The Law of Succession in Kenya: Testate and Intestate Succession

The Law of Succession is the branch of law that deals with inheritance. This area of law exists because people wish to determine how their earthly belongings (estate) are dealt with after their demise.  

What is the applicable law for succession matters in Kenya?

The Law of Succession Act of 1981 (the Act) governs matters of inheritance and was enacted to merge and consolidate the existing systems of succession at the time. 

The Act notwithstanding, Islamic law applies to any deceased Muslim’s estate. The Act also permits the applicability of African Customary Law in succession matters in instances permitted by the Act. Such instances are in estates of persons who died before the general commencement of the application of the Act, testamentary dispositions by African Customary Law, and the application of African Customary law under Section 33 of the Act.

TESTATE SUCCESSION

This type of succession occurs when a person of sound mind makes arrangements to distribute their property through a valid will to the individuals of their choice. Essentially, testate succession occurs when a person dies after making a will.

In Section 3(1) of the Act, a will is defined as a legal declaration by a person of their intentions or wishes regarding the disposition of their property after their death. This declaration must be duly made and executed as per the Act.

Types of Wills

• Conditional wills: This type of will operates only upon the happening of some event unspecified in the will. In this regard, the will becomes ineffective if the event fails to happen. 
• Joint wills: This type of will is created when two or more persons place their wishes upon their death in the same document.
• Oral wills: This type of will is verbal and is not put into writing.
• Written wills: Wills put into writing. 

Applying for the Grant of Probate

When a valid will has been properly made, the person appointed as an executor will apply for a probate grant from a court of law. An applicant must attach the original will, two copies of the will, and the deceased’s death certificate. These documents are to be lodged at the High Court Registry. Once that has been done, the application is advertised in the gazette, and if no objection is raised to the issuance of such a grant within 30 days, a grant of probate is issued. 

Within six months of the grant of the aforementioned grant, an executor ought to apply for a confirmation of the grant of probate. It must be noted that a court can issue a confirmation of grant even before the entire six-month period has lapsed. This mainly happens where there are no dependents or debts, and the court would deem it just and equitable to do so. 

INTESTATE SUCCESSION

Intestacy is provided for between Sections 32 - 42 of the Act. It is recognized as a situation in which a person dies without leaving behind any will or leaving behind an invalid will.

Intestacy occurs in the following scenarios:

1. when a person dies and leaves behind a surviving spouse with a child or children. In such an instance, the Act provides that the surviving spouse is entitled to the household effects of the deceased and a life interest on the whole or residue of the net intestate estate.
2. where a person dies and leaves behind a surviving spouse but with no child or children. In such an instance, the surviving spouse is entitled to the personal and household effects of the deceased absolutely, the first SHS 10,000.00 out of the residue of the net intestate estate or 20% of the residue of the net intestate (whichever is greater) and a life interest of the whole of the remainder.
3. where a person dies, leaving behind no surviving spouse but having a child or children. In such an instance, the net intestate devolves equally to the child or children.
4. where a person dies, leaving no surviving spouse or children. In such an instance, the property of the deceased devolves to the relatives who are in the nearest degree of consanguinity (blood relation)
5. Polygamous unions. In such instances, personal and household effects and the residue of the deceased's net estate should be divided among the houses (each wife is recognized in the law as a ‘house’) according to the number of children in each home.

Applying for a Grant of Letters of Administration

The procedure for applying for the aforementioned grant is set out in Section 51 of the Law of Succession Act and rules 7 to 14 of the Probate and Administration rules. The applicable form to be used in filing a petition for letters of administration is Form 80. Other documents to be annexed to such an application include an affidavit supporting the application, an affidavit of means, a death certificate, a guarantee of personal sureties, and a consent form. If a will has been prepared yet a personal representative has not been appointed, the type of grant to be applied for is the grant of letters of administration with the will annexed. In this regard, this application will also provide two copies of the original.

The general procedure in the applications above is that the required documents are filed with the Deputy Registrar, and a judge gives the order to advertise in the Kenya Gazette. If no objection is tendered, after 30 days, the grant of letters of administration is issued. After six months, parties can then confirm the grant.

Disclaimer

The information provided in this article is for informational purposes only and does not constitute legal advice. Readers should seek legal counsel before engaging in any transactions or activities. Additionally, the content of this article does not establish an advocate-client relationship between any reader and any individuals or entities associated with the publication. Should you have any enquiry or require assistance, please get in touch with us.