The Law in Kenya caters for the administration of the estate of a person who dies with or without having made a valid will. When a person dies having made a valid will, then they are said to have died testate. When a person dies without having made a will or having made an invalid will, then they are said to have died intestate. The emphasis on a valid will is in consideration of the fact that if a will is found to be invalid, that is, it is not genuine, then the deceased person is considered to have died intestate and the law relating to intestate succession applies. The effect is that the will is not considered in the disposing of the deceased’s property. The applicable law with regard to issues of succession is the Law of Succession Act, Cap 160, Laws of Kenya.
The law of succession is therefore categorized into two; testate and intestate succession law.
Testate succession
Testate succession refers to the disposal of a person’s property after the death according to a valid and enforceable will or testament which ensures their property is distributed and passed to the persons of their choice. The testator (male) or the testatrix (female) appoints the executor in the will to manage the property of the deceased and to finally distribute the property as in the terms of the will. The executor derives their authority to do this from the will and this is so evidenced by a probate paper called the grant of probate. Probate means the proving of a will genuine and enabling the executors to ultimately deal with the deceased property. A will is mainly concerned with the disposal of property, but it can be used for other purposes and for incidental matters, such as giving directions as to the manner of disposal of the deceased’s body or even appointment administrators.
The essential characteristics of a will are that:
The wishes expressed are only intended to take effect upon death
A legally executed document may take effect as a will if the intention was that it should not operate until the maker’s death. Where there is nothing in it showing that it has reference to death executing it cannot be effected as a will. Description of a document as a will does not make it so. Provisions of a document that are to take effect before death are not a will, they are rather a gift.
A will only takes effect after death
Wishes expressed in a will are intended to take effect after a person’s demise. Beneficiaries of an interest under the will cannot acquire said interest before the testator’s death.
A will only operates as an expression of intention
The execution of a will does not affect the way in which a testator deals with his property during his lifetime. i.e. he is allowed to dispose his assets during his lifetime even though they are in the will. Section 99 read alongside section 82 and 83 Cap 160, vests power in the executor or personal representative to settle debts and liabilities of the deceased including a power to sell actual assets to do so.
A will is ambulatory, that is, it is capable of dealing with property which is acquired after the date of the will
This means that it is capable of dealing with property after its execution. In that if a will confers all interest in an executors land to “person x”, then the person is entitled to all the executors land even if it was acquired after the execution of the will.
A will is always revocable
Because of its nature as mentioned in part b and c above; the wishes expressed are only intended to take effect upon death and a will only takes effect after death.
Intestate Succession
It is without a doubt that majority of people die without wills or testaments. Where one dies without a will or when one dies with a will that is invalid, the laws of intestacy would apply, intestate succession occurs. The rules of intestacy encompass both statute, customary law or Islamic law and determines which relatives inherit the property of the deceased. The person who manages the property of the deceased is known as an administrator and is appointed by the court. They derive their authority from a probate paper called the grant of letters of administration. In intestate succession, the first immediate family inherits then they are followed by the distant relatives. In cases where there are no relatives the property devolves to the state. Therefore, intestacy occurs in the following instances:-
- When a person dies without having made a will;
- Where the will of a person who has passed on has been declared invalid;
- when a person revokes his will and subsequently dies without reviving 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. Provisions relating to intestacy are contained in Part V of the Law of Succession Act. It is important to note that the intestacy rules only benefit people who also have a direct blood link with the intestate apart from spouses. In the absence of blood relatives, the estate passes on to the state bona vacantia (for lack of an heir). The rules of intestacy only apply to property that is capable of being disposed off by a will. However, the rules do not apply in the following instances:
- When property is jointly owned as it passes by survivorship e.g. where the matrimonial home is held by a husband and wife as joint tenants and the husband predeceases the wife, the house will pass to the wife because of the survivorship.
- Nomination – This involves the 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, nominated by the nominator during his lifetime. The said direction only takes effect upon the death of the nominator.
- Gift in contemplation of death – Donatio mortis causa.
- Life policies written in trust.
