COMPREHENSIVE SUCCESSION NOTES KENYA

INTRODUCTION TO LAW OF SUCCESSION

This is the branch of law dealing with inheritance i.e. the transmission of ownership of
property from the dead to the living or the transfer of property rights from the dead to the
living which is founded on the fact that a dead person cannot possibly own property because
he or she cannot enjoy the rights and benefits accruing from property. Therefore following
the death of the owner of some property, rights over such property have got to be passed on
to those who survive him or her.
One may therefore say that succession has everything to do with property and
death. The concept of inheritance is universal to all societies; it is the concept of universal
application in the sense that it is to be found in all human society irrespective of their
ethnicity and religious background.
The concept of succession arises out of 3 basic considerations:
1. Upon death a person does not take with them property upon death and therefore the
property left behind has to pass to those who are living;
2. Human beings need to acquire some property for their own sustenance to satisfy their
basic human needs. Inheritance is seen as one of several ways of acquiring property; and
3. Man instinctively desires to have control over his property even upon death. This is
necessary because those who acquire property work very hard to accumulate wealth and
they wouldn’t want it to in the event of their death to be wasted and succession provides a
mechanism for retaining control by a dead person over their property particularly through
the device of testate succession.
Succession provides the mechanisms by which property devolves from the dead owner
to those left behind. It also provides the mechanisms for determining the rightful claimants
to the property who should be entitled to the share of a particular person. How are such
claimants to be determined and what procedure should be followed by such claimant to
access the deceased property by heirs or dependants.
Is succession a good device for distributing the property of a deceased person? Some
commentators have argued that it isn’t, it’s often been stated that it is not a democratic way
of dealing with the property of a deceased person. One of the basic democratic ideals is
securing equality of opportunity and it is said that inheritance violates this ideal that seeks
to enhance equality in society. It is argued that it causes inequality in society by
perpetuating hereditary aristocracy in the sense that property moves from the hands of
those who have and there is therefore no redistribution of property in the event of the death
of a wealthy person. The other criticism is that recipients of inherited wealth have not
earned it and perhaps do not deserve it. The owner of the property perhaps worked to
acquire property and then by the end of the day the wealth passes to children who have not
earned and do not bear any relationship to the performance of the inheritors.
The other criticism is that property should serve the living since the dead have no use
for property and therefore the dead should not be allowed to dictate the best users of such
property. The other criticism of the system of succession is that it permits large amounts of
wealth and power to be thrust on persons who are wholly unprepared or who are
incompetent to use it wisely for the best interests of the community, which is why property
tends to be wasted upon inheritance.
Lastly there is argument that receipt of large amounts of wealth causes indolence and
in the process deprives the community of reproductive energies of the recipient, the
inheritor of large amounts of wealth does not have to work and decides to laze around.
 The arguments in favour of inheritance are as follows:
1. Some say that it is an incentive for the accumulation of wealth. It is an incentive to the
owner to work even harder to accumulate even more.
2. It is also said that it is an important source of investment capital and for that reason it
contributes to the continued expansion of the economy because it essentially puts money in
the hands of persons who did not have money initially to invest.
3. It permits the continued support of dependants i.e. the dependants of the deceased
persons;
4. With respect of gifts given to charity, hereditary wealth provides a source of wealth for the
benefit of the entire community.
5. Any unfairness of inheritance is mitigated by the fact that many of the traditional
recipients of the wealth (spouses and children of the deceased) did at least contribute
indirectly to the amassing of the wealth.
6. Abolition of inheritance would promote state socialism or worse in the sense that the
state would be forced to look for ways and means of supporting the dependants of the
deceased person. It will become the burden of the state to take care of the dependants and
that is not desirable. It is only fair that the children of the deceased benefit from the
property of their deceased parents, the maintenance should continue from the estate of the
deceased person.

Although the concept of succession is of universal application, inheritance law or rules

are not all uniform. They vary or differ in detail from one community to the other. If we
take the case of Kenya as an example, during colonialism and up to 1981 there were four
different systems of succession law applying to the four main social cultural groups in the
country:
1. There was a system for the Africans based largely on African customary law;
2. System for Muslims based on the Islamic law as stated in the Koran;
3. System applying to Hindus based largely on Hindu Customary Law and in certain
instances to English law; and
4. Persons of English descent and the law applicable was the English law of succession.
Even within the African communities there were differences in the contents of African
Customary Law. The Maasai customary law would for example differ with Luo customary
law or though the principle covering succession would be more or less the same. If one
takes the Luhya for example there are differences in the customs of the Tachoni from the
Bukhusu and so on. The law differed from community to community. There is no uniform
succession law.
After independence there was a movement by government towards achieving
uniformity in the law of succession. There was an effort by the independence government to
come up with succession law that applied to all Kenyans not just in the laws of succession
but also in the area of family law. This movement has its genesis in Chapter 5 of the
Constitution which seeks to put the interests of all the Kenyan people at par in the eyes of
the law i.e. Chapter 5 envisages equal treatment of all the people of Kenya irrespective of
their background. The application of different sets of law to area of succession was treated
or seen as being discriminatory. It was the determination to achieve equality or uniformity
that led to the enactment of the Law of Succession Act Cap 160 Laws of Kenya and the failed
attempt to pass the law of Matrimony Act.
The Act was passed in 1972 but it came into effect from the 1st July 1981, there was
an 8 year delay in bringing this statute into operation. The statute sought among other
things to unify all the existing succession laws in Kenya into a uniform legislation applicable
to all the people of Kenya. In other words they sort to bring to an end the parallel systems of
the laws of succession existing side by side and bring one law dealing with succession. The
effort to come with one uniform law dealing with succession has not been altogether
achieved. There are contradictions inherent in our society that prevent achievement of
uniform law which are brought about by the multicultural nature of our society. It has
become necessary to exempt some sections of the society from the provisions of the Act.

Sections that have been exempted from the provisions of this Act are the Muslims,
Pastoral communities resident in certain districts in the community have also been
exempt. This is mainly with respect to intestate succession. The exemption of the pastoral
communities has paved way for the application of the African customary law to the estate of
deceased members of such pastoral communities. There also decisions of the Court of
Appeal which have effectively disapplied the intestacy provisions of the Act to the estates of
the deceased Africans. (to argue later that these decisions are not good law)
The Law of Succession was meant to embody Africa customary law of succession by
embodying some of its principles. It was meant to provide the indigenous Kenyan with a
statute that translated the African beliefs and customary practices to law and the Act
embraces certain African customary law concepts such as polygamy, there are reference to
wives and co-wives, the concept of the extended family, the provisions of the Act pertaining
to dependants is wider in scope than the English concept because it was meant to cover
members of the extended family.
The succession Act was meant to be passed together with the law of matrimony Bill in
fact the commission which was appointed in 1968 to come up with recommendations was
appointed at more or less the same time with the commission for marriage laws and the two
commissions reported at about the same time around 1970-71 but whereas the law of
Succession was passed in 1972 the Law of Matrimony Bill was not passed at all. The failure
to pass this bill presented a number of difficulties to the implementation of the law of
Succession Act.

Law of Matrimony Bill

What were the objectives of the Law of Matrimony Bill? To come up with a uniform
law on marriage replacing the marriage statutes and also incorporating the principles of
African Customary Law into the statute. Family law is very important to the Law of
Succession because of the whole question of his dependants, to determine who his family
members were. Most of the succession disputes turn on the question of marriage. This is
why government intended that the Law of Succession come to be at the same time with the
Law of Matrimony Act and the failure to enact the Law of Matrimony Act explains the delay
in bringing the Law of Succession Act into force. Parliament was unable to enact the Law of
Matrimony Bill because there were provisions in it that parliamentarians were
uncomfortable with such as the provision of conversion of polygamous marriages into
monogamous ones. Another provision would have allowed men married under statutes to
marry second or third wives which section could have dealt away with Section 39 of the
marriage Act. Conversion required the consent of the wife married under Statute and this
provision was not okay with the legislators. The other problem was that the bill sought to
introduce the provisions of the Affiliation Act which would have compelled fathers of
children born out of wedlock to take care of those children and so the Bill never went
through Parliament and so when Government saw it was impossible they brought into force
the Law of Succession Act 8 years after.
There are constant conflicts of application of marriage laws and particularly on the
question of polygamy, the Law of Succession Act recognises polygamy but the marriage
statutes do not. Refer to Re Ruenji and Re Ogolla which were Succession disputes where
the deceased was a husband who had contracted the first marriage under Statute and
subsequent to that marriage, in the case of Ruenji the husband went on to contract other
marriages under African Customary Law and in Ogolla the husband proceeded to contract a
second marriage under Luo Customary Law. when the husbands died there were disputes
on whether the spouses married under customary law and their children could inherit the
deceased property. The court held that the wives married under customary law were not
wives and the children of the said marriages were not children for the purposes of the said
succession. This was because of Section 39 of the Marriage Act that the deceased husbands
had no capacity to contract those other marriages.
Section 3(5) the Law of Succession says that notwithstanding the provisions of any
other law, a woman married under a system of law which permits polygamy to a man who
had previously or subsequently contracted a statutory marriage is a wife and her children,
children for the purposes of succession. This succession reverses the situations stated in Re
Ruenji and Re Ogolla. The effect of this is to make nonsense the whole idea of contracting a
marriage under statutes.
The Law of Succession Act embodies certain principles of the English Law of
Succession. The Section on testate succession is largely based on the English principles of
succession, one may even call it a reproduction of the common law production of
succession. It incorporates the principles of testamentary freedom or freedom of
testation. This freedom is not absolute both at common law and under the Act. It is
embodied under Section 5 of the Kenyan Law of Succession Act and it is limited by Section
26 of the said Act. Section 26 allows a dependant who is not provided for or is inadequately
provided for from the Estate of the Deceased to apply to court for a reasonable provision out
of the Estate and it empowers the court to interfere with the deceased’s persons distribution
of the Estate in order to make adequate provisions for the disinherited dependants.

DEFINITIONS OF TERMS

TESTATE SUCCESSION
Testate Succession refers to the disposal of a person’s property after the death
according to a will or a testament. This is where the deceased has made written
arrangements for the disposal of his property.

INTESTATE SUCCESSION
Intestacy leads to intestate succession. Intestacy refers to the circumstance of dying
without having made a will or having made a will that is invalid. Rules of intestacy
determine which relatives of a person inherit the property of a person who dies intestate.
Under the rules of intestacy only blood relations of the deceased person are entitled to
inherit but under a testate succession you can benefit anybody.

ADMINISTRATION OF ESTATE
This refers to the management and distribution of the estate of a dead
person. Administration entails essentially the collection and preservation of the Estate,
which make up the Estate of a dead person, i.e collecting debts owed to the State. Having
collected and preserved the assets the administrators next responsibility is to settle debts
owing by the Estate and after that distributing the remainder of the Estate to those entitled
to a share of the Estate. The person responsible for the administration is also known as a
personal representative and the management of the Estate may also be referred to as a
representation. Representation in the sense that the administrator of the estate represents
the deceased. The property of the estate vests in the personal representative or
administrator, he has power to sell, capacity to enter into contracts on behalf of the estate
etc. Where the administrator or personal representative is appointed by the court he is
known as an administrator but where he is appointed under a will he is called the Executor.
The Estate for the purpose of Succession means the total property both real and
personal owned by a person, the Act defines estate as the free property of the deceased
person i.e. property available for distribution under the rules of succession so that property
that is subject of encumbrance is not free property and cannot be distributed unless the
encumbrance is removed.

