PROBATE AND ADMINISTRATION NOTES

CHAPTER 1: TESTATE SUCCESSION THE NATURE AND FUNCTION OF WILLS

 

1.       INTRODUCTION

·       Testate succession occurs where a person desirous of retaining absolute or limited control over his property after death arranged to ensure that upon his death, the property passes to a person of his choice

·       These arrangements are made through a valid and enforceable will

 

2.       NATURE AND FUNCTION OF WILLS

·       The word ‘will’ refers to all that a person wishes to happen upon their death – It is a record of a deceased person’s wishes and intentions pertaining to the devolution of his property upon his death

·       Section 3(1), LSA: it is a ‘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’

·       It is primarily concerned with the disposal of property, but can be employed for other purposes, e.g. appointment of persons to administer the estate of the testator, the appointment of trustees to administer trusts set up under the will, appointment of guardians for children who are minors at the date of the testator’s death, etc.

 

3.       CHARACTERISTICS OF A WILL

·       A will has no effect until the testator dies – while he is alive, it neither limits his rights of ownership nor confers any benefits to anyone

·       Before the testator’s death, the document is a mere declaration of intention with no legal effect whatsoever

 

3.1    A WILL ONLY TAKES EFFECT AFTER DEATH

·       Any document made and executed in accordance with the law may take effect as a will if the intention was that it should not operate until after the death of the maker – i.e. the test is the time the gift takes effect

·       Where there is nothing in the instrument making reference to the death of the person executing it, it cannot take effect as a will (even if it is described as a will)

·       A will only takes effect upon death and so the beneficiaries under a will do not acquire any interest in the property before the testator’s death. Thus, a gift to a beneficiary who dies between the time of making the will and the death of the testator lapses or is deemed null and void

 

3.2    A WILL ONLY OPERATES AS AN EXPRESSION OF INTENTION

·       Execution of a will does not affect the manner in which the testator deals with his property during his lifetime – i.e. he is free to dispose of the property given in the will by sale or gift during his lifetime

·       It is not a fetter to the testator’s discretion to deal with their property as they please during their lifetime

·       The personal representatives/executors are under a duty to settle all debts and liabilities of the deceased (Section 83, LSA) while Section 99, LSA vests the property of the deceased in the personal representative or executor

·       If the debts of the estate are large, the gifts (including gifts of a specific asset) may be absorbed for the payment of debts

·       Thus, a will is a mere declaration of intention with no guarantee that the wishes expressed in it would be carried to effect

 

3.3    A WILL IS AMBULATORY

·       The fact that a will takes effect upon death makes it ambulatory

·       A will is also capable of dealing with property acquired after the making of the will, e.g. if the will contains a clause to the effect that all the testator’s land was to pass to his beneficiary, this would be taken to include and land he acquired after making the will

 

3.4    A WILL IS ALWAYS REVOCABLE

·       As a will only takes effect upon death and is a mere declaration of intention, it is always revocable

·       A will may be revoked even where it expressly states that it is not revocable

 

4.       THE ADVANTAGES OF MAKING A WILL

·       Majority of people die without having made a will for various reasons, e.g. reluctance to contemplate their own death, belief that a will is pointless in their vase, fear that the will may generate controversy upon their demise, etc.

 

4.1    MAINTAINING CONTROL OVER PROPERTY

·       A will enables the testator to maintain control over property upon his demise – this is especially important for a person with a spouse and children

·       For example: if a wife makes a will leaving the entire estate to her husband, she loses control over the ultimate destination of the property upon the death of her husband if she dies first. However, she could achieve control by giving her husband a life interest in her estate with the remainder passing on to the children upon his death (a life interest only entitles the husband to income from the estate)

 

4.2    AVOIDING THE RULES OF INTESTACY

·       The decision to make, change or revoke a will gives the testator an opportunity to consider his own affairs and do decide with a sober mind who should inherit what from his estate, instead of leaving this important decision to be made by other people after his death

·       The shares of the estate that the next of kin receive under the rules of intestacy are arbitrary and they are often unsuitable in the circumstances of the case

·       A will is a beneficial act which should be employed as opposed to allowing the impersonal provisions of intestacy to take effect, with the effect that the unexpressed intentions of the deceased might never see light

 

4.3    ENABLING THE DECEASED TO APPOINT A PERSONAL REPRESENTATIVE OF THEIR OWN CHOICE

·       The making of a will entitles a testator to appoint personal representatives of their own choice to administer their estate, this allows the testator to ensure that his estate will be well administered by people in whom he has confidence and who are probably well acquainted with the estate

·       If a person dies intestate, the persons who administer the estate are appointed by the court (‘personal representatives’)

 

4.4    ADMINISTRATIVE CONVENIENCE

·       Administrators of estates derive their authority to administer the estate from the grant of letters of administration while the executors derive their authority from the will, thus, executors can administer the estate from the date of the deceased’s death and the grant of probate merely confirms their authority

·       Applying for and obtaining a grant of letters of administration always takes time, meaning that there is always a considerable lapse of time between the death of the deceased and the grant of letters

·       The estate of an intestate cannot be administered until grant of letters of administration have been obtained, exposing the dependants of the intestate to inconvenience

·       In addition, the powers of the administrator of an intestate’s estate are limited by the LSA

 

4.5    FULL DISCLOSURE OF THE DECEASED’S PROPERTY

·       The making of a will enables the testator to make a full disclosure of all the property they own or die possessed of

·       This may not be possible in the case of intestacy where a lot of the undisclosed property and/or assets may be lost

 

4.6    AVOIDING DISPUTES OVER THE ESTATE

·       By providing how and to whom the property is to pass upon the testator’s death, making a will avoids squabbles between heirs and survivors over the estate

 

4.7    BENEFITING PERSONS OUTSIDE THE IMMEDIATE FAMILY

·       The rules of intestacy only make provision for the deceased’s next of kin

·       It is only by making a will that a testator can benefit persons outside the immediately family (if he so desires)

 

4.8    APPOINTMENT OF TESTAMENTARY GUARDIANS

·       A will enables a parent who has minor children, if they so wish, to appoint a guardian or guardians to take parental responsibility for the children should he or she die while the children are minors

·       This is especially important (and recommended) in single-parent households

4.9    DIRECTIONS REGARDING DISPOSAL OF DECEASED’S BODY

·       A will enables the testator to give directions regarding the disposal of their body

·       E.g. they may wish to state how to dispose of their body, or they may wish that their body (or part of it) be donated for the purpose of medical education, scientific research or treatment of patients

·       However, such provisions have no legal effect as the law recognises no property in the dead body of a human being – such

provisions amount to a mere request to executors to comply with the testator’s wishes

 

CASE	HOLDING
Pauline Ndete Kinyota v Rael Kinyota	There is no property in a corpse, which a testator can validly dispose of by his will. The executor’s obligation is to give effect to the deceased’s wishes in relation to the disposition of his corpse as far as is practicable. The executor is not bound to give effect to those wishes if they are either impracticable or in conflict with the personal law of the deceased
James Apeli and Another v Prisca Buluku	There can be no property in a dead body and a person cannot dispose of his body by will. The wishes of the deceased, though not binding must, so far as possible, be given effect, so long as they are not contrary to custom nor contrary to the general law or public policy or safety

 

5.       PROPERTY PASSING UPON DEATH OTHER THAN BY WILL

 

5.1    SURVIVORSHIP

·       This applies in cases of joint tenancies where the property is jointly owned

·       Where the co-owner of a property is a beneficial joint-tenant, whether real or personal, their interest will automatically pass to the surviving joint tenant(s) upon their death by virtue of the principle of survivorship (‘jus ascrendi’)

·       Upon the demise of one of the tenants, that tenant’s interest would automatically merge with that of the surviving tenant

·       The principle of survivorship operates to remove jointly owned property from the operation of the law of succession upon the death of a spouse who jointly owns property with the other spouse

·       The property does not form part of the deceased spouse’s estate and it cannot pass by that deceased spouse’s will

·       This contrasts with the principle of tenancy in common – the interests of the common tenants are clear and distinct, such that in the event of the death of one tenant, there is no merger of interests and the beneficial share of a common tenant can pass under their will

 

STATUTORY PROVISION	WHAT IT STATES
Section     43,                 Law    of Succession Act	For the purposes of determining survivorship in the event of two or more persons dying simultaneously, it shall be presumed that the deaths occurred in order of seniority with the younger person surviving the older person. In the case of spouses, it shall be presumed that they died simultaneously.
Section 101, Registered Land Act	In an instrument made in favour of two or more persons, the registration shall show whether such persons are joint proprietors or proprietors in common
Section 102, Registered Land Act	Where land, lease or charge is owned jointly, no proprietor is entitled to any separate share on the land, and consequently, a disposition may be made only by all the joint proprietors and upon the death of a joint proprietor, his interest shall vest in the surviving proprietors jointly
Section 118, Registered Land Act	If one of two or more proprietors of land dies, the name of the proprietor is deleted from the register

5.2    NOMINATION

·       A nomination is a direction by a person, called the nominator, to another who is holding an investment on the nominator’s behalf. To pay the funds on the nominator’s death to a third party, called the nominee

·       The direction is made during the nominator’s lifetime but the gift only takes effect upon the death of the nominator

·       A nomination operates under the rules of a particular scheme, and although it disposes of property upon death, it does

not comply with the formalities of and is not subject to the Law of Succession

·       The property, which is the subject of a nomination, does not form part of the nominator’s estate and cannot pass under a

will – i.e. it does not vest in the personal representatives of the nominator’s estate

·       Consequently, the payer does not require a grant (of probate or letters of administration) before paying the funds to the

nominee; the payer only needs to see the nominator’s death certificate

·       The nominee does not have an interest in the nominated funds during the lifetime of the nominator, who may deal freely with such property during the subsistence of their lifetime

·       A nomination may be revoked by:

o   A later nomination;

o   The subsequent marriage of the nominator; and

o   The death of the nominee prior to the death of the nominator

·       A nomination cannot be revoked by a subsequent will or codicil

·       In Kenya, nominations are made mainly with respect to Savings and Investments in Cooperative Societies and Provident or Pension Schemes

·       The nominations under the Cooperative Societies Act are statutory, e.g. Section 39(1) of the Co-operative Societies Act of 1997 provides that upon the death of a member, a co-operative society may transfer the share or interest of the deceased member to: a person nominated in accordance with the Act or the rules made under it; or, if no person has been nominated, to such person as may appear to be the personal representative of the deceased member

·       The nomination under the discretionary pension schemes is not binding on the trustees of the scheme since the trustees are usually given discretion under the rules of the scheme to exercise their discretion in favour of the nominated person or disregard the nomination altogether and make payment to the dependants of the deceased

o   The nominations under the discretionary pension schemes differ from statutory nominations in that they are not

binding on the trustees of the pension fund but are merely indication of the deceased’s wishes

o   The trustees are not bound to pay the nominated funds to the nominee and the funds under the discretionary pension scheme do not form part of the deceased’s estate à E.g. Rule 19, Retirements Benefits (Individual Retirement Benefits Schemes) Regulations 2000

 

5.3    DONATIO MORTIS CAUSA [GIFT IN CONTEMPLATION OF DEATH]

·       These are dealt with according to Section 31, LSA

·       A donatio mortis causa is a gift made by a person during their lifetime that is conditional upon their death

·       It is similar to a lifetime gift in that the subject matter of the gift is delivered to the donee during the donor’s lifetime, but the gift takes place upon the death of the donor

·       It cannot be revoked by a subsequent will and cannot be given away as a gift under a will to someone else (as it is not free

property, i.e. it is not a testamentary gift and so cannot form part of the deceased’s estate)

·       However, where the estate proves insufficient to pay the deceased’s debts, the subject matter of a donation mortis causa

may be used (Re Korvine’s Trust)

 

CONDITIONS FOR A VALID DONATIO MORTIS CAUSA [CAIN v MOON]

It must be a gift in contemplation of death

·    Section 31(a), LSA: a gift in contemplation of death would be valid if the person making the gift is at the time contemplating the possibility of his death because of a present illness/imminent danger ·    The death of the donor need not be imminent, but the donor must believe that they are dying/likely to die in a particular way, e.g. they may believe that they are dying from a terminal disease ·    It is irrelevant that the donor dies from a cause other than the one within their contemplation so long as the condition from which the deceased thought he was dying continued up to the date of the donor’s death – Section 31(e), LSA says that the gift would be valid if the person making the gift dies from any cause without having survived the illness or danger ·    However, the gift would fail if the donor survives the contemplated illness/danger but dies of a different cause and the requirement cannot be satisfied where the donor contemplates their own death by suicide (Section 31(c), LSA)

 

	·    Angnew v Belfast Banking Co: it was against public policy to uphold a gift which was intended to take effect by means of suicide ·    The contemplation of death may be express or implied from the circumstances – Lillington [1952]: the donor expressed opinion that she was ‘done for’ and the court inferred that the gift was made in contemplation of death
It must be conditional upon the donor’s death	·    If the donor does not die, the gift will not take effect and the donor will be entitled to recover possession of the property from the donee, as the gift is conditional upon the death of the donor ·    Courts are likely to imply that a gift is conditional upon death if it is made in the last few days of the donor’s final illness ·    However, where a gift in these circumstances is made in writing, the court is likely to presume that it is either an attempted lifetime gift or a failed testamentary gift ·    A gift in contemplation of death is distinguished from an oral will as an oral will is not usually made in contemplation of death; and while a failure of the death to occur leads to a termination of the gift, the same principle does not apply to an oral will ·    Section 31(d), LSA provides that such a gift is valid if the circumstances show that the donor intended it to revert to him should he survive the contemplated illness or danger ·    In addition, the donor may lawfully request the donee to return the gift at any time before his death
It must be delivered to the donee	·    The donor must have handed over to the donee/his agent the subject matter of the gift or the means of controlling it, i.e. the donor must have parted possession with the subject matter of the gift ·    Section 31(c), LSA: the gift is valid if there is delivery to the intended beneficiary of possession of the property or of documents/other evidence of title of the property ·    Wildish v Fowler: a land lady was handed property by her sick tenant with instructions ‘take care of this’ – it was held that there had been no donation mortis causa of the property as the donor had not parted with dominion over the property ·    Woodward v Woodward: a father handed over keys to his car to his son at a time when he was seriously ill, but the father kept a duplicate set. It was held that the father had effectively parted with dominion over the car because in the circumstances he was so ill only the son had access to the car
It must be capable of making the subject matter of a donation mortis causa	·    The property which is the subject of the gift should be capable of being the subject matter of such a gift ·    Section 31(b), LSA provides that a gift in contemplation of death would be valid if a person gives movable property that he could otherwise dispose of by will ·    Only free property can be the subject of such a donation, e.g. cheques and promissory notes drawn by the donor cannot form the subject of a donatio mortis causa (Re Beaumont)
Donee                     must survive the donor	·    The gift is not to be effective where the donee predeceases the donor ·    Section 31(f), LSA provides that the gift would be valid if the donee survives the person who made the gift to him, however, if the intended donee predeceases the donor, his estate would have no cause of action against the estate of the donor

 

6.       CONDITIONAL AND JOINT WILLS

6.1            CONDITIONAL WILL

·       This refers to a will intended to operate only upon the happening of some event specified in the will – if the event fails to occur, the will would be ineffective

·       It is sometimes difficult to decide whether the probable danger is the motive for making the will or whether the death envisaged in the circumstances is the pre-condition for the operation of the will à however, if it is the motive for making the will then the will would be effective, but where it is a pre-condition to its operation it would be ineffective

 

CASE

HOLDING

Re Spratt’s Goods

An army officer serving in the New Zealand during the Maori War made a privileged will. The same took the form of a letter to his son leaving everything to him should anything happen to the officer. He did not die in the war but he lived on for 32 years without making a new will or revoking the privileged will. It was held that the privileged will was admissible to probate and the son was entitled to take all of his father’s estate

 

The Goods of Dobson

The testator’s will commenced with the words “in case of any fatal accident happening to me being about to travel by railway, I leave” It was held not to be a conditional will. His belief that he might die in the course of the journey was merely the motive in making the will, it was not a pre-condition that he died on the journey before the will operated

 

6.2            JOINT WILL

·       A joint will is created where two or more persons express their wishes upon death in one document

·       The joint will takes effect as the separate wills of the parties who made it

·       For example: a husband and wife could make a joint will. If the wife dies first, it would be admitted to probate as the wife’ s will in the first instance, then when the husband dies, it would be admitted to probate as the will of the husband

CHAPTER 2: CREATION OF A VALID WILL

 

1.       INTRODUCTION

·       A will is only valid if a person of sufficient age and sound mind makes it in the proper form

·       Before the will can take effect, it must first be proved as a valid testamentary disposition, and this process of proving the formal validity of a will is referred to as ‘propounding the will’

 

2.       CAPACITY

·       At common law, a will is invalid unless made by a person who at the time of making it has the capacity to do so

·       As a rule, infants and persons of unsound mind are incapable of making a valid will

·      

This stems from Section 5, LSA which provides for the principle of testamentary freedom, and states that a person is capable of disposing all or any pf his property as long as he is of sound mind and not a minor

 

2.1    AGE

·       Section 2, Age of Majority Act states that a person is of full age and ceased to be under any disability by reason of age upon attaining the age of eighteen years

·       A will made during infancy is invalid unless the testator, upon reaching the age of majority, re-executes it or makes a new will/codicil confirming it

 

2.2    MENTAL OR TESTAMENTARY CAPACITY

·       Persons of unsound mine are incapacitated from making a valid will, although this does not mean that such persons are destined to die intestate

·       If such a person makes the will before his mind becomes afflicted or during a lucid interval, such a will is valid

·       The three-stage test of mental capacity is linked to the testator’s capacity to understand the nature of will making:

(i)            He must have a sound mind, enabling him to understand the nature of the act of making a will and its effects;

(ii)            He must have a sound memory enabling him to have a recollection of the property which he is disposing

(iii)            He must have a good and sound understanding, i.e. should appreciate the moral claims upon him, and a failure to cater for the same could end up with the advocate facing disciplinary action under Section 26, LSA

 

CASE	HOLDING
Vijay Chand Rakant Shah v The Public Trustee	The deceased was very sick from syphilis and diabetes at the time he executed his will, but it was held by the Court of Appeal, on the evidence, that he executed the same during a lucid moment and therefore the will was valid
Banks v Goodfellow	The test of mental capacity to make a will is not directly linked to mental disorder, but to the testator’s capacity to understand the nature of will making à “he must have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature

 

of the business in which he is engaged, a recollection of the property he means to dispose of, and of the persons who are the objects of his bounty and the manner it is to be distributed between them”

 

·       At common law, the burden of proving testamentary capacity is on the executor. i.e. in the event of the validity of a will being question/contested on grounds of alleged mental incapacity, the executor must prove that at the time the will was made, the testator was having a lucid moment and his mind was sufficiently clear about what he was doing

·       However, under Section 5(3)(4), LSA, this burden is shifted to the person alleging that the testator was not of testamentary capacity or was of unsound mind at the time of making the will – this creates the presumption that a person making a will is of sound mind unless the contrary is proved

 

CASE	HOLDING
In the Matter of the Estate of James Ngengi Muigai	The testator was dementing and physically incapacitated due to joint pains and hypertension at the time of making the will. The witnesses who attested the will testified that the deceased looked normal. The court was satisfied that he was of sound mind as the objectors had failed to prove unsoundness of mind at the time of the execution of the will. That is unless it is proved that at the time of executing the will, he is of unsound mind occasioned by mental or physical illness, drunkenness or other cause to make him not know what he is doing, the testator is presumed to be of sound mind
John Kinuthia Githinji v Githua Kiarie and Others	The deceased, who was admitted in hospital seriously ill with cancer of the duodenum, sent for her advocate whom she gave instructions to draw a will the details of which comprised of how she wished her property to be disposed of. The advocate drew the will in accordance with the instructions and thereafter explained its contents to the testatrix in the hearing of a nurse on duty. At the time of execution, she was said to be mentally alert and appeared to understand the advocate’s explanations of what was contained in the will. Consciously and knowing what she was doing, the testatrix executed the will by signing it. It was held that in the absence of evidence that the illness had affected her mind so as not to know what she was doing when she signed the will, the subject will was valid

 

2.3    INSANE DELUSIONS

·       The fact that the testator is labouring under insane delusions is not necessarily fatal to the validity of a will, so long as the

delusions leave the testator’s power of understanding unimpaired

·       The test as to whether the delusion is a vitiating factor depends on the impact of the delusion

·       An insane delusion will only affect the testator’s capacity to make a will if it in some way affects the way he disposes off his property

 

CASE	HOLDING
Dew v Clark	A person suffers from an insane delusion if he holds a belief of a particular matter which no rational person could hold and the belief cannot be eradicated from his mind by reasoning with him. In this case, the testator made a will which was rational superficially but which excluded his daughter from benefit. The daughter showed by way of extrinsic evidence that the testator had an insane aversion of her. He has refused to see her for the first three years of her life and he had made her sleep with an insane woman
Vaghella                      v Vaghella	For delusions to be material in the testamentary contest, there must be a connection between the will and the delusions, the poisoning of affects and the perversion of the sense of right
Re Nightingale	Lack of mental capacity was shown when a son was excluded from his father’s will because the father wrongly and insanely believed that the son was trying to kill him by reason of the fact that the son had on two occasions pushed him back on the pillow as the father was struggling for breath in a hospital after an operation on his lungs

 

·       Sometimes the delusion may only affect the validity of part of a will, and in these cases, probate will be granted to such parts of the will as are not affected by the delusion

 

3.       KNOWLEDGE AND APPROVAL

·       In addition to having testamentary capacity, a testator must know and approve the contents of their will – i.e. he must be aware of and understand the contents of the will (though he need not understand the precise legal effect of the terms)

·       Knowledge and approval are proved if the testator executes the will in those terms and on his own volition, and not because of coercion or undue influence of another or because of the presence of mistake or fraud

·       This requirement is of particular significance when the will is drawn up for the testator by a third party, e.g. a friend

 

3.1    TIME OF KNOWLEDGE AND APPROVAL

·       The point at which the testator must know and approve of the contents of their will is at the time of execution

·       However, the exceptions to this rule (as set out in Parker v Felgate) are that a will may be valid despite lack of knowledge and approval at the time of execution so long as:

(i)            The testator knew and approved the contents of the will at the time at which he gave instructions to the advocate to draft the will;

(ii)            The will was prepared in accordance with his instructions; and

(iii)            At the time the will was executed, the testator knew he was executing a will for which he earlier gave instructions

 

CASE

HOLDING

In the Estate of Wallace

The testator who was seriously ill had written and signed a document entitled “last wish”. At the time of execution, he knew and approved the contents of the document. A solicitor then prepared his will in accordance with the document. At the time when the testator executed the will, a day before he died, he did not know and approve the contents of the will that were not read over to him. It was held that the will was valid

 

3.2    BURDEN OF PROOF

 

STATUTORY PROVISION	WHAT IT STATES
Section 11(a),   Law   of Succession Act	For a will to be valid and properly executed, it must be signed by the testator or by someone else in the presence of and by the direction of the testator
Rule 54(3), Probate and Administration Rules	Where the testator is blind or illiterate, or where a will is signed by another person by the direction of the testator, or where it appears to be written in a language with which the testator is not familiar, evidence is required before the will is admitted to probate. It is mandatory for the court to satisfy itself that the testator had knowledge, by requiring an affidavit showing that the contents of the will had been read over and explained to, and appeared to be understood by, the testator immediately before the execution of the will

·       The common law position is that the onus lies on the propounder of the will to establish knowledge and approval

·       A presumption of knowledge and approval arises once it is established that the testator had testamentary capacity and that the proper formalities or the execution of the will have been complied with

·       The evidential burden shifts to the person attacking the will to provide evidence to rebut the presumption (Karanja and Another v Karanja)

·       The presumption of knowledge and approval will not arise where:

(i)            The testator is blind, dumb or illiterate; or

(ii)            The will is signed on behalf of the testator; and

(iii)            Where there are suspicious circumstances

·       For clarity purposes, it would be prudent at the time pf drafting the will to include as part of the attestation, clause words to the effect that the will was read over to the testator and that they thoroughly understood and approved the contents

 

3.3    SUSPICIOUS CIRCUMSTANCES

·       Where a person who writes or prepares the will takes a substantial benefit under the will, this will be regarded as a suspicious circumstance

·       Similarly, where a person suggested the terms of the will to the testator, that is other than writing the will himself, and

takes the testator along to the advocate of that person’s choice, the circumstances will be regarded as suspicious

 

CASE	HOLDING
Vijay  Chand  Rakant Shah  v  The  Public Trustee	Where the pro-pounder of the will is the principal beneficiary under it, it is the duty of the court to scrutinise the evidence of the pro-pounder vigilantly and jealously following the contra preferendum rule
Tyrell v Painton	It would be a suspicious circumstance if the will is written or prepared by a close relative of a substantial beneficiary
Wintle v Nye	The testatrix was an elderly woman who had no experience of dealing with money. She placed heavy reliance on the family solicitor. She left most of her sizeable estate to him. It was held that the circumstances were suspicious
Barry v Butlin	A testator made a will at the home of his solicitor, in the solicitor’s hand writing and left a 1⁄4 of the estate to the solicitor and the rest to friends. The testator’s son challenged the will on the grounds of (among others) suspicious circumstances. It was held that the circumstances were on the face of it suspicious, but the suspicion was dispelled by two factors: the fact that the will was executed before two independent witnesses and the fact that the testator’s son was excluded from the will because of his criminal conduct

 

3.4    MISTAKE

·       The knowledge and approval of the testator may be absent because of a mistake on the part of the testator or of a person employed by him to draft the will

·       If the mistake relates to the whole will, it is rendered invalid. However, if the mistake relates only to part of the will, the partial mistake may be corrected or otherwise that portion of the will revoked

 

CASE	HOLDING
Re Morris	The testatrix made a will, but after sometime decided to alter some of its provisions. She instructed a solicitor to prepare a codicil to effect the changes. The solicitor made a mistake while drafting and inserted an erroneous figure. The testatrix executed the codicil upon merely passing a glance through it but without reading the contents. The executors brought an action asking to be allowed to use the right figure instead of the erroneous one. The court allowed them to do so
Re Phelan	The testator bought some pre-printed forms from a stationer. He thought that each gift had to be put on a separate form. He made four separate gifts on four forms. Each form had a standard revocation clause at the top. He then executed the forms each after the other on the same day. It was argued that only the gift on the last form to be executed was admissible to probate as the revocation clause on each form revoked the precious form executed, which meant that the testator died intestate in respect of the other gifts. It was held that the testator did not know or approve the contents of the wills as far as they related to the revocation clauses in each of the three wills. The court admitted all four wills to probate without the revocation clauses

 

·       If the testator does know and approve of the contents of the will but is mistaken as to the legal effects of the words, the will shall be considered valid and admissible for probate (Collins v Elstone)

 

3.5    COERCION OR UNDUE INFLUENCE

·       The knowledge and approval may be absent owing to coercion or undue influence being exercised on the testator

·       Undue influence occurs where a testator is coerced into making a will or some part of it that he does not want to make

·       This is common where the testator is of weak or impaired mental capacity, or failing health

 

CASE	HOLDING
Hall v Hall	A distinction should be drawn between influence and persuasion à Persuasion is lawful, i.e. where a person is pressurised through persuasion to dispose of property in a particular way
	Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition, without convincing the judgement of the testator will constitute undue influence though no force is either used or threatened
Wingrove v Wingrove	To make a good will a man must be a free agent. But not all influences are unlawful. Persuasion appeals to the affections or ties of kindred, to a sentiment of gratitude for past services or pity for future destitution or the like, these are all legitimate and may fairly be pressed on a testator. On the other hand, pressure of whatever character whether acting on the fears or hopes if so exerted as to overpower the volition without convincing the judgement is a species of restraint under which no valid will can be made. Importunity or threats such as the testator has no courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these if carried to a degree in which the free play of the testator’s judgement, discretion or wishes is overborne will constitute undue influence though no force is either used or threatened. In a word, a testator may be led but not driven and his will must be the offspring of his own volition and not the record of someone else

 

·       Coercion amounting to undue influence can take various forms – actual physical force, or the incessant talking to a sick, frail or elderly testator, and this undue influence is common in confidential relationships (particularly those of a religious nature)

·       The burden of proof lies with the person alleging coercion or undue influence

 

3.6    FRAUD

·       Knowledge and approval will also be absent if the testator makes a gift by will, or excludes a person from benefit as a result

of false statements which have been made about an intended beneficiary’s character or conduct

 

CASE	HOLDING
In the Estate of Posner	A gift made to a beneficiary who fraudulently misrepresented herself to be the testator’s wife was invalidated
Pauline Ndete Maingi v Rael Kintoya Maingi	The deceased appointed a woman he described as his wife to be the executrix and trustee of his will. He had married the woman under statute while still married under customary law to the first wife. He also stated falsely that he was divorced from his first wife and purported to disinherit her completely. The Court of Appeal held that the purported statutory marriage was null and void by virtue of the Marriage Act and the African Christian Marriage and Divorce Act, because the deceased was already married under customary law, he could only lawfully contract another marriage according to customary law under whose procedure a marriage is potentially polygamous. It was further held that the appointment of the said woman as an executrix was both fraudulent and illegal in the circumstances, as the testator relied on deliberate falsehood. The appointment of the executrix and trustee was therefore void for fraud and illegality rendering the executorship impossible

 

 

3.7    FORGERY

·       A will can also be voided if it is proved to be forged as in such a case there is lack of knowledge and approval by the testator of the contents of the will (the forged will is not the will of the testator)

·       The burden of proof lies with the person alleging the forgery

 

CASE

HOLDING

Elizabeth Ndolo v George Ndolo

The Court of Appeal stated that the charge of forgery or fraud is a serious one, the standard of proof required of the alleger is higher than that required in ordinary civil cases, that is proof upon a balance of probabilities, but certainly not beyond a reasonable doubt as in criminal cases. In that matter the Court of Appeal held that the eyewitness evidence of attesting witnesses was preferable to that of the hand writing experts, which really is only opinion evidence

 

4.       MARRIED WOMEN

·       Section 5(2), LSA: this adopts the position under the Married Women Property Act 1882 by providing that any female, whether married or unmarried, is capable of making a valid will

 

5.       FORM OF A WILL

·       Under Kenyan law, no specific form of a will is required

·       Section 8, LSA provides that a will may be either oral or in written form, and thus may take any form provided it satisfies the laid down requirements of formal validity

·       Section 9, LSA provides formal requirements for an oral will, while Section 11, LSA provides those for written wills

 

5.1    ORAL WILL

·       Section 9, LSA provides that an oral will must be made in the presence of two or more competent witnesses and it cannot be valid unless the testator dies within three months after it is made

·       The rationale behind the time stipulation in Section 9(b), LSA is that being oral, there is a danger that some details may be forgotten or misreported where a longer period is allowed his is because such wills are usually made in a state of panic, fear or anxiety, e.g. where the testator is very ill or in a state of imminent danger

·       The three-month period is intended to allow the testator to reconsider the terms of the will and, if possible, reduce the same into writing

·       A proviso to Section 9(1) provides an exception to these requirements, i.e. persons in active service in the armed forces or merchant marine may make an oral will that will be valid if the persons die in active service, notwithstanding that it was made more than three months before their death – ‘privileged wills’

·       Section 10, LSA provides that where there is a conflict between the contents of a written will and an oral will, the written will prevails

 

CASE	HOLDING
Re     Rufus         Ngethe Munyua                      Public Trustee v Wambui	The deceased gave instructions on the disposal of his properties to his wives and children. The persons receiving the instructions wrote this on a piece of paper. The deceased died a few days later. It was held that the writing disposing the property was an oral will
Wambui & Another v Gikonyo and Others	The deceased who was illiterate called two people to his home and requested them to write down his wishes. The wishes were taken down in Kikuyu. The person who took the instructions had the document typed the following day. He read it back to the deceased who then thumb printed it; the witnesses did not countersign it. The Court of Appeal, relying on Re Rufus Ngethe Munyua (supra) and sections 8 and 9 the Law of Succession Act on oral wills, held that the document was capable of being constructed as an oral will

 

5.2    WRITTEN WILL

·       Section 11, LSA provides that no written will shall be valid unless:

o   It is signed by the testator/he affixes his mark to the will/it has been signed by some other person in the presence of and by the direction of the testator;

o   It appears that the testator intended his signature or mark, or signature of the person signing for him, to give effect to the will;

o   The signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time; and

o   Each witness must attest and sign the will in the presence of the testator but not necessarily in the presence of other witnesses (no form of attestation of the other witnesses’ signature is necessary)

 

5.2.1       WRITING

·       The LSA does not prescribe a particular written form – it may be hand written, typed, lithographed form, etc.

