of probate.
- Where the deceased died intestate,; In this case the Grant should be made in respect of the intestate estate.
GRANT AD LITEM
It is granted to enable someone represent the Estate where the Estate has been sued or where the Estate intends to sue but a full grant has not been given. If the limitation period for filing a case is running out and one is afraid they won’t get the full grant before it expires one can rush to court and apply for grant ad litem. It cannot be used to distribute the Estate but one can use it to sue.
PERSONS ENTITLED TO APPLY FOR GRANT OF LETTERS OF ADMINISTRATION
Under Section 66 of the Law of Succession Act, those entitled to apply include those connected to the intestate by marriage or consanguinity. As a general rule the order of next of kin in respect of right of administration is as follows:
- Husband/Wife (Spouse)
- Great grandchildren
- Ascendants i.e parents of the deceased
- Father/ Mother
- All other relatives
If there are no relatives or the relatives cannot agree on who should apply for Grant of Letters of Administration, then the public trustees are entitled to file for an application of the letters of administration.
The practice in Kenya is that where the Petitioner’s right of administration is inferior or equal to that of other persons, the consent of those others with prior right or equal right must be obtained. This takes the form of renunciation of the right of probate or right of administration.
In making an application for Grant of Letters of Administration Intestate, the following documents have to be attached to the petition.
- P&A 80 (Petition
- P & A 5 (Affidavit
- P & A 12 (Affidavit of means)
- P &A 11 (Affidavit of justification of proposed sureties)
- P & A 57 (Guarantee of personal sureties)
- Death certificate
A grant of representation should not be issued until there has been published a notice of the applied Grant inviting objections. It is a notice informing the world that a person has applied for a grant of representation and if one has an objection they can raise it. It is published in the Kenya Gazette although it may also be published in the daily press. Any objections should be lodged with the court. Upon the lodge of the objection the court should give notice to the objector to file an answer to the petitioner for grant of representation and a cross petition. A cross petition is an application by the objector asking that a Grant be made in their favour.
The objection seeks to stop the grant being made to the person who has petitioned for it. The petitioner can argue that the person applying for the grant is not qualified to be issued with the grant. If this happens a cross petition is needed so that if the petitioner is not the proper person then they can give the grant to the objector. Where an objection is filed in court but subsequently
no answer or cross petition is made within the prescribed period, the court should be at liberty to make a grant in terms of the original petition.
Where an answer or cross petition is filed, the court should proceed to determine the dispute i.e. it becomes contentious and at this point the court has got to conduct a full trial or hearing. Normally petitions for grants of representations are dealt with administratively i.e. after filing the petition the same is scrutinised by the Probate & Administration registry and a Grant signed by the judge or magistrate where there are no objections. Where there are objections the court has to hear the dispute before it can make a grant.
REVOCATION OF GRANTS
A Grant whether or not confirmed may be revoked or annulled at any time by the Court on its own motion or on application by an interested party. This is provided for under Section 76 of the Act. Revocation can be made on any of the following grounds:
- Where the proceedings to obtain the Grant are defective in substance.
- Where the grant is obtained by reliance on a false statement, non-disclosure or concealment of important information or matter.
- Where the person to whom the Grant was made has failed to apply for confirmation within the prescribed period of 6 months or failed to diligently administer the Estate.
CONFIRMATION OF GRANT
The personal representatives are obliged by Section 71 of the Act to apply for confirmation of the Grant after the expiration of 6 months .There is provision also for applying within a shorter time i.e. other than the expiration of 6 months or as the court may direct. The confirmation entitles the personal representatives to distribute the capital assets and the personal assets. The confirmation ascertains the capital assets that make up the estate which are available for distribution and it is also meant to confirm the beneficiaries of such assets and the shares that each of the dependants are entitled to.
Upon the application being made, the court may confirm the grant or if not satisfied that the applicant will properly administer the Estate, issue a confirmed grant to another person i.e. other than the personal representative who has made the application. It may also postpone the confirmation to allow the applicant to put his affairs in order. The confirmation can only be applied for by the person named in the grant i.e. the holder of the grant applies for confirmation of the grant.
In respect of intestacy, the grant of letters should not be confirmed until the court is satisfied about the identities and shares of all persons beneficially entitled. The confirmed grant should specify all such persons and their respective shares. It is the confirmed grant that one presents to the bank to get the money left to various beneficiaries.
SUMMONS FOR CONFIRMATION OF GRANT.
The application for confirmation takes the form of a summons for confirmation (rule 40 Probate and Administration Rules) supported by an affidavit giving details of the persons who have survived the deceased. The application is basically non-contentious, but it becomes contentious if a protest is lodged against the confirmation by either a caveatee or the beneficiaries notified of the application. Confirmation means the confirmation of the contents in the grant, the appointment of personal representatives and the proposed distribution of the estate of the deceased person involved.