GRANT OF REPRESENTATION
Grant of Representation – this is an order in the form of certificate issued by the court
to confirm that a particular person is to act as a personal representative of a dead person. In
testate succession it is called a Grant of Probate while in intestacy it is a grant of letters of
administration.

CODICIL
Codicil – this refers to a document made by a testator which alters, explains or adds to a will
or testament.

HISTORY OF SUCCESSION LAW IN KENYA

AFRICAN CUSTOMARY LAW

African Customary Law was the predominant law of succession in the period before
the onset of colonialism. It was the law to which governed the estate of deceased Africans
before the onset of colonialism. It provided for both testate and intestate succession.
Other laws were introduced with colonialism to complete African customary law and
Cap 160 was intended to completely replace African customary law as the law of succession.
The 1897 Order in Council is credited with establishing the modern Kenyan Legal
System which provided that African Customary Law was to apply to Africans with the
condition that so long as it was not repugnant to justice and morality. For this reason
matters of succession were to be governed by African Customary Law. The 1897 law did not
deal with the position of the Africans who were considered to be Westernised, there was a
question mark as to whether this law applied to those African who had converted to
Christianity and adopted western way of life. In those early days those Africans set to
divorce themselves from the operation of African Customary Law and they felt that their
personal matters, i.e. marriage divorce succession etc should be governed by Western
Law. There was an issue then as to whether African customary law applied to the estate of
such persons as the legislation was silent on this issue. This issue was subsequently
considered by the courts in the case of Jembe v Nyondo and in the case of Miney Francis v
Kuri in the opinion of the court in the case of Jembe v Nyondo Succession of a native
Christian’s estate followed the law of the tribe to which such Christian native
belonged. Barth J. said on this “…The fact that the deceased married a wife according to the
rules of the Anglican Church does not affect the Succession to his property. Succession
must be regulated by native law or custom.”
What happened in these two cases is that the court applied customary law to the
Westernised African. The assumptions by these Africans was that once they adopted the
Western way of life their law of succession changed but the court is saying that matters of
succession should be dealt with under customary law. This is because the land tenure was
still subject to African Customary Law and the Western notion of property ownership had
not been introduced.
An attempt was made in 1897 to address this problem through the 1897 Natives
Courts Regulation. Article 64 of the regulations provided that African Christians were to be
governed by the law that governed the Indian Christians in India. The regulations however
did not specify however what law this was because there were two sets of law which applied
to Christians in India, there was the Indian Succession Act of 1865 and the English Law of
Succession. Both laws were applying in India at the time. The position was to be clarified in
1902 when the African Christian Marriage and Divorce Ordinance was passed. Section 39 of
the Ordinance provided that the English Law of Succession was to apply to African
Christians largely because after contracting a statutory marriage the African was presumed
to have discarded the tradition African way of life thereby removing himself from the ambit
of African customary law i.e. 1902 legislation created two categories of Africans, those that
had changed their family law and those that were still subject to African Customary Law.
This upgrading of the westernised Africans ended in 1904 when the Native Christian
Marriage and Divorce Ordinance of 1904 was passed providing that African Customary Law
of Succession applied to all Africans irrespective of their religion. This remained the
position until 1961 when the African Wills Ordinance of 1961 was passed. This statute
originated from the recommendations made by one Dr. Arthur Philips in a report on Native
Tribunals. Prior to 1961 an African could not dispose off his property by a written will, there
was no law under which he could bring himself under testate succession and this statute was
passed to enable the African to dispose their property by written will. The statute had the
effect of bringing Africans under testate succession. This statute dealt only with testation
and therefore the intestate succession to the estate of a deceased African remained subject
to African customary law. Philips in his report underlined the need to provide the African
with a suitable legal machinery through which he could dispose off his modern property
which could not adequately be disposed off under African customary law. He argued in his
report that colonialism had brought with it new forms of property ownership which were
unknown to African Customary law. He further argued that customary law could not be
adjusted to deal with such property. He was referring specifically to property such as shares
in limited liability companies insurance policies premium bonds money in bank accounts
etc. He recommended that a law similar to the English Inheritance (Family Provisions) Act
of 1938 be passed to enable elite Africans deal with such property.

The 1961 Act was therefore modelled on the English Act and the 1961 Act remained
in force until 1981 when it was repealed following the coming into operation of the Law of
Succession Act. Although intestate succession was subject to African Customary Law in
some instances the Estates of deceased Africans intestates were brought under statute law
and this was mainly in cases where African customary law was found to be inconsistent with
justice and morality and the applicable statute in this case was the Probate and
Administration Act of 1881. This Act was applied in two reported cases Re Maangi and Re
Kibiego which were decided in 1968 and 1972 respectively. In both cases the issue was
whether the wife or widow of the deceased could administer the estate of her deceased
husband. Under Customary Law women, whether wives or daughters or sisters of the
deceased had no capacity to administer the estates of their deceased relatives. That was the
sole responsibility of the male relatives of the deceased i.e. father uncle or son. In these two
matters the widows sought to administer the Estates of their deceased’s husbands by
applying for a grant of letters of administration which was opposed by the male relatives
who were basing their case on African Customary Law. The High Court found that the
widow was the main stakeholder in the Estate of her deceased husband and therefore best
suited to administer the husband’s Estate. It was further found that African Customary Law
was repugnant to Justice and Morality for excluding the widows from management and
administration of such Estates.
The 1881 Act was repealed in 1981 when Law of Succession Act came into force but the
spirit of the decision of the High Court in Re Maangi and Re Kibiego remains that widows
have a right to administer estates of their deceased husbands.

General Principles of Succession under African Customary Law

Inheritance and Succession is patrilineal and most customary law systems indeed in
Kenya there are only two communities that are said to be matrilineal that is the Digo and
the Dhuruma although they are said to be quickly adopting the patrilineal system and
property therefore passes from the deceased to his immediate male relatives. Family law
systems are patriarchal. There is equal distribution of a man’s property among his sons
subject to a possibility that the eldest son may get a slightly larger share. In most cases the
eldest son tended to be the administrator in which case he got a larger share than the other
siblings. In a polygamous household distribution is based on each wife’s house i.e. the
property will be split between the various houses in a house comprising of wife and children
if any. Under customary law the property was shared equally among the houses regardless
the number of children in each house. Widows are not entitled to an absolute share of the
estate and they do not inherit the estate absolutely, they however have a right of use of a
particular portion of land and certain movables during their lifetime. This is normally
known as a life interest. The right of the widow to use the property is optional not absolute.
If the widow remarried she lost her interest in the estate. Daughters are normally excluded
but they may receive a share if they remain unmarried. The assumption as that daughters
would have access to property through their husbands and therefore need not be given a
share. In the absence of sons inheritance goes to the nearest patrilineal relative of the
deceased. That includes the father of the deceased, full brothers and paternal uncles.

This customary law position is causing a lot of confusion presently when it comes to
applying provisions of the Law of Succession Act where there is no distinction between male
and female children. Both sons and daughters are equally entitled to a share of the Estate
irrespective of whether they are married or not. The interpretation given to the provisions
of the Act by the Courts in the past has tended to lean to the customary law that persons
entitled to inherit are sons and daughters only if they are unmarried. Recent decisions
make it clear that both sons and daughters married or not are entitled and the law does not
discriminate against them. The Act has been criticised that it does not really translate
African Customs into law.

Will making was recognised under customary law and is not an institution that came with
the colonialists. Such a will is expected to reflect the general pattern of
inheritance. Property may also be distributed during the father’s lifetime to the sons as and
when they got married. Such distribution is usually referred to as inter vivos distribution of
a person’s property. With respect to the administration of estates under African Customary
Law, the administration was carried out by male relatives of the deceased persons. The
personal representative of the deceased being either appointed by will or by elders. Where
the deceased had adult sons the administrator would normally be the eldest son although it
is possible for some other relative to be appointed either by the testator or the elders. In
some cases it was possible for the eldest son to be overlooked if he was found to be
incompetent and someone else would be appointed in his place.

There are 3 principle functions of the administrator under customary law

1. To be the head of the family and represent the family for all legal purposes;
2. To be the guardian of the widow and the children in certain cases;
3. To act as the Administrator of the Deceased’s Estate in terms of protecting the estate and
subsequently distributing it amongst those entitled

An administrator who failed his responsibilities could be removed from the position by the
elders.

With respect to intestacy the mode of distribution of estate of a deceased person depended
on whether the deceased was married or not whether he had children and whether the
marriage was polygamous or monogamous. Where the man was married with one wife and
sons and daughters, the sons shared the land equally although in some cases the eldest son
may get a slightly larger share, the widow retained cultivation rights during her
lifetime. This was usually over the land that had been given to her by her husband during
the husband’s lifetime. In the event of her death or marriage the land would revert to one of
her sons. If she had any illegitimate male children they would be entitled to inherit the land
where she enjoyed cultivating rights.

Livestock is not distributed until all the sons have been married. The widow would get a
share of the livestock depending on the number of the livestock left. The rest is thereafter
divided equally among the sons. This was because livestock was a source of dowry and
therefore needed by every son. Daughters were not entitled to a share of the livestock even
where they remained unmarried.

In traditional society the house of the deceased would be demolished but the widow would
be entitled to inherit the furniture. In those days the houses were made of mud and
temporary. The widow was also entitled to all the crops whether in the store or in the field
and the eldest son was entitled to all the ornaments and weapons of the deceased. With
respect to the estate of a married man with two or more wives and sons and daughters, the
property of the Estate would be divided equally (land) between the houses irrespective of
the number of children in each house. Thereafter the land given to each house would be
shared equally amongst the sons with the eldest probably getting a larger share. With
respect to livestock each house got an equal share and thereafter the livestock in each
household would be divided equally amongst the sons. The livestock received as dowry for a
daughter of any house is divided equally amongst the sons of the house from which the
daughter belonged.

Regarding the Estate of a married man without children or with daughters only, distribution
of the property depended on the course taken by the widow taken after the death of her
husband. She may remain in her deceased husband’s house where she elects to remain she
will be entitled to use the land for life. If there are more than one wife the land will be
shared equally and if they both remain to share for life. The second option is for the widow
to accept to be inherited in which case all the property left by the deceased goes bacK to the
brother inheritor, the widow would have no rights as a widow. The other option would be
for the widow to return to her father’s house or to remarry. Where she takes this option she
loses all rights over the property.

The Estate of an unmarried man is inherited as follows: The father if he is alive and in his
absence shared equally among his full brothers, in their absence shared equally amongst his
half brothers, in their absence shared equally amongst the sons of his full brothers and in
their absence shared equally amongst the sons of his half brothers, in their absence among
the paternal uncles or the sons of the paternal uncles in the absence of the uncles and so
forth. The female relatives of the deceased unmarried man would only be entitled to a share
only if no known male relative of the deceased could be traced in that case the son of the
elder sister.

TESTATE SUCCESSION

Testate succession occurs where a person desires of retaining control over his property after
death makes arrangements to ensure that upon his death the property passes to persons or a
person of his choice. These arrangements are made through a valid will whether oral or
written. Contrast this with intestate succession where there are no such arrangements. The
deceased in the event of intestate would have no control over the ultimate destination of his
property, the testator has the freedom to decide who should benefit from his property unlike
in the intestate.