·       The writing may be that of the testator or of any other person, and it may be in any language

o   Rule 52(2) P&A Rules provides for the translation into English of a will written in a language other than English

o   Rule 54(3) P&A Rules says that where the language of the will is one that the testator was not wholly familiar with, an affidavit is required to show that the testator was aware of its contents and appeared to understand them

 

CASE	HOLDING
Kell v Charmer	A will written in a jeweller’s code was admitted to probate
Hodson v Barnes	It may be written on any material provided the material produces a visible form – i.e. a will written on an eggshell was admitted to probate

 

5.2.2       SIGNATURE

·       ‘Signature’ is not defined in LSA, but the courts have widely interpreted it to cover any mark of the testator which is intended as a signature, e.g. a thumb print, initials, assumed name, mark by a rubber stamp, etc.

 

CASE	HOLDING
Re Cook’s Estate	The words ‘your loving mother’ placed at the end of the document were held to be a valid signature
Re Chalcraft’s Goods	A testatrix, on a point of death, started to sign her normal signature but became weak and could not complete it. It was held that the signature was valid as it was the best she could manage in her condition

 

·       Where the will is signed by another person, this should be done in the testator’s presence and under his direction

o   The concept of ‘presence’ has a physical and a mental dimension

o   Since the signature has to be made under the testator’s direction, the testator’s physical and mental condition

must be such that he could either object to or assent to the signature made on his behalf

o   A will is normally signed on behalf of a testator where he is too weak through illness to sign for himself

o   The person who signs on behalf of the testator may sign his/her own name or in the testator’s name, and he/she

may be one of the witnesses to the will

·       Section 11(b), LSA states that the signature or mark should be so placed as to make it appear that he intended by the signature or mark to give effect to the will

·       The signature can theoretically be placed anywhere, so long as it is apparent from the position that it is intended to give effect to the will (Karanja and Another v Karanja)

·       Sometimes a testator may place his signature on a separate piece of paper or on an envelope containing the otherwise unsigned will. In such situations, whether or not the will is validly signed depends on the intention of the testator, which is to be gauged from the evidence adduced

 

CASE	HOLDING
In the Estate of Bean	A testator forgot to sign his will but wrote his name and address on the envelope. It was held that the will was not valid because he had written his name on the envelope to identify rather than ratify the will
Re Mann’s Goods	A testatrix forgot to sign her will, but put it in an envelope and wrote on the envelope, “Last will and testament of JC Mann”, signed the envelope and had it witnessed. The envelope was then placed in a larger envelope. It was held that the testatrix intended the signature to give effect to the will, which was therefore admissible to probate

 

 

5.2.3       WITNESSES

·       Section 11(c), LSA provides that the testator’s signature must be made in the presence of two witnesses who need not be

present at the same time

·       The provision is poorly drafted – it requires that the will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the will, and at the same time says that it shall not be necessary that more than one witness be present at the same time

·       To be present at signing means that the witnesses must be capable of seeing the testator sign, i.e. the witnessing is of the signature that is the fact of signing – the witnesses need not look at the signature or even know that the document they are witnessing is a will

 

CASE	HOLDING
Brown v Skirrow	A testatrix took her will to a grocer’s to be executed. She asked two shop assistants to act as witnesses. As she was signing the document, one of the assistants was busy serving a customer. The will was held invalid
Re Colling	It was stated obiter that if a witness left the room before the testator completed his signature, the attestation would also be invalid

 

·       However, to counter the above confusion, Section 11(c) also refers to acknowledgement of a signature – i.e. instead of being present when the testator is executing the document, the witnesses may be called after he has signed the document, in which event the testator should acknowledge his signature/mark to the witnesses

·       The witnesses need not be present at the acknowledgement at the same time, and such acknowledgement may be by words or conduct (however it is preferable that it be express)

·       The importance of the requirement regarding witnesses is that evidence can be tendered after the testator’s death as to

what actually happened/transpired:

o   It is advisable to select persons who are younger than the testator as these persons are more likely to survive him

o   It is also advisable to choose persons who can easily be traced in preference to a total stranger

·       Section 11(c) further requires that a witness must be capable of seeing the signature and understanding what they are doing, thus, the blind, minors, drunks and insane persons cannot make competent witnesses

·       Section 3(1) LSA states that a competent witness is one of sound mind and full age, while Section 14, LSA states that the fact that a person has been named in the will as an executor does not disqualify him from signing the will as a witness

 

5.2.4       ATTESTATION

·       Section 11(c), LSA provides that each witness must sign the will in the presence of the testator – however, they need not necessarily sign in the presence of each other

·       Attesting the will requires that the witnesses put their signatures in the will with the intention of validating the testator’s signature (In the Matter of the Estate of Susan Kanini Kilonzo)

·       The witnesses’ signatures need not be in a particular place in the will, but it should be so placed or positioned as to show the intention to ratify the testator’s signature

·       Section 13, LSA provides that a will shall not be considered insufficiently attested merely by the fact that it was attested to by a beneficiary or spouse of such beneficiary, provided that the signatures of such beneficiaries are further attested by at least two additional and competent witnesses

 

CASE	HOLDING
Re Beadle	Witnesses signed the envelope containing a will but the will itself was unattested. It was held that the will was validly attested
In the Goods of Sperling	A witness attested by writing “servant to Mr. Sperling”. It was held that the same was a signature as it was intended to identify the witness as the person attesting. The witness must sign the will for themselves rather than have a third-party sign on their behalf
In the Matter of the Estate of George Mbugua Ngare	The court held that the will in dispute was properly attested as per section 13, although a beneficiary had signed it as an attesting witness, since his signature was further attested by two other attesting witnesses who were independent and competent

 

5.2.5       PRESUMPTION OF DUE EXECUTION

·       Where a will is regular on the face of it with an attesting clause and the signature of the testator, there is a rebuttable presumption of due execution (‘omnia esse riteatta’) (Karanja and Another v Karanja)

5.3    DOCTRINE OF INCORPORATION BY REFERENCE

·       Section 12, LSA provides for incorporation of papers by reference – i.e. it allows documents that satisfy certain conditions to be regarded as part of a will even though the documents themselves are not executed

·       Such documents, if incorporated into a will, are admissible to probate as part of the will

·       However, for the incorporation to be effective, the document must be in existence at the date on which the will is executed, referred to in the will as being in existence, and must be clearly defined (In the Goods of Lady Truro; Re Keen)

 

5.4    VALIDITY OF WILLS OUTSIDE THE SCOPE OF THE LSA

 

STATUTORY PROVISION	WHAT IT STATES
Section     15,                 Law    of Succession Act	Written wills executed prior to the commencement of the Act, regardless of whether the testator died before or after the commencement of the Act, are to be treated as properly executed if they were executed according to the requirements of the law in force at the time of execution
Section     16,                 Law    of Succession Act	The will of a foreigner or alien is treated as properly executed if its execution conformed, either at the time of execution or at the time of the testator’s death, to: ·       The law in force of the state of execution; or ·       Of the state where the property is situated; or ·       Of the state where the testator was domiciled; or ·       Of the state which the testator was a national at the time of execution or death

 

5.5    PRIVILEGED WILLS

·       This is a will that is deemed valid notwithstanding the failure to comply with the strict legal formalities required of a will

·       Privileged wills are made in circumstances that by their very nature do not allow the opportunity of making a normal will,

e.g. the LSA provides for the making of oral or non-cupative wills

·       The Presidential Commission on the Law of Succession did not see the need for a written privileged will as the Law of Succession Act had already provided for an oral will as an alternative to a written will

CHAPTER 3: REVOCATION, ALTERATION AND REVIVAL OF WILLS

 

1.       REVOCATION

·       All wills are revocable – this is an expression of the freedom of testation, i.e. the freedom to make a will extends to the freedom to revoke it

·       A will can be revoked either voluntarily or involuntarily, and there are three methods of voluntary revocation:

o   Express revocation;

o   Implied revocation; and

o   Revocation by destruction

These methods require mental capacity to the same degree as

for the creation of a will and the intention to revoke

·       Under Kenyan law, there is only one involuntary method of revocation – i.e. revocation by marriage

·       Section 17, LSA provides that the maker of a will may revoke it at any time when he is competent to dispose of his free property by will

 

1.1    EXPRESS REVOCATION

·       Section 18(1), LSA provides for the revocation of a will or codicil by another will/codicil declaring an intention to revoke it

·       Read with Section 17, LSA, this provision enables testators to revoke their wills so long as they have capacity to do so

·       Professionally drawn wills ordinarily contain an express revocation clause à e.g. “I revoke all former wills and testamentary dispositions heretofore made by me”. However, note that “This is the last will and testament made by me” is not an express revocation clause

 

CASE	HOLDING
Re   Hawkley’s Settlement	The description of the will as the testator’s ‘last will’ was not sufficient for an express revocation clause. Revocation may be of whole or part of the will or codicil. A codicil is often used when only parts of the will are to be revoked. As stated earlier, express revocation requires an intention to revoke on the part of the testator

 

1.2    IMPLIED REVOCATION

·       Section 18(2), LSA covers the possibility of implied revocation – i.e. a will or codicil is impliedly revoked by a later will or codicil to the extent that the latter is inconsistent with the earlier will or codicil

·       It is a matter of construction to decide whether and to what extend the latter will impliedly revokes an earlier will

·       Extrinsic evidence is admissible for establishing implied revocation (Muthuen v Muthuen)

 

1.3    REVOCATION BY DESTRUCTION

·       Section 18(1), LSA provides for revocation by burning, tearing or otherwise destroying the will with the intention of

revoking it by the testator or by someone else at the testator’s direction

·       Revocation by destruction has 2 mandatory elements: the actual destruction of the will and an intention to revoke the will

 

1.3.1       ACTUAL DESTRUCTION

·       The actual destruction must be by the physical act of burning, tearing or otherwise destroying the will

·       ‘Otherwise destroying’ his construed under the ejusdem generis rule to require the acts of destruction to be of the same kind as burning or tearing

·       To establish actual destruction, it is also important to prove that the acts of destruction were completed by the testator

 

CASE	HOLDING
Cheese v Lovejoy	A testator cancelled his will by striking out its clauses and his signature with a pen and then writing at the back of the will ‘All these are revoked’. He threw the will in a pile of waste paper in the corner of the room where his house cleaner retrieved it and kept it in a kitchen drawer until the testator’s death eight years later. It was held that he did not amount to “otherwise destroying”. Although he intended to revoke the will, it had not been destroyed and it was admitted to probate
Re        Morton’s Goods	The testator’s signature was completely scratched out, and the court held the same to amount to ‘otherwise destroying’
Re Adams	Parts of a will were heavily scored through with a ball point pen, and the relevant parts were held by the court to have been actually destroyed

 

Doe  Perkes     v Perkes

The testator tore his will into four (4) pieces in a rage with one of the beneficiaries named in the will. He thereafter became calmer and put the pieces together. It was held that there was no actual destruction as the testator had not completed all that he had intended to do by way of destruction

 

·       Whether the actual destruction of part of a will results in the revocation of a whole or part of the will depends on the part actually destroyed

·       If the destroyed part impinges on the whole will then the whole will shall be revoked, e.g. the destruction of the part of the will containing the signature will revoke the whole will. If the parts are less important, only those will be revoked

 

CASE	HOLDING
Re Everest	The testator cut off the parts of his will that contained the trusts of the residue. It was held that the parts cut off were revoked but that the rest of the will remained intact. It is important to establish the extent of the act of destruction so as to show whether the intention to revoke existed
In the Goods of Lewis	The court held that the mere cutting off of a signature and the attestation clause may be sufficient acts to invalidate the whole will

 

1.3.2       DESTRUCTION MUST BE BY THE TESTATOR OR SOMEONE IN HIS PRESENCE AND UNDER HIS DIRECTION

·       The acts of destruction must be by the testator or by some other person in the testator’s presence and under his direction

·       If destruction is done by some other person, it must be done in the presence of the testator and by his direction

·       Where instructions are given to an advocate by the client asking the advocate to destroy the client’s will in his possession, and the advocate proceeds to destroy the same in the absence of the client, the act of destruction in such a situation does not amount to actual destruction

·       However, if the letter containing instructions to destroy the will is signed by the testator and attested by two witnesses, the destruction would effectively revoke the will

 

CASE	HOLDING
Re Dadd’s Goods	A testator on her deathbed expressed a wish to revoke a codicil. Her executor and a neighbour went out of her presence into the kitchen and burnt the codicil. It was held that there was no actual destruction
Gill v Gill	The testator’s wife tore up his will in a fit of temper and it was held that there was no actual destruction as the will was not destroyed under the testator’s direction
Re Durance	A testator wrote to his brother who had custody of his will asking him to destroy the will that the brother did. The letter was signed and witnessed by two persons. It was held that there was actual destruction and that the will had been revoked

 

1.3.3       ANIMUS REVOCANDI

·       The rule is that the testator must have the same capacity to revoke a will as is necessary to execute a valid will

·       The destruction also must not be accidental, e.g. if there was a fire at home which destroyed a will, that would not amount to revocation by destruction as there would be no intention on the part of the testator to revoke the will by destruction

·       If a testator is under a mistaken belief, e.g. that a will is invalid, then destruction of the will would not lead to revocation as there would be no intention to revoke (Cheese v Lovejoy)

 

CASE	HOLDING
Re Ashley	A testatrix who was old and confused tore her will into forty pieces. The judge put the pieces together in a one- hour operation. It was held that the testatrix lacked mental capacity to revoke and the will was therefore still valid

 

1.3.4       PROOF OF CONTENTS OF A DESTROYED WILL

·       Where a will is destroyed during the lifetime of the testator, without his authority, it may be proved by evidence on the circumstances surrounding its destruction and its contents

·       This means that the substance of the will may be ascertained by oral evidence (Foster v Foster)

 

1.4    PRESUMPTION CONCERNING REVOCATION BY DESTRUCTION

·       In some cases, a will may be list or found torn or mutilated after the testator’s death

·       In such cases, the will is presumed to have been destroyed by the testator with the intention of revoking it in cases where the will was last known to be in his possession

 

CASE

HOLDING

Re Jones

The appellants challenged a will made by the testatrix who was their aunt in which she had left a bequest to the respondents who were her favourite nieces. At the time the will was made, the respondents used to visit and help the testatrix. In appreciation, the aunt left her house and land to them under the will. On learning of the contents of the will, the respondents stopped visiting her and giving her any support. The testatrix, apparently in retaliation, decided to revoke her will to disinherit them of the bequest. She informed her lawyer and someone else about the intention, but she died before her instructions could be carried out. After her death, a copy of the will was found in her house mutilated at the part in which she had bequeathed the house and land to the respondents. She had also cut out her signature from the will. It was held that the actions of the testatrix indicated an absolute intention to revoke the will and the same was effectively carried out as characterised by the act of destruction. The effect was that the deceased died intestate

 

1.5    DOCTRINE OF CONDITIONAL REVOCATION

·       Once an intention to revoke is established, it is necessary to decide whether the intention is absolute or conditional

·       This doctrine is also known as ‘dependent relative revocation’

·       If the intention is conditional, the revocation does not have effect until the condition is fulfilled. E.g. where a testator revokes his will with the intention of making a new one and for some reason fails to make a new one, the original one remains valid

·       On the other hand, if the intention is absolute, the revocation takes effect immediately

 

CASE

HOLDING

Dixon v Treasury Solicitor

The testator instructed a solicitor to draw up a will for him. Before this had been done, he cut off the signature from his old will as he mistakenly believed that the new will could not be made until the old will was revoked. The action of cutting off the signature amounted to revocation by destruction. The testator died before he could sign the new will. It was held that because of his mistaken belief that the revocation of the old will was conditional on the new will being effective, the old will was admitted to probate

 

1.6    REVOCATION BY MARRIAGE & DIVORCE

·       Generally, the marriage of the testator automatically revoked any will or codicil made prior to the marriage

·       Section 19, LSA provides that the marriage of the testator will automatically revoke a will, save for where the will is expressed to be made in contemplation of marriage with a specified person

·       Where a person fails to alter their will as a result of marriage, the interests of the heirs would be served by the devolution of the property in intestacy

·       Kenyan law does not recognise revocation by divorce à Instead, the definition of ‘dependant’ under Section 29, LSA includes former wife/wives of the deceased

 

CASE	HOLDING
Re Bird	Divorce does not ipso facto revoke a will. The court found that the divorced woman was the person named in the will as the person entitled to the property of the testator

 

2.       ALTERATION OF WILLS AND CODICILS

·       Where the words of a will are obliterated or altered in some way, or interlineations are made, the effect of these changes depends on whether the alterations were made before the execution of the will or after

·       An alteration made before the execution of the will is valid so long as it is final rather than deliberate

o   Re Bellamy’s Goods: if it is in pencil, it is presumed to be merely deliberative, and without evidence to the contrary, it would not therefore be valid

o   Either extrinsic evidence or evidence from the will itself is admissible to rebut the presumption, however, it is always advisable in practice to execute an alteration even if it has been made before the execution of the will

o   Where a codicil to a will is subsequently executed, even though a codicil has the effect of republishing the will, this will not in itself validate an alteration by making it as though done before the execution of the will – i.e. an alternation will only be made valid by a codicil if the codicil refers in some way to the alteration

·       Alterations made after the execution of the will are invalid unless they have been executed

o   Section 20(1), LSA requires alterations made after the execution of the will to be executed in accordance with the formalities required for the execution of the will

o   The formalities are complied with if the testator and the witnesses place their initials in the margin next to the alteration, of if the signature of the witnesses and the testator is put at the end of the memorandum which is contained in the will and which refers to the alteration (Re Shearn’s Goods)

 

CASE	HOLDING
Re Horsford’s Goods	Where an unattested alteration has been made after the execution of the will the precise effect depends on whether the original wording is apparent or not apparent. The original wording will be apparent for this purpose if the original words can be deciphered by an expert through natural means. This means that the original words can be ascertained from the face of the will without physically interfering with the will
Re Hamer’s Estate	Where an unattested alteration has been made and the words are apparent, the will is admitted to probate with the original wording ignoring the alteration. Where an unattested alteration has been made and the original words are not apparent the general rule is that probate of the will is granted with a blank space

 

3.       REVIVAL OF WILLS

·       Section 21, LSA: a testator may revive a will, codicil or any one of them that has been revoked, provided that it has not been destroyed

·       Revival usually involves the re-execution of the will with proper formalities, or a duly executed codicil (there should be in either case an intention to revive the previously revoked document) – Marsh v Marsh; Re Steele’s Goods

·       Such intention is deciphered from the circumstances of the case

·       A codicil is used to revive part of a revoked will, while a will which has been totally revoked can be revived only by re - execution

 

CASE	HOLDING
Re Hardyman	The effect of a revival of a will or codicil is to make the same speak from the date on which it was revived, and so references to persons in the will or codicil are to persons at the date of revival

CHAPTER 4: GIFTS BY WILL ARE THEIR FAILURE

 

1.       INTRODUCTION – TYPES OF GIFTS

·       A gift by will may be of immovable property or movable property

·       In the past, a gift of immovable property was called a devise while that of movable property was termed a legacy – however,

the modern approach is to defer to them both as ‘classes of gifts’

·       There are 4 main types of gifts: specific, general, pecuniary and residuary

 

TYPE OF GIFT	WHAT IT ENTAILS
SPECIFIC GIFT	·       This is a gift of property forming part of the testator’s estate that is distinguished in the will from other property of the same kind ·       Bothamley v Sherson: a specific gift is a severed or distinguished part of the estate, e.g. a Lamu bed ·       Re Rose: specific gifts tend to fail for ademption, so the court generally leans against them
GENERAL GIFT	·       This is a gift which is not in any way distinguished from property of the same kind ·       It is a gift of the entire testator’s property or the entire testator’s property of a particular type ·       It is to be provided out of the testator’s estate, so it does not matter that property of that description does not form part of the deceased’s estate at the time of his death (Bothamley v Sherson) ·       General gifts tend to be pecuniary legacies, though they do not have to be
DEMONSTRATIVE GIFT	·       This is a gift that is expressed as payable out of a particular fund or property ·       As it is general in nature, the gift does not fail even if the particular fund or property does not form part of the testator’s estate at the time of his death – i.e. the money to settle the gift is raised by the executors or the property required ·       If the gift directed is to be satisfied out of a particular fund, it is not a demonstrative gift but rather is a specific gift
PECUNIARY LEGACIES	·       This is a gift of money, whether general or demonstrative ·       It is usually a general gift, but could be specific/demonstrative where money is instructed to be paid out of a particular fund
RESIDUARY GIFT	·       This is a gift of the testator’s residuary estate – i.e. all that is left in the testator’s estate after all valid specific gifts have been paid ·       It is usually made subject to the payment of pecuniary legacies, debts, liabilities, and payment of funeral expenses (Re Elcom)

 

2.       DOCTRINE OF ELECTION

·       The equitable doctrine of election is provided for under Section 24, LSA – it is elaborated upon in Paragraph 1(1), 3^rd Schedule which states that the doctrine applies to circumstances where the testator makes a gift of property that does not belong to him, or makes dual gifts under one instrument, giving his property and someone else’s property

 

CASE

HOLDING

Rogers v Jones

If the testator, by the same will gives property to one beneficiary, and purports to give that beneficiary’s own property to another beneficiary, the first beneficiary will be put to election. He has to choose between taking the gift under the will or against it. If he takes under the will, he will be entitled to the testator’s property, and the other beneficiary will be entitled to take the first beneficiary’s property bequeathed to him in the testator’s will. If the first beneficiary elects to take against the will, he will be entitled to keep his own property and the gift willed to him by the testator. In this event, the other beneficiary loses out, the first beneficiary has to compensate him for his disappointment out of the gift from the testator. The compensation is to an extent not exceeding the benefits the first beneficiary receives under the will

 

3.       PRESUMPTION OF SATISFACTION

·       This principle deals with a gift by will intended to satisfy or extinguish a debt or other claim

·       It is donation of a thing with the intention that it will be taken as extinguishment or satisfaction of some prior claim or the other donee either wholly or in part, i.e. it presupposes an existing legal obligation

·       The Kenyan law on satisfaction is under Paragraphs 64, 65 and 66, 1^st Schedule:

o   Paragraph 64: where a debtor makes a gift by will to his creditor and the gift is equal or greater than the debt, there arises a presumption that the gift is intended to satisfy the debt and not to be taken in addition to payment of the debt

o   Paragraph 65: this covers a situation where the testator is under a contractual obligation to provide for his child or other person to whom he is loco parentis, but fails to provide. If he makes a gift to the child or other person by will, a presumption arises that the gift is intended to satisfy the portion

o   Paragraph 66: presumption of satisfaction does not apply to gifts in contemplation of death

 

4.       DOCTRINE OF ADEMPTION

·       The doctrine of ademption is provided for under Section 23, LSA and it operated in the circumstances, manner and extent provided by the 2^nd Schedule

·       Under Paragraph 8(1), 2^nd Schedule, where a specific gift is made, the gift will fail for ademption if the subject matter of

the gift does not form part of the testator’s estate at the date of his death

·       Ademption is likely to occur become the property has been sold, given away or destroyed during the testator’s lifetime

 

CASE	HOLDING
Durrant              v Friend	Where it is unclear which happens first, the death of the testator or the destruction of the property, the property is deemed to have perished before the testator so that the gift is addeemed. Under paragraph 8(2) there must be a substantial change in the subject matter to cause ademption: mere nominal change is not sufficient
Re Slater	Sometimes, where property has changed in nature, it is difficult to decide whether ademption has occurred. The Court of Appeal said that ademption would not occur if the asset in question had changed in nature or form only, but remained substantially the same thing. Change in the nature of the asset has been a particular problem in relation to company shares
Re Slate; Re Leeming	If the company in which the testator held shares has been taken over since the execution of the will, it must be decided whether there has been a change in form or a change in substance. In the case of change of substance, ademption will occur

 

5.       DOCTRINE OF LAPSE

·       The doctrine of lapse is provided for under Section 23, LSA and its application is as set out under the 2^nd Schedule

·       Under Paragraph 1(1), 2^nd Schedule, if a beneficiary under a will predeceases the testator, their gift will lapse – if the gift is not a residuary gift, the property will fall into residue. However, if the gift is a residuary gift, the property will pass a ccording to the rules of intestacy unless there is a substitutional gift of the residue

·       A gift will not lapse if it can be shown that the beneficiary survived the testator, for even a very short period. Where the circumstances are unclear as to whether the beneficiary survived the testator, the beneficiary may be deemed to have either survived or predeceased the testator under the doctrine of commorientes

·       It is not possible to exclude the doctrine of lapse in a will by stating that a gift is not made subject to it

·       Where a gift is made to joint tenants, the gift will not lapse until all the joint tenants predeceased the testator, as the surviving joint tenant takes the share of a predeceased joint tenant by way of survivorship (Morley v Bird)

·       On the other hand, a gift made to beneficiaries as tenants in common will lapse because tenants in common have a distinct share in the property and the rule of survivorship does not apply

·       Where a class gift is made, the gift will not lapse unless all members of the class predecease the testator

·       2^nd Schedule, LSA sets out exceptions to the doctrine of lapse:

(i)       The doctrine of lapse does not apply to a gift made to discharge a moral obligation as the court will imply that the gift is intended by the testator to pass to the beneficiary to whom the testator owes a moral obligation

(ii)     The doctrine does not apply to gifts to children (or other issue) of the testator

(iii)    The doctrine also does not apply to class gifts, as the gift would not lapse so long as there us a surviving member or surviving members of the class

 

6.       SURVIVORSHIP

·       The executors of a will must establish who died fist when the death of a beneficiary under a will and that of the testator occur close together

·       If evidence exists that the beneficiary predeceased the testator, however close the deaths, the doctrin e of lapse applies and the gift to the beneficiary will fail

·       Where there is no evidence as to the order of the deaths, they are presumed to have occurred in order of seniority

·       This provision does not apply to spouses, who are presumed to have died simultaneously

 

7.       MISTAKE, FRAUD AND UNDUE INFLUENCE

·       The validity of a will is predicated on, among other thing, the testator’s knowledge and approval of its contents

·       Thus, the presence of a mistake, fraud or undue influence may lead to lapse of one or more gifts made in the will

·       The presence of these factors vitiates the testator’s intention to make the will, thus rendering the will invalid

 

8.       UNCERTAINTY

·       A gift will fail for uncertainty unless the subject matter of the gift and the beneficiaries can be identified with sufficient certainty (Palmer v Simmons; Re Golay)

·       A gift may fail for uncertainty where the beneficiary is described in terms that are uncertain

·       The appropriate test of certainty of objects for a class gift is whether it can be said of any given individual, that they either are or are not members of the class (McPhail v Doulton)

 

9.       BENEFICIARY OR SPOUSE OF BENEFICIARY WITNESSING THE WILL

·       The validity of a will is not affected where a beneficiary or a spouse of a beneficiary acts as an attesting witness, however, Section 13, LSA provides that a gift will fail if the beneficiary or their spouse has witnessed the will

·       This can be vitiated by having the beneficiary or their spouse’s signature further attested by two independent witnesses

·       In addition, this provision is not limited to dependant beneficiaries – it includes any person who is entitled to costs or charges out of the estate or incurred in the course of preparing the will

·       If a professional executor appointed under the will witnesses the will, he will lose his entitlement to his fees or charges

 

10.    FORFEITURE

·       Section 96, LSA states that a beneficiary who is convicted of murder of the testator is prevented on the basis of public

policy from benefiting under the testator’s will

·       This is founded on the maxim that a person should not benefit from his own wrong doing

 

11.    DISCLAIMER

·       Disclaimer of a gift is refused by a beneficiary to take a gift made to them – as a rule, a legatee or heir cannot be compelled to accept a gift and is entitled to disclaim or renounce the gift if he so desires

·       The disclaimer of a gift, whether made by will or given in intestacy, leads to failure of the gift

 

12.    PERPETUITY

·       The law gives powers to property owners to dispose of their interests, but at the same time seeks to prevent them from settling property in a way that makes its devolution complicated or uncertain