The word Will refers to all that a person wishes to happen after their death with respect to
property. A will may therefore be defined as a record of the deceased person’s wishes and
intentions pertaining to the devolution of his property upon his death. A Will please note
being a testamentary document i.e. a document meant to take effect upon death has no legal
effect until the maker dies. While the testator is alive a Will does not limit his rights of
ownership nor confer any benefits to anyone. Before the testator’s death the Will is a mere
declaration of intention with no legal effect whatsoever.

There are five essential characteristics of a Will namely:

testamentary in nature
1. The wishes expressed are intended to take effect upon death i.e. the document must be
clear that the wishes are intended to take effect after death, if not clear and if the document
does not express that the wishes should take effect upon death then it is not a Will. Even if
the document itself is described as a Will, the same would not be deemed to be a will as long
as the wishes therein are not expected to take effect upon death. If the provisions of the
document are to take effect sometime before the death of the maker then the document is
not a will.

2. The Will only takes effect on death beneficiaries under the Will therefore do not acquire
benefits before the testator’s death. If a beneficiary dies before the testator, the gift lapses
because the beneficiary will not have acquired an interest in the property

3. A will only operate as a declaration of intention and therefore the execution of a Will does
not affect the way in which the testator deals with his property during his/her
lifetime. He/she is free to dispose off the property given in any way. The execution is not a
fetter to the testator’s freedom to deal with the property. In any case the testator cannot be
certain that a beneficiary will receive a particular asset which is given to them by will. The
testator cannot be sure as to whether a beneficiary will receive the asset given to him/her by
the way. There is no guarantee that the gift given to one under the will is what they will
get. Settlement of debts takes priority of the distribution of the Estate to the
beneficiaries. Personal representatives are under a duty under Section 83 of the Law of
Succession Act to settle all the debts and liabilities of the deceased and these take priority
over distribution. Very often the testator will not give directions and the will is usually
silent on debts and liabilities, it is left to the administrator to settle debts. Section 79 of the
Act vests the property of the deceased in the personal representative. Section 82 of the Act
gives personal representatives a general power of sale and it is possible that if the debts of
the estate are large, the gifts may be absorbed in the payment of debts. Indeed where
liabilities are larger than assets the beneficiaries may end up getting nothing.

4. A will is always revocable and it is always revocable because it is a mere declaration of

intention and also since it is only effected after death, the maker can always revoke it before
death and it is revocable even where the will itself says it is not revocable.

5. This characteristic is not common to all wills or testaments, A will is ambulatory which
means it is capable of dealing with property which is acquired after the date of the execution
of the Will. This depends on the wording of the will itself. If a person executes a will in 1967
containing a clause or provision to the effect that all the testator’s land was to pass to a
particular beneficiary, any property gotten after 1967 will be covered by that clause.

The law of succession deals with property and therefore it is chiefly concerned with
disposing of property which is its chief function but it can be used for other purposes and
incidental matters such as

(a) appointment of persons to administer the estate of the testator, appointment of

executors – a testator does not have to appoint executors and a will which does not appoint
executor is not invalid;

(b) It can be used for appointment of trustees to administer a trust set up under a Will;

(c) It can used for the appointment of guardians for the children of the testators who are
minors at the time or at the date of the testators death. This is usually considered necessary
where the testator is a single parent;

(d) It can be used for making directions as to liabilities of taxes and settlement of debts and
liabilities. This gives the testator the opportunity to disclose debts that may not be known
by members of the family. This also helps the family especially where liabilities exceed the
assets;

(e) It may be used for giving directions as to the manner of the disposal of the deceased
body, the deceased may want to be buried at Langata instead of being transported
upcountry or directions as to where the deceased wants to have his body disposed off. There
is no property in a dead body and therefore directions concerning the dead body can be
disregarded by the executor.
Note that in a will the testator should avoid expressing emotion such as love, hate, gratitude,
despair or any feelings about in general, the reason for this is that upon the testator’s death
the will is made public or read to the members of the family and it is accessible to members
of the public and for this reason the testator should guard against his private feelings and
thoughts as this is likely to embarrass the family. The wishes should be expressed simply
and clearly without any trace of ambiguity. Serious ambiguity can lead to the will being
challenged on the grounds of uncertainty. Therefore the testator should express himself
clearly in the document. The testator is not obliged to offer any explanation or apology to
the manner in which they dispose off their property. Indeed the testator should avoid using
too many words. Too much detail might affect the interpretation of the will and should be
avoided. Generally assumptions should not be made by the testator that other people will
know or understand what is meant if the wording is not precise. The law gives effect to what
is actually said in a will.

ADVANTAGES OF MAKING A WILL

Majority of people die without having made a Will for various reasons. The reasons include
superstition and people are reluctant to contemplate their own death, the belief that you
have no property to dispose in the will and therefore one finds it pointless to make a will,
plain ignorance about possibilities open to people plays its part.

ADVANTAGES
1. Making a will avoids squabbles or conflicts between dependants over the property a
testator in the document makes it clear about who should get what in the will. When a
person dies intestate the dependants are likely to fight over prime property.

2. The making of a will avoids the rules of intestacy – the intestacy provisions will ensure
that the next of kin benefits from the estate but the shares that the respective next of kin
receive are arbitrary and therefore unsuitable in the circumstances mainly because it is not
the owner of the estate making the decision about who gets what in the Estate, sometimes
the executor is a public trustee who is not privy to the structure of that family and the
special needs of the members of that family. The testator if mother/father knows which of
the children are likely to take good care of the property, which ones need more because they
have no property of their own etc. close related to this is the fact that under a will a person
can benefit persons outside the family circle. Persons who are not blood relative cannot
benefit if a person dies intestate. Similarly a will can be used to benefit charities.

3. The making of a Will enables the testator to maintain control over property. This is
especially important for a person with a spouse and children. The most effective way of
making sure that property passes on to the children is by creating a trust for the children
through a will so that a husband does not have complete control. After the death of a wife, if
she dies intestate the property is taken over by the husband and may not benefit the
children after the husband remarries. The most effective way of making sure that the
husband does not have complete control is by making a will and giving the husband a life
interest over the property that later on passes to the children.

4. It entitles a testator to appoint personal representatives of his own choice to administer

his Estate. A person who dies intestate has no chance to appoint personal representatives,
these are appointed by the State and they might not have the testator’s interests at heart.
5. Administrators appointed by the court in the case of intestacy derive their authority from
the grant of letters while the executors appointed under the will derive the authority from
the will itself and not from the grant of probate. The grant of probate merely confirms their
appointment. Executors can immediately following the death of the testator commence the
administration of the Estate. They do not have to wait for grant of probate. They can take
up their duties immediately because they derive their authority from the will. There is
usually some delay in obtaining the grant of letters of administration because one has to
first go to court. one can obtain a limited grant in a month and a full grant in 6
months. This delay means that the Estate of an intestate cannot be administered until the
Grant is given and the dependants of an intestate are therefore exposed into hardships or
inconvenience. A further aspect is that it is possible to give many useful and desirable
powers of administration to executors under the will that is over and above the powers given
to one under the provisions of the Act.

6. A will enables a parent who has minor children to appoint a guardian or guardians to take
parental responsibility for the children should the testator die while the children are minors.

7. The disposal of the dead person’s body – the will may be used to give instructions
regarding disposal in terms of the precise methods the testator wants it disposed. Such
provisions or directions have no binding legal effect as the law recognizes no property in the
body of a human being. Since there is no property in a dead body it means that a testator
cannot by will dispose of his dead body. The directions amount to a mere request to the
executors to comply with the wishes of the testators and the directions can be disregarded
and the body so
disposed off in other ways other than those disposed off by the deceased.
atleast I understand why rich people do not concentrate much on including this clause, but the
executors are expected to comply with it in fear of superstitions
8. The Making of the will enables the testator to make a disclosure of all the properties that
they own or that they possess. This is not possible during intestacy because one has no
chance to disclose to his family what they own in their lifetime. During intestacy a lot of
properties are lost because no one among the family knows about their existence.

PROPERTY PASSING BY DEATH OTHER THAN BY WILL

There are 3 ways of passing property upon death other than by making a will

1. Principle of survivorship;
2. Under a nomination;
3. Donatio Mortis Causa or making a gift in contemplation of death.

Principle of survivorship
Survivorship applies in cases of joint tenancies i.e. where property is jointly owned, where a
co-owner of a property is a beneficial joint tenant of the property, their interests will
automatically pass to the surviving joint tenant or tenants on their death by virtue of the
principle of survivorship otherwise known as the principle of jus accrescendi. Upon the
demise of one of the tenant, that tenant’s interest merges with that of the surviving
tenant. There is a merger of interest. For example where a matrimonial home is owned by
husband and wife as joint tenants and husband predeceases the wife the house will pass to
the wife by reason of her survivorship, the husband’s interests would merge with that of the
wife. The principle of survivorship operates to remove jointly owned property from the
operations of the law of succession so that upon the death of a spouse who jointly owns
property with the other spouse their interests unite and the property passes to the surviving
spouse. This means that the property does not form part of the deceased’s spouse’s estate
and it cannot therefore pass without that deceased spouse’s will.

Contrast this principle with the operation of the principle of tenancy in common. The
interests of common tenants are clear and distinct, they are not united. In the event of the
death of one tenant there is no merger or union of interest and this means that the
beneficial share of a common tenant who is deceased can pass by will. In other words the
principle of tenancy in common does not remove property from the ambit of the Law of
Succession, its only joint tenancies that are excluded from the operation of the law of
succession.

The Act at Section 43 lays down the law for determining survivorship in the event of two or
more persons dying simultaneously. This is relevant in terms of determining ownership in
the case of a joint tenancy. The law requires that it shall be presumed that the younger
person survives the older person and therefore the interest of the older persons merges with
that of the younger persons and the interests of the older should form part of the property of
the younger person. In case of spouses death it shall be presumed that they died
simultaneously.

This question of joint ownership is dealt with under Cap 300 S 101 of the RLA states that in
an instrument made in favour of two or more persons the registration should show whether
such persons are joint proprietors or proprietors in common i.e. where two or more people
are being registered as joint owners the instruments should indicate whether they are joint
tenants or tenants in common.

Under Section 102 (1) where land lease etc is owned jointly no proprietor is entitled to any
separate shares in the land and consequently a disposition may be made only by all the joint
proprietors, one proprietor cannot sell the interest because they are united. On the death of
a joint his interests shall vest in the surviving proprietors if more than one jointly.

The ITPA does not make a reference to joint tenancies but sections 44, 45 and 46 deal with
comparable situations.

Nomination: A Nomination is a direction by a person called a nominator to another person

who is holding investments on their behalf, to pay the funds or the investment on the
nominator’s death to a 3rd Party the Nominee nominated by the nominator during the
nominator’s lifetime. The direction is made in the nominator’s lifetime but like a Will the
gift only takes effect after the death of the nominator. Nomination operates under the rules
of a particular scheme and although a nomination disposes off property upon death it does
not comply with the requirements or the formalities of the Law of Succession Act. The
property the subject of a nomination does not form part of the nominator’s Estate, it cannot
therefore pass under a Will. It does not therefore vest in the personal representatives of the
deceased as it does not form part of the nominator’s estate and therefore nomination like
survivorship removes the nominated property from the operation of the law of succession
neither can such property be dealt with under the laws of intestacy, it is outside the Law of
Succession. As a consequence the payer i.e. person holding the investment does not require
a grant of probate or letters of administration before paying or before releasing the funds to
the nominee. The direction is to pay on death and therefore the payer will want to see the
Nominator’s death certificate before making the payment. Just like in the case of a Will the
Nominee does not have any interest in the nominated funds during the lifetime of the
nominator therefore the nominator is free to deal with the property during his lifetime.

A nomination may be revoked by the following methods:

1. By a later nomination i.e. a subsequent nomination revokes the first;

2. By the subsequent marriage of the nominator this is to give the nominator the
opportunity to provide for the spouse in the subsequent marriage.

3. By the death of the nominee prior to the death of the nominator i.e. where the nominee
predeceases the nominator and because the nomination operates outside the law of
succession it 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 in
provident or pension schemes. Members of a cooperative society are normally asked to
nominate a person who is to benefit from the shares in case of death. The Cooperative
Societies Act 1997 Act No. 12 of 1997 provides at Section 39(1) that on the death of a
member a cooperative society may transfer the share or interest of the deceased member to
a person nominated in accordance with the Act or if no person has been nominated two
such persons as may appear to be the personal representatives of the deceased
member. Sometime the scheme may require one to name a beneficiary or next kin, if the
scheme requires one to name the next of kin, that will be a nomination i.e. the person
named as the nominee does not require the letters of administration to access the funds.

Various way that property passes

Donacio moti si causa (Gift in contemplation of Death)

These modes of property passing after death are similar but there are distinguished. DMC is
a gift made by a person during their lifetime which is conditional upon their death. There
are two elements of a gift in contemplation of death (i) given during the lifetime of the
maker and there is actual parting of possession from the maker (ii) it is conditional upon
death. The property in the gift does not pass to the beneficiary until death. For this reason
this gift is said to be neither an inter vivos gift nor a testamentary gift. It is comparable to
inter vivos in the sense that there is parting of possession, but unlike an inter vivos a DMC,
property does not pass, ownership remains until the owner of property dies. It is
comparable to a testamentary gift in the sense that property in the gift passes upon death
but differs in the sense that in DMC there is parting of possession.

Barclay L. J. in the case of Re Beaumont says on a gift in contemplation of death “it may be
said to be of an amphibious nature, being a gift which is neither entirely inter vivos, or
testamental. Please note that a gift in contemplation of death cannot be revoked by a
subsequent will because it does not fall under the Law of Succession. It is not free property
because only free property can be given away under a Will, only free property is subject of a
will, DMC is not free property it cannot be given away under a will. Where such property
has already been given as a DMC any subsequent Will which purports to give the same
property to somebody else under the will, that gift under the will would fail. Since the DMC

since it can't be revoked by will it doesn't mean it's absolute, Sect 31(f)(ii) the gift can't pass if there did exist
a lawful request for the return of the gift. Its under the condition of the cause of death
is not testamentary, it cannot form part of a deceased estate and therefore the rules of
testacy do not apply. Note however that where the Estate is insufficient to pay the deceased
debts i.e. where the debts are more than the assets, the subject matter of a gift in
contemplation of death may be used for the purpose of settling the debts of the Estate. Look
at the case of Re Korvine’s Trust .

The conditions which have to be satisfied for a valid gift in contemplation of death were set
out by Lord Russell in the case of Cain v Moon where he listed four conditions
1. The gift must be made by the donor in contemplation of death; at the time of making the
gift the donor must be contemplating his death;
only if death does occur
2. Gift must be conditional on the donor’s death i.e. the person must be contemplating his
death that he is likely to die soon, it is conditional on death occurring; and
3. The subject matter of the gift must be delivered to the donee, there must be actual
delivery of the gift to the donee; and the essence of movable property is key or documents in place of
immovable?
4. The property must be capable of forming the subject matter of a DMC which means that
not all property can be the subject of a gift in contemplation of death.

The burden of proving that the four conditions are satisfied lies with the donee. Gifts in
contemplation of death are dealt with under Section 31 of the Act and this provision
incorporates the conditions set out in the case of Caine v. Moon. With regard to the first
condition, the gift must be made in contemplation of death, Section 31 (a) provides that a
gift in contemplation of death would be valid if the person making the gift is at the present
time, contemplating the possibility of his death as a result of a present illness or as a result
of imminent danger. The death of the donor need not be imminent, but the donor must
believe that they are dying or that they are likely to die in a particular way. For example if a
person is suffering from a terminal disease they must believe that they are dying from that
disease or if embarking on a dangerous expedition. It is generally 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. gives an additional feature to the contemplated death, if there exists another cause in the course
of the main contemplation...still varied, the course subject to sect 31 (f) (i) not from suicide.
Section 31 (e) provides that the gift would be valid if the person making it dies from any
cause without having survived the illness or danger. Wilkes v Allington illustrates this
point. In this case the first condition was deemed met even though the deceased thought
that he was going to die of cancer but died instead of pneumonia. He was not cured of
cancer but died of pneumonia. Note that the gift would fail if the donor survives
contemplated illness or danger but dies of a different cause. Please note that the condition
that the gift be made in contemplation of death cannot be satisfied where the donor
contemplates their own death by suicide.

Section 31(i) states that no gift made in contemplation of death shall be valid if the death is
caused by suicide. Case law shows that it is against public policy to uphold a gift that was
intended to take effect by means of suicide. Look at the case of Agnew v The Belfast
Banking Co. and the case of Re Dudman in Re Dudman the donor committed suicide as he
could not cope with his terminal illness and it was held following the decision in Agnew that
the donation failed on the ground of public policy. Please note that the legal position stated
in these two cases is no longer valid in England following the enactment of the Suicide Act of
1961 which decriminalised suicide in the UK. But the pre 1961 UK position remains the law
in Kenya by virtue of Section 31(i) of the Law of Succession Act Cap 160.
With respect to the second condition i.e. the gift is conditional on the death of the donor, the
relevant law is Section 31 (d) and 31(2) of the Cap 160. 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. A gift can be stated expressly by the donor to be conditional upon death or it
may also be implied from the circumstances. The courts are likely to imply that the gift is
conditional on death if it is made in the last few days of the donor’s final illness since at that
point death would be imminent and must be prime in the donor mind that he could die at
any time. Where the gift in these circumstances is made in writing as opposed to orally, it is
presumed by the Court that the gift is not in contemplation of death but either an attempted
lifetime gift or an attempted inter vivos gift or a failed testamentary gift. does this infer that the gift
wouldn't pass down to the
intended beneficiary?
Look at the case of Edward v Jones. Section 31(d) states that a gift in contemplation of
death would be valid if the donor makes the gift in such circumstances as to show that he
intended it to revert to him should he survive the illness or danger. The point we are
emphasizing is that it is conditional “if”. A gift in contemplation must be oral, the moment
it is reduced into writing makes it not a gift in contemplation of death. Section 31(2) states
that the donor may at any time before his death lawfully request the donee to return the
gift. This effectively makes a gift in contemplation of death revocable.

Section 31 (c) deals with the third condition states that a gift in contemplation of death
would be valid if there is delivery to the intended beneficiary of the possession or the
property or evidence of title. The donor must have handed over to the donee or his agent
the subject matter of the gift or the means of controlling it in other words parting with
possession or passing over dominion of the subject matter of the gift. When one parts with
a document of title it is taken to mean that they have parted with the dominion of
control. Refer to Wildish v Fowler . A landlady in this case was handed property by her sick
tenant with instructions to take good care of ‘this’ and the court found that there had been
no gift in contemplation of death as the donor in this case had not parted with dominion
over the property. The property was delivered to the landlady merely for the purpose of safe
custody. Caine v Moon the donor in this case originally delivered a deposit note to her
mother for safe custody. She later became very ill and at a time when it was likely that she
was going to die, she told her mother that the deposit note along with the other property
was to be the mother’s should she die and when she died it was held that there was effective
delivery of the property. She had parted with possession and dominion of the property.

In the case of Woodward v Woodward a father handed over keys of his car to his son at a
time when the father was seriously ill but he the father kept a duplicate set of the keys. The
court held that there was delivery because during the father’s illness, it was only the son who
had access to the car and therefore the father had parted with dominion over the car.

The fourth condition is dealt with under Section 31(b) of the Act. The property the subject
of the gift should be capable of being the subject matter of such a gift. Section 31(b) states
that a gift in contemplation of death would be valid if a person gives movable property
which he could otherwise dispose off by Will. This means that property which cannot be
disposed off by will cannot be donated. A testator can only dispose of free property by will,
property which is not subject to any encumbrance and therefore only free property can be
the subject of a donation. Case law shows that cheques and promissory notes drawn by the
donor cannot be a gift in contemplation of death. This is because cheques and promissory
notes are not enforceable without consideration. Refer to Re Beaumont and Re Leaper on
the point. Note that from Section 31(b) gifts in contemplation of death are limited to
movable property and therefore immovable property cannot be gifts in contemplation of
death.

The gift would not be effective where the donee predeceases the donor Section 31(f) of the
Act states that the gift would be valid if the donee survives the person who made the gift to
him. If the intended donee predeceases the donor the estate of the donee would have no
claim or cause of action against the estate of the donor. This is because the property should
take effect upon the death of the donor and where the donee dies before the donor one
cannot say that the property is effective after the donor’s death.

CONDITIONAL OR JOINT WILLS & TESTAMENTS:

A conditional Will or Testament refers to a Will intended to operate only upon the
happening of some event specified in the Will itself. The event being the pre-condition to
the will operating so that if the event fails to occur the will would be ineffective i.e. the Will
is made conditional to the occurrence of some event or occurrence of some event. If a
testator makes a provision in his will that the same is to operate only if his wife predeceases
him, that would be a precondition. The will would be conditional on the wife predeceasing
the testator. If the testator dies first, then the will would be ineffective. Where a testator
operates only if he dies on a dangerous journey which he is about to undertake, the
condition will be satisfied if he dies on the trip and the Will will be effected, it will be invalid
if he does not die in the trip. Whether a will is conditional or not depends a lot on the
circumstances and also on the wording of the document.

Sometimes the event specified in the document is merely a motive for the making of the
will. It motivates the testator to make the will and may not be the condition. Where the
event mentioned in the will is the motivating factor behind the making of the will, it remains
valid notwithstanding the failure to occur of the envisaged events. In other words the
effectiveness of the will in the circumstances would not depend on the occurrence of the
event if the event is the motive behind the making of the will. If the event is a precondition
for the effectiveness of the will then validity of the will will depend on the occurrence of the
event. Refer to the case of Lindsay v Lindsay where a will commenced with the following
words “If I should die at sea or abroad…”; the testator died in England and the issue was
whether the will was effective or not, was it a conditional will or was it motivated by the fact
that the testator made the will when he was about to leave England by Sea? Was it a
conditional will? This was a conditional will or testament. The court held that the Will was
ineffective as the precondition of dying at sea or abroad was not satisfied.

In the case of the in 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 …” he
travelled and survived the journey and died later of other causes and the issue arising was
whether the will in this case was a conditional one or not. It was held in this case that it was
not 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 precondition that he died on the journey before
the will operated.