·       Section 25, LSA provides that testamentary gifts or dispositions are void if they offend the rules against perpetuities, remoteness or accumulations set out in the 4^th Schedule

·       In the first place, these rules apply to contingent gifts and require that it must be possible within a certain period of time, usually called the perpetuity period, to say who is entitled to the gift. If the gift does not vest within the perpetuity period, it is void. The rationale for the rules against perpetuity is to ensure that property, which makes up the country’s wealth, is not used for the benefit of anyone for very long periods

·       Secondly, property once vested in trustees must not be rendered inalienable. If a charitable gift is inalienable, it is void. A gift is said to be inalienable if some provision or the terms of the gift prevent the property from being disposed of within a certain period of time

CHAPTER 5: CONSTRUCTION OF WILLS

 

1.       INTRODUCTION

·       It sometimes becomes necessary for the court not only to determine whether the document at hand is a valid will, but also what the meaning and effect of the words and phrases used by the testator are

·       It must (firstly) emerge from the words, phrases and expressions used that the document was made in contemplation of death, i.e. it is testamentary

·       The main objective of construction is to ascertain the testator’s intentions as expressed in the will

·       Where a will uses words and phrases capable of two or more meanings and does not indicate in what manner the testator intended to use them, the court is faced with two alternatives:

(i)       Either declare the will void for uncertainty; or

(ii)     Decide on which of the available interpretations is to be given to the disputed clause(s) – ‘benevolent approach’

·       The 1^st Schedule contains rules of construction of wills which are based on some generic principles

 

2.       COURT CONSTRUES THE WILL, IT DOES NOT REMAKE

·       The duty of the court is to interpret the words as used by the testator in the will, regardless of whether they produce an unfair result (provided that was the intention of the testator)

·       Even where a testator has not made provision for his lawful testators, it is not for the court to seek to make provision for these surviving dependants

·       However, a mechanical application of this principle sometimes produces absurd results and obvious injustice

 

CASE

HOLDING

Scale              v Rawlings

A testator devised three of his houses to A (his niece) for life and provided that should A die leaving no children, those houses were to go to his nephews. “A” died leaving some children surviving her. It was argued on behalf of A’s children that the testator intended, although his will did not expressly say so, that if A died leaving children, the houses should go to them. Interestingly, both the Court of Appeal and House of Lords decided that the will clearly gave A no more than a life interest in the houses and gave nothing to her children. Consequently, when A died leaving children, the houses devolved upon the testator’s residuary devisees i.e. the nephews. Both courts held that if the testator had desired A’s children to benefit, he would have said so

 

·       Despite the obvious injustice that can result from such mechanical application of the principle, the rationale is to guard against the tendency to impute a meaning to a will that was never intended by the testator

·       It also acts as a caveat against sloppy drafters, who must be warned against using words and phrases carelessly

 

3.       WORDS TO BE CONSTRUED IN ORDINARY, NATURAL SENSE

3.1    THE GOLDEN RULE

·       This rule states that a will should be read to lead to testacy rather than intestacy

·       Re Harrison: where a testator executed a will in solemn form, it is assumed that he did not intend to make it a solemn farce and that he did not intend to die intestate when he has gone through the form of making a will

 

3.2    THE PRIMARY MEANING

·       Words in a will are attributed their primary meaning, regardless of whether the construction will produce a capricious meaning or lead to absurd or unreasonable results

 

CASE	HOLDING
Gorringe              v Mahlstedt	There is a presumption in construing a will that the ‘ordinary and usual meaning of the words’ should be applied to its interpretation
Re Raphael Public Trustee v Raphael	The court was asked to construe two wills containing the phrase ‘or of us dying together’. Both testators were found dead in a locked room with bullet wounds, the pathologist was unable to determine who died first. It was held that the testators did not mean dying at precisely the same instant. The court concluded that the testators died together within the meaning of the phrase in their will

3.3    DEPARTING FROM GENERAL PRINCIPLE

·       If on reading the will as a whole or on investigating the habits and circumstances of the testator, it is evident that he used a particular word or phrase in some special sense of his own, the court may interpret it in this special or secondary sense provided that the word or phrase is capable of carrying such a meaning and evidence is tendered to prove the special meaning

 

PRINCIPLE	WHAT IT ENTAILS
DICTIONARY PRINCIPLE	·       The dictionary principle applies in circumstances where the testator has set up his own dictionary in the will by defining words he uses in a particular way (Re Helliwell, Pickles v Helliwell) ·       The principles applies where the testator has a specific definition clause saying how particular words are to be used in the will
SURROUNDING CIRCUMSTANCES PRINCIPLE	·       Where the ordinary meaning of a word does not make sense, a secondary meaning can be applied where the circumstances of the testator show that he used it with that particular meaning ·       Re Smalley, Smalley v Scotton: a testator bequeathed all his property to ‘my wife EAS’. The woman named believed herself to be his wife and was generally reputed as such but in fact, he had committed bigamy in marrying her, for he was already married to another woman. On evidence of these surrounding circumstances, the Court of Appeal construed the word “wife” to mean “reputed” as opposed to “lawful” wife, for the circumstances showed that he had used the words in this secondary sense
WORDS WITH MORE THAN ONE MEANING	·       Where a word has more than one meaning, the general rule is that words are given their ordinary meaning cannot be applied ·       The court adopts the meaning it regards the most probable, which leaves the court with wide discretion ·       Re Everett, Prince v Hunt: the testatrix made for provision in her will for disposal of her ‘stocks and shares’. Her investments consisted partly of stocks and shares in limited liability companies, but she had also invested in redeemable debentures and government securities. It was held that the gift passed only stocks and shares in limited liability companies
SPECIAL AND TECHNICAL WORDS	·       Where special and technical words are used in a will, they are presumed to be employed in their technical sense, unless the context clearly indicates the contrary ·       Such words may also be construed in a secondary sense if the will provides sufficient evidence that this is the sense in which the testator used them ·       Re Smith, Bull v Smith: the testatrix left her property ‘to my own right heirs’ other than R J Smith and issue. When she died the son of R J Smith was her heir at common law, but if R J Smith or his issue had never existed then her nephew would have been her heir. It was held that one could not have a ‘right heir’ excluding a ‘right heir’ so that the whole gift was void

 

4.       THE WILL MUST BE READ AS A WHOLE

·       The meaning of clauses is to be collected from the entire will since the paramount purpose of construction is to give effect

to the testator’s intention as expressed in the whole will

·       The rule of inclusivity demands that the provisions of the will be construed in relation to each other

·       However, there two clauses or provisions are irreconcilable or mutually inconsistent to the extent that they cannot possibly stand together, the last one prevails as the later clause is deemed the last expression of the deceased

·       The judicial attitude is to avoid this rule, which is akin to the doctrine of severance

·       Apparently, a rule has developed to the effect that where, looking at the will as a whole, it looks like the testator intended the first clause to apply, the presumption that the latter clause prevails should not be applied

 

5.       THE WILL MUST SPEAK FOR ITSELF

·       Construction of wills is about ascertaining the testator’s intention as expressed in the will, and so the courts must

ascertain such intention from the words of the will itself (Colclough v Cocker)

·       It is not about what the testator intended to do when they made their will, which is why any ambiguity or deficiency on the face of the will cannot be resolved by admitting extrinsic evidence

 

CASE

HOLDING

Re Feather

The testator bequeathed $2000 to his servant “if still in my employment”. The servant was conscripted into the army and was still serving when the testator died. Evidence was adduced that shortly before he died, the testator had affirmed to one of his executors that he wished this legacy to stand and regarded the servant as still in his employment. It was held that such evidence was not admissible to prove that the testator intended the servant to have the legacy whether still in his employment or not

 

·       However, there are circumstances where evidence of the testator’s intention is admissible in construing wills – these are situations where:

(i)       The armchair rule applies;

(ii)     The words are ambiguous on the face of the will;

(iii)    There is latent ambiguity; or

(iv)    Any part of the will is meaningless

·       In addition to ascertaining the intention of the testator from the will, the court also has to see whether the will can be carried into effect consistently with the rules of law

 

5.1    THE ARMCHAIR RULE

·       In construing the will, the court can put itself in the testator’s position at the time he or she made the will in order to

understand the words of the will itself (Boyes v Cook)

·       This allows the court to make itself aware of facts which were known to the testator at the time of execution of the will

·       It is most commonly used to identify the beneficiary or the subject matter of the gift

·       It is applied by courts to construe the will without reference to surrounding circumstances, and applying the apparent effect of the will to surrounding circumstances to ascertain that the will is being construed in accordance with the circumstances which prevailed at the time when the will was made

 

5.2    AMBIGUOUS WORDS

·       Where words are ambiguous on the face of a will, either direct or circumstantial evidence is admissible to explain the words used

·       Words are said to be ambiguous on the face of the will where the words used have more than one normal meaning, e.g.

‘money’ and ‘my effects’, or where the words used are equally applicable to two or more persons or items of property

 

5.3    LATENT AMBIGUITY

·       Latent ambiguity occurs where a will is ambiguous, not on its face, but only in light of the surrounding circumstances

·       For instance, where the testator says ‘I leave my house to my daughter’, but the testator has either more than one house

or more than one daughter

·       This type of ambiguity is called equivocation and occurs not only where the description fits two persons or things exactly, but also where the description is not in all respects totally accurate

·       If equivocation cannot be solved with the said of extrinsic evidence, the gift fails for uncertainty

 

5.4    MEANINGLESS WORDS

·       A meaningless provision is one where the court cannot with extrinsic evidence give any meaning to the word or phrase

·       However, a provision of a will cannot be said to be meaningless simply because the provision seems pointless in the sense that it has no effect – e.g. if a testator was to provide ‘I give nothing to my son’, this is not a meaningless provision and extrinsic evidence is not admissible to try and impute that the testator meant something else

·       The rationale for the rule is that the purpose of admitting extrinsic evidence is to assist in the interpretation of a will, and one cannot arguably interpret a blank space

·       The only exception to this principle is that evidence may be led as to the circumstances in which the testator was situated at the time he made a will, so as to help the court ascertain the meaning he intended to impute to his chosen wording

 

6.       ASCERTAINING THE SUBJECT MATTER OF GIFTS

·       Paragraph 3, 1^st Schedule provides that, as regards property, a will speaks from the date of death unless a contrary intention appears by the will

·       The exceptions to this rule are:

(i)       In cases of revival, whereby the will speaks from the date of revival; and

(ii)     Where the gift is a specific gift or legacy, whereby the presumption is that the will speaks as at the date of its actual execution

·       For instance: a gift of ‘all my shares’ would be taken to refer to all the shares owned by a testator at the date of his death, rather than being confined to the shares which he owned at the date on which he executed his will

·       In deciding whether there is a contrary intention to paragraph 3, difficulties occur where the testator uses terms such as ‘now’ and ‘present’, and whether the reference to the present time is construed as an essential part of the description of the subject matter of the specific gift

·       The fact that the testator, after the execution of the will, acquires a different interest in the property that forms the subject matter of a gift does not necessarily prevent the court from finding that paragraph 3 operates to make the will speak from the date of death

 

CASE	HOLDING
In the Matter of the Estate of Ivo Murray Murton	Where the testator directed the trustees to hold property upon trust for his son until the son attained majority age, it was held that the son took a vested or contingent interest in the property at the testator’s death and on attaining majority age, was entitled to a conveyance and transfer of the property to his name
	Where property is given to several persons concurrently the question whether these persons take as joint tenants or tenants in common depends on the context of the whole will; they prima facie take as joint tenants

 

7.       ASCERTAINING THE BENEFICIARIES

·       References to people are, as a general rule, construed to refer to people at the date the will was made, unless there is a contrary intention, e.g. a gift to ‘my youngest brother’ would be taken to mean my youngest brother at the time I wrote the will, regardless if I had other siblings born after writing the will

·       However, the situation where no person fulfils the description at the date of the will needs to be distinguished from that where a person fulfils the description at the date of the will but by the date of the testator’s death, that description has become inoperative to them

·       A number of difficulties in construction of a will occur in relation to gifts where the relationship is specified. This is particularly so where a gift is made to children or remoter issue

o   Regarding relationships referred to in the making of gifts generally, there is a presumption that the only persons to take are blood relatives and not relatives by affinity or marriage – for instance, a reference to ‘all my nieces’ does not include any females born to a brother or sister of the testator’s wife

o   Difficulties also occur over the use of the word ‘children’ or the term ‘issue’ as there is a presumption that the term ‘children’ refers to immediate children, however, the same may be rebutted by evidence that grandchildren and remoter issues were intended to be covered

CHAPTER 6: INTESTATE SUCCESSION

 

1.        INTRODUCTION

 

STATUTORY PROVISION	WHAT IT STATES
Section     34,                 Law                 of Succession Act	Intestacy occurs in the following situations: (i)       A person dies without making a will; (ii)      The person’s attempt to die testate fails upon the invalidation/revocation of his will; (iii)    The person fails to revive his earlier revoked will or without having made another will

 

·       The rules of intestacy determine the question of who is entitled to the property of the estate of an intestate, and intestacy may be either total or partial:

o   Total intestacy – the intestate has left to valid will whatsoever

o   Partial intestacy – a person fails to include all his property in his otherwise valid will, or part of the will is declared invalid, or a part of the will is revoked, or a person acquires property subsequent to the making of the will and the will is not ambulatory

·       Provisions relating to intestacy are in Section 32 – 42, LSA and they only benefit people with a direct blood link to the intestate (in the absence of heirs, the estate passes to the estate bona vacantia under the doctrine of escheat)

·       An individual who claims to be a relative or a person beneficially entitled to a portion of the deceased’s estate then may

make a claim under the family provisions contained in Section 26, LSA

·       The rules of intestacy only apply to property capable of being disposed of by a will – they do not apply to property which passes by survivorship, nominations life policies written in trust, or the subject of a donation mortis causa

·       However, the rules only apply to a person who dies after the Act came into force (Section 2(1), LSA), while the law applicable to the estate of a person who died before the Act became operational is the law that was in force at that time (Section 2(2), LSA)

 

2.       EXEMPTION OF CERTAIN PROPERTY FROM THE INTESTACY PROVISIONS

·       Section 32, LSA allows the Minister to disapply (by a notice in the official gazette) agricultural land and cops on such land, or livestock in some areas, from intestacy provisions

·       This exempted property is predominantly in areas of Marsabit, Narok, Tana River, Samburu, West Pokot, Isiolo, Mandera, Wajir, Garissa, Lamu and Kajiado à Section 33, LSA applies African customary law to the administration of these properties

·       This is because in predominantly pastoralist areas, individual ownership of property is not recognised and succession to property is better left to the customary law of the people concerned

·       Thus, the correct position is that in case of intestacy, the provisions of Section 32 – 42, LSA are applicable as long as the deceased died after the commencement of the Act and no exemption has been granted under Section 32, LSA

 

CASE	HOLDING
Rono v Rono and Another	This is the first case in which Sections 32 & 33, LSA were correctly applied and interpreted
	The land in dispute was situated in Uasin Gishu District in the Rift Valley Province. The court found that section 2(1) Law of Succession Act excludes the application of African customary law unless the Act makes provision for it. It does so under sections 32 and 33, but the exclusion is limited to property exempted from Part V of the Act by virtue of section 32. Legal Notice number 94 of 1981 did not exclude property in Uasin Gishu District and therefore Keiyo customary law could not apply to the intestate estate of a resident of Uasin Gishu District

 

3.       RIGHTS OF A SURVIVING SPOUSE

·       For the purposes of the rules of intestacy, a divorced spouse has no rights to the intestate’s estate – a judicially separated spouse is, however, entitled (this applies to all legal marriages whether contracted under statute or customary law)

·       Under Section 3(1), LSA a separated wife is considered a wife for succession purposes

·       In addition, a divorced wife may make a claim under Section 26, LSA for reasonable provision as the definition of a dependant under Section 29, LSA includes a former wife or former wives

·       A spouse’s exact entitlement under the rules of intestacy depend on the closeness of any other surviving relatives of the

intestate

·       Where the surviving spouse is a widow, she will be considered the most important person as far as inheritance rights are concerned for two reasons:

o   The property available for distribution would have been partly acquired by the deceased with her efforts; and

o   She is the person (in most cases) who needs the property the most

·       The purpose of the rules of intestacy is to hand over the deceased’s estate to the person who is likely to use it in the best interest of the deceased’s heirs and dependants

 

3.1    INTESTATE LEAVES SPOUSE & CHILDREN

·       This is dealt with under Sections 35 & 37, LSA. In such situations, the surviving spouse is entitled to:

(i)       The personal and household effects of the deceased absolutely; (not including anything connected with the business or profession of the deceased) and

(ii)     A life interest on the whole of the residue of the net intestate estate

·       A surviving spouse also includes a woman married under the customary law arrangement of woman-to-woman marriage

·       Thus, the surviving spouse chattels only gets the chattels absolutely and is only entitled to a life interest on the rest

·       The ultimate destination of the property is to the deceased’s children in the event of the demise of the surviving spouse

(Section 35(5), LSA)

·       The life interest operates as a safeguard for the children in cases where the surviving spouse is likely to waste the property,

i.e. the surviving spouse enjoys the property in their lifetime and holds the same in trust for the children

 

CASE

HOLDING

In the Matter of the Estate of Anjuri

The court observed that under intestacy, the estate would be administered under section 35(1) of the Act and so the surviving spouse would be entitled to personal and household effects of the deceased absolutely and a life interest in the whole of the net intestate estate. The court took into account, inter alia, the fact that the deceased and the widow acquired the assets forming the estate jointly during marriage and in any event, she was the owner of half of all the properties as of right

 

STATUTORY PROVISION	WHAT IT STATES
Section     35,                 Law    of Succession Act	The life interest of the surviving spouse determines upon her remarriage (In the Matter of the Estate of Charles Muigai Ndung’u)
Section     37,                 Law    of Succession Act	The surviving spouse may, during life interest and subject to the consent of all the co-trustees and all the adult children or the consent of the court, to sell any of the property the subject of the life interest for their own maintenance

 

·       A life interest only entitles the surviving spouse to the use and utility of the property, subject to the said interest

·       The surviving spouse golds the property during their life interest as a trustee and stands in a fiduciary position in relation to the property – i.e. the property does not pass to the surviving spouse absolutely

 

CASE	HOLDING
In the matter of the Estate      of      Basen Chepkwony	Where the property in issue is land, it cannot be registered in the name of the surviving spouse absolutely since she enjoys a life interest and holds the same in trust for the children and other heirs

 

3.2    INTESTATE LEAVES SPOUSE & NO CHILDREN OF THEIR OWN

·       This is dealt with under Section 36, LSA. Here, the surviving spouse is entitled to (out of the net intestate estate):

(i)       The personal and household effects of the deceased absolutely; and

(ii)     The first Kshs. 10, 000/= out of the residue of the net intestate estate or 20% of the residue of the net intestate estate, whichever is greater; and

(iii)    A life interest in the remainder of the net intestate estate

·       The life-interest is lost upon the re-marriage of the spouse

·       The provision is silent on what happens to the life interest and to the 80% of the residue of the net intestate estate in the event of termination of the life interest à the court in Willinstone Muchigi Kimari v Rahab Muhigi Mugo said that the property devolves upon the other surviving relatives as set out in section 39 of the Act

4.       RIGHTS OF CHIDLREN

 

RIGHT	WHAT IT MEANS
SURVIVING SPOUSE HOLDS ESTATE AS TRUSTEE FOR CHILDREN	·    The children of the deceased are the next category of kin that benefit from the intestate estate after any surviving spouse ·    Where the intestate leaves a surviving spouse, the surviving spouse holds the net intestate estate in trust for the children ·    Under Section 35(5), LSA, in the event of the death of the surviving spouse or re-marriage of the widow, the net intestate estate that is the subject of the life interest will devolve upon the surviving child, or if more than one child, to the surviving children in equal portion (i.e. divided equally taking into consideration any property held in trust for any child or any previous benefits)
SURVIVING SPOUSE’S POWER OF APPOINTMENT	·    Under Section 35(2), LSA, a surviving spouse has the power to dispose of the capital of the estate by way of gift, taking effect immediately among the surviving child/children ·    The power cannot be exercised by will or at a future date ·    A child aggrieved by the exercise of the power of appointment can move to court under Section 35(3), LSA
EQUAL     DIVISION     OF                THE PROPERTY AMONG CHILDREN	·    The division of property among children should be in equal shares ·    In the Matter of the Estate of Kinyuru Karanja it was held that a proposal by a woman to share out the estate of her deceased husband among their sons in a manner which would result in one of them getting a larger portion was wrong ·    Rono v Rono and Another: Omolo JA said that section 40 does not provide for each child receiving the same portion. In his opinion, this would lead to injustice, particularly in the case of younger children who still need to be educated, maintain and seen through life generally
DECEASED    IS    SURVIVED                     BY CHILDREN BUT NO SPOUSE	·    Under Section 38, LSA, in such a situation the intestate estate devolves upon the child(ren) ·    In the Matter of the Estate of Ellag Warue Nthawa, the deceased was survived by two sons and a daughter. The court rejected the proposal that majority of the properties be divided equally between the two sons, with the female survivor getting a small portion, as Section 38 envisages equal distribution of the estate among all children ·    Where the deceased has more than one child, the estate is divided equally among them
STATUTORY TRUST IN FAVOUR OF MINOR CHILDREN	·    The share of the estate to which minor children are entitled is held on statutory trust, the terms of which are set out under Section 41, LSA ·    This provides that the share of the children is to be divided equally between the children of the intestate, subject to such children attaining the age of majority, or in the case of female children, marrying under the age of 18 ·    In the Matter of the Estate of Joseph Gichuki it was held that Section 41 requires the property devolving upon the children to be held in trust for them until they attain the age of eighteen
RIGHTS OF GRAND CHILDREN	·    Section 38 & 38, LSA are silent on the fate of surviving grandchildren whose parents have pre-deceased the intestate ·    The rule of substitution calls for substitution of a grandchild for his or her parent in all cases of intestacy where the parent dies before the intestate ·    If a child of the intestate has predeceased the intestate or dies before attaining eighteen years, then that child’s issue alive at the date of the intestate’s death will take in equal shares, contingent on attaining the age of eighteen
BRINGING PROPERTY TO THE HOTCHPOT	·    Section 42, LSA requires that in determining the final share of a child, grand children or house, account should be taken of a previous benefit, i.e. property settled or given during lifetime or by will, and any property appointed or awarded to any child or grandchildren under Section 26 and 35, LSA

 

NON-DISCRIMINATION                                        OF DAUGHTERS	·    Reference to children does not distinguish between sons and daughters, and neither is there a distinction between married and unmarried daughters ·    In the Matter of the Estate of Mariko Marumbi Kiuru the court stated that the LSA takes into account women in the distribution of the estate. Unless there is a disclaimer by the daughters, they, whether married or not, will be entitled to the estate   ·    Customary law is of no application, having been ousted by Sections 2(1), 35 and 38, LSA
RIGHTS       OF                   ILLEGITIMATE CHILDREN	·    The children of a male deceased person include his children born out of wedlock to women who were not married to him ·    The fact that the mother was not married to the deceased is no bar to the child inheriting dis or deceased father in intestacy ·    John Mubea v Milka Mubea: the court held that the children of an adulterous union are children for the purposes of succession
PROOF OF PATERNITY	·    Section 118, Evidence Act states that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, should be conclusive proof that he was the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time when he would have been begotten ·    Section 3, LSA is instructive about the fact that where the deceased took in the child and accepted him as his own, regardless of paternity, he will be treated as a child for purposes of succession (the most effective proof of paternity remains the DNA test)

 

5.       RIGHTS OF OTHER RELATIVES

 

RIGHT	WHAT IT MEANS
DECEASED SURVIVED BY SPOUSE AND ISSUE	·    The effect of Section 35, LSA is that if the intestate is survived by a spouse and child/children, then no other relative of the intestate will benefit ·    Other relatives can only access the estate through Section 26 for reasonable provision if they can show that they were dependent on the intestate immediately prior to his death (In the Matter of the Estate of Fatuma Binti Umri)
DECEASED    IS    SURVIVED                     BY SPOUSE BUT NO CHILDREN	·    Under Section 36, LSA in such a situation the surviving spouse takes a portion of the estate absolutely (i.e. the personal and household goods) and the first Kshs. 10,000/= of the residue of the net intestate estate or 20%, whichever is higher ·    This life interest determines upon remarriage or death, whereby it devolves upon the kindred of the intestate as set out in Section 39 of the LSA ·    Where there are no kindred, the net estate devolves upon the state and is paid into the Consolidated Fund
DECEASED IS SURVIVED BY NEITHER SPOUSE NOR CHILDREN	·    Section 39, LSA is applicable and the net intestate estate should devolve upon the kindred of the intestate, i.e. blood relatives, in the following order: (i)       Father, or if dead; (ii)      Mother, or if dead; (iii)    Brothers and sisters and child or children of the deceased’s brothers and sisters, or if none; (iv)    Half-brothers and half-sisters and any child or children of the deceased’s half- brothers and half-sisters in equal shares, or if none; (v)     The relatives who are in the nearest degree of consanguinity up to and including the sixth degree in equal shares ·    If there are no such blood relatives, the estate devolves upon the state bona vacantia

 

6.       DIVISION OF INTESTATE ESTATE OF POLYGAMIST

·       Section 40, LSA dictates that in the case of the estate of a polygamous estate, his personal and household effects and the residue of the net intestate estate should in the first place be divided among the houses according to the number of children in each house. Thereafter, distribution should follow the provisions in Sections 35 to 38, LSA

 

CASE	HOLDING
Rono v Rono and Another	The deceased was survived by his two widows and their nine children. The first widow had three sons and two daughters while the other widow had four daughters. The first house sought to have the estate shared in accordance with customary law, which meant that the second house was entitled to a small share since daughters are not entitled under customary law to inherit their deceased parents. The Court of Appeal held that customary law did not apply: the applicable law is section 40 of the Act, which makes provision for distribution of the net estate to the houses according to the number of children in each house, but adding any wife as an additional unit to the number of children. The court stated that section 40 did not require that the estate be divided equally between the houses, as the provision calls for the consideration of the number of children in each house
In the Matter of the Estate of Mwangi Giture	The quarrel between the two houses was over the distribution of the estate. One house argued for equal distribution in accordance with customary law, while the other favoured distribution according to section 40 of the Act. It was held that the court had no discretion in the matter and was bound to follow section 40 of the Act, which provides that the estate be divided between the houses taking into account the number of children in each house. The court, however, decried the unfairness of the provision to the widows who are treated the same as the children. This unfairness is particularly glaring where the first wife participated in the acquisition of the greater part of the estate, but in the end has to take a share equal to that of the younger wife who is married many years after the acquisition of the bulk of the estate, and who has contributed very little to the acquisition of the assets making up the estate

 

7.       DEVOLUTION TO THE STATE

·       Where an intestate is not survived by any of the relatives set out in Section 39, LSA, under Section 39(2), the estate devolves upon the state, is liquidated and paid into the Consolidated Fund

·       The state takes the property bona vacantia as property which no one claims and in respect of which there is no succession

·       The state does not claim it by succession at all, but claims it because there is no succession (Re Yusuf Bin Simbani)

 

8.       ADOPTED, LEGITIMATES AND ILLEGITIMATE CHILDREN

·       African customary law and Islamic law generally provide only for the legitimate children of the intestate

·       In recognition of the hardship occasioned to illegitimate children in terms of disinheritance, the LSA has modified the position and provides for adopted, legitimated and illegitimate children

 

8.1    ADOPTED CHILDREN

·       For the purpose of entitlement under the rules of intestacy, an adopted child is deemed related to the adopted parent and not the natural parent – Sections 171, 162, 174, 175 and 176, Children’s Act of 2001

·       The adopted child is generally treated as having been born on the date of the adoption

·       An adopted child cannot therefore claim on the intestacy of a natural parent, but takes on the intestacy of the adoptive parent and other relatives by adoption, such as grandparents, brothers, sisters, etc.

·       Likewise, if the adopted child dies intestate, it is the child’s adoptive parents, and not natural parents, that will be capable

of benefiting under the rules of intestacy

 

CASE	HOLDING
Willingstone Muchigi Kimari v Rahab Wanjiru Mugo	A child informally adopted by a female deceased person is not a child for the purpose of the succession to the estate of such deceased person. Section 3(2) of the Law of Succession Act only caters for children who have been recognised by a male person as his own or in respect of whom he has voluntarily assumed permanent responsibility

 

8.2    LEGITIMATED CHILDREN

·       All illegitimates child is legitimated by subsequent marriage of their natural parents

·       Legitimated children are deemed to have been born legitimate and can therefore take on intestacy in the same way as any legitimate child

·       Under Section 5(1) of the Legitimacy Act, a legitimated person, his spouse, children and remoter issue are entitled to take any interest in the estate of an intestate after the date of the legitimated person, as if the person had been born legitimate

·       Under Section 6 of the Legitimacy Act, if a legitimated person dies intestate then his property devolves upon the persons who would normally be entitled if the legitimated person had been born legitimate

 

8.3    ILLEGITIMATE CHILDREN

·       The definition of a child in Section 3(2), LSA includes an illegitimate child, i.e. a child born to a female person outside wedlock, a child whom a male person has recognised in fact or accepted as his child, or for whom he has assumed permanent responsibility

·       Instances of temporary responsibility do not suffice

·       Section 10, Legitimacy Act provides that an illegitimate child and his/her mother are entitled to succeed on the intestacy of the other, but the provision is unclear on the position of the father of the illegitimate child

·       Usually, no problems arise in relation to the inheritance rights of children born as a result of invalid marriages as they are treated as if their parents were validly married

·       The problem concerns children born out of wedlock – such children are entitled to inherit their mother’s property and

kindred’s property and they rank equal with the mother’s legitimate children

·       Where a child has not been adopted or where the mother has not married, thus giving rise to the adoption of the child into her husband’s child, the illegitimate child inherits from his natural father, if known or has expressly recognised the child as his

·       Where the child is known to be the illegitimate child of the deceased, he should rank equally with the legitimate children of the deceased for purposes of inheritance to property. Such a child is entitled to apply to court under Section 26, LSA as a dependant of the deceased where the deceased fails to adequately provide for the child by his will or the child is not adequately catered for in intestacy

 

9.       FORFEITURE AND INTESTACY

·       A person who commits the murder of the deceased is debarred, by Section 96, LSA, on grounds of public policy from taking a benefit on the intestacy of the deceased

·       Founded on the equitable principle that ‘no man can profit from his own wrong’

 

10.    COMMORIENTES AND INTESTACY

·       The doctrine of commorientes or survivorship is embodied in Section 43, LSA

·       It establishes that where the order of two or more persons is uncertain, the persons are presumed to have died in the order of seniority with the older person predeceasing the younger one

·       The doctrine does not apply to spouses, who are presumed to have died simultaneously

CHAPTER 7: PROTECTION PROVISIONS

 

1.       INTRODUCTION

·       Following the death of a person, it often happens that those who should obtain representation to the deceased’s estate do not take immediate steps, thus exposing the estate to wastage and misapplication/haphazard administration by either the beneficiaries or unauthorised persons

·       Death is often seen as an opportunity for relatives (and even strangers) to help themselves out of whatever tangible property the deceased has left behind

 

2.       INTERMEDDLING

2.1    ELEMENTS OF INTERMEDDLING

 

 

STATUTORY PROVISION	WHAT IT STATES
Section     45,                 Law    of Succession Act	No person should handle, take possession, dispose of, or otherwise intermeddle with the free property of a deceased person unless authorised by law to do so or by a grant of representation
Section 45(2),   Law   of Succession Act	It is a criminal offence to intermeddle with an estate without legal authorisation, punishable with a fine, imprisonment, or both (Francis Kamau Mbugua v James Kinyanjui Mbugua)

 

CASE	HOLDING
In the   Matter   of   the   Estate   of Huseinbhai Karimbhai Anjarwalla	Section 45 does not apply where the alleged inter-meddler is the person who is lawfully allowed to deal with the affairs of the estate
Shital Bimal Shah v Akiba Bank	Section 45 does not apply to acts of personal representatives under a grant of probate
Gitau and 2 Others v Wandai and 2 Others	It was held that the act of one of the parties to the suit of entering into a sale agreement before grant of representation had been obtained amounted to intermeddling with the affairs of the deceased
Re Katumo and Another	The court stated that altering the state or condition of an asset which forms part of the estate amounts to intermeddling with the asset

 

2.2    PROTECTIVE PROVISIONS CONCERNING INTERMEDDLING

·       The LSA provides for protective powers to be exercised against wrongful disposal and intermeddling with any free property of the deceased, except in accordance with the Act

·       The spirit of the LSA gives the court wide jurisdiction in dealing with testamentary and administration issues through Section 47, LSA which gives the court jurisdiction to entertain any application and determine any dispute under the LSA and so pronounce such decrees as may be expedient

 

CASE	HOLDING
In the Matter of the Estate of David Murage Muchina	Kamau J gave restraining orders to stop a party from intermeddling in any manner whatsoever with any of the assets of the estate of the deceased pending the hearing and disposal of a pending revocation application. It is not indicated under which provisions the restraining orders were made, the orders were presumably made in exercise of inherent powers
Francis Kamau Mbugua v James Kinyanjui Mbugua	Sections 45 and 46 of the Act provide detailed protective provisions concerning intermeddling with the estates of deceased persons. Furthermore, the probate court is empowered by section 47 to give all necessary orders, including injunctions where appropriate, to safeguard the deceased’s estate. In the court’s opinion an application for restraining orders brought outside the provisions of the Law of Succession Act, in this case under Order 36 of the Civil Procedure rules, is incompetent. It was emphasised that Order 36 does not empower the court to grant injunctions in deceased estates outside the provisions of the Law of Succession Act. In any event, a beneficiary, although entitled to bring an action under Order 36, is not empowered under Order 36 to institute suit and to obtain an injunction to stop intermeddling without in the first place obtaining a full or limited grant of representation

·       Restraining orders can only be properly granted in a civil action brought under the Civil Procedure Act and Rules with the principles set out in Order 39 of the Civil Procedure Rules

·       Thus, a party beneficially interested in the estate of the deceased should quickly move the probate court for a grant, whether full or limited, and thereafter bring an ordinary suit under the CPA and CPR for injunctive orders

·       Although Section 47, LSA is a wide provision, it is not wide enough to allow for making of injunctive orders in probate and succession causes

 

2.3    CONSEQUENCES OF INTERMEDDLING

·       The intermeddler, also known as an ‘executor de son tort’ (executor by his own wrong), may be required to apply for a grant of representation

·       If he does not apply for representation, he will be answerable to the rightful executor or administrator to the extent to which he has intermeddled, after deducting any payments made in the due course of administration (Section 45(2)(b))

·       The remedy available against intermeddling by an executor who has not taken out a grant is through the procedure for seeking accountability (In the Matter of David Wahinya Mathene)

 

3.       PUBLIC OFFICERS AND THE PROTECTION OF ESTATES

·       Section 46, LSA vests authority on public officers with regard to protecting estates of persons who die within the public

officers’ area of jurisdiction

·       Section 45 and 46, LSA specifically empower the police, the provincial administration and the Public Trustee to deal with issues relating to intermeddling with estates of deceased persons

·       Immediately upon the occurrence of a death or a report of the same being made to them, the police or administrative officers are obligated to forthwith report the fact of the death of any person to the local assistant chief or chief or any other administrative officer of the area where the deceased had his last place of residence

·       The public officer to whom the report is made should, upon the request of any person who appears to have a legitimate interest in the estate of the deceased person or if no one has made an application for representation within one month, proceed to the deceased’s place of residence, ascertain his free property and preserve it

·       He should also ascertain all the persons who appear to have an interest in succession to or administration of the estate, and guide the prospective executors or administrators on the formalities and their duties relating to the administration of the estate

 

4.       PUBLIC TRUSTEE AND PROTECTION OF ESTATES

 

STATUTORY PROVISION	WHAT IT STATES
Section 6, Public Trustee Act	Upon receipt of a report made to him by virtue of Section 46 of the LSA, the public trustee should make further inquiries as to the estate of the deceased. Where, after making the inquiries, it appears to the Public Trustee that: (i)       The person died intestate; (ii)      The deceased, having made a will, has omitted to appoint an executor; (iii)    The persons appointed as executors in the will of the deceased are dead or have renounced probate or are unable to act; or (iv)    The deceased has appointed the Public Trustee as executor of his will; He may apply for grant of representation under the LSA
Section      8(1),      Public Trustee Act	Where the estate of a deceased person consists of property whose gross value does not exceed Kshs. 20, 000/= and the deceased has died intestate or left a will in circumstances that require the Public Trustee to apply for a grant under section 6 of the Public Trustee Act, the Public Trustee may take possession of the estate and administer the same without having to make an application to the court, under the Law of Succession Act, for a grant of representation
Section      8(2),      Public Trustee Act	Where an estate of a deceased person consists of property whose gross value does not exceed Kshs 5 000/=, the Public Trustee may issue a certificate of summary administration on application of any person to whom probate or letters of administration may be the granted. This would entitle the person holding the certificate to administer the estate without a grant of representation

5.       PROTECTION UNDER THE PENAL CODE

 

PENAL CODE PROVISION	WHAT IT STATES
Section 276	Stealing of a testamentary instrument, whether the testator is alive or dead, is a crime punishable by imprisonment for ten years
Section 287	Concealing with the intend to defraud is an offence
Section 327	Any person who, being an executor, including an executor de son tort, or an heir or an administrator of the estate of a deceased person, destroys any property making up the estate with intent to defraud, or with intent to defraud converts the property to any unauthorised use, it guilty of a felony
Section 339(4)	Malicious damage to a testamentary instrument is a criminal offence
Section 350	It is also a criminal offence to forge a will

CHAPTER 8: GRANTS OF REPRESENTATION

 

1.       INTRODUCTION

·       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 only be made in respect of the estate of one deceased person

·       The High Court has jurisdiction under Section 47, LSA to make grants and the Chief Justice may, under the same provision, appoint Resident Magistrates to represent the High Court

·       Section 53, LSA highlights the two forms of grants:

(i)       Grant of probate

(ii)     Grant of letters of administration – which may be further classified into grants of letters of administration with will annexed & grants of simple administration

·       The court may limit a grant of representation as to property, purpose or time. In situations where the personal representative has not completed administration, it may also issue a grant limited to completion of administration

·       A grant of representation is needed to administer the estate of a deceased person (save for very small estates)

 

2.       EXECUTORS AND ADMINISTRATORS

·       The personal representative represents the deceased and his role is that of a person authorised in law to dispose of the property of someone who has died – it is an ‘office for life’

·       He steps into the shoes of the deceased in the sense of being able to lawfully do such things as the deceased may have done if he were alive

·       A personal representative appointed by a will to distribute the property of the deceased according to the terms of the will is called an executor, while the personal representative appointed by the court in case of intestacy and where there is no proving executor is called an administrator

·       The executor in testate succession derives his authority from the will and the grant of probate merely confirms this authority, however, the grant of letters of administration is the source of the administrator’s authority

·       Beneficiaries are those persons benefitting from the distribution of the estate of a deceased person (In the Matter of the Estate of Joseph Muchoki Muriuki)

 

3.       APPOINTMENT OF EXECUTORS

·       Section 6, LSA provides that a testator may appoint his executor or executors by will. This is not a mandatory requirement, but in practice a will is considered badly drafted for failure to appoint an executor

 

3.1    PERSONS QUALIFIED FOR APPOINTMENT

 

SPOUSES	A husband usually appoints his wife to be his executor, and vice versa, especially where they do not have grown up children. This is preferable because the spouse is usually the residuary legatee and so it is sensible for the person with the biggest stake in the estate to have a hand in its administration.
ADVOCATES	Advocates may also be appointed as executors, but the testator is not obliged to appoint as an executor the advocate who drafts the will or keeps it in safe custody. Advocates are normally appointed as executors where they are involved in the management of the estate, e.g. where the advocate handles the legal affairs of the estate’s businesses or has been a family lawyer for the deceased.
BANKS	The bank is the most suitable choice, particularly where there is family strife such that the appointment of a person within the family will lead to discontent (or where there is no suitable individual at hand). A bank is also suitable where the will creates trusts that are likely to continue for many years, especially since the bank is capable of remaining executor for a longer period than a moral executor who will need to be replaced eventually.
PUBLIC TRUSTEE	This is an office in the AG’s Chambers, which is designed to administer the estates of those persons who have appointed it to act as such or those who have failed to appoint anyone at all.

 

3.2    IMPLIED APPOINTMENT

·       In some cases, executors may be impliedly appointed – i.e. ‘executors according to the tenor of the will’

·       To be impliedly appointed, it must be shown that the testator intended that the person so appointed should carry out the duties of an executor (Rule 28(i), P&A Rules)

·       Whether a person is impliedly appointed depends on the construction of the will

 

CASE	HOLDING
Re Adamson	It was held that the persons instructed under the terms of the will to pay the deceased’s debts and funeral expenses, and to pay the balance of the estate to named persons were executors according to the tenor of the will

 

3.3    SPECIALIST EXECUTORS

·       Where the estate is made up of certain types of property, the testator may, and it is desirable that he should appoint different people to deal with different parts of the estate – it is advisable that such executors be specialists in their fields

·       People falling in this category include advocates, bankers, trust corporations and the Public Trustee

 

4.       CAPACITY TO TAKE OUT A GRANT

 

STATUTORY PROVISION	WHAT IT STATES
Section 56(1),   Law   of Succession Act	A minor, a person of unsound mind and a bankrupt have no capacity to take out a grant of representation (regardless of the fact that they have been appointed as an executor under the will)
Rule 32(1), P&A Rules	In intestacy cases where the person to whom a grant ought to be made is a minor, administration should be made to an adult or adults for the use and benefit of the minor until he attains the age of eighteen
Rule 33, P&A Rules	In testate cases where the person to whom a grant ought to be made is a minor, the grant of probate should be made to an adult or adults for the use and benefit of the minor until he attains the age of eighteen
Section 56(2),   Law   of Succession Act	While a grant of representation may be made to a body corporate under Section 56, this is limited in that none should be made to a body corporate other than Public Trustee or a Trust corporation
Section     57,                 Law    of Succession Act	No grant should be made to a syndic or nominee on behalf of a body corporate, but the application for grant may be signed by and affidavits in support may be sworn by officers or directors of the said body corporate
Section      18,                 Married Women Property Act	A married woman has capacity to act as an executrix or administratrix alone or jointly with any other person or persons of the estate of a deceased person, without her husband, as if she were a femme sole

 

5.       EXECUTOR DE SON TORT

·       The term ‘de son tort’ literally means ‘an executor because of his own wrong’

·       It refers to any person who acts as an executor or administrator in the administration of an estate without authority

·       In intestate succession, the person may be entitled to a grant, but before obtaining the grant has no authority to act

·       Acts complained of must not be of humanity or necessity as such acts do not constitute a person an executor de son tort

·       The acts must be consistent with the administration of the estate, e.g. paying the debts of the estate, which acts strictly amount to intermeddling

·       An executor de son tort has no rights over the estate but is liable to creditors and beneficiaries of the estate to the extent that the assets pass through their hand

·       The executor de son tort is answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducing any payments made in the normal course of administration à his liability ceases when he hands over the assets to the lawful personal representative

·       A citation may issue upon an executor, or a person who is entitled to apply for grant in intestacy, who has intermeddled in the estate of the deceased to show cause why he should not take out a grant

6.       GRANT OF PROBATE

6.1    ISSUES IN RESPECT OF TESTACY

·       A grant of probate is made under Section 53(a), LSA in respect of the estate of the testate where it is proved that the deceased left a valid will, whether oral or written

·       The grant should be made in respect of all the property to which the will provides, and is usually made to the executor/executors appointed under the will

·       Where the will does not effectively dispose of all the property, the deceased will be deemed to have died partially intestate and the grant of probate will only apply in respect of the property to which the will provides

 

6.2    EFFECT OF GRANT OF PROBATE

(i)       The grant of probate is proof of the terms and proper execution of the will

(ii)     The other effect of the grant is to confirm the executor’s authority to act

o   Theoretically, the executor can administer the estate of the deceased before obtaining a grant

o   In practice, however, they need a grant of probate as evidence of their authority to act to enable them discharge their duties as such effectively

 

CASE

HOLDING

Kothari v Qureshi and Another

An executor’s title dates from the death of the deceased and springs from the will and not from the grant of probate. An executor’s acts before probate are therefore valid in themselves and have effect by virtue of the will, and probate is merely the authentication of the will in such cases and if the will is ultimately proved no one can question the validity of such acts. The executor may commence suit before grant of probate and can carry on the proceedings without a grant as far as is possible until he has to prove his title, when he must then obtain the grant of probate to evidence his title. An executor can before grant commence action, release a debt and generally act as the representative of the deceased until he is required to prove his title as such. An executor can be sued before probate is granted if has not renounced probate and if he has intermeddled in the estate, he cannot renounce

 

6.3    PERSONS ENTITLED TO GRANT OF PROBATE

·       A grant can only be sought by and issued to an executor appointed under the will

·       Section 60, LSA states that where a will appoints more than one executor, probate may be granted to them all simultaneously, or at different times (they do not all have to take out a grant of probate)

·       Any executor who decides not to take out a grant has to renounce their right to probate

·       Rule 19, P&A Rules stated that executors who do not renounce probate or apply for a grant may later on apply to be joined by endorsement to the grant

 

6.4    APPLICATION OF THE PRINCIPLE OF RELATION BACK

·       The principle of relation back applies to grants of probate. The doctrine operates to protect the deceased’s estate from harm between the date of death and the date of the grant. Where the doctrine applies, the grant of letters of administration related back to the date of the deceased’s death. It does not allow an administrator to commence action on behalf of the estate before obtaining a grant

·       Thus, once a grant is issued to a party, all the intermediate acts that the party will have undertaken without the grant of probate will be validated (Lalitaben Kantilal Shah v Southern Credit Banking Corporation)

·       The executor’s authority derives from the will and all the estate and interest in the testator’s property vests in him on the testator’s death

 

7.       GRANT OF LETTERS OF ADMINISTRATION WITH WILL ANNEXED

7.1    ISSUES IN TESTACY WHERE THERE IS NO PROVING EXECUTOR

·       Section 53(a)(ii), LSA provides that a grant of letters of administration with the will annexed (‘grant cum testament annexo’) is made in circumstances where the deceased dies leaving a valid will, but there is no proving executor

·       This is usually the case where:

(i)       The will does not appoint an executor; or

(ii)     The executor appointed has predeceased the testator; or

(iii)    The executor appointed has renounced executorship; or

(iv)    The executor appointed has been cited to take out a grant of probate and has failed to do so (Section 63, LSA)

 

7.2    PERSONS ENTITLED TO GRANT OF LETTERS WITH WILL ANNEXED

·       The persons entitled to a grant of letters of administration with the will annexed include the universal/residuary legatee and a personal representative of a deceased residuary legatee

·       The representative of a residuary legatee who dies before the estate is fully administered may also apply and be granted probate

 

7.3    EFFECT OF THE GRANT WITH WILL ANNEXED

·       A grant of letters of administration with the will annexed is conclusive proof as to the terms of the will and that the will had been duly executed by the testator

·       The grant confers authority on the administrator and vests the deceased’s property in him, as the administrator so

appointed is not appointed by the will but through the grant of letters of administration

·       This means that the principle of relation-back does not apply to a grant of letters of administration with will annexed

 

8.       GRANT OF SIMPLE ADMINISTRATION

8.1    ISSUES IN THE EVENT OF INTESTACY

·       A grant of simple administration will be made in the vast majority of cases where the deceased dies totally intestate, i.e. without having made a will or where his will is invalidated

·       Where intestacy is partial, a grant of simple administration will be made in respect of property that is not dealt with under

the deceased’s will

·       However, where the deceased has made a will and effectively appointed an executor, but nonetheless dies intestate for failure to dispose of any of their property effectively, a grant of probate will be made

 

8.2    PERSONS ENTITLED TO GRANT OF SIMPLE ADMINISTRATION

·       Section 66, LSA states that the following persons may apply for and be granted letters of administration:

(i)       Surviving spouse or spouses;

(ii)     Children;

(iii)    Parents;

(iv)    Siblings and half siblings; and

(v)     Other relatives (in the nearest degree of consanguinity up to the sixth degree)

·       This stipulated order of persons follows the order of entitlement to an estate on intestacy, and it requires that a person applying for the grant should have a beneficial interest in the estate

 

CASE	HOLDING
Re Kibiego	The court held that the widow is the proper person to obtain representation to her husband’s estate, particularly where children are underage as she is the person who would rightfully and honestly safeguard the assets of the estate for herself and her children

 

·       There is a general preference for a living person over a personal representative of a deceased person, but where a person who is entitled on intestacy dies before taking out a grant, the personal representative of such person who falls within the categories set out in Section 66 has the same right to a grant as the person they represent

·       A person of full age is also preferred to the guardian of a minor where persons are entitled in the same degree

·       If no one in the categories listed above has a beneficial interest in the estate, then a grant may be issued to the Public trustee who claims bona vacantia on behalf of the state or to creditors

 

8.3    EFFECT OF GRANT IN SIMPLE ADMINISTRATION

·       A grant of simple administration is wholly conclusive evidence that the deceased died intestate without leaving a will

·       Unlike a grant of probate which merely confirms authority, a grant of simple administration confers authority to act and

vests the deceased’s property in the administrator

 

8.4    THE NON-APPLICATION OF THE PRINCIPLE OF RELATION BACK

·       An administrator (whether simple or with the will annexed) has no authority in relation to the deceased’s estate prior to

the grant – i.e. grant of letters of administration have no retrospective effect

·       Section 80(2), LSA confirms that a grant of letters of administration only takes effect from the date of the grant – it is considered dangerous to offer prospective administrators’ immunity for intermeddling before their rights to a grant have been established

 

CASE	HOLDING
Otieno v Ougo and Another	The Court of Appeal found that the appellant’s claim of entitlement to bury the remains of her husband on the basis of her being his personal representative failed on the ground that she had not obtained a grant of representation. She could only assert her right to do if she had a right to act on his behalf, which right stems from grant
Troustik Union International v Ms Jane Mbeyu	It was held that a person, whether a spouse or not, cannot sue on behalf of the intestate estate of the deceased person unless they have a grant of representation at the time of filing suit. The respondents claim for damages under the Law Reform Act failed on this ground that is lack of locus standi to sue on behalf of the estate on account of lack of a grant of representation
Coast Bus Services v Samuel Muvi Lai	an administrator is no entitled to bring an action as administrator before he has taken out letters of administration. If he does, the suit would be incompetent as at the date of inception. The doctrine of relation back of an administrator’s title, on obtaining a grant of letters of administration, to the date of the intestate’s death, cannot be invoked as to render the action competent

 

9.       LIMITED GRANTS

·       A limited grant is one that does not give the personal representative authority (or confirm the authority, in the case of a grant of probate) to act with respect to the whole estate in all respects until the administration is completed

·       It may be described as a ‘restricted grant’, and Section 54, LSA allows a court to limit a grant of representation that it has jurisdiction to make

 

9.1    LIMITED AS TO PURPOSE

 

LIMITED AS TO PURPOSE	WHAT IT ENTAILS
GRANT AD COLLIGENDA BONA	It is provided for under Section 67, LSA and Rules 36 + 37, P&A Rules. This grant is normally made where the assets of the estate are of perishable or precarious nature and which need quick attention, i.e. some urgent action needs to be taken in relation to the assets of the estate and there may be delay in obtaining the grant. It is intended to give the administrator power only to collect and preserve the assets of the estate, pending the making of a full grant (In the Matter of Dr John Muia Kalii). Grant of letters of administration ad colligenda bona cannot confer the grantee the status of a personal representative of a deceased person, i.e. this limited grant does not confer on the grantee the right to administer the estate of the deceased person.
GRANT AD LITEM	It is provided for under paragraph 15, 5th Schedule. This grant is to enable someone to represent the estate where the estate has been sued or intends to sue, and so it is necessary to make the estate a party to the suit. It is usually taken out where a third party wishes to make the estate a defendant in an action and no person entitled to a grant has taken one out.
GRANT PENDETE LITE	It is provided for under Paragraphs 10 and 14, 5th Schedule. This is granted where there is a pending suit, in particular – a dispute as to the validity of the will or the right to administer the estate. It is limited to the duration of the pendency of the suit. It allows the administrator appointed by the court to administer the estate until the action is completed (In the Matter of the Estate of Onesmus Mwilu Mbuvi). It does not give authority to the administrator to distribute the estate, and so it is also limited in time to the completion of the pending proceedings.

 

GRANT DE BONIS NON ADMINISTRATIS	It is provided for under Paragraph 20, 5th Schedule. This is a grant limited to the purpose of administering the un-administered part of the estate where the personal representative has not completed the administration of the estate either because he has died or for some other reason part of the estate has been left un-administered. Where an administrator dies and the estate is not fully administered, any of the beneficiaries entitled to the estate might file for letters de bonis non (In the Matter of the Estate of Hannah Njoroge Njuki).
CESSANTE GRANT	It is provided for under Paragraph 21, 5th Schedule. It is made when the original grant was limited as to time and that period has now expired, provided that the administration of the estate is still incomplete.
TEMPORARY GRANT BY RESIDENT MAGISTRATE	A temporary grant by a resident magistrate may be made under Section 49, LSA. A resident magistrate grants this in cases of apparent urgency and it is limited to collection of assets situated within his jurisdiction and payment of debts of the estate. The life of this grant is limited to 6 months.

 

9.2    LIMITED AS TO PROPERTY

·       This type of grant is made under Paragraph 13, 5^th Schedule

·       This may be granted where a person dies leaving property of which he was the sole trustee, or in which he had no beneficial interest on his own account, and leaves no general representative, or leaves a representative who is unable or unwilling to act as such

·       In such a case, letters of administration limited to that property may be granted to the person beneficially interested in the property or to another on his behalf

·       Such a grant may also be granted where a testator appoints executors only of certain assets in a specified area – such executors obtain probate limited to that property (e.g. where you appoint experts)

 

9.3    LIMITED AS TO TIME

 

LIMITED AS TO TIME	WHAT IT ENTAILS
GRANT DURANTE AETATE MINORE	It is provided for under Paragraph 7 and 8, 5th Schedule. This is where either the executors/administrators are minors and as such are not entitled to the grant in their own right. The grant automatically expires when the minor reaches 18 years old, unless some other time is specified by the court.
GRANT DURANTE ABSENTIA	It is provided for under Paragraph 4, 5 and 6, 5th Schedule. Where the personal representative is outside the jurisdiction, a grant of representation may be made to another person limited to the duration of the absence of the personal representative.
GRANT WHERE WILL IS UNAVAILABLE	It is provided for under Paragraphs 1, 2 and 3, 5th Schedule. This is made where the deceased has made a will but the same is lost, misplaced or otherwise unavailable, either because the will is outside jurisdiction or because it is held in a foreign court.
ADMINISTRATION FOR USE AND BENEFIT OF PERSON OF UNSOUND MIND	It is provided for under Paragraph 9, 5th Schedule. This is where a sole executor or sole universal/residuary legatee, or a person who would be solely entitled to the estate of the intestate according to the rules of intestacy, is mentally incapacitated. A grant of letters of administration will be made to a person to whom the care of his estate has been committed by a competent authority, or if there is no such person, then to any other person as the court thinks fit.
GRANT LIMITED TO COLLECTION OF ASSETS AND PAYMENT OF DEBTS	It is provided for under Section 49, LSA and Rule 37, P&A Rules. It is similar to the grant ad colligenda bona, save that it goes beyond collection of assets to also cover payment of debts. It is made pending the full grant and has a life of 6 years.
SPECIAL LIMITED GRANT – LEGAL NOTICE NO. 39 OF 2002	This type of limited grant is provided for under the P&A Rules, through Legal Notice No. 39 of 2002. It is made in special circumstances where the urgency of the matter is so great that it would not be possible for the court to make a full grant in sufficient time to meet the necessities of the estate.

10.    FOREIGN GRANTS

·       A grant of representation obtained in Kenya only enables the personal representatives to deal with the deceased’s property that is in Kenya. If the deceased as assets outside Kenya, it is necessary to obtain a grant in that country that fulfils the probate requirements of that jurisdiction

·       Whether grants issued in Kenya can deal with property located in foreign jurisdictions depends on the law in those foreign jurisdictions

·       The LSA allows – to a limited extent – the recognition of foreign grants in Kenya

 

STATUTORY PROVISION	WHAT IT STATES
Section 4(1)(a), Law of Succession Act	This section rules out the recognition of foreign grants in Kenya with relation to real property. Succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, the domicile of the deceased at the time of his death notwithstanding
Section 4(1)(b), Law of Succession Act	Succession to movable property of a deceased person, wherever situated, shall be regulated by the law of the country of the domicile of the person at the time of his death
	Foreign grants are therefore recognised in Kenya only to the extent of movable property
Section 77(1), Law of Succession Act	Foreign grants have to be deposited with the High Court (principal registry and Mombasa registry only), and sealed with the seal of that court, where after they have the same effect and operation in Kenya as if granted and confirmed by the High Court of Kenya

 

11.    ADMINISTRATION OF AN ESTATE WITHOUT GRANT

·       For fairly small estates, a grant of representation is not mandatory

 

STATUTORY PROVISION	WHAT IT STATES
Section      8(1),      Public Trustee Act	In respect of estates not exceeding Kshs. 20,000/=, where the deceased has died intestate or died testate leaving a will in circumstances which would require the Public trustee to apply for grant, the Public Trustee may administer such estates without reference to any court
Section      8(2),      Public Trustee Act	Where the gross value of the estate does not exceed Kshs. 4,000/=, the Public Trustee may issue a certificate of summary administration on the application of any person to whom grant may be made under the provisions of the LSA

CHAPTER 9: NON-CONTENTIOUS PROBATE

 

1.       INTRODUCTION

·       Both the High Court and the Resident Magistrate’s deal with non-contentious business

·       Probate will be granted in common form in non-contentious proceedings where there is no dispute as to the documents that ought to be admitted to probate or over entitlement to a grant

·       A person wishing to apply for a grant must, personally or through an advocate, lodge certain papers with the principal

registry, district registry or resident magistrate’s registry

·       The registrar/resident magistrate consider the papers, and where satisfied that the documents are in order, a grant is signed by the relevant judicial officer and sealed with a seal of the court

 

2.       APPLYING FOR A GRANT

·       The procedure for applying for a grant is set out in Section 51, LSA and Rule 7 – 14, P&A Rules

·       The petition for grant should contain the full particulars of the deceased, namely:

o   Names, date and place of death, last known place of residence, relationship of applicant with deceased, whether or not the deceased left a valid will, a full inventory of all the assets and liabilities of the deceased, etc.

o   Where the deceased died (totally or partially) intestate, the following particulars should be given: names and addresses of surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any pre-deceased child of the deceased

·       Where it is alleged that the deceased died testate and left a valid written will, the original will should be annexed to the petition and the details of the executors given

·       If the original will is lost, destroyed, or otherwise unavailable (other than by way of revocation), then an authenticated copy of the will should be annexed to the petition, or, in the alternative, the names and addresses of all persons alleged to be able to prove its contents should be stated in the petition

·       If the will is alleged to be oral, the names and addresses of all persons alleged to be witnesses must be stated in the petition

·       The application for grant is to be filed in the principal registry, High Court district registry, or resident magistrate’s registry

·       After the filing of the papers, the court may allow any person to inspect the will – that is where the grant is sought is one of probate of a written will or letters of administration with the will annexed

·       The application for grant of probate has to be accompanied with proof of death, ordinarily a Certificate of Death

·       Where an application for grant is based on a presumption of death (under Section 118(A), Evidence Act because the person has not been heard from in 7 years), the application must be accompanied by a declaratory order to that effect

 

3.       CAVEATS

 

P&A RULE	WHAT IT STATES
Rule 15(1)	A caveat is a notice entered at a probate registry to prevent a grant or representation being made or confirmed without first being given to the person who enters a caveat, known as a ‘caveator’
	The main purpose of a caveat is to enable a person who may be considering opposing a grant to obtain legal advice or evidence on the matter
Rule 15(6)	Where a caveat has been lodged against the making or confirming of a grant and a grant is applied for or confirmation of a grant is sought, the Registrar should be notified of the same
Rule 15(8)	When the Registrar is notified, he/she should not allow a grant to be made or confirmed. However, no caveat would prevent the making or confirming of a grant on the day on which the caveat is filed (Re the Estate of Petit)
Rule 15(9)	The Registrar should warn the caveatee of the filing of the application for the making or confirmation of grant, and notify him that if he wishes to object to the same, he should lodge an objection to the application in accordance with the rules. Thus, the lodging of a caveat is not a substitute for lodging an objection