In Re Spratt’s Goods an army officer serving in New Zealand during a war with the Maori
war made a privileged will (one which does not comply with the normal requirements and
can only be made by members of the Armed Forces in active service and by members of the
Merchant marine also in active service) since this man was serving in a war, his will was
privileged. It 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 and he died
without making a new will or revoking the privileged one. The issue was whether the
privileged will was effective? Was it a conditional will? The court found that the privileged
will was admissible to probate and the son was entitled to take all his father’s estate. The
will was not conditional, the further was motivated by the war into making the will. If it was
a conditional will, it would have been ineffective because the precondition that he dies in the
war before it becomes effective had not been satisfied. Whether it is a conditional will
depends largely on the circumstances and also on the wording of the document itself.

Joint testaments
A joint will, will usually be created where two or more persons express their wishes on death
on one document. The joint testament will takes effect as a separate will of the parties who
made it. It depends on the order in which they died. And it will be admitted as probate of
that person and then when the second person dies it will be admitted as the will of the
second person. It is commonly used by spouses so that wife and husband make a joint will.
It will be convenient for spouses as they tend to have the same property and dependants, so
there is no necessity of making separate documents.

The making of a valid will or testament

What are the requirements? The validity is predicated upon two factors, namely capacity
and form. A will is only valid if it is made in the proper form by a person of testamentary
capacity, i.e. a person who is capable of making a will or disposing of his property by a will.

Capacity
At common law a will is invalid unless the same is made by a person who at the time of
making it had capacity to do so. This is testamentary capacity. As a rule, infants and persons
of unsound mind are incapable of making a valid will. The common law position on
testamentary capacity is reflected in section 5 of the Act. Section 5 (1) embodies the
principle of testamentary freedom and provides that any person is capable of disposing his
property by will so long as he is of sound mind and not a minor.

Infancy: a will made during infancy is invalid unless upon attaining the age of majority the
testator re-executes the will or makes a new will or codicil confirming it. Generally when a
minor dies his estates should pass in accordance with the rules of intestacy and this happens
even where the minor purports to have made a will.

Unsound mind. With respect to unsoundness of mind, their fate is similar to that of infants.
A will made during the period of insanity is invalid. If the same is executed before the mind
becomes afflicted, or during elusive interval, such a Will will be valid.

The test of mental capacity to make a will is not directly linked to mental disorder. It is not
enough to show that the person had mental disorder at that particular time. Cockburn CJ
set the test of determining mental capacity for the purposes of determining testamentary
capacity in the case of Banks v Goodfellow. He said: “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 of 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 among them.”

This test requires three things of the testator:

1. He must have a sound mind to enable him to understand the nature of the act of making a
will and its effect. A testator would lack a sound mind if he does not understand precisely of
what he is doing either because he is of a low mentality or is under the influence of drink or
drugs.
2. He must have a sound memory enabling him to have a recollection of the property of
which he is disposing. He should be able to remember his property.
3. He must have a sound understanding. By this we mean he should appreciate the moral
claims upon him; he should be able to remember the person he is morally bound to provide
for having regard to his relationship to them. Unless there is evidence they have been left
out deliberately (that is testamentary freedom)

All these three conditions must be satisfied for a will to be valid or for the person to be said
to be of sound mind. In the case of Harwood v Baker the last element of the test was
missing. In this case the testator executed his will on his deathbed and left all his estate to
his second wife to the exclusion of other family members. He was at the time suffering from
a disease that affected his brain and it was held on the basis of the evidence that he did not
have sufficient recollection of other family members and therefore he did not satisfy the
test. And therefore he was found to lack the requisite testamentary capacity and the will was
invalidated on those grounds.

At common law the burden of proving testamentary capacity is up to the executors. Basically
the proof required is that he knew what he was doing, etc. the Law of Succession Act takes a
slight different position from the common law: the burden of proof is shifted under section
5(3) and (4) to the person alleging that the testator was not of sufficient testamentary
capacity at the material time. Section 5 (3) creates the presumption that a person making a
will is of sound mind unless the contrary is proved. So it is up to the person alleging to
prove.

There is also the issue of insane delusions. The fact that a person 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. According to the case of Dew v Clerk a
person suffers from an insane delusion if he holds a belief of a particular matter which no
rational person could possibly hold and the belief cannot be eradicated from his mind by
reasoning with him. Insane delusion will only affect the testator’s capacity to make a will if
in some way it affects the way he disposes of his property. It has to be shown it affects the
way he disposes of his property.

In Dew v Clerk a testator made a will which was rational superficially but which excluded his
daughter from benefit. The daughter showed by evidence that the testator had an insane
aversion of her; he had refused to see her for the first three years of her life; and at one point
he had made her sleep with an insane woman. The court came to the finding that there was
an insane delusion on the part of the testator which affected the way he disposed of his
property and he was found to lack the requisite mental capacity to make a will.
In 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. The son had on two occasions pushed the father back on the pillow when he was
having difficulty breathing; and he thought he was on a mission to kill him.

In Banks v Goodfellow the testator said that he was being pursued by evil spirits and by a
person who was already dead. The court found that although the testator suffered from an
insane delusion, the same did not affect his testamentary capacity. Because the delusion did
affect the way he disposed of his property by will and the will was upheld.

Sometimes the delusion may only affect a part of the will. In such cases probate will be
granted to those parts of the will that are not affected by the delusion. The part affected will
pass as intestacy. See R Bohrmann’s Estate for this position.

Testamentary capacity and absence of approval

Sometimes a person may have testamentary capacity to make a will but the person may
execute the document without knowing the contents of the documents they are signing and
approving of them. The effect of executing a will under those circumstances will be that the
person lacks testamentary capacity. This has the effect of invalidating the document. The
law requires that in addition of having testamentary capacity the testator must know and
approve the contents of the will. A testator knows the content of the will if he is aware of and
understands the terms of the will. But he need not understand the legal effect of those
terms.

A testator is said to approve the content of a will if he executes it on his own volition and not
as a result of coercion or undue influence of another. Knowledge and approval may also be
absent in case of fraud or mistake.

This requirement of knowledge and approval is of particular significance where the

document is drawn up for the testator by someone else. Section 7 of the Act addresses this
issue and states that a will made by fraud, coercion, importunity or mistake is void. It is the
time of the execution that that testator must know and approve the contents of the will. He
does not help if this is done earlier. It must be at the time of signing the documents. But
there is an exception to this general rule that the testator must know and approve the
contents of the will at the time of signing it in the case of Parker v Felgate and in the Estate
of Wallace. In these two cases it was said that a will may be valid in spite of lack knowledge
and approval at the time of execution if the following conditions apply:

1. 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
2. The will was prepared in accordance with his instructions
3. At the time the will was executed the testator understood that he was executing a will for
which he had earlier given instructions.

In the Estate of Wallace the testator who was seriously ill had written and signed a
document entitled last wish, at the time of the execution of this document he knew and
approved the content (because he is the one who prepared the documents). The document
was later given to a testator to a solicitor to prepare a will in accordance to the terms of the
documents, which the solicitor did. At the time when the testator executed the documents
he did not know and approve the contents of the will because they were not read over to
him. The court held that the will was valid because it was made in accordance with the
instructions that he had earlier given and at the time of executing it he understood that he
was signing a document prepared in accordance to his earlier instructions.

Section 11 paragraph (a) provides that for a will to be valid and properly executed it must be
signed by the testator or somebody else in the presence of the testator and by the direction
of the testator.

Rule 54 (3) of the Probate and Administration Rules states that where the testator is blind
or illiterate or where a will is signed by another person or where it appears to be written in a
language with which the testator is not familiar evidence will be required before the will is
admitted to probate, evidence that the testator knew and approved of the content before
signing the documents. Rule 54 (3) requires the court to satisfy itself that the testator knew
the contents by requiring an affidavit showing that the contents had been read over and
explained to the testator and that the testator appear to understand those contents.

Suspicious circumstances:
Where such suspicious circumstances have the effect of invalidating a will or where a person
who writes or prepares the will takes substantial benefits of the will this will be regarded as
suspicious circumstance. Similarly where a person suggests the terms of the will to the
testator other than writing the will himself and takes the testator to the advocate of that
person’s choice the circumstances will be regarded as suspicious. See Falton v Andrew and
Tyrrel v Painton. In Tyrrel v Painton it was held that it will be suspicious circumstance if
the will is written by a person who takes substantial benefits in the will. In the case of Wintle
v Nye a testatrix who was held and who had little experience of dealing with money and who
used to rely heavily on the family testator left most of her sizable estate to the solicitors. It
was held the circumstances were suspicious. Lord Penzance in Atler v Akinson said
existence of suspicious circumstances: “The proposition is undoubted that if you have to
deal with a will in which a person who made it himself takes a large benefit you must be
satisfied from evidence calculated to exclude all doubt that the testator not only signed it but
he knew and approved of its contents.

In the Barry v Butlin testator made a will in the home of his solicitor in the handwriting of
the solicitor and left a quarter of his estate to the solicitors and the rest to his friends. The
testator’s son who was excluded challenged the will on the basis of suspicious
circumstances. The court held that the circumstances were suspicious on the face of it but
the suspicions were dispelled by two factors:

1. the will was executed before two independent witnesses

2. the fact that the son was excluded from the will because of his criminal conduct.

A Kenyan case: Julius Wainaina Mwathi v Beth Mbene Mwathi & Another. The facts in this
case were that the deceased died at the age of 65. He had never married and therefore left
behind no wife or children. He was survived by a brother and two sisters and he owned
some real property. Two days before his death he made a will in which he bequeathed the
property to the brother. According to the brother he dictated his wishes and the brother
reduced them into writing. The will was thumb-printed by the deceased and witnessed
among others by the brother and his wife. Following his death the brother applied for a
grant of probate and he was issued with letters of administration which the sisters sought to
have revoked on the grounds that the will was invalid because it was made under suspicious
circumstances. It emerged that shortly before the execution of the alleged will the brother
had removed the deceased from the mother’s house to the brother’s house for baptism and
then took him back to his mothers house. It also emerged that on the day the deceased
executed the alleged will the brother moved him again from the mother’s house to the
brother’s house. At the same time of executing the will the brother exhibited considerable
animosity towards the sisters and he prevented them from entering his house. At the time
the deceased allegedly dictated the will he was quite ill and he could not walk without
support. The high court found that the circumstances excited suspicion and the will was
declared invalid and the will made to the brother was revoked. An appeal to the Court of
Appeal on this aspect was rejected.
Legal mechanisms of making a legal will are Form and Capacity – mental capacity.

Knowledge and approval – where the testator does not know what the will contains or
where he knows but has not approved the contents, the Will will not be invalidated on those
grounds.

CAPACITY
EFFECT OF MISTAKE ON A WILL

The knowledge and approval of the testator may be absent by reason of a mistake on the
part of the testator or of a person employed by him to draft the document. The mistake may
relate to part or the whole of the will i.e. a partial mistake or a mistake that affects the entire
document. A mistake relating to the whole will renders it invalid. Partial mistake on the
other hand may be corrected or if it cannot be corrected, that portion of the will affected by
the partial mistake will be revoked.

In the case of In the Goods of Hunt the mistake related to the whole will. The facts were
that a woman who was living with her sister prepared two wills which were in similar terms
for their respective execution. By mistake she signed the will of her sister instead of the one
she had prepared for herself. Probate of the will was not granted on the ground that the
woman would not have executed the same had she known that it had a content of the will
she had drawn for her sister and in the opinion of the court this was an incurable mistake
and rendered the Will invalid.

In Re Morris the mistake was partial, in this case a testatrix made a will but after some time
decided to change 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 and thereafter the testatrix executed the codicil after merely passing a glance through
it but without reading the contents i.e. she was not able to detect the error because she
didn’t read. Upon her death executors brought an action seeking to be allowed to use the
right figure instead of the erroneous one and the court allowed them to do so on the basis
that the error was curable.

In the case of Re Phelan a testator bought some pre-printed forms from a bookstore i.e.
forms of a will and 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. The
standard will would start with the first row being… He then executed the forms each after
the other on the same day. The effect was that only the last form was valid because all the
previous forms were revoked by the next. 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
previous form executed. This meant that the testator died intestate in respect of the other
gifts. This was the argument by executors when they applied for probate. It was held in this
case that the testator did not know or approve the contents of the wills insofar as they
related to the revocation clauses for he had inadvertently included the revocation clause in
each of the 3 wills i.e. this was a curable mistake as the clauses were put in by mistake the
testator had not approved of them being there. The court admitted all four documents to
probate without the revocation of the clauses.

If the testator does know and approves the contents but is mistaken as to the legal effect of
the words, the same will be considered valid and admissible to probate i.e. it must be a
mistake of fact not a mistake of law. refer to the case of Collins v Elstone. Where the
mistake goes to the very core of the document, then the document is invalid.

COERCION OR UNDUE INFLUENCE

Knowledge or approval may be absent owing to coercion or undue influence being exercised
on the testator. Undue influence is said to occur when a testator is coerced into making a
will or some part of it which he does not want to make and it is usually proved if it can be
shown that the testator was induced or coerced into making dispositions which he did not
really intend to make. It is common where the testator is of a weak or impaired mental
capacity or in failing health otherwise in other cases it does not really amount to undue
influence if he is induced in some other way to make dispositions.

A distinction should be drawn between undue influence and persuasion, undue influence is
unlawful, persuasion is not. The distinction was brought out by Lord Penzance in the case
of Hall v Hall he said “persuasion is not unlawful but pressure of whatever character if so
exerted as to overpower the volition without convincing the judgment of the testator will
constitute undue influence though no force is either used or threatened.” The will is not
made by the testator in the exercise of his free will but to suit a person who has put pressure
that the testator cannot resist i.e. a sick person whose resolve is not very strong and at some
time gives in to the prompting to escape the trouble of being incessantly harassed by the
influencers. In the circumstances of the case of Julius Wainaina Mwathi also demonstrates
the use of undue influence or coercion on the deceased. At the High Court Bosire J. as he
then was said “the petitioner was obliged but he did not demonstrate that the deceased
freely and consciously dictated and executed the alleged will. He did not call evidence to
exclude the possibility of having unduly influenced the deceased to will his property to
him.” (Look at suspicious circumstances)

Persuasion is lawful where a person is persuaded to will away his property or influence
which is undue is exercised on a person who has a weak mind or is in ill health, where a
person is well and strong, it will be presumed that he disposed of his property the way he
did upon the exercise of his persuasion. In the case of Wingrove v Wingrove it was
remarked obiter that if a young man became caught in the toils of a harlot who was able to
exert much influence over him and induced him to make a will in her favour to the exclusion
of his wife and children this would not amount to undue influence, it would tend towards
persuasion rather than undue influence. Sir J Hannen in Wingrove v Wingrove made the
following remarks, he said “to make a good will a man must be a free agent. But all
influences are not 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 judgment is suspicious of restraint under which no valid will
can be made. Importunity of 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. This if carried to a degree in which the free play of the
testator’s judgment discretion or wishes is overborne will constitute undue influence though
no force is 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’s.”

In the Kenyan case of Beth Wambui and Another v Gathoni Gikonyo and 3 Others the issue
of persuasion and undue influence came up. The deceased in this case gave instructions
regarding the disposal of his assets upon death which were then reduced into writing by one
of the two people present. He distributed his land to his wife and children including the
Appellant who was a married daughter. The document was thumb-printed by the deceased
in the presence of the two witnesses who did not however sign it. The Appellant was not
herself present when the document was being made. When the Appellant was told by her
father of the gift, she could not believe it and she could not believe it because under Kikuyu
Customary law as a married woman she was not entitled to any land from her father and she
insisted that the father make another document to show his good faith. The deceased then
caused another document to be prepared with similar terms which he thumb-printed after it
was signed by the attesting witnesses. Upon the deceased death the appellant sought the
grant of probate of both documents her petition was challenged by the other beneficiaries
who alleged that the documents were not valid as coercion had been exercised on the
deceased to make a will in the Appellant’s favour. The Court of Appeal came to the finding
that there was no coercion and the evidence persuaded persuasion which is not
unlawful. The Court observed that in the second document i.e. the document that the
Appellant insisted on the father preparing as a sign of good faith, the deceased only
confirmed the earlier document since he distributed his estate in the 2nd document as per
the terms of the 1st one.

Coercion amounting to undue influence can take a number of forms, it can take the form of
actual physical force or the incessant talking to a sick frail or elderly testator. The burden of
proof always lies with the person alleging coercion or undue influence.

The use of undue influence is common in circumstances of what may be described as

confidential relationship particularly those of a religious nature between a pastor and a
member of the congregation. In Parfit v Lawless there was a relationship of that kind and
the issue of whether undue influence was exercised on the testator came up for
consideration. The testatrix left her residue estate to a Roman Catholic Priest who was her
confessor and who lived with her and her husband. It was alleged that the confidential
relationship between them gave rise to the presumption of undue influence. The Court
came to the finding that although there existed a confidential relationship between the two
there was no positive evidence of undue influence. In Re Harden the relationship was
between a woman and spiritualist medium. The testatrix left property to the spiritualist
medium after he allegedly transmitted messages from the other side to her as to what she
should do with her property on death. The messages were dictated to her and resulted in
her executing two testaments which made the Medium a substantial beneficiary of her
Estate. It was held that the Medium had taken control of the testatrix mind to the extent
that she had written what he had wanted rather than the record of her mind. The will was
invalidated on grounds of undue influence.

Section 5(2) addresses the case of a married woman and adopts the position under the
Married Woman’s Properties of 1882 by providing that any female whether married or
unmarried is capable of making a valid will. At common law it is notable that married
women suffered a disability similar to that of infants and idiots mainly because upon
marriage the husband acquired rights over the married woman’s property which meant that
during the cause of the marriage the married woman had no capacity to dispose off the
property by will and only a single or unmarried woman could make a valid will. This
position changed with the enactment of the Married Women Properties Act which enabled
women to own property in their own right and thus conferring upon them the right to
dispose of such property by will.

FORM

Under Kenyan Law no specific form of a will is required. Section 8 of the Act provides that a
will may be either oral or in writing and it may therefore take any form provided it satisfies
the laid down requirements of formal validity and this requirement as we shall see shortly
relates to execution and attestation.

Section 9 provides for the formal requirements for an oral will while Section 11 deals with
written wills and testimonies.

The case of an oral will

It must be made in the presence of two or more competent witnesses, competent in the
sense that the witnesses must have capacity to make a will in their own right. In addition to
this is the requirement that the testator should die within 3 months after it is made for it to
be valid. There is a time stipulation of 3 months. The other reason is that such wills are
made in a state of panic or fear or anxiety e.g. when the testator is very ill or in a state of
imminent danger and persons in such circumstances tend to be irrational in their
decisions. The 3 months period is intended to allow them time to reconsider the terms of
the will and if possible reduce the same into writing.

There is a proviso to Section 9 (1) (b) which provides an exception to these

requirements. The exception covers persons in active service in the Armed Forces or the
Merchant Marine in active service. An oral will made by such persons is valid if the person
dies in active service, notwithstanding that the will was made more than 3 months before
their death. This exception is given to this category of persons on the basis that their
conditions of work i.e. their being in active service would normally not allow them the
opportunity to comply strictly with the requirements of Section 9.

Please note that the Kenyan Courts have held that where a dead person gives instructions
regarding the disposal of his assets and the instructions are reduced into writing by the
persons recording them such written instructions amount to an oral will provided that the
instructions are given in the presence of two or more witnesses. This position was stated in
the case of Re Rufus Ngethe Munyua Public Trustee v Wambui where the deceased gave
instructions on the disposal of his properties to his wives and children. The instructions
were written on a piece of paper by one of the children of the deceased. The deceased died
two days later and it was held that the writing disposing of property was an oral will. It was
oral as it did not satisfy execution and attestation.

In Beth Wambui & Another v Gathoni Gikonyo and 3 Others – in this case the deceased was
illiterate called two persons to his house and requested them to write his wishes. The
wishes were taken down, the person who took the instructions subsequently had the
document typed, read it back to the deceased who then thumb-printed it but the document
was not countersigned by the witnesses. The Court of Appeal relying on the decision in Re
Rufus Ngethe Munyua and Sections 8 and 9 of the Law of Succession Act held that the
document was capable of being construed as an oral will. This was because it was made in
the presence of two persons but did not comply with formal requirements for a written will.

Section 10 where a conflict arises between the contents of a written will and an oral one the
contents of the written will prevail.

Formal Requirements for a Written Will:

Section 11 of Cap 160 provides that no written will shall be valid unless it satisfies the
following requirements:

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

2. Unless it appears that the testator intended by his signature or mark or the signature of
the person signing for him to give effect to the will i.e. it is not enough that the document
must be signed but must be signed in such a way that the testator meant it to give effect and
this depends on where the signature is affixed;

3. Unless the signature of the testator or the person signing on his behalf is made or
acknowledged by the testator in the presence of two or more competent witnesses present at
the same time; it is acceptable that the document be signed by the testator away from the
witnesses and in this case the testator should show the signature to the witnesses and
acknowledge it as his.

4. Each witness must attest and sign the will in the presence of the testator but not
necessarily in the presence of the other witness. The witness is there to attest or to witness
the testator signing the document and is not there to witness other witnesses signing the
document.

Since the Act does not prescribe a particular form of the Will it is presumed that it may be
handwritten, typed or printed. The handwriting may be that of the testator or of any other
person. It may also be in any language. This is clearly implied by Rules 52 (2) and 54 (3) of
the Probate and Administration Rules.

Case Law shows that it may even be in a form of a code so long as the code can be
deciphered. In the case of Kell v Charmer a Will written in the jeweller’s code was admitted
to probate. It may be written on any material and need not necessarily be on paper
provided the material produces a visible form in Hodson v Barnes it was written on an egg-
shell and the same was admitted to probate and in the Canadian case of Re Murray it was
written on a cigarette packet and it was admitted to probate.

The Act does not define the word signature in the Law of Succession Act but the Courts have
widely interpreted signature to cover any mark of the testator which is intended as a
signature. It could be a thumb-print, initials, assumed name, mark of a rubber stamp with
the testator’s name, all these have been held to be valid signatures. It need not even consist
of a name at all. In Re Cookes Estate the words your loving mother placed at the end of the
document were held to be a valid signature. Part of a signature may in some cases be
sufficient to validate a signature. In Re Chalcraft’s Goods the testatrix on a point of death
started to sign her normal signature that is E Chalcraft but after writing E Chal she became
too weak to continue and left it at that and it was held that that signature was valid that it
was the best she could do in the circumstances.