 

·       Any interest in the deceased’s estate, however slight, is sufficient to enable a party to lodge a caveat and oppose a

testamentary paper or instrument (DD Doshi v Abdulhussein Hassanali Jivanji)

·       Where the person entitled to file a caveat has been cited, it is unnecessary for him to file a caveat unless he wishes to argue that the person who has the grant has no right to the grant (Maamun bin Rashid bin Salim El Rumhy v Haider)

4.       CITATIONS

·       A citation is a document issued by the probate registry whereby the person issuing the document (the citor) calls upon the person cited (the citee) to provide a reason why a particular step should not be taken

·       Citations occur in both contentious and non-contentious probate – in non-contentious probate they serve the purpose of hurrying along or fast tracking the issue of a grant

 

CASE	HOLDING
Re Mauchauffee	Where the estate is insolvent, the court may dispense with the citation
Estate of Sukhlal s/o Madhulal	Whenever a party is entitled to be cited the citation must be directed to the citee and served upon him personally. Upon being served with a citation, the citee is required to appear by filing the prescribed appearance form and thereafter serving the same on the citor
Maamun                      bin Rashid bin Salim El-Rumhy                                 v Haider Mohamed	Where a person applies for representation, citations should not be issued to other heirs having equal rights to the grant, except where the court sees it fit to make such an order. The object of non-contentious citations is to call upon a person who has a superior right to a grant to take the grant. Any person who has an interest in having an estate administered may apply for a grant of representation, but if there are persons who have a superior right to obtain the grant, the applicant must cite them calling upon them to apply for the grant. If the person cited fails to apply for a grant or renounce his right to it, the grant may be given to the citor

 

·       There are 3 types of citations, namely: a citation to accept or refuse a grant of probate or administration; a citation to take out probate; and, a citation to propound the will

·       Citations are classified into special and general citations – special citations are addressed to a particular person while general citations call upon all persons without naming a particular person

 

CITATION	WHAT IT ENTAILS
TO           ACCEPT       OR REFUSE A GRANT	Used where a person (whether in testacy or intestacy) who has an entitlement to a grant prior to that of the citor, either delays or declined to take a grant, but at the same time fails to renounce his or her right to a grant so as to enable persons with an inferior right to take out a grant in his or her place. This person may be cited to accept or refuse the grant
TO        TAKE            OUT PROBATE	Used where an executor (not administrator) has intermeddled with an estate and has not taken out a grant. Any person with an interest in the estate may cite the executor to provide reasons as to why he should not be compelled to take out a grant. The citation should be made at any point after the expiration of three months from the death of the deceased, but not while proceedings as to the validity of the will are ongoing.
TO PROPOUND WILL	Under Rule 23(1), P&A Rules, where a person who has an interest under an earlier will or under the rules of intestacy believes that a will, which has not yet been proved, is invalid, he or she may cite the executors and beneficiaries of the will to propound it

 

4.1    RENUNCIATION

·       Both executors and administrators may renounce their right to apply for a grant (In the Matter of Laban King’ori Macharia)

·       The renunciation should be in writing, signed by the person entitled to the grant, or declared orally in court

·       Where a person entitled to a grant wishes to renounce, he/she must renounce the whole office rather than only some of their responsibilities

·       An infant’s right to probate on attaining majority age may not be renounced on his behalf, and an executor who has intermeddled in the estate of the deceased cannot renounce probate

 

CASE	HOLDING
In the Estate of Naftali	The petitioner, a brother of the deceased, was not the right person to seek the grant since there was the mother of the deceased who did not renounce her right and was notified
In the Matter of Laban King’ori Macharia	The renunciation can even be made or given after the grant had been issued

·       Once renunciation has been made, it can only be retracted by an order of the court (Rule 18(3), P&A Rules) and such order will only be made if it can be shown that it is for the benefit of the estate, or the beneficiaries, or the creditors of the estate

 

4.2    CONSENT TO GRANT BEING MADE TO SOMEONE ELSE

·       Rule 26(2), P&A Rules: rather than renouncing people, a person who is entitled to apply for grant may consent in writing to the grant being made to a person whose right of administration is inferior or equal to his

·       Where a grant is applied for without the persons entitled having renounced probate or consented to the application, and the applicant fails to file the affidavit envisaged by Rule 26, the grant issued would be liable for revocation

 

5.       MAKING OF GRANTS

5.1    PROCEDURE

·       Grants are issued through the principal registry, a High Court district registry, or a resident magistrate’s registry

·       The grant must be signed by a judge or resident magistrate, and sealed with the seal of the registry

·       Before issuance of a grant, the court must make all necessary inquiries, including inquiring into the proof of identity of the deceased and of the applicant

·       No grant is to be made within 15 days of the deceased’s death

·       The grant can be made to a single person or jointly to two or more persons, not exceeding four (Rule 25, P&A Rules)

·       Where, in intestacy, continuing trusts are involved, the grant must be made to two administrators (Section 58, LSA)

·       Before making the grant, the court has power to examine the petitioner on oath, to call for further evidence on the execution and contents of a will, to issue a special citation to any person who may have reason to object to the application, etc. (Section 70, LSA)

 

CASE

HOLDING

Karanja and Another v Karanja

The principal duty of a probate court at this stage is to decide whether or not a document is entitled to probate as a testamentary paper and who is entitled to be appointed the personal representative of the deceased. The probate court is not required to decide questions as to whether properties disposed of are wholly owned or jointly owned by the deceased or whether the deceased had power to dispose of some of the properties. The grant of probate of a will is only conclusive as to the validity of a will the contents of a will and appointment of the executors. It does not predetermine all other disputes, which may arise

 

5.2    NOTICES

 

STATUTORY PROVISION	WHAT IT STATES
Rule 26, P&A Rules	A grant of letters of administration is not to be made without a notice being given to every other person entitled in the same degree or in priority to the applicant. Where the applicant is entitled to a grant in a degree lesser or equal to that of other persons, the written consent/renunciation of those other persons must be obtained, or alternatively, the applicant must file an affidavit stating reasons why grant should be made to him in the circumstances
Section     67,                 Law    of Succession Act	No grant of representation, except the grant ad colligenda bona, should be made before a notice of the petition or application for the grant has been published, inviting objections to the same
Rule 7(4), P&A Rules	The registrar or resident magistrate is required to cause the insertion in the official gazette, a daily newspaper and to be exhibited conspicuously in the courthouse attached to the registry where the application is made, a notice of the application for the grant inviting objections to be made to that registry within a specified period of not less than thirty days. The notice informs the general public of the death of the deceased so that the creditors of the deceased might know who to contact for settlement of debts. It also gives an opportunity to other beneficiaries of the deceased to lodge objections if they wish against making of the grant to the petitioner

 

 5.3    PERSON ENTITLED TO GRANT

·       In testate succession, grant should be made to the executors named in the will of the deceased person or to the persons named in Section 64 and 65, LSA where the will has not appointed executors, or the executors appointed under the will have renounced probate or are unable to act for some other reason

·       The courts have a wide discretion as to whom grant of representation should be made on intestacy, however, Section 66, LSA stated in hierarchical order the persons to whom a grant of representation in intestacy may be made

·       The surviving spouse has priority in applying for and being granted letters of administration (In the Matter of the Estate of Murathe Mwaria)

·       Section 66, LSA gives the court final jurisdiction to determine whom letters of administration should be granted to and the final decision should be in the best interest of all concerned (Kimari and Another v Kimari)

 

CASE	HOLDING
In the Matter of the Estate of Aggrey Makanga Wamira	Section 66 gives the court discretion in the appointment of the person or persons who will administer the estate, but priority should be given to the widow and the children by virtue of sections 35, 36 and 38 of the Law of Succession Act. Other relatives, set out in section 39, should only come in where no spouse or children were left or where the widow and children are unsuitable
Kimari and Another v Kimari	The purpose of section 66 is to place the widow in a stronger position than she had enjoyed at customary law. The preference given to the widow is not final and it is proper in some cases to allow the widow to administer the estate in association with some other member of the family
Flirence Okutu Nandwa v John Atemba	A grant should also only be made to persons who have applied for the same. The court of appeal held that a court should not proceed in gratis to issue a grant to a person who has not sought the grant

 

5.4    SOLVENCY OF THE PROPOSED ADMINISTRATOR

·       Rule 29, P&A Rules state that the court may before making the grant require to be satisfied as to the solvency of the administrator, which may take the form of:

(i)       Requiring the proposed administrator to file an affidavit as to means;

(ii)     Require one or more sureties to guarantee that they would make good any loss occasioned to any person beneficially interested in the estate by any breach of duty by the administrator

·       There is no requirement in the LSA or P&A Rules for an application for grant of letters of administration to be accompanied by sureties – this is purely at the court’s discretion (Musa v Musa)

 

5.5    LIMITED GRANTS

·       The principal registry and the High Court district registry have jurisdiction to make any limited grant, but the resident

magistrate’s jurisdiction is restricted, e.g. in terms of monetary jurisdiction up to a limit of Kshs. 100,000/=

 

STATUTORY PROVISION	WHAT IT STATES
Section 48 & 49, Law of Succession Act	The Resident Magistrate may make limited grants subject to these provisions
Rule 36(3), P&A Rules	Specifically confer upon the High Court exclusive jurisdiction over the making of grants ad colligenda bona defuncti
Section 49, Law of Succession Act	The Resident Magistrate has jurisdiction to make a comparable limited grant

 

6.       PASSING OVER

 

STATUTORY PROVISION	WHAT IT STATES
Section 66, Law of Succession Act and Rule 27, P&A Rules and Clause 16, 5th Schedule	The court has a power to pass over or bypass a person entitled to a grant of letters of administration if, by reason of special circumstances, it appears necessary or expedient to appoint as administrator some person other than the person entitled to the grant. The common circumstances are where an administrator is physically or mentally ill, insolvent, missing, resident abroad, or in prison; but no exact rules are laid out in the Law of Succession Act
Section       7,       Public Trustee Act	The court may, on its own motion or upon hearing the Public Trustee, grant representation to the Public Trustee notwithstanding that there are persons who, under the Law of Succession Act or other written law, would be legally entitled to administer the estate of the deceased person in preference to the Public Trustee

7.       CONFIRMATION OF GRANT

7.1    PROCEDURE

 

STATUTORY PROVISION	WHAT IT STATES
Section 71(1),   Law   of Succession Act	The personal representative is obliged to apply for confirmation of the grant after the expiry of six months from the date of the grant (In the Matter of the Estate of James Kiarie Muiruri)
Rule 40, P&A Rules	The application for confirmation of grant takes the form of a summons for confirmation, supported by an affidavit giving details of the persons who have survived the deceased.
	The application is generally non-contentious, but may become contentious if a protest is lodged against the confirmation by either a caveatee or beneficiaries notified of the application. On the other hand, the court mat also direct that the grant be confirmed before the expiration of six months from the date of the grant in cases where there is no dependant of the deceased and where it is expedient so to direct.
Section     73,                 Law    of Succession Act	The court is obligated to give notice to the holder of the grant to apply for confirmation in cases where the holder has failed to comply with Section 71

 

·       The court, upon the application for confirmation being made, may confirm the grant if satisfied that the grant was rightly made to the applicant and that the applicant is administering and will administer the estate in accordance with the law

·       If not satisfied of the above, the court may issue a confirmed grant to another person or postpone the confirmation

 

7.2    EFFECT OF CONFIRMATION OF GRANT

·       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

·       It entitles/empowers the personal representative to distribute any capital assets

 

CASE	HOLDING
Shital Bimal   Shah   v Akiba Bank	Representation confers power to distribute any capital assets constituting a net estate or to make any conversion of property unless and until the grant has been confirmed under section 71 of the Act
In the Matter of the Estate of Mary Gachuru Kabogo	The court declined to order the release of funds held in a bank account to the credit of a deceased person on the grounds that there were no specific rules for the release of funds to an administrator before confirmation of a grant

 

7.3    IDENTITY AND SHARES OF PERSONS BENEFICIALLY ENTITLED

·       With respect to intestacy, the grant of letters of administration should not be confirmed until the court is satisfied about the identities of and shares of all persons beneficially entitled (see: proviso to Section 71(2A), LSA)

·       The certificate of confirmation issued following the confirmation of the grant must bear the identities of all persons beneficially entitled and their respective shares

·       Rule 40(8), P&A Rules requires that all the dependants or other persons who are beneficially entitled to the estate to consent in writing to the conformation. Where such consents are not obtained, the confirmation proceedings would be defective in substance and liable for setting aside (In the Matter of the Estate of Laban King’ori Macharia)

 

CASE	HOLDING
In the Matter of the Estate of Wanjihia Njuguna	The court declined to grant confirmation because the daughters had not been included in the list of beneficiaries. It was held that section 35 of the Law of Succession Act had not been complied with
In the Matter of the Estate of Justus Wangai Muthiru	A certificate which did not contain the names of some of the beneficiaries was cancelled and the order of confirmation granting it was set aside

 

7.4    ADJUDICATION OF COMPETING PROPOSALS

·       Where the beneficiaries file rival proposals on the distribution of the estate, the court has to determine the matter by adjudicating the conflicting claims

·       The court is also not to confirm a grant where there is a pending application under Section 26, LSA for reasonable provision out of the estate

 

CASE

HOLDING

In the Matter of the Estate of Mwangi Giture

The co-administrators of a polygamist’s estate represented the two houses. They put in conflicting proposals for confirmation. One house proposed the division of the estate equally between the houses in accord with Kikuyu customary law, while the other house suggested a division in accord with sections 35 and 40 of the Law of Succession Act. The court, although sympathetic to the plight of the first widow who claimed to have a bigger stake in the estate having helped the deceased acquire most of the assets before the second widow was married twenty-one years later, applied sections 35 and 40 of the Law of Succession Act on the basis that it is the law applicable in the circumstances the deceased having died after the Act came into force

 

7.5    IMPORTANCE OF CONFIRMATION OF GRANT

·       The confirmation process provides an important safeguard in several respects:

(i)       It ensures that the personal representative to whom the original grant was made has administered the estate in the proper manner by requiring him to produce an up-to-date account of his dealings in the estate

(ii)     Gives the court the opportunity to sanction the distribution of the estate in the manner stipulated by the will of the deceased or according to the rules of intestacy, thereby protecting the beneficiaries

(iii)    The six-month period before confirmation allows for objections to be raised/applicants to come forward

 

8.       ALTERATION/RECTIFICATION OF GRANTS

·       Errors which are not of a material nature may be rectified by the court under Section 74, LSA and Rule 43, P&A Rules

·       After such rectification, the grant of representation (whether before or after confirmation) may be accordingly altered and amended

·       Likewise, under Section 75, LSA, where a codicil is discovered after the grant of letters of administration with the will annexed or after the confirmation of such a grant, the same may be added to the grant and the grant accordingly amended

·       Where there are complaints relating to a certificate of confirmation of grant or confirmation of grants generally, the person dissatisfied should not move the probate court for revocation of the grant – the certificate of confirmation should be dealt with without affecting the validity or soundness of the grant (Re Estate of Ngugi)

·       The LSA does not set out a clear procedure for dealing with complaints about the confirmation process

o   Although Section 74 does allow for the rectification and alteration of grants, including a confirmed one, to correct errors, the wording of the provision appears to confine it to correction of minor errors

o   Fundamental errors such as the failure to comply with the mandatory requirements of Section 71 and Rule 40(8) are obviously beyond the scope of Section 74

o   One such remedy for such errors is revocation of grant

 

9.       OTHER NON-CONTENTIOUS PROCEEDINGS

9.1    APPLICATIONS UNDER SECTION 61(1) & 75, LSA

·       Where a codicil is discovered after the grant of probate or of letters of administration with will annexed or after the confirmation of such grant, and the codicil does not repeal the appointment of the executors made by the will or appoint different executors, a separate probate may be granted to the executor or the codicil may be added to the grant in the case of grant of letters

·       The application for the separate probate or for the addition of the codicil to the grant of letters is made under Rule 47, P&A Rules by way of summons, supported by an affidavit, in the cause in which the will was proved and in the registry that granted the original grant

 

9.2    APPLICATIONS UNDER SECTION 61(2), LSA

·       Where the codicil discovered after the making of the grant appoints different executors, the probate of the will should be revoked and a new probate granted of the will and codicil together

·       The application for the revocation of the grant and the making of a fresh one is brought under Section 61(2), LSA and is by way of summons brought under Rule 48, P&A Rules, supported by an affidavit

9.3    APPLICATIONS NOT OTHERWISE PROVIDED FOR

·       Rule 49, P&A Rules allows a person desirous of making an application to the court relating to the estate of a deceased person where no provision is made under the Probate and Administration Rules

·       It takes the form of a summons supported, if necessary, by affidavit

·       An example of a non-contentious application that may be made under this rule is under Section 37, LSA by a surviving spouse during life interest for the consent of the court to sell any of the property subject to life interest for their own maintenance

CHAPTER 10: CONTENTIOUS PROBATE

 

1.      INTRODUCTION

·       Contentious probate proceedings (i.e. ‘probate in solemn form’) are dealt with mainly by the High Court, with limited power to the resident magistrate to deal with some matters

·       They are usually commenced under the P&A Rules, but in respect to some matters, they may be commenced under Order 36 of the Civil procedure Rules

·       Contentious proceedings arise where there is a dispute as to the validity of a will, dispute over entitlement to a grant, action is being taken to revoke a grant which has been made in common form, probate of a lost will is sought and the persons with contrary interest have refused to consent, etc.

·       The contentious proceedings may issue at the instance of the executor or any person who has an interest under the will (or any other will or codicil) whose interest will be adversely affected, or by a person entitled in intestacy

 

2.       OBJECTIONS TO THE MAKING OF GRANTS

·       Most of the disputes that take the form of objections or objection proceedings are brought by persons who would like to be involved in the administration of the estate

·       Even when beneficiaries are disclosed in the petition, the objectors insist on being made personal representatives in the false belief that it is personal representatives who benefit from the estate

 

2.1    PROCEDURE

(i)       A person who has not applied for a grant may lodge an objection under Rule 7(4) and 17(1), P&A Rules in the registry in which the pending grant application has been made, or at the principal registry

(ii)     Upon receipt of the objection, the court should notify the person/persons by whom the application for a grant has been made of the objection, and at the same time require the objector to file an answer to the petition for grant together with a petition by way of cross-application

§  Only a definite class of people are allowed to bring objection proceedings – Section 68, LSA

§  This class of people are set out under Section 66, LSA as being entitled to administer the estate

(iii)    Upon the fling of the proper form of answer and a petition by way of cross application, the matter is set down for hearing of: the petition, the answer and the cross application

§  Where notice of objection is lodged, but the answer and cross application are not filed within the prescribed period or at all, the court should make a grant in terms of the original petition

 

CASE	HOLDING
In the Matter of the Estate of David Wahinya Mathene	Objection proceedings should be limited to issued that can be dealt with at the preliminary stage. Matters for which procedures have been prescribed in the Act should be dealt with through those procedures.
	The court declined to give the orders sought in objection proceedings on the basis that the grounds upon which the application was predicated were not proper. The issues raised could be properly dealt with under other provisions of the Act, not the objection proceedings. The matters raised by the objector centred on intermeddling with the estate and inadequate provision

 

2.2    GROUNDS UPON WHICH OBJECTION MAY BE PREMISED

 

 

 

2.2.1       INVALIDITY OF A WILL

 

CASE	HOLDING
In     the        Matter   of Manubhai          Kishabhai Patel	Objection to an application for a grant of probate was founded on the grounds that the purported signature of the deceased on the will was a forgery, the alleged will had not been properly executed and the property disclosed in the petition had been grossly undervalued
In the Matter of the Estate of Naomi Wanjiku Mwangi	The objection was founded on the ground that the alleged will had not been executed in accordance with the law. Evidence was taken on the circumstances of the making of the alleged will, after which the court concluded that the deceased had died intestate, as the purported will had been made under suspicious circumstances

 

2.2.2       RIGHT TO ADMINISTRATION OR ENTITLEMENT TO A GRANT

·       There have been numerous cases where objections to applications for grants of representation were founded on the grounds that the objectors were wives of the deceased persons at customary law and, for that reason, they were entitled to, not only being recognised as beneficiaries, hut also representation being made to them

·       An objector alleging the existence of a customary law marriage must prove the fact to the required standard

·       Rule 64, P&A Rules provides that a customary law marriage may be proved by production of oral evidence or by reference to a recognised treatise or other publication on the matter

·       The onus of proving a customary law marriage is on the party who claims it, and is on a balance of probabilities (Mwangi v Mumbi)

·       Some objections are also founded on marriages presumed from long cohabitation. In such cases, the objectors essentially ask the court to presume marriage from prolonged cohabitation between them and the deceased

·       The principles for determining presumption of marriage from prolonged cohabitation are stated in Hortensiah Wanjiku Yawe v Public Trustee:

o   The presumption does not depend on any law or system of marriage – it is an assumption based on the fact of a very long cohabitation and repute that the parties are married

o   Some of the factors to be considered include: children fathered by the deceased, valuable property acquired jointly, performance of some ceremony of marriage, etc.

o   There must be a quality cohabitation and not mere friendship

·       Other objections are by persons alleging to be the children and other relatives of the deceased who feel that their interests are not catered for or are unlikely to be protected if grant is made to the applicants (Chelang’s v Juma)

 

2.2.3       DECEASED DIED TESTATE

·       In intestacy matters, the objections are often based on a claim that the decease had died testate on the basis that he had made an oral will

 

CASE	HOLDING
In the Matter of the Estate of Amos Kiprono	The objection to the application for grant of letters of administration was founded on the grounds that the deceased had disposed of his estate during his lifetime through an oral will. The court, based on evidence, found that there was a valid oral will and upheld the objection and dismissed the petition
In the Matter of the Estate of Benson Ndirangu Mathenge	The objection to an application for grant of letters of administration was predicated on a written will which was attached to the objection. The court did not make a finding on the validity of the written will, but disregarded it because of its alleged unfairness to some of the beneficiaries, with the result that the objection failed

 

2.2.4       SUITABILITY OR COMPETENCE OF PROPOSED ADMINISTRATOR

·       Objections are also founded on the unsuitability of or the lack of competence on the part of the petitioner or petitioners

 

CASE	HOLDING
In the Matter of the Estate of Aggrey Makanga Wamira	The father of the deceased objected to an application for grant of letters of administration by his daughter-in-law and granddaughter in respect of his son’s intestate estate. He argued that the petitioners were unsuited as administrators as the daughter-in-law was young and inexperienced and could not administer the estate properly. He also said that she was likely to remarry. He further argued

 

that his granddaughter was just a minor. The court held that the widow was suited to manage the estate, and that the daughter was of age and thus qualified for appointment as administrator

 

3.       PROTESTS AT CONFIRMATION OF A GRANT

·       Where an application for confirmation of grant is made in regard to which a caveat has been entered and is subsisting, the registrar or resident magistrate should:

(i)       Send a notice to the caveator alerting him of the making of the application for confirmation;

(ii)     Notifying him that if he wishes to object to the conformation of the grant, he should file an affidavit in protest; and

(iii)    Reminding him that the affidavit must set out the grounds of his objection

·       Upon the filing of the affidavit in protest by the protestor or any other person who is opposed to the proposed distribution, the matter should proceed to hearing of the application, during which time the protestor’s protest should be heard

 

CASE	HOLDING
In the Matter of the Estate of Laban Gikonyo Kamau	The affidavit of protest constitutes the basic foundation of a protestor’s claim to the estate of the deceased. The affidavit or affidavits should be made in support of the protestor’s claim averring to the deceased’s intentions, among other matters, as regards the mode of distribution of his estate. The makers of such affidavits are usually the witnesses that the protestor produces during the confirmation hearing
In the Matter of the Estate of Mary Gachuru Kabogo	When the matter is set down for the confirmation hearing, if the parties dispute over certain properties, under Rule 40 of the Probate and Administration Rules, the disputed properties go to the protest hearing. The properties that are not the subject of a dispute are confirmed under rule 41 of the Probate and Administration Rules. The disputes over the contested property should be heard under Order 36 of The Civil Procedure Rules as a separate cause

 

4.       REVOCATION OF GRANT UNDER THE LSA

·       The grant of representation, whether or not confirmed, may be revoked or annulled at any time

·       This may be by the court on its own motion or on an application by an interested party by virtue of Section 76, LSA

·       The application for revocation of a grant should be based on the grounds set out in Section 76, or else it fails

 

4.1    REASONS FOR REVOCATION OF A GRANT

 

4.1.1       DEFECTIVE PROCEEDINGS

·       The proceedings to obtain grant are considered defective in substance where the will, which is the basis of the application, is invalid, or on account of certain procedural defects in the application for or the making of the grant

·       For instance, an application for revocation of a will may be premised on the ground that the will was invalid as it had been procured by fraud and undue influence. The grant made on the basis of such will shall therefore be deemed to have been irregularly obtained and will be revoked (Mwathi v Mwahti and Another)

 

CASE	HOLDING
In the Matter of the Estate of Ngaii Gatumbi	The court found that the applicants who were equally entitled to apply for grant of letters of administration were not notified of the petitioner’s intention to apply for the grant, their consent to the petitioner applying alone were not obtained nor were citations served upon them. The grant was revoked on the ground that it had been obtained through an improper procedure
Re Estate of Naftali	The estate of a deceased Congolese, who died in Kenya his domicile being in either Congo or Rwanda, comprised of movables only. The grant made by a Kenyan court was revoked on the ground that the process of obtaining the same was defective. Under section 4(1)(b) of the Law of Succession Act, the law of succession that applies with regard to movable property is the law of the country where the deceased is domiciled

 

4.1.2       FALSE STATEMENTS/CONCEALMENT OF MATERIAL INFORMATION

·       Most of the applications are founded on the grounds that the grant was obtained fraudulently by the making of a false statement or untrue allegation of a fact, or by the concealment from the court of material information

 

CASE	HOLDING
Samwel Wafula v Hudson Simiyu	It was alleged that the appellant had deceived the court when he stated in his petition that he was a grandson of the deceased. The deceased was in fact not his grandmother, but a sister of his grandmother. The persons who had prior right to the grant had not given their consent. It was held that the grant had been obtained fraudulently by the making of a false statement and it was revoked
Re Estate of Naftali	The estate of a deceased Congolese, who died in Kenya his domicile being in either Congo or Rwanda, comprised of movables only. The grant made by a Kenyan court was revoked on the ground that the process of obtaining the same was defective. Under section 4(1)(b) of the Law of Succession Act, the law of succession that applies with regard to movable property is the law of the country where the deceased is domiciled
In the Estate of Kinungi Kimani	The grant was revoked on the ground of concealment of matter from the court, which would have assisted in determining to who it should make the grant. The concealed matter was the fact that the deceased had sold a portion of the land making up the estate to the applicant, which fact the petitioner was aware of at the time of filing the petition

 

4.1.3       GRANT HAS BECOME INOPERATIVE/USELESS

·       The courts may also revoke grants on the ground that the same have become inoperative or useless

 

CASE	HOLDING
In the Matter of the Estate of Njau Ndungi	The court revoked a grant because it was meant for the subdivision of a certain parcel of land, which had already been subdivided and transferred by the time the grant was obtained

 

4.1.4       LACK OF DILIGENCE IN ADMINISTRATION

·       Others grounds for revocation of a grant include:

(i)       Lack of diligence in administering the estate;

(ii)     Failure to apply for confirmation of the grant within one year; and

(iii)    Failure to produce into court accounts or inventories as may be required of the administrator

 

 

4.2    PROCEDURE FOR REVOCATION OF A GRANT

4.2.1       THE PROCEDURE

·       Rule 44, P&A Rules set out the procedure for the revocation of a grant:

(i)       Any person seeking to have a grant annulled should apply to the High Court for the same by way of summons for revocation;

§  Where the grant was issued through the High Court, the application should be made through the registry and in the cause in which the grant was issued; and

§  Where the grant was issued by a resident magistrate, the application should be through the High Court

registry situated nearest to that resident magistrate’s registry

(ii)     Upon filing of the application, the probate registry sends out a notice to the applicant to appear before the judge for directions;

§  The directions are given ex parte and mainly govern who should be served with the summons and supporting affidavit, as well as the manner of effecting service

(iii)    Thereafter, a notice issues for service upon all the persons who ought to be served as directed by the judge;

(iv)    The persons served are required to file an affidavit indicating whether they support or oppose the application and on what grounds; and

(v)     The matter is then listed for hearing after notifying all the parties concerned

·       No party should file any papers before being served with the requisite notices under the P&A Rules

 

CASE

HOLDING

Matheka and Another v Matheka

The court held that even where revocation is by the court on its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making false statement or by concealment of something material to the case, or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate or failed to produce to court such inventory or account of administration as may be required

 

4.2.2       WHO MAY APPLY FOR REVOCATION?

·       Section 76, LSA and Rule 44, P&A Rules stipulate that the revocation order may be sought by any person interested in the estate of the deceased person

·       There is no agreement in the High Court on who is competent to bring the application, as shown by the two cases:

 

CASE	HOLDING
In the Matter of the Estate of Gichia Kabiti	Koome J was of the opinion that the persons who have priority in law to apply for grant of representation are those set out in section 66 of the Law of Succession Act and the order of preference is as set out in the provision321 and so are the person who qualify to bring applications for revocation of grant. The surviving spouse takes preference over everybody else, followed by blood relatives entitled upon intestacy. Trust corporations and creditors rank last in the list
In the Matter of the Estate of Hemed Abdalla Kaniki	Kamau J was of the opposite opinion, that section 76 is open to any person who may be interested in the estate of the deceased person, and not just to the class of persons mentioned in section 66. In his opinion section 76 and rule 44 are intended to determine greater fundamental legal issues with a view to ensuring the proper administration and finalisation of the estate

 

·       The wording of Section 76(a), (b) and (c), LSA limits these provisions to the making of grants

·       Proceedings founded on these provisions naturally raise the question as to who the grant should be made to, bringing into consideration Section 66, LSA – it is only persons listed under Section 66 who can legitimately bring claims under Section 76(a), (b) and (c) challenging the propriety of the grant making process

·       Persons who are not qualified to apply for a grant would have no basis for challenging the making of the grant

 

4.2.3       REVOCATION AND REASONABLE PROVISION

·       A person who is not really challenging the propriety of the grant or the process under which it was obtained or the manner the estate is being administered, but has other concerns or worries, should not seek the order

4.2.4       REVOCATION AND THE CONFIRMATION PROCESS

 

CASE	HOLDING
Re Estate of Ngugi	Where the complaint of the person applying for revocation relates to what happened during the confirmation process, revocation or annulment of the grant should not be sought as the certificate of confirmation of a grant can be dealt with without having to cancel the grant of representation
	It should be borne in mind that there are two grants, namely: the original grant and the confirmed grant. Where the applicant’s complaint is that the confirmation process was flawed, only the certificate of confirmation issued thereafter or the order made during the confirmation hearing should be revoked or set aside
Re Estate of Gitau	The court dismissed the revocation application brought on the ground of fraud and concealment of important matter, because the applicants were complaining about the distribution of the estate. The court pointed out that it is not proper to use section 76 where the applicant is challenging the distribution only, since the section deals with revocation of a grant
In the Matter of the Estate      of      Justus Wangai Muthiru	The court opted to cancel the certificate of confirmation rather than revoke the grant because the applicant appeared to be complaining about the propriety of the confirmation proceeding

 

4.2.5       REVOCATION OR ANNULMENT

·       The revocation provisions provide for revocation or annulment of the grant – this means that the application brought before the court should be for either revocation or annulment of the grant

·       There is a difference between annulment and revocation, and the applicant must choose the applicable one depending on the nature of the complaint:

o   Annulment entails a declaration that the document never existed and had no legal effect. It is usually ordered where the grant making proceedings were defective

o   Revocation means cancellation or withdrawal of the grant, and is allowed in all other cases, i.e.: where the grant is obtained through false statements, where the grant has become useless, for maladministration, etc.

·       Both probate practitioners and probate courts use the words interchangeably

 

4.2.6       THE COURT’S DISCRETIONARY POWER

·       A court faced with an application for revocation of grant may make such orders as it deems fit and just given the circumstances of the case

·       Section 76 of the LSA is discretionary, i.e. It gives the court discretion to revoke or annul a grant, but the court is not bound to revoke the grant even where a case is made out under Section 76 (In the Matter of the Estate of Thareka Wangunyo)

·       In addition to the above, there is no time limitation for bringing evocation proceedings, as this too is dependent on the discretion of the judge (In the Matter of the Estate of Hemed Abdalla Kaniki)

 

CASE	HOLDING
Kipkurgat                       arap Chepsiror and Others v Kisugut arap Chepsiror	The court declined to grant the prayer for revocation, but instead entered the names of the applicants in the grant as beneficiaries. They had sought an order of revocation on the ground that their names had been omitted from the list of the survivors of the deceased
In the Matter of the Estate of Gathima Chege	The court found that the applicants, the married daughters of the deceased, had been excluded from the proceedings for the grant and the distribution of the estate in contravention of sections 35, 38, 40 and 41 of the Law of Succession Act, and rules 26 and 40(8) of the Probate and Administration Rules. However, the court declined to revoke the main grant, but instead cancelled the confirmed grant and ordered the parties to commence fresh proceedings for the confirmation of the grant

 

4.3    EFFECT OF REVOCATION OF GRANT

·       The effect of revocation of a grant is mainly felt by personal representatives, debtors of the estate purchasers of the assets of the estate, beneficiaries who have received assets from the estate, etc.

 

STATUTORY PROVISION	WHAT IT STATES
Section     92,                 Law    of Succession Act	This section protects the original personal representatives in the event of revocation of grant. i.e. the personal representative(s) will not be personally liable, provided his acts, whether they are payment of debts or legacies, are in good faith
Section 92(2), Law of Succession Act	Personal representatives are allowed to re-imburse themselves for payments that have been made out of their own funds in the course of the administration of the estate, provided that such payments might properly be made by a subsequent grantee. This section also protects debtors of the estate who, in good faith, made payments or dispositions to the personal representative of the estate
Section 93(1), law of Succession Act	Transfer of any interest in property, whether real or personal, by the original personal representative, remains unaffected by the revocation of the grant, even where the purchaser has notice that all the debts, liabilities, expenses which take priority, duties and legacies of the deceased have not been discharged or provided for

 

5.       APPLICATIONS

5.1    FOR REVIEW OF PROBATE ORDERS AND DECREES

·       For applications brought under Order XLIV, CPR, the party applying for review of a decree/order issued by the probate court has to draw up the decree or order that is sought to be reviewed and attach it to the application (In the Matter of the Estate of Waruru Karuru)

·       The application must also meet the substantive requirements of an application brought under Order XLIV, CPR

 

CASE	HOLDING
In the Matter of the Estate of the Late Simon Timaiyo Mokosio	Order XLIV of the Civil Procedure Rules can be used for the purpose of getting a grant rectified or errors in it corrected
In the Matter of the Estate of Hannah Nyangahu Mwenja	A court’s decision cannot be reviewed to change its character and to take away a party’s right of inheritance. Where the result of a review is likely to amount to a major departure from the original decision, it would be more prudent to bring an appeal instead

 

5.2    UNDER SECTION 35(3), LSA

 

STATUTORY PROVISION	WHAT IT STATES
Section 35(3),   Law   of Succession Act	A child who is aggrieved by the exercise of the power of appointment by a surviving spouse is allowed to move to court for the appointment of his share
Rule 46, P&A Rules	The application takes the form of a summons supported by an affidavit, setting out the particulars required in Section 35(4), LSA
Section 35(4), law of Succession Act	The guidelines to be followed by the court in deciding whether to make reasonable provision (i.e. vary the appointment) are as follows: (a)    the nature and amount of the deceased’s property; (b)    any past, present or future capital or income from any source of the applicant and of the surviving spouse; (c)    the existing and future means and needs of the applicant and the surviving spouse; (d)    whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will; (e)    the conduct of the applicant in relation to the deceased and to the surviving spouse; (f)    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 (g)    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.

6.       VIVA VOCE OR ORAL EVIDENCE

·       The hearing of the objection proceedings and the applications mentioned above may be by oral submissions or by both submissions and viva voce evidence

·       There is a golden rule, however, that evidence given viva voce and fully tested on cross-examination places the court in a better position to evaluate the same (John Gitanga Mwangi v Johnathan Njuguna Mwangi)

 

CASE	HOLDING
In the Matter of the Estate of the Gerald Kuria Thiara	The judge, after considering the submissions made before her and the affidavits, decided that certain issues needed deeper exercitation and testing which can only be achieved by way of oral evidence. Oral evidence is usually subjected to cross-examination, during which the demeanour of the witnesses is scrutinised

 

7.       COSTS

7.1    THE GENERAL RULE

·       Rule 69, P&A Rules gives the probate court discretion on costs in all the proceedings brought under the Rules

·       As a rule, the costs of the action follow the event – i.e. they are to be borne by the losing party

·       To protect estates from being frittered away by protracted and unnecessary litigation by trustees and the administrator, the court should always consider saddling the losing party with costs (Abdulla Rehemtulla v Alibhai Haji)

 

7.2    THE COURT’S DISCRETION

·       The court, however, has an unfettered discretion under Rule 69 as to the source from which the costs should be paid

·       For instance, the courts have decided differently in various scenarios:

(i)            The court may take into account the relationship between the grantees and the applicants in deciding that each party is to bear its own costs (In the Matter of the Estate of Sadhu Singh Hunjan)

(ii)            Alternatively, the court may decide that since the matter is a family dispute, it would be right for each party to bear their own costs of the litigation (In the Matter of the Estate of Francis Kiarie Ndrirangu)

(iii)            In some situations, the court may order each party to bear its own costs in the spirit of reconciliation and forgiveness (In the Matter of the Estate of Evanson Kiragu Mureithi)

 

7.3    WHERE LITIGATION IS CAUSED BY ACTS OF THE DECEASED

·       Where litigation is in effect caused by the actions of the deceased, it is likely that the costs will be borne by the estate

(i)            Rashida Begum v Administrator General: the court held that the testator himself was responsible for the litigation by the manner he elected to dispose of his estate and awarded all the parties costs out of the general estate

(ii)            In the Matter of the Estate of John G Kinyanjui: the court made no order as to costs against the objector since it was considered that the deceased had by his long association with the objector helped create the dispute that had to be resolved through the litigation

 

7.4    WHERE LITIGATION IS NEEDLESSLY BROUGHT

·       Where litigation is needlessly brought by the objector or applicant, the estate should not be burdened with the said

objector or applicant’s costs

(i)            Karanja and Another v Karanja: in ordering that the objector bear her own costs, the court considered that the objector had been the cause of the long and protracted litigation, she had no genuine reason for the objection, she had the benefit of a very able and experienced counsel and at the very early stages of the matter, the court had given directions on the valid grounds for challenging the validity of wills and codicils

(ii)            Raphael Jacob Samuel v the Public Trustee: The Court of Appeal declined to award costs in favour of one of the successful parties on the grounds that they were responsible for the dispute in the first place. It was they who opposed the appellant’s petition for grant and who lodged caveats against it forcing the Public Trustee to apply for a limited grant, which sparked the litigation culminating in the appeal before the court

CHAPTER 11: COLLECTION, REALISATION AND MANAGEMENT OF ESTATES

 

1.       INTRODUCTION

·       The administration of an estate entails: collection and preservation of the estate; payment of the deceased’s funeral, testamentary and administration expenses; payment of the deceased’s debts and liabilities; and, the distribution of the estate among the beneficiaries

·       The personal representative of the deceased owes a duty to pay all the debts of the intestate and thereafter distribute the rest of the estate to the beneficiaries

·       The administration of the estate is the responsibility of the personal representative – regardless of whether the deceased died testate or intestate

 

2.       POWERS & DUTIES OF PERSONAL REPRESENTATIVES

 

STATUTORY PROVISION	WHAT IT STATES
Section     79,                 Law                 of Succession Act	The executor or administrator who has received a grant of representation should represent the deceased or be the personal representative of the deceased for all purposes of the grant, and the property of the deceased should vest in him as the personal representative
Section     82,                 Law                 of Succession Act	The powers of the personal representatives include: a)       The power to enforce all causes of action that survive the deceased or arise out of his death for the estate; b)       To sell all or any part of the assets vested in them; c)        To administer the vesting of property in the beneficiaries; and d)       To appropriate (after confirmation of grant) any of the assets of the estate vested in them
Section     83,                 Law                 of Succession Act	The duties of the personal representatives include: a)        To provide and pay out of the estate expenses of a reasonable funeral for the deceased; b)       To get in or collect all free property of the deceased, inclusive of debts owing to him and money payable to his personal representatives by reason of his death; c)       To pay out of the estate all expenses of obtaining the grant and all other reasonable expenses of administration; d)       To ascertain and pay out of the estate all the debts of the deceased; e)       To apply for confirmation of grant within 6 months from the date of the grant; f)         To produce to court a full and accurate account of the dealings in respect of the estate; g)        To distribute or retain in trust (for minor beneficiaries) all assets remaining; and h)       To complete the administration of the estate, after confirmation of grant, in respect of all matters other than continuing trusts

 

3.       COLLECTION AND PRESERVATION OF THE ESTATE

3.1    DUTY TO COLLECT AND PRESERVE THE ASSETS

·       Section 83(b), LSA provides that it is the duty of the personal representatives to collect in the assets of the deceased’s

estate after a grant has been made to them

·       Under Section 83, the personal representative has a duty to get in all the free property of the deceased and is at liberty to reasonably exercise the powers conferred by law in pursuit of such property (In the Matter of the Estate of Yusuf Mohammed)

·       It is an offence under Section 95, LSA to wilfully or recklessly neglect to get in any asset forming part of the estate, and ‘free property’ has been defined under Section 2, LSA to mean the property which the deceased was legally competent freely to dispose during his lifetime and in respect of which his interest has not been terminated by his death

·       It is imperative that there be at all times a personal representative on record for any estate of a deceased person so as to prevent or arrest any wastage of or damage to the estate pending distribution – i.e. the estate should not at any time be in a state of limbo (In the Matter of the Estate of David Murage Muchina)

·       A grant of letters of administration gives authority to the grantee which only covers the property disclosed in the successio n cause, for reasons of specificity. The grantee does not have authority to recover or collect all assets which are not the subject of the succession cause, especially property which had been sold by the family before the appointment of the grantee as the administrator (Public Trustee v Jotham Kinoti and Another)

 

3.2    DUTY TO ACT WITH DUE DILIGENCE

·       Personal representatives must act with due diligence in the administration of the estate, which requires that they collect in the assets of the estate as soon as is practicably possible and that they take reasonable steps to collect all debts due to the deceased

·       This duty often entails commencing legal action against the debtors of the estate

·       The duty of personal representatives to collect in the deceased’s debts has to be read subject to the wide powers given by

the Trustee Act, to compromise, settle or abandon debts

·       Personal representatives are also under a duty to take reasonable steps to safeguard or preserve the deceased’s estate

 

4.       DEVOLUTION OF ASSETS ON PERSONAL REPRESENTATIVES

 

STATUTORY PROVISION	WHAT IT STATES
Section     79,     Law                 of Succession Act	The assets forming part of the estate of the deceased vest in the deceased’s personal representatives
Section                             119(1), Registered Land Act	If the sole proprietor of land or a proprietor in common dies, his personal representative becomes entitles to be registered by transmission as the proprietor in the place of the deceased with the addition after his name of the words ‘as executor of the will of deceased’ or ‘as administrator of the estate of the deceased’
Section                             119(2), Registered Land Act	On the production of grant, the Registrar of Titles may register a transfer by the personal representative and any surrender of a lease or discharge of a charge by the personal representative, without requiring the personal representative to be registered as proprietor in the place of the deceased
Section                             122(1), Registered Land Act	The personal representative enjoys the same powers as the deceased proprietor enjoyed, save for such restrictions on his powers as personal representative as may be contained in his appointment
Section                             122(2), Registered Land Act	The registration of personal representative as proprietor relates back to and takes effect from the date of the death of the proprietor
Section      52      +      54, Registration of Titles Act	Whenever the proprietor of land dies, his personal representative should apply to be registered as proprietor of the subject land and should produce to the registrar the grant of probate or letters of administration in respect of the estate. The registrar should thereafter register the personal representative of the deceased proprietor as representative of the deceased, who should thereafter be deemed to be the proprietor of the subject property
Section 62, Land Titles Act	On the death of a person possessed of or entitled to immovable property under the Land Titles Act, the person to whom probate of the will or letters of administration has been granted should apply to the registrar for the registration of the will or letters. At the same time, he should transmit to the registrar a document setting out the names of the persons on whom the immovable property of the estate of the testator or intestate have devolved, which in the context of the Law of Succession Act should be the confirmed grant

 

5.       PROPERTY WHICH DOES NOT DEVOLVE UPON PERSONAL REPRESENTATIVES

 

PROPERTY HELD BY DECEASED AS JOINT TENANT

·       Property held under joint tenancy is subject to the rule of survivorship ·       The deceased ceases to be entitled to the property on death where he or she is survived by one or more joint tenants, and the surviving joint tenant takes the deceased’s share by virtue of their surviving the deceased ·       Property would only form part of the estate where the deceased was the only surviving joint tenant

MONEY PAYABLE UNDER DISCRETIONARY PENSION SCHEME

·       Discretionary pension schemes often allow the contributor to nominate a third party to receive benefits on the contributor’s death ·       However, such nominations are not binding on the trustees of the pension scheme ·       Where trustees do not exercise their discretion in favour of the nominated person, they pay the lump sum or pension directly to the third party

 

ASSETS SUBJECT OF A NOMINATION	·       Property which forms the subject matter of a statutory nomination does not pass to the estate ·       The assets pass directly to the nominee and do not vest in the nominator’s personal representatives ·       Section 39(1)(a), Cooperative Societies Act: upon the death of a member, the cooperative society should transfer the share or interest of the deceased member to the person nominated by the deceased in accordance with the Act. The share/interest should only be paid to the personal representative where no nomination has been made
SUBJECT MATTER OF A DONATIO MORTIS CAUSA	·       Assets subject of a donation mortis causa do not form part of the estate of the deceased – they pass directly to the donee
INSURANCE POLICIES	·       Where the deceased has a life assurance policy, upon his death the insurance company will normally pay the sum assured to the deceased’s personal representatives ·       This will then form part of the estate and will be distributed to the personal representatives in accordance with the deceased’s will or the rules of intestacy ·       However, by making use of Section 1, MWPA, the assured can ensure that the proceeds of the policy are paid directly to the intended beneficiary without becoming first vested in the personal representatives

 

6.       POWER TO ENFORCE CAUSES OF ACTION

·       Section 82(a), LSA gives the power to enforce all causes of action by virtue of the Law Reform Act, the Fatal Accidents Act,

the Workmen’s Compensation Act, or any other law, survive the deceased or arise out of his death for his estate

·       Section 2, Law Reform Act states the circumstances under which causes of action subsisting against or vested in the deceased survive against or for the benefit of his estate

·       Section 3, Fatal Accidents Act says that an action is maintainable against the person causing the death of the deceased through a wrongful act

·       Section 3, Fatal Accidents Act makes clear that in the event of death, some actions are maintainable against the estate

 

6.1            SUITS BY ADMINISTRATORS

 

CASE	HOLDING
Wambui     w/o      Stephen Nyaga Kimani	The power to enforce causes of action is by virtue of section 80 subject to any limitation in the grant of letters of administration which becomes effective only after the date it is issued. Case law shows that no person has a right to enforce any cause of action, or defend any suit, which survives the deceased or arises out of his death, without a grant of letters of administration
Virginia  Edtih  Wambui Otieno v Joash Ougo	An administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does, so the action is incompetent at the date of inception

 

6.2            SUITS BY EXECUTORS

·       With respect to grant of probate, the will speaks from the date of death, and the plaintiff does not need to have the grant to commence an action

·       Under Section 80(1), LSA, the executor derives his title from the will and the estate vests in him on the testator’s death and he can do any act before probate which is a mere authentication of his title (Lalitaben Kantilal Shah v Southern Credit Banking Corporation)

 

6.3            SUITS WHERE INTESTATE IS SURVIVED BY A MINOR

·       Where the deceased is survived by minors, a person seeking to file suit on behalf of the intestate estate must comply with Section 58, LSA, by applying for the grant, whether full or limited, jointly with other persons

 

CASE	HOLDING
Veronicah                Mwikali Mwangangi v Daniel Kyalo Musyoka	A suit commenced by a single legal representative in respect of an intestate survived by minor children was struck out because the limited grant giving him the authority to act for the estate did not comply with section 58 of the Act, which requires that the grant in those circumstances should be made to more than one personal representative

6.4            CIVIL PROCEDURE ACT AND SUITS BY/AGAINST THIRD PARTIES

·       Suits to recover from third parties property belonging to the estate are brought under the provisions of the Civil Procedure Act and the Rules, which deal with civil suits generally, as such claims are really civil actions against the debtors of the deceased

·       Such suits are, however subject to the general limitation law set out in the Limitation of Actions Act

·       Such property is not recoverable under the LSA for it does not have provisions governing recovery of the estate’s property

from third parties

 

CIVIL PROCEDURE RULE	WHAT IT STATES
Order 23, Rule 3(1)	Where a plaintiff dies and the cause of action survives or continues, the court, on the application made in that behalf, should cause the legal representative of the deceased plaintiff to be made a party and should proceed with the suit
Order 23, Rule 4	Where no application is that on that behalf within one year, the suit abates
Order 7 Rule 4(1)	Where a suit is commenced by a personal representative in his representative capacity, the plaint should state the capacity in which he sues and where the defendant is a personal representative, the plaint should state the capacity in which he is sued. In both cases, it should be stated how that capacity arises
Order 8, Rule 4	If any party to a suit wises to deny the right of any other party to claim as executor or personal representative, he should deny the same specifically
Order 2, Rule 4	A claim by or against an executor or administrator, as such, should not be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the party sues or is sued as executor or administrator, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents
Order 21, Rule 18(b)	Where a decree is obtained against a personal representative of a party to the proceedings, the court should issue a notice to the person against whom the execution is applied for, requiring him to show cause why the decree should not be executed against him

 

6.5            POSSIBLE SUITS AGAINST THIRD PARTIES

·       Enforceable causes of action include claims arising from the death of the deceased, including claims under the Workmen’s

Compensation Act (‘WCA’)

(i)            Section 5(1), WCA makes employers liable to pay compensation for the death of their employees resulting from an accident arising out of or in the course of their employment

(ii)            Section 2(3), WCA states that such compensation may be paid to the legal personal representative of the deceased workman, among others

·       Similar claims can be brought under the Fatal Accidents Act (‘FAA’) against the person causing the death of the deceased

through a wrongful act

(i)            Section 4(1), FAA says that an action may be brought on behalf of the family of the deceased by the executor or administrator of the deceased person

(ii)            The court may, in addition to compensation for the death and loss of dependency, award damages in respect of the funeral expenses of the deceased person

(iii)            In the event of the death of the person against whom an action would be maintainable, the FAA says such action would be maintainable as against his estate

·       Under both the FAA and the Law Reform Act, in the event of the insolvency of an estate against which proceedings are maintainable, any judgment obtained against the estate is a debt provable in the administration of the said estate

·       Under Section 18 & 19, Pensions Act, gratuity for public officers who die in service and pensions for officers killed in service are payable to their personal representatives

7.       POWERS OF SALE, MORTGAGE AND LEASING

7.1    SALE

 

STATUTORY PROVISION	WHAT IT STATES
Section 82(d), Law of Succession Act	One of the main functions of personal representatives is to pay debts and liabilities. To discharge the same, it is often necessary for the personal representatives to realise some or all of the assets of the estate. In addition, legacies may be payable to the beneficiaries under the terms of the will and this may also require the liquidation of some or all of the assets to settle the legacies
Section 82(b),   Law   of Succession Act	Thus, the LSA gives wide powers to personal representatives of sale, or otherwise turning into account all or any part of the assets vested in them

 

·       In the event of intestacy, a statutory trust will arise under Section 41, LSA – this does not impose upon the personal representatives a duty to sell, but to facilitate the distribution of the requisite shares to the beneficiaries, the personal representatives may have to liquidate the assets in exercise of the powers given under Section 82(d), LSA

·       The assets may be sold or retained at the discretion of the personal representatives (In the Matter of the Estate of Anthony Gichigi Wairire)

·       In addition, although an administrator is a trustee for sale, he is, under the succession legislation, having control of property which is subject to various rules of distribution to various classes, and it may be necessary to obtain the consent of the court to sell the property as a safeguard to both creditors and beneficiaries (In the Matter of an application by Ebrahim Gulamhussein Anjarwalla)

 

STATUTORY PROVISION	WHAT IT STATES
Section 13, Trustee Act	This section empowers personal representatives vested with trust for sale or a power of sale to sell or concur with any other person in the selling of any property by public auction or private treaty. There is also the power to vary any contract of sale, buy in at any auction and rescind any contract for sale and to re-sell. The issuance of a receipt by personal representatives for any money, securities or property transferable to him under any trust or power is sufficient discharge to the person paying or transferring or delivering. The method of sale must be one which is to the best advantage of the estate
Section 17, Trustee Act	There is power to raise money required for any purpose by sale, conversion or mortgage. Where there is doubt as to whether there is authority under the will to sell, the personal representative would exercise statutory authority or in the alternative apply to court for an order approving the sale

 

7.2    MORTGAGE

 

STATUTORY PROVISION	WHAT IT STATES
Section 7, Trustee Act	The trustee has the power to invest in freehold securities and to accept security in form of legal charges, and also in mortgages
Section 9, 10 and 11, Trustee Act	Personal representatives may lend money on the security of any property on which they can properly lend
Section 32, Trusts for Land Act	Personal representatives have power to raise money by mortgage or charge for the purpose of discharging an encumbrance on land held on trust, for paying for improvements and for payment of any authorised costs

 

7.3    LEASING

 

STATUTORY PROVISION	WHAT IT STATES
Section 18,   Trusts   for Land Act	Personal representatives have powers to lease the land the subject of a trust for land for any purpose whatsoever
Section 23,   Trusts   for Land Act	Personal representatives may accept a surrender of any lease of land or a regrant of any granted in fee simple
Section 24, Trusts for Land Act	Personal representatives may accept leases of any land, mines and minerals, easement or privilege convenient to be held in enjoyment of the land held on trust for sale for such periods and on such terms and conditions as the personal representative thinks fit

 

Section 26,   Trusts   for Land Act

There is power to vary leases and to give licences and consents. Rents reserved or created by a lease or grant may be apportioned by the personal representative in the terms set out in Section 26

 

8.       POWER OF APPROPRIATION

·       Section 82(d), LSA gives personal representatives the power to appropriate assets of the estate in or towards the satisfaction of a legacy, interest or share in an estate, if no specific gift is prejudiced and that the beneficiary gives their consent to the appropriation

·       Appropriation should be after confirmation of the grant and may take the form of deciding that the legatee should take some specific asset, instead of paying for it in cash, in full or partial satisfaction of the legacy

·       Where there is a continuing trust, no appropriation should be made without the consent of the trustees or of the person entitled to income from the property

 

9.       PERSONAL REPRESENTATIVES ACTING AS TRUSTEES IN SOME CASES

·       Section 84, LSA says that where the administration of the estate of the deceased involves a continuing trust, the personal representatives become the trustees of such trusts whether they are in respect of a life interest or for minor beneficiaries, or otherwise

·       This section does not apply where trustees for that purpose have been appointed by a will

·       However, regarding estates of polygamists, the court has the power/discretion to appoint – at the time of confirmation of the grant – separate trustees of the property passing to each house or any of the houses

 

10.   

POWERS OF PERSONAL REPRESENTATIVES

 

 

10.1        TO INSURE ASSETS

·       Section 20, Trustee Act gives personal representatives the power to insure assets of the estate

·       However, this power is limited – the personal representatives may only insure against loss or damage by fire, and for only up to three quarters of the value of the property

·       Premiums on the insurance policy have to be paid out of the income of the estate, rather than from the capital

 

10.2        TO DELEGATE

·       The powers exercised by the personal representative can be delegated

·       This power is of importance where a person wishes to take up their entitlement to grant of probate or letters of administration but does not have the time or the expertise to complete all aspects of the administration of the estate themselves

·       Thus, under the Trustee Act, personal representatives may employ an agent to transact any business or do any act in the administration of the estate, and may remunerate such agent out of the estate à e.g. under Section 24, Trustee Act the personal representative can engage an advocate to bank or arrange the collection of the assets of the estate, discharge pf debts and other liabilities, and distribution of the estate

·       However, this provision does not allow personal representatives to delegate any discretion in matters relating to administration of the estate – the decision-making power remains with the personal representatives, not the appointed agents

 

10.3        TO INVEST

·       Professionally drawn wills, and the provisions of the Trustee Act, five personal representatives’ wide powers of investment

·       In addition, the Trusts of Land Act also gives personal representatives extensive powers of investment of capital money arising from the exercise of a trust of sale

·       The Public Trustee Rules also give the Public Trustee powers of investment similar to those given under the Trustee Act and the Trusts of Land Act, e.g. where he administration of any estate of which the Public Trustee is the personal representative cannot be completed at once, the said Public trustee has the power to retain any investment in its then present state

·       However, the courts can also direct that funds be invested particularly in favour of a minor

 

CASE	HOLDING
In the Matter of the Estate of Clement Albert Etyang	The court directed that funds awarded to a minor as reasonable provision be invested in a trust account to be used only for the welfare of the minor
In the Matter of the Estate of Charles Odhiambo Odiawo	The court directed that funds held in one bank be transferred to another to be held to the account of a minor beneficiary, and to be utilised for the upkeep and education of the minor

 

10.4        CARRY ON DECEASED’S BUSINESS

·       As a rule, personal representatives do not have the power to carry on the deceased’s business, whatever form the business

may take

(i)            If the deceased was a partner in a partnership, the personal representative should call in the deceased’s share in

the business

(ii)            If the deceased was a sole proprietor, the personal representatives have implied authority to carry on the

deceased’s business but only with a view to the proper realisation of the deceased’s estate

·       If the personal representatives carry on any business of the deceased, whether or not they have authority to do so, they will be personally liable on all debts and contracts (Rohit C Nawaz v Nawaz Transport Company)

·       However, the personal representatives are entitled to be indemnified out of the estate where they have express or implied authority to act or where the creditors agree to the indemnity

·       If the deceased’s will gives authority to carry on the business, the right of indemnity may be exercised in priority to the beneficiaries but not the creditors unless the creditors have expressly assented to the carrying on of the business

·       Where the business is carried on with a view to its proper realisation under the power implied under the common law, the right of indemnity may be exercised in propriety to the creditors of the deceased and the beneficiaries

 

10.5        COMPROMISE AND SETTLE DISPUTES

·       Under Section 25, Trusts for Land Act, the personal representatives may compromise, abandon, submit to arbitration or settle any claim, dispute or question relating to land, including any claims, disputes or questions as to boundaries and other matters, and enter into such agreements and give such assurances, released and other things as may be necessary and proper

10.6        EFFECT ANY TRANSACTION UNDER ORDER OF COURT

·       Personal representatives may effect any transaction ordered by the court

·       Under Section 36,Trusts for Land Act, personal representatives may seek the orders of the court to carry out transactions affecting or concerning land held in trust for sale, which are not authorised by the Act or the will creating the trust for sale, where the transaction would benefit the land or the persons beneficially interested under the trust for sale

CHAPTER 12: PAYMENT OF EXPENSES, DEBTS AND PECUNIARY LEGACIES

 

1.       DUTY AND POWER TO PAY DEBTS AND DISCHARGE OTHER LIABILITIES

·       The duty on personal representatives to settle the deceased’s debts arises whether the deceased dies testate or intestate

·       Section 38, Cooperative Societies Act: the estate of a deceased member is liable for the debts of the cooperative society as they existed at the time of his death, and proceedings in respect of such debt should be commenced within a year of the death

·       The duty to pay debts and other liabilities does not depend on the personal representatives being aware of a particular debt or liability – they will be liable even if they distribute an estate in total ignorance of the existence of a particular debt

·       However, personal representatives can protect themselves from liability of which they were not aware:

(i)            Section 12(2), Public Trustee Act says the Public Trustee should cause advertisements to be published in the official gazette and in any other manner he considers expedient, for the purpose of inviting creditors of the person whose estate he is administering to come in and prove their debts within a specific time

(ii)            Upon expiry of the notice, the Public Trustee should pay debts proved (or part of the debts, if they cannot be paid in full)

·       Section 16, Trustee Act gives personal representatives the power:

(i)            To allow time for the payment of any debt;

(ii)            To accept any compensation/real or personal security for any debt;

(iii)            To compromise, settle or abandon any debt claim

So long as the power is exercised in good faith, the personal representative is not liable for loss arising out of the manner in which they exercise their power

 

2.       FUNERAL EXPENSES

·       Section 83(a), Trustee Act imposes a duty on the personal representatives to provide and pay out of the estate of the deceased expenses for a reasonable funeral for him

·       The funeral expenses are payable out of the estate before any other debt, even where the estate is insolvent

·       The personal representatives have the primary obligation of arranging the deceased’s funeral (Rees v Hughes)

·       If the funeral is arranged by a person other than the personal representative, that person is liable in contract for the payment of the funeral expenses but can claim indemnity for reasonable funeral expenses from the deceased’s estate

·       ‘Reasonable expenses’ is determined by the deceased’s circumstances, including whether or not he died insolvent as well

as his station in life

·       The Kenyan position with regard to funerals is a little unclear:

 

CASE	HOLDING
Pauline Ndete Kinyota v Rael Kinyota	The court appeared to hold the position that on matters of burials the personal law of the deceased should be the key determinant, that is to say the customary law and practices of the deceased’s tribal community
James Apeli and Another v Prisca Buluku	The court here, on the other hand, took the view that whether looked at from a customary law point of view or the general law of Kenya, the wishes of the deceased, though not binding, must, so far as possible be given effect to. Where those wishes are not contrary to custom nor contrary to the general law or public policy or safety, the High Court has a general discretion to make orders on the removal of the body from one place to another

 

3.       PAYMENT OF TESTAMENTARY AND ADMINISTRATION EXPENSES

·       Section 83(c), LSA provides that the personal representative has a duty to pay out of the estate all the expenses of obtaining the grant of representation and all other reasonable expenses of administration

 

CASE

HOLDING

Re Taylor’s Estate

It was suggested that there is no real difference between testamentary and administration expenses. They come after funeral expenses, but in priority over debts and other liabilities of the estate. These include expenses incurred by the administrator in the usual course of administration. These expenses generally relate to costs of obtaining a grant to administer and relating to administration generally

 

·       Under Section 13, Trustee Act, the fees payable to the Public Trustee and any court fees and realisation expenses and other charges incurred by the Public Trustee in collecting and realising the estate of the deceased rank for payment after

any funeral expenses and deathbed charges of the deceased – they take priority over all other expenses and debts for which the deceased was liable

 

4.       PAYMENT OF DEBTS AND SOLVENT ESTATES

·       An estate is solvent if there are sufficient assets to pay all the expenses and all debts in full

·       An estate is not insolvent simply because there are insufficient assets in the estate to enable any legacies given by the deceased to be paid

·       If there are insufficient assets to pay all the legacies in full, they will abate (Section 88, LSA and 6^th Schedule, LSA)

·       Where the estate is solvent, the creditors are not ordinarily concerned with which part of the estate the debts are paid from (because they will be paid in full). However, this may be an area of concern for beneficiaries who may find that their share of the estate is made subject to the payment of specific debs or the deceased’s debts generally

 

5.       DOCTRINE OF MARSHALLING

·       As far as creditors are concerned, all the assets of the estate are available for the payment of debts

·       The doctrine of Marshalling involves compensating a beneficiary who has lost out – i.e. compensating them from the fund that was the proper fund for the payment of debts

 

6.       DEBTS AND INSOLVENT ESTATES

·       An estate is insolvent if the assets are not sufficient to pay all the debts and liabilities, and all the funeral, testamentary and administration expenses

·       If the estate is insolvent, not all the creditors will be paid in full and the beneficiaries under the estate will receive nothing

– the dispositions made under the will and application of the rules of intestacy will be irrelevant in such circumstances

·       Section 89(1), LSA requires the court – where the inventory in an application for a grant shows that after payment of funeral and other expenses the estate will be insolvent – on its own motion, to order the administration of the estate in bankruptcy in accordance with Section 121, Bankruptcy Act à in such cases, the estate vests in the Official Receiver and is administered by him

 

7.       INCIDENCE OF PECUNIARY LEGACIES

·       This is concerned with which part of a testator’s estate is to be used for the payment of any pecuniary legacies that have

been given by the deceased’s will

·       If a will expressly provides for which part of the estate is to be used for the payment of pecuniary legacies, they should be paid out of that part of the estate (normally, the will provides for pecuniary legacies to be paid out of the residuary estate)

·       Where there is no express provision as to which part of the estate pecuniary legacies are to be paid from, statutory or common law principles will apply

CHAPTER 13: DISTRIBUTION OF THE ESTATE

 

1.       INTRODUCTION

·       Once personal representatives have paid all the deceased’s debts and other liabilities, they will be in a position to consider

the distribution of the estate

·       Distribution of the estate should not be done during the pendency of any contentious probate proceedings or before the person making the distribution has obtained a grant

 

CASE

HOLDING

Shital Bimal Shah v Akiba Bank Limited

By virtue of section 55 of the Law of Succession Act, capital assets constituting the net estate cannot be distributed or any property converted unless and until a grant has been confirmed as provided by section 71 of the Act. Generally, if the personal representatives distribute the estate to the wrong beneficiaries, they will be personally liable. In intestacy, distribution follows Part V of the Law of Succession Act while in testate succession it is done in accordance with the will of the deceased, depending of course on the availability of the assets

 

2.       TIME FOR DISTRIBUTION

·       The period of one year from the death of the deceased is known as the ‘executor’s year’ – the personal representatives

are to collect the assets of the deceased’s estate and ascertain and discharge all liabilities of the estate

·       In most cases, the process takes longer than a year and so it is not possible to complete administration within the year

 

PUBLIC TRUSTEE ACT	WHAT IT STATES
Section 12(4)	After payment of all debts, fees and expenses incidental to the collection, management and administration of the estate, the Public Trustee should pay over the residue to the persons beneficially entitled to it
Section 12(5)	The estate under the charge of the Public Trustee should be distributed according to the ordinary rules of law within a period not exceeding 12 years from the date of the final completion of the account, and on expiry of that period, the estate or part of it in respect of which no clams have been lodged with the Public Trustee lapses and escheats to the state
Section 14	Any person beneficially interested in any immovable property vested in the Public Trustee is to apply by petition to the court for partitioning of such property

 

3.       POSITION OF BENEFICIARIES DURING ADMINISTRATION PERIOD

·       Prior to the distribution of the estate, the personal representatives hold both the legal and equitable title to the assets of the estate (subject to their duties to collect and preserve the estate, and discharge debts and other liabilities of the deceased)

·       Thus, the executor takes both legal and equitable title subject to the fiduciary duties to the beneficiaries and creditors of the testator for whose benefit he is to administer the estate

·       The nature of the interest of the beneficiary under a will is a right to require the estate to be duly administered (Re Leigh’s

Wills Trust)

·       Personal representatives are not trustees. However, by virtue of his position, the personal representative often discharges the functions of a trustee – he is in a fiduciary position with regard to the assets that come to him in the right of his office, and for certain purposes and aspects, he is a trustee

·       In their capacity, personal representatives cannot enjoy the benefits of the estate for themselves

·       The predominant view is that the beneficiary has no beneficial interest in the estate during administration, he only has a right to ensure that the estate is properly administered

 

CASE

HOLDING

In the Estate of the late James Shiraki Inyundo

The court stated that a beneficiary has no right to compel administrators to dance to his tune. The will of a beneficiary cannot overshadow the greater interests of the estate and the rest of the body of beneficiaries and administrators. According to the court where administrators are not committing any wrong to the estate, they should be able to administer the estate in the best interests of the estate and the beneficiaries. It is not the business of a beneficiary, for example, to move around looking for bills

 

payable by the estate but which are not yet addressed to the estate and demand that the administrators settle them. It is wrong for a beneficiary to demand payment of unproven liabilities

 

·       However, it is wrong to hold that beneficiaries generally have nothing more than a mere right to compel the due administration of the estate, taking into account the principle that as long as a beneficiary survives the deceased, they will acquire a transmissible right and the doctrine of lapse will not apply

 

4.       ASCERTAINING BENEFICIARIES AND CREDITORS

·       Personal representatives are under a duty to discharge all the deceased’s debts

·       As a rule, personal representatives are personally liable for unpaid debts even if they are unaware of the creditors’

existence or are unable to locate him

·       Similarly, the personal representatives are under a duty to distribute the estate, after payment of debts and other liabilities, to the correct beneficiaries according to the deceased’s will or the rules of intestacy, where the latter apply

·       If the personal representatives distribute the estate to the wrong beneficiaries, they will be personally liable

·       Personal representatives can guarantee themselves protection from personal liability, either to a creditor or a beneficiary whose existence they are not aware of, by advertising in accordance with Section 27, Trustee Act and Section 12(2), Public Trustee Act

·       References to children made in a will and under the rules of intestacy include illegitimate children and adopted children, unless in the case of a will there is an express contrary intention – Personal representatives have no special protection from overlooking the claims of an illegitimate child

·       When the distribution is done by the court, the interests of all beneficiaries are taken into consideration

 

5.       INCOME AND INTEREST ON GIFTS

·       It is not possible for the personal representative to distribute the estate immediately upon the death of the deceased, and they are not bound to distribute the estate before the expiry of one year from the date of the deceased’s death

·       During this administration period, it is likely that some property will be producing income

 

SPECIFIC GIFTS	·       Immediate specific gifts carry all income and profits that have accrued from the date of the testator’s death ·       The right to income carries with it the burden of costs and expenses that will be deducted from the actual income ·       E.g. in the case of rent, the costs of repairs and insurance are to be deducted from the rent before it is paid to the beneficiary
GENERAL LEGACIES	·       Since a beneficiary is not entitled to a particular asset of the estate, they cannot be entitled to particular income of the estate either ·       However, where payment of the legacy is delayed beyond the end of the executor’s year, the beneficiary will normally be entitled to interest to compensate for the delayed distribution ·       In some situations, interest is payable on the legacy from the date of the testator’s death: (i)             where the testator expressly provides that the legacy should be paid immediately upon their death; (ii)            where the legacy is given in satisfaction of a debt, unless the will specifies some later date after the testator’s death for payment of the debt; (iii)            where the legacy is charged on real property, rather than both real and personal property; (iv)            where the legacy is payable to a minor child of the testator or some other minor child whom he is in loco parentis, but only if the will contains no other provision for the maintenance of the minor; and (v)            where a legacy given to a minor shows an intention to provide for the maintenance of the minor
RESIDUARY GIFTS	Residuary gifts carry income from the testator’s death

 

 

6.       ASSENTS

·       Beneficiaries under a will or in intestacy have no legal or equitable title to any asset comprised in the estate during the course of the administration process, but merely a right to see that the estate is properly managed

·       Beneficiaries acquire rights to a particular asset when personal representatives indicate by means of an assent that the particular asset is no longer needed for the purpose of the administration of the estate

 

STATUTORY PROVISION	WHAT IT STATES
Section 82(c),   Law   of Succession Act	Personal representatives are empowered to assent, after the confirmation of grant, to the vesting of a specific legacy in the beneficiary named in the will
Section 85(1),   Law   of Succession Act	The assent of the executor is a mandatory requirement for the completion of the beneficiary’s title
Section 85(2),   Law   of Succession Act	The assent may be made orally or it may be inferred from the conduct of the executor
Section 85(4),   Law   of Succession Act	The assent is effective from the date of the testator’s death

 

·       It is not clear whether an administrator in intestacy has power to give assent to the passing of property under the rules of intestacy – the wording of the above sections appears to be limited to executors

·       The personal representatives must make it clear that the subject matter of the gift is no longer requires for the purpose of administration

·       Although the assent may be oral, there are times when special formalities are required to pass legal title to the beneficiary,

e.g. where the personal representatives have been registered in the registry of motor vehicles as the equitable owners,

they will need to complete a transfer form for the registration of the motor vehicle in the beneficiary’s name

 

7.       TRANSITITON FROM PERSONAL REPRESENTATIVE TO TRUSTEE

·       Where the deceased dies testate, the will may appoint executors, who are also appointed trustees of any trusts created under the will

·       Alternatively, the executors may not be appointed trustees, but property may be left on trust by the will, or a trust may

arise because a beneficiary under the will is a minor at the date of the deceased’s death

·       On intestacy, a statutory trust arises and administrators are trustees of any trusts – this means that the roles of personal representatives and trustees will overlap

·       The personal representatives hold property for the benefit of the beneficiaries and creditors, and not their own, and they are therefore trustees for the beneficiaries and creditors

 

CASE	HOLDING
Stephens Six and six others v Stephens and another	An administrator of the estate of a deceased person pursuant to a grant of letters of administration is a trustee and stands in a fiduciary relationship to all those who are beneficially interested in the estate. His duties as such trustee continue until he distributes the estate when his undertakings to court are discharged
In   the   Matter   of   the Estate of Anthony Gichigi	The personal representative is placed in a position where he has to account to the beneficiaries and this makes the personal representative a trustee

 

·       The overlap occasions difficulty because of the principle that the office of a personal representative is for life

·       The distribution of the deceased’s assets does not change the position, which is independent of the property he manages

·       There are key differences between personal representatives and trustees

 

TRUSTEE	PERSONAL REPRESENTATIVE
Hold and manage the trust property	Collect in the deceased’s assets, discharge debts and other liabilities, distribute the estate as soon as possible and wind up the estate
Duty to balance competing interests of individual beneficiaries	Owe a duty to the estate as a whole
Required in law to always act jointly	Have joint and several authority to act in relation to personality, but not land. They can act either jointly or separately in their dealing with personality

 

Have power to appoint additional trustees	No power to appoint additional trustees
At some point, trustees cease to be personal representatives and become trustees	Personal representatives act as both personal representatives and trustees

 

·       Where no trustees are appointed by a will but a trust arises, it has been suggested that in the case of a specific gift where personal representatives have indicated by means of an assent that the subject matter of a specific gift is not required for the payment of debts, thereafter the assent is held on trust for the beneficiary of the specific gift until the legal title is transferred to them

·       In addition, there is case law indicating that personal representatives remain liable in their capacity as personal representatives until the estate is vested in the beneficiaries entitled to it, even if the vesting was delayed because of the minority of the beneficiary (Harvell v Foster)

·       Where the personal representatives are also the trustees of the residuary estate, as soon as the debts and other liabilities have been discharged and the residue of the estate is ascertained, the personal representatives start to hold the property in their capacity as trustees (Re Cockburn’s Trusts)

·       Where the will appoints trustees but not personal representatives, the personal representatives do not become trustees at any stage

·       In the circumstances, the personal representatives will be under an obligation to transfer the assets that form part of the trust to the trustees as part of the process of administering the estate

CHAPTER 14: REMEDIES OF BENEFICIARIES AND CREDITORS

 

1.       INTRODUCTION

·       Sometimes things go wrong with administration, and when this happens, the beneficiaries and creditors look up to the personal representatives for a remedy

·       The law provides avenues for remedies for beneficiaries and creditors who are aggrieved by the conduct of personal representatives in their administration of the estate

 

2.       CRIMINAL LIABILITY OF PERSONAL REPRESENTATIVES

·       Section 95, LSA introduces a number of offences by personal representatives with respect to administration:

(i)            Wilful or reckless neglect to get in any asset forming part of the estate;

(ii)            Misapplying any asset forming part of the estate;

(iii)            Subjecting any asset forming part of the estate to loss or damage;

(iv)            Wilfully failing to produce to the court any inventory or account as required by Section 83;

(v)            Wilfully or recklessly producing an inventory or account which is false in any material respect; or/and

(vi)            Continuing with the administration of an estate, knowing or having reason to believe that the same is insolvent, without petitioning for its administration in bankruptcy

 

3.       REMEDIES THROUGH ADMINISTRATION PROCEEDINGS

·       Administrative proceedings are brought under the Civil Procedure Rules and are geared towards ensuring that the administration of an estate is properly done

·       The proceedings arise out of disputes of personal representatives in administration of the estate

·       Proceedings may be commenced by beneficiaries or creditors who are unhappy with the personal representatives’ conduct

over the administration of the estate

·       The proceedings may also be commenced by personal representatives who encounter difficulties in the administration of the estate, particularly where they are unsure of their legal position and wish to protect themselves from liability

 

3.1       ACTION FOR SPECIFIC RELIEF

·       The issues for determination under Order 38, Rule 1, CPR are questions affecting:

(i)            The rights or interests of any person claiming to be a creditor or beneficiary;

(ii)            Ascertainment of any class of creditors or beneficiaries;

(iii)            Furnishing of any particular accounts by personal representatives and vouching of such accounts;

(iv)            Payment into court of any money in the hands of personal representatives;

(v)            Directions to the personal representatives to do or abstain from doing any particular act in their character as personal representatives;

(vi)            The approval of a sale purchase compromise or any other transaction; and

(vii)            The determination of any question arising directly out of the administration of an estate

·       Under order 38, Rule 5, CPR any person interested under a will may take out an originating summons for the determination of any question of construction arising under the will, and for a declaration of the rights of the person interested

 

CASE	HOLDING
Official        receiver        v Sukhdev	The Official Receiver sought orders against the executor of a will that he transfers land to a beneficiary (who was a bankrupt), that he administers the estate and that he renders accounts to the court
Gurdial Singh Dhillon v Sham Kaur and Others	The eldest son of the deceased by his first marriage brought the action against his step-mother, the administrix of the deceased, and his step-brothers, seeking the determination of the rights and interests of the parties to the estate of the deceased, and that the administrix furnish accounts of the estate and that the respondents make retribution to the estate in respect of funds or other benefits received by them from the estate

 

·       Any person interested in the estate of the deceased may commence administration proceedings

·       The action is initiated by way of Originating Summons under Order 38, Rules 1, 2 and 3, CPR or by ordinary suit under the general procedures of the Civil Procedure Act and/or Civil Procedure Rules

·       Where the action is brought by creditors or beneficiaries against the personal representatives on grounds of wrong doing by the latter, the court will normally under Order 20, Rule 13(1), make an order directing that accounts of property which forms part of the residue of the estate and which came to the possession of the personal representatives or any other person on behalf of the personal representatives; accounts of the deceased’s debts, funeral and testamentary expenses; accounts of any legacies or annuities; and an inquiry as to which part of the estate has not been collected or disposed of, and whether such property is subject to any encumbrances

·       Once the accounts and inquiries have been completed, the court will order payment of any debts, distribution of the assets to the beneficiaries, and other relevant orders

·       Personal representatives often seek specific relief to shield them from liability. It is sought in most cases where the personal representatives are able to carry out administration of the estate overall, but have one more specific duty. The specific reliefs may cover:

(i)            Construction of wills;

(ii)            Determination of beneficiaries;

(iii)            Orders directed at personal representatives during the making of accounts, where there is a dispute as to whether they acted in the transaction for the benefit of the estate; and

(iv)            Orders directing the personal representative to perform, or refrain from performing, a particular act

 

3.2    ORDER FOR ADMINISTRATION BY THE COURT

·       Under Order 36, Rule 2, CPR, any person interested in the estate of the deceased may seek orders of the administration of the estate of the deceased by the court

·       Order 36, Rule 2, envisages the taking out of an originating summons for the administration of either the personal estate or the real estate of the deceased by the court

·       The action can also be by plaint if there is a dispute of fact, allegation of fraud, or a claim for damages by breach of duty –

such as where the personal representatives are guilty of breach of trust

·       The Originating Summons is used where the issue leading to the application arises out of a matter of law

·       Where the action for the administration of the estate is brought by the creditors or beneficiaries against the personal representatives on the grounds of wrongdoing by the personal representatives, the court makes orders directing that certain accounts be drawn up and certain inquiries be made

 

4.       ACTION AGAINST THE PERSONAL REPRESENTATIVES

·       Personal representatives must preserve and administer an estate with diligence, and in accordance with the law

·       If a personal representative, in his office as a personal representative, commits a breach of duty that results in a loss to the beneficiaries or creditors of the estate, he commits a ‘devastavit’ (wasting of the assets) for which he will be personally liable

·       It does not matter that a breach of duty was committed innocently, fraudulently or negligently

·       Section 94, LSA: when a personal representative neglects to get in any assets forming an estate in respect of which representation has been granted to hum, or he misapplies any such assets or subjects it to loss or damage, he shall be liable to make good any loss or damage arising from such neglect or misapplication

·       Devastavit may be classified into three:

(i)            Misappropriation of assets by a personal representative, such as where the personal representative uses the estate to pay personal debts or converts the assets for their own use;

(ii)            Maladministration of the assets of the estate, where the personal representatives distribute the estate to the wrong beneficiaries or pay the wrong creditors, incur unjustified expenses in the administration of the estate by selling them at under value or paying debts they are not bound to pay; and

(iii)            Failure by personal representatives to safeguard the assets of the estate so that they are lost or destroyed through carelessness

·       Where personal representatives fail to settle amounts due to beneficiaries or fail to comply with court orders which require them to make certain payments to beneficiaries, the beneficiaries rely on Section 47, LSA and Rule 73, P&A Rules, where the court can in exercise of its inherent powers compel compliance

 

CASE	HOLDING
Panayotis Nicolaus Catravas v Kanubhai Mohamed	An action can only be successfully maintained against an executor where such personal representative has taken out a grant of representation or intermeddled with the estate

 

In the Estate of Joram Wawru Mogondu

The enforcement of an order of the probate court cannot be compelled through Order XXI of the Civil Procedure Rules; as such matters of execution of orders under the Law of Succession Act have not been imported into succession law. The beneficiary who desires to obtain binding and enforceable orders must commence a proper action

 

5.       DEFENCES OF PERSONAL REPRESENTATIVES

·       Where a personal representative is personally liable for devastavit under Section 94, LSA, he must replace the loss caused to the estate unless he can avail himself a defence

·       There are several defences that may shield the personal representatives

 

DEFENCE	HOW IT APPLIES
Section 60, Trustee Act & Section 52, Trusts for Land Act	·       This provision allows the court discretion to relieve a personal representative where they have acted honestly, reasonably and in good faith, and in the opinion of the court ought to be excused ·       Each case depends on its own facts (a couple of cases have concerned whether personal representatives have acted reasonably when acting on wrong advice of a lawyer)
Section 61, Trustee Act	·       The court has the discretion to indemnify a personal representative where a beneficiary or creditor has instigated, requested or consented in writing to a breach of duty on the part of the personal representative ·       The court exercises its discretion only if the beneficiary knew all the facts surrounding the matter
Section 29, Trustee Act	·       This provision protects personal representatives from liability to a beneficiary or creditor of whose existence they were not aware, so long as the personal representative has complied with the condition concerning the placing of advertisements
Acquiescence in devastavit	·       This is a common law defence – i.e. if a creditor or beneficiary acquiesces in devastavit, the personal representatives are not generally liable to him ·       However, the personal representatives have the burden of proving that the beneficiary or creditor was of full age, had full knowledge of all material facts, and was not under the undue influence of personal representatives
Plene      administravit     and Plene administravit praeter	·       Plene administravit literally means that the personal representatives have fully administered the estate and do not have any assets in their possession, i.e. they have no assets that can be utilised to pay creditors ·       Plene administravit praeter means that the personal representatives have fully administered all the assets of the estate, except for a specified sum in their hands, and so the creditors would only be able to obtain judgment in respect of the specified sum or assets coming into the hands of personal representatives after the date of judgment
Limitation of Acts Act (Cap. 22, Laws of Kenya)	CLAIM BY A BENEFICIARY: ·       The limitation period for breach of trust by administrators and trustees begins to run from the date of the commission of the breach and not from the date of the death of the deceased (Stephens and Others v Stephens and another)   ·       Section 20(2), Limitation of Actions Act: beneficiaries cannot bring any action against the personal representatives to recover land or in respect of a breach after the expiry of 6 years from the date on which the right to receive the share or interest accrued   ·       Section 21, Limitation of Actions Act: the limitation period for recovering movable property or personality by a beneficiary is 12 years from the date when the cause of action accrued ·       An action to recover arrears of interest in respect of a legacy or damages in respect of such arrears should be brought within 6 years from the date on which the interest became due ·       Although personal representatives are not bound to distribute the estate before the expiry of the executor’s year, the time generally runs from the date of the deceased’s death ·       However, the limitation period does not apply to claims by beneficiaries where the personal representative has acted fraudulently or where the personal representative is in possession of the property or the proceeds of the property

 

CLAIM BY A CREDITOR ·       The defence of limitation is available to a cause of action that accrued during the lifetime of the deceased, in the same way, as the deceased would have done had he been alive ·       Time continues to run against the claimant between the date of the deceased’s death and the date when the grant of representation is obtained     EXTENSION OF LIMITATION PERIOD ·       The limitation period may be extended in some circumstances, whether the claim is by a beneficiary or a creditor. It may be extended for the following reasons: (i)             Due to disability of the claimant (Section 23(3), 25(7), 25(8), LSA) (ii)            Where the personal representative has acknowledged the claim of a debt or other liquidated pecuniary claim or claim to movable property of a deceased person; and (iii)            In cases of a mistake or fraud on the part of the personal representative (Section 26, LSA)

 

 

6.       SUBSTITUTION OR REMOVAL OF PERSONAL REPRESENTATIVES

·       The LSA provides for two instances for the removal or substitution of personal representatives

 

STATUTORY PROVISION	WHAT IT STATES
Section 71(2)(b), Law of Succession Act	The court, at the hearing of the application for confirmation of a grant, if not satisfied that the grant was rightly made to the personal representative or that the personal representative was administering or would administer the estate according to the law, may decline to confirm the same and instead issue a confirmed grant of letters in respect of the estate or the un-administered part of the estate to someone else
Section 71(2)(c), Law of Succession Act	The court may order a personal representative to deliver or transfer all the assets of the estate under his control to the holder of a confirmed grant issued by another court
Section     76,                 Law    of Succession Act	The revocation or annulment of a grant under section 76 of the Law of Succession Act usually results in the removal or substitution of the personal representative. Although the court may annul a grant on its own motion, in most cases, it acts on the prompting of either a beneficiary or creditor or any person interested in the estate. The application for revocation may be founded on purely technical grounds or on grounds related to the misconduct of the personal representatives or general maladministration of the estate by the personal representative. Upon ordering the revocation of the grant, the court may issue a confirmed grant to someone else

 

7.       ACTIONS AGAINST RECIPIENTS OF ASSETS

7.1    PERSONAL ACTIONS

·       Where the loss suffered by the beneficiary or creditor arises from a devastavit of the personal representative, the common law holds that the beneficiary or creditor should first seek to recover the loss from the personal representatives, before pursuing other creditors or beneficiaries who have received assets to which they are not entitled

·       Personal actions against other beneficiaries or creditors arise only where the claimant fails or is unable to recover from the personal representative (Re Diplock)

 

7.2    TRACING

·       Tracing is the other remedy available against the recipients of assets

·       Tracing is an equitable proprietary remedy whereby a legal or equitable owner of property is able to assert title to a particular thing that has passed derivatively into the hands of another – i.e. the following of a person’s property into the hands of another and asserting title to it

·       Tracing is even possible where the property has changed in form

 

CASE	HOLDING
Re Diplock	The general principle is that whenever there is an initial fiduciary relationship, the person beneficially entitled to the property can trace it into the hands of anyone holding the property, except a bona fide purchaser for value without notice
Saleh Bin Mohamed Omar Bakor v Noor Binto Sheikh	It was stated that a beneficiary is entitled to follow the assets into the hands of a person who has wrongly received them without necessarily having to apply for the revocation of the grant of letters of administration

 

·       The difference between a personal action and an action founded on tracing is that the true equitable owner of property may exercise the equitable right to trace without first exhausting their remedy against personal representatives

·       Where the true equitable owner has already recovered from the personal representative, they lose their right to trace

·       In addition, there is a difference with relation to limitation. Some tracing claims are probably not affected by the statutory limitations in the Limitation of Actions Act and these are subject to the doctrine of equitable laches

CHAPTER 15: ESTATE ACCOUNTS

 

1.       INTRODUCTION

·       The keeping of estate accounts is an important aspect of administration of estates

·       Personal representatives are in a fiduciary position with relation to the estate and the beneficiaries , which casts a duty on the to account for their administration of the estate to both the court and to the beneficiaries

·       There is an obligation on personal representatives and trustees to account to the beneficiaries for their trusteeship or administration (In the Matter of the Estate of Anthony Ngugi Wairire)

 

2.       DUTIES OF PERSONAL REPRESENTATIVES REGARDING ACCOUNTS

·       Law and equity impose on personal representatives a duty regarding the accounts of an estate, independent of any rules imposed by statute

·       The personal representatives are expected to keep proper, accurate and faithful accounts, and if they cannot do so themselves, they must engage an agent to keep proper accounts for them

·       The personal representative remains liable for any improper accounts rendered in his name and sanction

·       The estate funds must not be mixed with any other accounts, including the personal accounts of the personal representative

·       The accounts must contain particulars of all the receipts and payments, which must be supported by invoices and vouchers

·       The personal representatives should always have the estate accounts ready and up-to-date

·       The personal representatives are only obligated to account to the true heirs and beneficiaries and are therefore entitled to require proper identification by the persons seeking the information that they are indeed heirs and beneficiaries

·       Generally, the accounts and supporting documents must be preserved even long after completion of the administration

·       Details of capital assets should be rendered when the property comes under the control of the personal representative

·       There is also the duty to give proper information on the investment of the estate’s funds – this carries with it the duty to allow the heirs and beneficiaries to inspect and investigate account and supporting documents relating to the trust property

 

3.       RIGHTS OF BENEFICIARIES TO AN ACCOUNT

·       The beneficiary’s right to information corresponds to the personal representative’s duty to account and give information

·       The beneficiary is entitled to full and accurate information on the amount and the state of the estate, how the estate has been dealt with, and how and where the funds were invested

·       The beneficiary is entitled to information on shares in a limited company where the same form part of the assets of the

estate. However, the beneficiary’s rights are subject to a company’s articles of association

·       Where the information sought can only be supplied at considerable expense, then the beneficiaries must bear the burden, unless the same can be properly paid out of the estate

 

4.       ACCOUNTS UNDER THE LSA

 

STATUTORY PROVISION	WHAT IT STATES
Section 83(3), Law of Succession Act	The personal representatives are under a duty to produce to court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of the administration of the estate up to the date of the account, if required to do so by the court on its own motion or on the application of any person interested in the estate
Rule 25(5), P&A Rules	The court may at any time and from time to time require the personal representative to render the court a true account of the estate of the deceased and of his administration of it