Where the Will is signed by another person on behalf of the testator, this should be done in
the presence of the direction of the testator. The concept of presence has a physical and
mental dimension 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 i.e. it is not enough that she was present, she
must have been in a condition to either object to the document being signed or to
consent. A Will will normally be signed on behalf of the testator in circumstances where the
testator is too weak through illness to sign for himself. The person who signs on behalf of
the testator may sign his or her own name or in the testator’s name. refer to the case of In
the Goods of Clark. The person signing on behalf of the testator may be one of the witnesses
to the will. Refer to the case of Smith v Harris.

It is advisable or more prudent for the person signing on behalf of the testator to sign his
own name to avoid any doubt or any confusion and to state that he is signing on behalf of
the testator in the testator’s presence and under his direction. This is important to obviate
any uncertainty as to whether the person is signing for the testator or as an attesting
witness.

REQUIREMENTS FOR THE VALIDITY OF A WILL SECTION 11 OF THE ACT

FORM

Section 11 (b) deals with position of signature or mark on the document and the provision
states that the signature or mark should be so placed as to make it appear that the testator
intended by the signature or mark to give effect to the Will. Under this provision the
signature can theoretically be placed anywhere on the document so long as it is apparent
from the position that it is intended to give effect to the will. The law doesn’t require that
the signature be placed at some point on the document, it can be anywhere on the document
even on the envelope, it all depends on circumstances. The mark will be regarded to give
effect to the will depending on the circumstances of the case.

The Administration of Justice Act of 1982 of England carries a provision at Section 17

similar to Section 11(b) of the Law of Succession Act. Recent UK decisions on the point are a
useful guideline because we do not have much case law in Kenya on the positioning of the
signature on the document. In Weatherall v Pearce the Testatrix made a will on a pre-
printed form obtained from the bookshops. She signed her name in the middle of the
attestation clause but not at the end of the Will. The issue arising in this case was whether
this constituted a signature for the purpose of Section 17 of the UK Act and it was held that
since she had intended her name as signed to be her signature, the Will was properly signed.

In the case of Wood v Smith the testator wrote in his own handwriting at the top of his will
and before writing the rest of the Will the following words “MY WILL BY PERCY
WINTERBONE he did not sign his name at the foot of the document, there was no
signature at the end of the document and the question was whether this will was properly
signed or not evidence was adduced that the testator regarded his name at the top to be his
signature. It was held that by writing his name and the dispositive provisions in one single
operation the deceased had provided clear evidence that intended to give effect to the
provisions and the will was held to have been duly executed.

The issue also arose in the Kenyan case of Beth Wambui and another v Gathoni Gikonyo
and Others in this case the witnesses signed the document first and then the deceased
affixed his mark thereafter and one of the points being raised was whether this was proper,
should the deceased sign after the witnesses? The court found that the fact that the
deceased signed last, the witnesses having signed first did not invalidate the testament.

What happens where the signature appears on a separate piece of paper or on an envelope
containing the otherwise unsigned will or testament? In such situations whether the Will is
validly executed will depend on the intention of the testator. If the intention of the testator
is to ratify the Will by signing on a separate paper, it will be valid, if the intention is however
to identify the testament, the same will be invalid. The intention therefore of the testator is
a question of fact, and has to be gauged from the evidence adduced. In the case of in the
Estate of Bean the testator put his otherwise unsigned will in an envelope and wrote his
name and address on the envelop, it was not signed and it was not attested, only the name
and address on the envelop. The court found that the same was not validly executed, the
deceased wrote his name on the envelope to identify rather than to ratify the will and
probate of the Will was refused. The argument of the court was that the name and the
address appearing on the envelop was meant to guide the will misplaced in knowing where
to direct the will.

In Re Mann’s Goods the facts were similar. A testatrix put her unsigned will in an envelope
and wrote on the envelope Last Will and Testament of J C Mann. She then signed the
envelope and had it witnessed. She thereafter put or placed the envelope in a larger
envelope. The court found that there was an intention to ratify the will and the same was
therefore admitted to probate.

Section 11 (c) requires that the testator’s signature must be made in the presence of two or
more persons present at the same time. If one witness is present then that could be invalid,
there has to be two. To be present at signing means the witnesses must be capable of seeing
the testator sign. The witnessing is of the signature i.e. the fact of signing. Please note that
the witnesses need not look at the signature, all they are required to do is see the person
sign. Case law has held that they need not even know that the document is a Will. Refer to
the case of Benjamin if the witness is present but unaware of what the testator is doing, the
attestation will be invalid. This is brought out in Brown v Skirrow where a testatrix took her
will to a grocer’s shop to be executed. She asked two shop assistants to act as witnesses. As
she was signing the documents, one of the assistants was busy serving a customer and
therefore was not able to see the document being signed by the testatrix and the court found
that the will was invalid because it was not properly attested. Refer to the case of Re Colling

Section 11 (c) makes reference to acknowledgment of a signature. Instead of being present

when the testator is signing the will or testament, the witnesses may be called after the
document has been signed. In such event, the testator should acknowledge his signature or
mark or the signature of the person signing on his behalf to the two witnesses. The law
requires that both witnesses must be present at the acknowledgment at the same time i.e.
they must see the signature at the same time.

Please note that acknowledgment may be by words or conduct although it is preferred that it
be expressed or it be in words. Earlier case law indicates that it can also be by
conduct. Refer to Daintree v Butcher where the testatrix merely said that she had a
document which she needed witnesses to sign and did not show or acknowledge the
signature to the witnesses and the court found in that case that the acknowledgment was
sufficient. Note however that the decision in this case of Daintree which was a 1898
decision conflicts with later decisions which appear to favour express acknowledgments. In
Re Groffman {1969] the testator in the presence of both witnesses gestured to his coat
pocket saying “I should like you to witness my Will” He then took the witnesses separately
to a room and showed them his signature on the will and it was held that the
acknowledgement was invalid because the witnesses were not present at the same time
when the signature was being acknowledged and did not see the signature at the same
time. Compare this with facts in Couser v Couser where the testator made a will which he
signed, took to a couple and asked them to witness it. The wife part of the couple went
inside the house with the testator leaving the husband outside. The testator showed her his
signature and she signed thereafter. The husband then came in from the outside and signed
as a second witness after the testator had acknowledged his signature. At the time, the wife
was standing some meters away making coffee and loudly expressing doubts about the
validity of the execution of the Will. The court held that the document was validly executed
since both witnesses were present when the testator acknowledged his signature to the
husband and what mattered according to the court was that at some point in time all 3
parties to the transaction were concerned in it together and simultaneously.

Requirement of Witnesses: witnesses are important for purposes of authenticating the

signature of the testator to remove any doubts regarding the free-will of the testator at the
time of signing the document. The witnesses are important in that evidence can be obtained
after the testator’s death as to what actually happened particularly where the validity of the
will is being questioned. For this reason it is advisable to select persons who are younger
than the testator as these are more likely to survive the testator. It is also advisable to
choose persons who can be easily be traced in preference to total strangers, persons of no
fixed abode or a person who is likely to be far away at the time of the testator’s death as they
may be needed for the purpose of providing evidence.

Section 11(c) is not specific on who may be a witness. The provision just talks about the
witness being present and does not set out qualifications of a witness. Section 11 (c)
however does require that the witnesses must be capable of seeing the signature and
understanding what they are doing. This would mean that blind and illiterate witnesses are
not suitable. It also means that minors, drunkards and insane persons should not be chosen
as witnesses. Section 11 (c) requires that each witness must sign the will in the presence of
the testator. It further provides that the witnesses need not sign in the presence of each
other. This is because the witnesses put their signatures on the document with the intention
of validating the testator’s signature and not each others signature. Section 11 (c) does not
provide a particular form of attestation, the signature of the witness need not be in
particular place on the will but it should be so positioned as to show the intention to ratify
the testator’s signature. Refer to Re Beadle and the case of In the Goods of Sperling. The
witnesses must sign the will themselves rather than have a 3rd party sign on their behalf.

At common law and under Section 54 of the Indian Succession Act of 1865 a beneficiary
under a will could not attest the execution of the same. If a beneficiary attested a will, they
either lost their bequest or the will was rendered invalid. In the Estate of Bravda, a testator
made a will leaving his estate to his two daughters. He signed the will in the presence of the
two daughters and two other witnesses. He explained the reason of making the will as he
wished to see his daughters provided for. after the two witnesses had signed the Will after
the testator, the testator out of sheer enthusiasm asked the daughters to also sign to make
the will stronger. They signed and it was held that since the daughters had put their
signatures under the words witnessed by, they had signed as witnesses and for that reason
the will was utterly null and void.
Please note that the Law of Succession Act takes a different position from the Common
Law. Section 13 of the Law of Succession Act provides that a Will shall not be considered
invalid or insufficiently attested merely by the fact that it was attested by a beneficiary or a
spouse of a beneficiary provided that where that is done the signatures of such beneficiaries
are further attested by at least two additional competent and independent witnesses.

Section 13(2) makes a bequest or a gift to an attesting beneficiary void where the signature
of such beneficiary is not attested. Under Kenyan Law a beneficiary loses his gift if he acts
as a witness unless his signature is attested by two witnesses.

Section 12 of the Act provides for incorporation of papers by reference. The Section
embodies the doctrine of incorporation by reference which allows documents which satisfies
certain conditions to be regarded as part of the will even though the documents themselves
are not executed. Such documents if and when properly incorporated into a Will are
admissible to probate as part of the Will. Such documents would normally be a schedule of
the properties owned by the deceased. For incorporation to be effective the document
incorporated by reference must
1. Be in existent at the date on which the will is being executed;
2. It must be referred to in the will as being in existence;
3. It must clearly identified.

The criteria is set out in a number of English cases

Re Keen
In the Goods of Lady Truro
In the Goods of Smart

The Act also provides for the validity of testament made outside the scope of the Act. These
are addressed under Section 15 and 16 of the Act. Section 15 covers testaments made before
the commencement of the Act, i.e. executed before July 1981. Section 15 provides that such
written testaments executed prior to the commencement of the Act regardless of whether
the testator died before or after the commencement shall be treated as properly executed if
they were executed according to the requirements of the law then in force at the time of
execution. There were 3 specific statutes which provided for written testament. Indian
Succession of 1865, African Wills Act of 1965 and Hindu Wills Act. When it comes to the
administration of the estate the applicable law would be the law of succession Act but when
it comes to determining validity you look at the law under which that will was made.

TESTAMENTS EXECUTED OUTSIDE JURISDICTION

The same shall be treated as properly executed if they are executed in accordance with the
requirements of the law of the country where they are executed. If executed in Britain it
ought to be in conformity with UK Law but if it is administration, it can be administered
under the law of succession.

PRIVILEGED WILLS AND TESTAMENTS

A privileged will is one which is deemed valid not withstanding the failure to comply with
the strict legal formalities required of a Will. One that does not comply with the formal
requirements maybe one signed by a testator but not witnessed. These are normally made
in circumstances which by their very nature do not allow the opportunity of making a
normal will. Only a small class of persons have the privilege of making such testaments and
that is members of the Armed Forces and of the Merchant Marine during periods of active
service.