 

·       Upon being appointed as the administrator of an estate, one incurs the responsibility of honest, efficient and high mined dealing with regard to estate (Stephens and Others v Stephens and Another)

·       The personal representatives are under a statutory duty to account to all the beneficiaries and other interested parties (In the Matter of the Estate of David Murage Muchina)

·       Neither the LSA not the P&A Rules give clear guidelines on what the account should contain and the format it should take

5.       ACCOUNTS UNDER THE PUBLIC TRUSTEE ACT

·       The Public Trustee Act s more elaborate, in that the Public Trustee Rules give clear directions as to the nature of accounts that are to be kept

 

PUBLIC TRUSTEE RULES	WHAT IT STATES
Rule 3	The Public Trustee is required to make a complete inventory of every estate of which he is the personal representative, keep an estates’ cash book and a ledger account for each estate detailing all the monetary transactions, keep a file of all correspondence relating to the estate and keep in safe custody all the deeds and documents. Any person beneficially interested in the estate (such as a creditor, heir or beneficiary) is entitled to inspect and make copies of any deeds and other documents relating to the estate except the correspondence
Rule 4	Upon the completion of the administration of an estate, the Public Trustee must file his account in the Hugh Court and produce vouchers relating to the account and publish a notice in the official gazette and on notice board at the High Court and at the office of the Public Trustee of the date appointed by the High Court for the passing of the account

 

·       The account is thereafter taxed by the Taxing Officer of the court after hearing any person interested in any of the property in the hands of the Public trustee out of which the Public trustee is liable to pay the account

·       The court, after passing the accounts, issues a certificate to the effect that the accounts have been examined and found to be correct

·       Where additional property is discovered after the certification by the court, the Public Trustee may administer the estate in which event he must prepare and file a supplementary account in respect of the additional property

·       Where the Public Trustee invests the funds under his control, he is required to place the income earned from such investments in a Public Trustee Investment Income Account and deal with it as directed in Section 6(4), Public Trustee Rules

 

6.       FORM OF ACCOUNTS

·       The accounts should carry information and entries detailing all the transactions relating to the estate

·       They serve the purpose of informing the personal representatives themselves of the position of the estate at the material time

·       The first step in setting up a proper accounting system is to ascertain the terms of the will of the deceased, or in cases of intestacy, the relevant provisions of the LSA

·       The estate book is a collection of various documents and accounts which are required for proper recording of the estate and the dealings in respect of the same à it should contain: a copy if the will, any observations, a memorandum, a schedule, a cash account, an income account, special income accounts, apportionment accounts and a distribution account

 

THE MEMORANDUM	·       This contains background information ·       It covers matters such as: particulars of the deceased, his family, their respective domiciles, debtors and creditors, bankruptcy of companies in which the deceased held shares, deaths of beneficiaries, estate funds investment decisions, etc.
THE SCHEDULE	·       This is a record of the assets and liabilities as at the death of the deceased ·       It consists of two parts: one listing the assets, while the other records the liabilities ·       It also has a remarks column n both parts to record events touching on the assets and liabilities ·       It is a log of all the stages of the estate’s existence ·       Recording of   an   asset   in   the   asset’s   column   indicates   the   personal   representative acknowledgement of his awareness of its existence, not control over it ·       An entry in the liability column indicates the personal representative’s awareness of a claim, and it is not an admission of the claim’s validity
THE CASH ACCOUNT	·       All cash transactions of the estate are recorded here

 

	·       Cash balances received by the personal representatives at the date of death or taking appointment are debited in the cash account, followed by cash receipts, whether from sale of assets or accrued income ·       Payments or expenses are recorded similarly on the credit side ·       The balances in the hands of the personal representatives are ascertained by totalling the debits and creditors and getting the differences between them ·       On the completion of administration, any cash balance is handed over to the residuary legatee and the entry of this event on the credit side automatically closes the cash account ·       The recording of a debit in the cash account amounts to an acknowledgement of its receipt and is evidence of the personal representative’s duty to account for it ·       Thus, cash and bank balances should not be discharged and moved from the schedule and entered into the cash account until such time that the personal representative is able to exercise control over them ·       Personal representatives only have control over cash in the bank upon the registration of the grant of representation with the bank ·       With respect to hard cash, control is attained when actual possession of the money is obtained
THE INCOME ACCOUNT	·       The income account records cash transactions affecting the property, the subject of a life interest, otherwise called a life tenancy ·       It is a specialised cash account limited to records of receipts that are of an income nature ·       It is supplemental to the cash account and its format is thus the same as the cash account
THE SPECIAL INCOME ACCOUNT	·       This is in respect of specific income meant for a beneficiary other than the tenant for life ·       It applies where the testator assigns income from particular assets to a specific person or class of persons other than the tenant for life
THE APPORTIONMENT ACCOUNT	·       These are necessary where need arises to apportion income or expenditure between successive beneficiaries, say between a tenant for life and a remainder person
THE DISTRIBUTION ACCOUNT	·       This is the final account, prepared at the completion of the administration ·       It facilitates the handing over of the estate to the beneficiaries or its distribution by the personal representatives in keeping with the terms of the will or rules of intestacy ·       The distribution account brings to an end all other accounts, which are brought down and their details entered into the distribution account either as assets or liabilities where the cash account has a balance on its debit side, the same will be transferred and brought down to the asset column of the distribution account (i.e. cash debit = distribution asset) ·       Any winding up or legal costs are reflected in the liability column of the distribution account ·       The net estate (the difference between assets and liabilities) is what is available for distribution among the beneficiaries ·       Personal representatives ascertain the beneficiaries and determine the share of each from either the terms of the will or rules of intestacy

 

7.       ACCOUNTS MEANT FOR COURT PURPOSES

·       The accounts to be produced in court in a pending dispute should contain an inventory of all the assets owned by the deceased at the time of death, a list of all the debts owing by the deceased at the time of the death, an account of the deceased’s funeral and testamentary expenses, particulars of all receipts, particulars of payments and transfers of assets, particulars of all assets vested in and held by the personal representatives at the time of the account, and particulars of all outstanding liabilities at the date of the accounts

·       Accounts may be required to be produced for court purposes either in probate and succession causes or in administration proceedings or in suits

CHAPTER 16: DEPENDENCY AND FAMILY PROVISIONS

 

1.       INTRODUCTION

·       Section 5(1), LSA gives a testator total freedom to make a will disposing of any of his property by will to whomsoever he wishes – i.e. ‘testamentary freedom’ or ‘freedom of testation’ (Irene Njoki Mucheru v Lilian Mucheru)

o   The argument is that the testator should be capable of doing what he likes with his property by will, just as he could have during his lifetime

o   However, this is not an absolute freedom as the terms of the will may be altered by the court following an application under Section 26, LSA

·       The argument against absolute freedom is to guard against the making of irresponsible wills by which members of the

testator’s family are deprived completely and the estate is given away to outsiders

·       The dependency and family provisions of the LSA cater for persons who were dependent on the deceased prior to his death, but after his death find themselves inadequately provided for in his will or in intestacy or by gifts in contemplation of death

·       These provisions act as a fetter to the operation of the doctrine of testamentary freedom

 

CASE	HOLDING
Elizabeth Kamene Ndolo v George Matata Ndolo	Section 26 of the Law of Succession Act clearly puts limitations on the testamentary freedom given by section 5. So that if a man by his will disinherits his wife who was dependent on him during his lifetime, the court will interfere with his freedom to dispose of his property by making reasonable provision for the disinherited wife. Or if a man at the point of his death gives to his mistress the family’s only home and makes no reasonable provision for his children who were dependent on him during his lifetime, the court may well follow the mistress, under section 26, and make reasonable provision for the dependent children out of the house given to the mistress. So that though a man may have unfettered freedom to dispose of his property by will as he sees fit, we do not think it is possible for a man in Kenya to leave all his property for the maintenance and up-keep of an animal orphanage if the effect of doing so would be to leave his dependants unprovided for
In the Matter of the Estate     of James Ngengi Muigai	Although the testator has power to dispose of his property by will, the freedom is not absolute. Section 26 stipulates that a will is not absolute; where there is contention the court can interfere and make provision for a dependant left out of inheritance

 

2.       CATEGORIES OF APPLICANTS

·       Section 26, LSA empowers a person who qualifies under Section 29, LSA, called ‘dependant’, and who considers that a testator did not make reasonable provision for him in his will, to apply to court for an order making such reasonable provision for him as the court thinks fit (John Gitanga Mwangi and Others v Jonathan Mjuguna Mwangu and Others)

·       Section 29 gives the following categories of persons who may take advantage of Section 26 of the Act:

(i)            The wife or wives, former wife or wives of the deceased;

(ii)            The children of the deceased;

Spouses and children do not have to prove dependency immediately prior to the deceased’s death

(iii)            The deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, half-brothers and half-sisters; and

(iv)            The husband, where the deceased is a woman

·       Under the LSA, the persons who can take advantage of dependency or family provisions should be related to the deceased either through blood or marriage – persons who are not related to the deceased in any way or who are not members of his household cannot benefit under these provisions

·       The persons who would be applicants under the general law cannot succeed if they claim against an estate of a deceased Muslim so long as they fall within the classes of persons who are barred from benefit under Islamic law

 

2.1 WIFE OR WIVES OF THE DECEASED

2.1.1 THE PERSONS ENTITLED TO APPLY

·       Section 29(a), LSA caters for wives marred either under statute or under systems of marriage that allow polygamy:

o   There is no requirement that the wife/wives provide that they were dependent on the deceased immediately before his death – all they have to do is that they were validly married to the deceased

o   This category also includes a judicially separated wife

·       A party to a voidable marriage which has not been annulled prior the deceased’s death is also able to benefit from Section 26, LSA – such a party falls under the category of wife or wives of the deceased so long as she entered into the marriage in good faith, and during the deceased’s lifetime the marriage was neither annulled nor dissolved nor did she enter into a later marriage

·       A woman married to another in the customary law woman-to-woman arrangement is also a wife for purposes of Section 29(a), LSA and is entitled to inherit the estate of the woman who had married her (In the Matter of the Estate of Tabutany Cherono Kiget)

 

2.1.2       POSITION OF A CUSTOMARY LAW WIFE MARRIED TO A MAN WITH A WIFE MARRIED UNDER STATUTE

·       The position regarding women married under customary law by a man who has previously or subsequently contracted a statutory marriage initially presented a problem as such women were not recognised as wives

·       Thus, the LSA specifically sought to address the plight of women who found themselves in the position of the customary law widows in the cases of ire Ruenji’s Estate and Re Ogola’s Estate

o   In both matters, the deceased persons had previously contracted marriage under the African Christian Marriage and Divorce Act and subsequently purported to contract marriages to other women under customary law during the subsistence of the statutory marriage

o   The High Court held, in both cases, that by virtue of Section 37 of the Marriage Act, the deceased lacked capacity to contract other marriages under any system of law, that the marriages so contracted were null and void, and that the women so married were not wives for any purpose (including succession)

o   The position taken by the court in these cases was considered unfair to both the women purportedly married under customary law and their children

·       The legislature sought to address this problem through an amendment to the LSA through the Statute Law (Repeals and Miscellaneous Amendments) Act of 1981, by introduction Section 3(5) which provides as follows:

·       The amendment was intended to cater for the woman who contracts a marriage with a man who is already married to another woman under statute and, therefore, lacks capacity to contract another marriage under any other family law system

·       The provision cannot possibly be meant to protect the woman married under customary law to a man who seeks to contract a subsequent statutory marriage since such a woman is adequately protected under the provisions of the Marriage Act, which make such a subsequent statutory marriage during the subsistence of the prior customary law marriage null and void (Pauline Ndete Kinyota Maingi v Rael Kinyota Maingi)

·       The amendment gives primacy to the polygamous marriage at the expense of the statutory monogamous one and it treats the statutory monogamous marriage as secondary to the subsequent polygamous one

·       Some commentators have argued that Section 3(5) sanctions adultery and bigamy, undermines the institution of marriage and encourages the breach of the marriage contract

·       The situation is still not ideal, however, as t=it creates an untidy situation where the marriage statutes are in conflict with the LSA – i.e. whereas the woman married in contravention of Section 37, Marriage Act is not a wife for any purpose, such a woman is recognised under Section 3(5), Law of Succession Act as a wife and is entitled to inherit from the estate of the deceased in spite of Section 37, Marriage Act

 

2.1.3       POSITION OF A COHABITEE

·       Section 3(5), LSA only covers the customary law wife – it does not aid a cohabitee

·       Whether the court finds in favour of the customary law wife depends on the evidence marshalled to prove the existence of a customary law marriage between the appellant and the deceased

·       However, a cohabitee can bring an application under Section 26, LSA on the basis that she was a wife of the deceased by dint of prolonged cohabitation with the deceased. She has to convince the court that the said cohabitation gave rise to a presumption of marriage between hr and the deceased

 

CASE	HOLDING
Hortensiah Wanjiku Yawe v Public Trustee	The principles for determining a marriage out of cohabitation are clearly set out in this case as: (i)       The onus of proving customary law marriage is generally on the party who claims it; (ii)      The standard of proof is the usual one for a civil action, namely, ‘on the balance of probabilities’; (iii)    Evidence as to the formalities required for a customary law marriage must be proved to that standard: (iv)    Long cohabitation as a man and a wife gives rise to a presumption of marriage in favour of the party asserting it; (v)      Only cogent evidence to the contrary can rebut the presumption (vi)    If specific ceremonies and rituals are not fully accomplished this does not invalidate such a marriage
In the Matter of the Estate of Stephen Ng’ang’a Gathiru	The court held that the applicant was not a wife or former wife of the deceased, as she did not fall within the definition of dependant in section 29 and therefore, she could not bring an application under section 26 of the Law of Succession Act

 

2.2    FORMER WIFE OR WIVES OF THE DECEASED

·       These fall under Section 29(a), LSA and do not have to establish dependency

·       A former wife is a person whose marriage to the deceased was dissolved or annulled during the deceased’s lifetime, either

by a decree of divorce or annulment

·       However, if the divorce court had granted an order for settlement under Section 27 and 28, matrimonial Causes Act of the former wife had obtained a settlement under Section 17, Married Women’s Property Act, it would appear that she would not be entitled to relief under Section 26, LSA

·       Under Section 28, Matrimonial Causes Act, the divorce court has power, upon pronouncing a decree of divorce, to make orders, founded on any ante-nuptial or post-nuptial agreements, as to the application of settled property

 

2.3 CHILDREN OF THE DECEASED

2.3.1 PERSONS ENTITLED TO APPLY

·       Section 29(a), LSA covers all children of the deceased, and they do not have to prove dependency

·       A child of the deceased includes a child env entre sa mere, a child of a relationship outside marriage, a legitimated child and an adopted child

·       Section 3(2), LSA stipulates that this also includes a child whom the deceased has expressly recognised or accepted as his or for whom he has voluntarily assumed permanent responsibility – the provision seeks to cater for all children of the deceased

 

CASE

HOLDING

In the Estate of Reuben Nzioka Mutua

A woman purportedly married under customary law to a man who had previously contracted a statutory marriage sought benefit under section 26 for herself and her children. The court held that she was not a wife. She produced certificates of birth, relying on section 3(2) of the Law of Succession Act, showing that the deceased was the father of her children and that he had recognised them as such. The court found that her children were children within the meaning of section 3(2) and therefore entitled to provision out of the estate of the deceased under section 26 of the Law of Succession Act

 

2.3.2       POSITION OF THE ADOPTED CHILD

·       Section 171(1), Children’s Act stipulates that upon an adoption order being made, all the rights, duties, obligations and liabilities of the parents or guardians of the child in relation to the future custody, maintenance and education of the chil d are extinguished and all such rights, duties, obligations and liabilities vest in and are exercisable by and enforceable against the adopter inside marriage and the child stands to the adopter as a child inside marriage

·       Under Sections 172, 174, 175 and 176, Children’s Act, the child is entitled to a share from the estate of the adopter as if he were the natural or biological child of the deceased adopter

·       An adopted child cannot claim against the estate of their natural parent (Re Collins)

2.3.3       POSITION OF CHILD OF ADULTEROUS UNION

·       Children of an adulterous union are children for the purposes of succession (John Ndung’u Mubea v Milka Nyambura

Mubea)

·       Thus, a child who was born to the deceased with a woman who was not married to him is a survivor and heir of the deceased, and as such is entitled to a share of the estate. Age is not a consideration, as a dependant child does not have to be a minor to benefit under Section 26m LSA (In the Matter of the Estate of Jonathan Mutua Misi)

·       Illegitimate children of a deceased Muslim man cannot rely on Section 26, LSA, even if the deceased had recognised and accepted them as his own during his lifetime

 

2.4    STEP-CHILDREN & CHILDREN THE DECEASED HAD TAKEN INTO HIS FAMILY

·       This category of children falls under Section 29(b), LSA and they are required to prove dependency on the deceased immediately prior to his death

·       However, a literal reading of Section 29(a) and 29(b) appears to make it difficult to reconcile the placing of ‘step-children’ and ‘children whom the deceased had taken into his family’ in the category of persons who have to prove dependency within Section 3(2) of the LSA

·       This apparent overlap between Section 29(a) and Section 29(b) can be explained thus: step-children, whom the deceased had not taken into his home or who were not under his care, have to prove dependency, but the step-children whom the deceased took under his wings fall under Sections 3(2) and 29(a) and do not have to prove dependence

·       Under Islamic law, adopted children and step-children have no right of inheritance from their ‘father’

 

2.5    OTHER PERSONS WHO WERE DEPENDENT ON THE DECEASED

·       This category falls under Section 29(b), LSA and includes the deceased’s parents, step-parents, grandparents, grandchildren, brothers and sisters, half-brothers and half-sisters

·       All these people have to prove that they were being maintained by the deceased immediately before his death – i.e. they must establish financial dependence on the deceased immediately prior to his death (to protect the deceased’s estate from pressure by the deceased’s extended family)

·       Grandchildren would only be entitled to a share of their deceased grandparents’ estate if their parents are dead or for

some reason could not provide for them, hence their dependence on the deceased grandparents

 

CASE	HOLDING
In the Matter of the Estate     of Sadhu Singh Hunjan	The court held that the deceased had made reasonable provision for his late son and it was to be reasonably expected that his late son was to make reasonable provision for his wife and his own children just as his father had done for him and his sisters
John            Gitanga Mwangi v Jonathan Mjuguna Mwangi	Grandchildren are usually not direct dependants of the deceased; they have to prove dependency. So long as their parents are alive and take a benefit under a will or in intestacy, grand children are not considered as dependent on the deceased grandfather. They take through their own parents. They only become dependants where their parents predecease the grandfather or for some reason the parents are themselves dependent on the deceased

 

2.6    HUSBAND OF DECEASED

·       Under Section 29(c), LSA, where the deceased is a woman, her husband – if not adequately provided for in intestacy or under her will – will have to establish that he was dependent on her immediately before her death

 

3.       JURISDICTION AND PROCEDURE

3.1    THE PROCEDURE

·       Section 26, LSA states that a survivor, heir or beneficiary of the deceased who feels inadequately provided for under a will or in intestacy or through a gift in contemplation of death may move the court under Section 26 of the Act for reasonable provision from the estate of the deceased

o   Where no grant has been applied for, the application should take the form of a petition (Rule 45(1), P&A Rules)

o   Where a grant has been applied for/made but not confirmed, it should be brought in that cause by summons

·       In both cases, the application must be supported by an affidavit

·       The application may be made either to the principal registry, High Court district registry, or a resident magistrate’s registry

·       The application may be made by the aggrieved person or someone on his behalf

 

CASE	HOLDING
In the Matter of the Estate of Benjamin Ngumba Gachanja	The person on whose behalf the application is brought is expected to swear and file affidavits in support of his case and also testify in court at the hearing of the application, unless if he is a minor

 

3.2    COURTS APPLYING SECTION 26 SUO MOTO

·       Section 26, LSA envisages a formal application by an aggrieved beneficiary or dependant

·       In the circumstances, the court should not apply Section 26 on its own motion without there being an application by a party to the proceedings

·       The inherent powers of the court cannot be used to confer jurisdiction where there is no application under Section 26

 

CASE

HOLDING

In the Matter of the Estate of Benjamin Ngumba Gachanja

The court, while handling revocation proceedings, made holdings founded on sections 26 and 29 of the Act in the absence of a formal application. The learned judge apparently went off tangent when he stated that where the deceased died testate the court has to decide whether the deceased had in his will reasonably distributed his property. This is not a correct exposition of the law. The court can only consider that when faced with an application under section 26

 

·       Objection proceedings turn on the issue of the entitlement to and the suitability of the petitioner to a grant of representation, and heirs and beneficiaries usually commence them

o   In intestacy – the persons who should file objection proceedings are those set out in Sections 3(5), 35, 36, 38, 39, 40, 41, and 66, LSA

o   In testacy – the objectors should be those challenging the validity of the will. The qualification for bringing these proceedings is not dependency, but beneficial interest or heirship, and the only issue for determination in these proceedings should be whether or not the grant should be made to the petitioner

·       A court which finds that the will is valid should not venture to determine whether the objectors are dependants – it should make a grant to the executors named in the will, or is none are named, to the persons entitled to the grant under Sections 63, 64 and 65, LSA

·       Likewise, confirmation and revocation proceedings are also specific proceedings which are designed to address specific issues and concerns – they are not suitable for addressing dependency matters

·       The practice by a section of the High Court of making findings based on Part III of the LSA, while handling confirmation, objection and revocation proceedings, in the absence of a formal application for reasonable provision, is a clear indication that the court in such cases is in fact handling the wrong application

 

3.1    TIME LIMIT FOR APPLICATION

·       Section 30, LSA provides that the application for reasonable provision may be made at any time before the confirmation of the grant (In the Matter of the Estate of James Karanja)

·       Rule 45(1), P&A Rules envisages two different situations:

(i)            Where the application is brought before the petition for grant is lodged; and

(ii)            Where the application is brought after the filing of the petition for or the making of the grant, but before the grant is confirmed

·       The estate is distributed after the confirmation of grant, so the application for reasonable provision should be made before the distribution of the estate (In the Matter of the Estate of Syed Mohammed Arshad Shah)

 

4.       THE TEST OF REASONABLE PROVISION

·       The court may only order provision for an applicant falling within the categories set out in Section 29, LSA

·       The court will only order such compensation if it is satisfied that either the deceased’s will, the rules on intestacy, the gifts in contemplation of death, or a combination of all three or any two of them, do not make ‘reasonable provision’ for the applicant (Section 26, LSA)

4.1    REASONABLE PROVISION & AFRICAN CUSTOMARY LAW

 

STATUTORY PROVISION

WHAT IT STATES

Section     28,                 Law                 of Succession Act

In considering whether any order should be made under this Part (i.e. provision for dependants), and if so what order, the court shall have regard to: (a)             the nature and amount of the deceased’s property; (b)             any past, present or future capital or income from any source of the defendant; (c)            the existing and future means and needs of the dependant; (d)             whether the deceased had made any advancement or other gift to the dependant during his lifetime; (e)             the conduct of the dependant in relation to the deceased; (f)             the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will; and (g)             the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.

 

·       The majority of the bench in John Gitanga Mwangi and Others v Jonathan Njuguna Mwangi and Others held that Section 28 is couched in mandatory terms, and so the court should only consider the matters set out in the provision. The majority also stated that the provision does not allow the consideration of African Customary Law

·       Visram J in In the Matter of the Estate of Humphrey Edward Githuru Kamuyu agreed with the dissenting opinion of Bosire J in the above case in holding that it was right to consider Kikuyu customary law in deciding on the reasonableness of the provision in that case, the point that an heir may be disinherited if he is cruel to his parents

 

4.2    REASONABLE PROVISION & FAIR OR EQUAL DISTRIBUTION

 

CASE	HOLDING
In the Matter of the Estate of Cecil Henry Ethelwood Miller	The court stated that ‘reasonable provision’ is not necessarily a fair distribution of the estate
John Gitanga Mwangi and Other v Jonathan Njuguna Mwangi and Others	The question is whether the will or the disposition has made reasonable provision and not whether it was unreasonable on the part of the deceased to have made no larger provision for the applicant. It is not for the court to step into the shoes of the testator and substitute for the will with what it thinks the testator should have done

 

4.3    REASONABLE PROVISION & ADEQUATE PROVISION

 

CASE

HOLDING

John Gitanga Mwangi and Others v Jonathan Njuguna Mwangi and Others

The Court of Appeal expressed conflicting opinions on whether reasonable provision also means adequate provision. Bosire JA considered the use of the term ‘adequate provision’ by the judge of the superior court as a slip on that judge’s part. In Bosire JA’s opinion, reasonable provision does not mean adequate provision. This contrasts with Shah JA’s opinion. He stated at one point that ‘sections 26, 27 and 28 of the Act cater for provision for dependants of the deceased not adequately provided for by will or in intestacy’. At another portion of his judgment, he said Section 26 of the Act provides only the power to make reasonable provision for a dependant who has not adequately provided in the will of the deceased’. Apparently, a section of the judiciary interprets reasonable provision as being the same as adequate provision

 

4.4    SECTION 28 & DISPUTES ON DISTRIBUTION IN INTESTACY

·       The provisions of Section 28, LSA are specific to applications brought under Part III of the Act

·       They are not for application where the court is called upon to deal with disputes relating to distribution of estates in intestacy – Section 28 clearly indicates that in considering whether any order should be made under Part III of the Act the courts should consider the matters set out in the section, and so does not apply to applications brought under other Parts of the Act

5.       THE CIRCUMSTANCES TO BE CONSIDERED

 

NATURE AND AMOUNT OF DECEASED’S PROPERTY	·       The court should consider whether the estate has sufficient assets to meet the demands of the applicant ·       Only the free estate of the deceased is available for the purposes of Section 26, and so properly which has been transferred to other people before the will was made is outside the ambit of the provision (In the Matter of the Estate of Humphrey Edward Githuru Kamuyu) ·       Courts are generally reluctant to interfere in the case of small estates
ANY PAST, PRESENT OR FUTURE CAPITAL OR INCOME FROM ANY SOURCE  OF                       THE DEPENDANT	·       The court should have regard to the earnings or income, earning capacity, pensions and social security benefits of the applicant in ascertaining the applicant’s capital and financial resources ·       For instance, the court may consider the fact that the applicant is a pensioner and receiving financial support from his other children (In the Matter of the Estate of Benson Joseph Omondi) ·       The applicant’s financial obligations and responsibilities should also be taken into account
EXISTING AND FUTURE MEANS AND NEEDS OF THE DEPENDANT	·       Account should be given to the applicant’s current and future earnings and earning capacity, as well as the present and future needs of the dependant ·       The physical, financial and emotional circumstances of the applicant should be considered ·       In the Matter of the Estate of Ashford Njuguna: Waweru J took into account the fact that the first applicant, the mother of the deceased, was elderly and had no dependants and decided that the property given to her in the will was adequate. With regard to the other applicants who were the brothers of the deceased, the court considered that they were middle-aged, in good health and capable of taking care of themselves. The court was not convinced that these applicants did not have any income from their own preoccupations or that they were wholly dependent on the deceased
ANY ADVANCEMENT OF GIFTS DURING DECEASED’S LIFETIME	·       Any inter vivos gifts made to the applicant by the deceased during the applicant’s lifetime should be taken into account ·       In the Matter of the Estate of Benson Joseph Omondi: the court considered that the deceased, shortly before his death, had given a vehicle to the applicant. A nomination made in favour of the mother of the deceased was also considered
CONDUCT OF THE DEPENDANT IN RELATION TO THE DECEASED	·       The conduct of the applicant towards the deceased could be positive or negative ·       John Gitanga Mwangi and Others v Jonathan Njuguna Mwangi and Others: the court considered the fact that one of applicants was not in good terms with the deceased. He had emigrated to another country and hardly kept in contact with the deceased. He did not even attend the deceased’s funeral: he apparently came home to present and prosecute the application for reasonable provision out of the estate. The other applicant was found to have also had problems with the deceased ·       In the Matter of the Estate of Humphrey Edward Githuru: the court took into account that the relationship between the applicant and the deceased was less than cordial. The deceased had in fact stated in his will that the applicant had treated him with disrespect. The deceased had even been forced to seek protection of the police from the applicant and two other sons. The applicant and his errant brothers had also written to the deceased’s bankers asking that the deceased be prevented from withdrawing money from the deceased’s account. They had also sought to prevent the deceased from dealings with land registered in his name
SITUATION                   AND CIRCUMSTANCES OF THE CASE	·       This is a general or omnibus provision that should cater for all the other reasons and excuses that explain the deceased’s conduct – i.e. the situation and circumstances of the case, including the deceased’s reasons for not providing for the dependant ·       Elizabeth Kamene Ndolo v Geogre Kamene Ndolo: the court took into account the fact that appellant was the deceased preferred wife, and in exercising its power under section 26 gave her house a larger share of the deceased estate

 

 

6.       PROPERTY AVAILABLE FOR REASONABLE PROVISION

·       If the court decides to make an order in favour of a dependant, the order is made against the ‘net estate’ of the deceased

·       The ‘net estate’ is defined in Section 3(1), LSA to mean the estate of the deceased person after payment of the statutory expenses, i.e. funeral expenses, debts and liabilities, and expenses relating to the administration of the estate

·       Only the free estate of the deceased is available for reasonable provision

·       A nomination is not free property, and is therefore not available for reasonable provision

 

7.       FORMS OF PROVISION

 

TRANSFER OF A SPECIFIC ASSET	·       This entails the allocation of a particular asset to the applicant out of the net estate ·       In the Matter of the Estate of Benson Joseph Omondo Awinyo: the court awarded a particular asset to the applicant – a motor vehicle ·       Elizabeth Ndolo v George Matata Ndolo: the court directed that the land the subject of the proceedings be divided into specified portions between the three houses
PERIODICAL PAYMENTS	·       This is usually of a specified sum, or a sum equal to the whole or to some specific part of the income of the net estate, or periodical payments of the income produced from capital of the estate apportioned for the purpose
A LUMP SUM PAYMENT	·       This may be by instalments ·       Such orders are common where the applicant was a spouse of the deceased or where the estate is small so that the amount of income produced for maintenance would be insufficient ·       In the Matter of the Estate of Clement Albert Etyang: the court ordered that the sum of Kshs. 400,000/= be the reasonable provision for the minor applicant