The Law of Succession Act provides for the making of oral privileged wills or testaments, it
does not make provisions for written wills. This is covered under Section 9 of the Act which
allows members of the Armed Forces of Merchant Marines to make an oral will during a
period of active service and the same should be valid if the testator dies during the same
period of active service notwithstanding the fact that the testator dies more than 3 months
after the making of the Will. The term Active Service is defined in Section 3 of the Act to
mean with respect to a member of the armed forces being in a field of Military operations
either a war or training in preparation for war or under orders to proceed to a field of
operations. With respect to members of Merchant marines it refers to being at sea or under
orders to proceed to sea.

Refer to Re Jones and Re Wingham and Re Stable

In Re Stable the deceased who was a Lieutenant under orders to proceed to war during the
first world war said to a woman to whom he was engaged, “if I stop a bullet, everything of
mine will be yours” this was said in the presence of a witness. The Court found this to be a
privileged will and probate of the deceased words was granted.

Note that the Armed Forces Act Cap 119 Laws of Kenya at section 219 does provide for a
written privileged will. Under this provision a soldier can make a written will if it is attested
by one witness only who should be an officer of the Regiment. The Law of Succession does
not have a section for a written privileged will because there is already a provision in the
Armed Forces Act.

REVOCATION OF A WILL OR TESTAMENT:

Revocation is a freedom of a will or testation in the sense that the testator has the freedom
to make the will he so wishes and all wills are revocable even where one drafts a will and
says it is irrevocable it can still be revoked. It can be revoked either voluntarily or
involuntarily. There are 3 methods of voluntary revocation:

1. Express Revocation;
2. Implied Revocation; and
3. Revocation by Destruction.

These are deliberate intentional acts of the testator intended to revoke his will. These 3
methods require 2 essential elements
(a) Mental Capacity – the testator must have mental capacity to the same degree as to the
creation of a Will;
(b) The intention to revoke –

There is only one involuntary method of revocation under Kenyan Law and that is
revocation by marriage. This arises by the operation of the law and therefore it does not
require the testator to have mental capacity or intention to revoke. The question of
intention does not arise.

Section 17 of the Act provides that a Will may be revoked by its maker at any time when he is
competent to dispose of his free property by Will.

Voluntary Methods of Revocation:

Express Revocation

This is provided for under Section 18(1) which provides for the revocation of a Will or
Codicil by another will or Codicil declaring an intention to revoke the previous will or
codicil. Read together with S 17 S 18(1) enables the testator to revoke his will so long as he
has capacity to do so. Professionally drafted Wills and Testaments invariably contain an
express revocation clause. “ I revoke all former Wills and Testamentary dispositions
previously made by me..” any professionally drafted will will contain such a clause. It is not
sufficient however to say “.. this is the last will and testament made by me..” that does not
have the effect of revoking the previous will. It is preferable that the revocation clause says
that you revoke the testament. This is the last will made by me is not a revocation
clause. Refer to Re Hawkesley’s Settlement where that point was made, that the description
of the Will as the Last will and testament is not a sufficient express clause.

Codicil is often used when only parts or sections of a Will are to be revoked. Express
revocation requires an intention to revoke on the part of the testator.
Implied Revocation
With respect to Implied Revocation there is no express wording for revocation but the
wording of Section 18(2) is wide enough to cover the possibility of implied revocation. A
Will or Codicil is impliedly revoked by a later Will or codicil to the extent that the latter is
inconsistent with earlier will or codicil which means that if one makes a later will that is not
inconsistent with the earlier one, it will not revoke the earlier one. Whether there is Implied
Revocation of a Will by another is a matter of construction or interpretation of the Will or
Codicil which purports to remove the earlier one. Therefore to determine whether there is
implied revocation you have to look at the wording of later codicil.

Revocation by Destruction
Provided for under S 18(1) of the Law of Succession Act Cap 160 which provides for
revocation by the burning tearing or otherwise destroying the Will with the intention of
revoking it. The act of destruction burning, tearing or destroying must be of the testator or
of someone else at his direction. Revocation by destruction involves 2 distinct elements
(i) actual destruction;
(ii) the intention to revoke.

Both must be present. The actual destruction must be by burning, tearing or destroying the
will. But otherwise destroying has been construed using the ejusdem generis rule to require
that the acts of destruction are of the same kind as burning and tearing. Refer to Cheese v
Lovejoy. In this case the testator cancelled his will by striking out his clauses and his
signature with a pen and then writing on the back of the Will “all these are revoked”. He
threw the Will in a pile of paper in a corner somewhere in his house where it was retrieved
by a servant and kept in a kitchen drawer until the testator’s death 8 years later. The issue
was whether the Will was valid or whether it had been revoked. The court held that the acts
of the testator did not amount to revocation of the Will. there was no express, implied or
destruction revocation. There was an intention to revoke but the will had not been
destroyed and the same was admitted to probate.

In Re Morton’s Goods the testator’s signature was completely scratched out by the testator
and that was the only part of the Will that was affected. The court held that it amounted to
otherwise destroyed.

In Re Adams parts of a Will were heavily scored through with a ballpoint pen and the court
found that the relevant parts i.e. the parts that were affected had been actually destroyed
and therefore the actual destruction was partial and the rest was admitted to probate.

In Hobbs v Knight it was held that tearing included cutting. Please note that whether actual
destruction of part of a will results in the revocation of the entire document or a section of it
depends on the part that was actually destroyed i.e. it depends on the importance of the part
of the Will destroyed. If the destroyed part impinges in the whole will, then the whole Will
is revoked the best example is the signature, if the signature is torn from the document it
renders the entire document revoked or the attestation bit will render the Will revoked. If
the parts destroyed are less important, only those parts will be revoked.

To establish actual destruction it must be proved that the acts of destruction were
completed by the testator. In the case of Perkes v Perkes the testator tore up his will into
four pieces after an argument with one of the beneficiaries. After sometime he calmed down
and fitted the pieces together. The court found that there was no actual destruction as the
testator did not complete all what he had intended to do. There was a change of mind and
there was no intention to revoke the will.

The acts of revocation must be by the testator himself or of someone else in the testator’s
presence and under his direction. Where the document is destroyed by someone else
without the testator’s direction or in his absence, the issue of revocation by destruction does
not arise. In Re Dadd’s Goods the testatrix on her death bed expressed her 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 because she did not direct them
to destroy it and even then it was in her absence.

In Gill v Gill the testator’s wife tore up his Will in a fit of temper and again it was held that
there was no actual destruction.

What is the position of the person in possession of the Will being requested by the testator
to destroy the Will and one destroys the Will, would there be destruction? What is the legal
position, there is no revocation. or supposing the testator writes to the holder of the Will
and signs the letter which he gets two witnesses to attest, is there revocation, there would be
actual destruction and revocation. Refer to the case of Re Durance.

With respect to intention to revoke, the testator must have the same capacity to revoke as is
necessary to execute a valid will and therefore all one needs for purposes of establishing
intention is capacity. Refer to the case of Re Aynsley which is a case where the testatrix who
was very old and confused tore a testament into 40 pieces. The court found that she lacked
the mental capacity to revoke and there was no intention on her part to revoke and the Will
was therefore admitted to probate.

The destruction must not be accidental, where there is destruction but the same occurs
accidentally there is no intention and thus there is no revocation e.g. if the house burnt
down, or if the will is destroyed under some unmistaken belief that the Will is invalid, there
will be no intention to revoke.

REVOCATION BY MARRIAGE
As a general rule the marriage of a testator automatically revokes any Will or codicil made
prior to the marriage. The rationale is that marriage gives rise to new obligations which
would ordinarily be taken into account where a Will is made by a single person and
revocation is intended to give the testator an opportunity to make a Will taking into account
the new obligations.

Section 19 provides that the marriage of the testator will automatically revoke a will. there
is an exception to this general rule which is where the Will is expressed to be made in
contemplation of marriage with a specified person, it should not just be contemplation of
marriage in general but specific, where one makes provisions to a specific person who they
intend to marry then it will be of consequence. Kenyan law does not recognise revocation by
divorce. Where one divorces their spouses they must revoke and prepare a new Will.

CONSTRUCTION OF WILLS
EXECUTORS
INTESTATE SUCCESSION
Intestacy occurs where a person dies without having made a Will and where a Will is
rendered invalid and thirdly where a person revokes his Will and subsequently dies without
having made another one. Intestacy may be total or partial. It is total where the testator
has left no valid will at all and the property of the estate is subject totally to the provisions of
intestacy. It is partial in the following circumstances:
1. Where the person fails to include all his property in his otherwise valid will and the Will is
not ambulatory;
2. Where part of a Will is declared invalid, the property the subject of the invalid part would
fall under the intestacy provisions;
3. Where only a part or section of the will is revoked;
4. A person acquires property subsequent to the making of the will unless the will is
ambulatory.
Please note that the rules of intestacy determine the question of who is entitled to the Estate
of an intestate. These rules only benefit people who have a direct blood link with the
intestate except of course the spouses. It does not confer benefit on unmarried partners,
parents’ in-law and other relatives in law. To benefit such persons the deceased has to make
a will. In the absence of blood relatives the estate of an intestate passes to the State. It is
usually sold and the proceeds sold to the consolidated fund.

The provisions relating to intestacy are contained in Part 5 of the Law of Succession Act Cap
160 and that is Section 32-42 of the Act.
Section 32 of the Act empowers the Minister to disapply by a notice in the Gazette
Agricultural land and crops on such land or livestock in some parts of the countries from
Part 5 of the Act i.e. under this section the Minister has power to exempt property in some
parts of the country from Part 5 of the Act.

Section 33 of the Succession Act applies Customary Law to Property excluded under Section
32 of the Act i.e. property which has been exempted from provisions of Part 5 subject to
Customary Law.

The Minister has exercised power under Section 32 only once under Legal Notice No. 94 of
1991 under which the Minister exempted property in the predominantly pastoral districts of
Marsabit, Narok, Tana River, Samburu, West Pokot, Turkana, Isiolo, Mandera, Wajir and
Kajiado from intestacy provisions and here African Customary Law and not Part 5 of the Act
was to apply.

The Act contemplated a capitalist market economy which recognizes individual ownership
of property under which it is possible to determine the appropriate share of each
individual. In the predominantly pastrolist areas, individual ownership of property is not
recognized. Land is still held communally and even property such as livestock is owned
collectively. Succession to Property in such circumstances is better left to the customary law
of the people concerned. Land Registration has not been done in the areas covered by most
of the mentioned districts and most of them individuals do not have a share to what is
referred to as group ranching.

Section 32 and 33 do not provide a blanket exemption covering all Africa intestates. It only
covers property in the areas exempted from the provisions of the Act. The Court of Appeal
has interpreted Sections 32 and 33 to mean that all African intestate are exempted from the
intestacy provisions of Part 5 of the Act. In the opinion of the Court of Appeal reading from
most judgement all Africans who die intestate are subject to African Customary Law and not
Part 5 which is not the case Section 32 and 33 only covers the mentioned districts. These
decisions are inconsistent with the Act. Refer to the case of Julius Wainaina Mwathi v Ben
Mwathi and Another the deceased was unmarried and was survived by a brother and two
sisters, he hailed from Kiambu District. His Will was declared invalid by the High Court
which then ordered that the Estate be shared equally between his brother and the two
sisters in terms of Part 5 of the Act. The brother aggrieved by the decision of the High Court
appealed to the Court of Appeal which upheld the High Court Order with respect to the
invalidity of the Will and confirmed that the deceased had died intestate. The Court of
Appeal however differed with the High Court by holding that the applicable law to the
intestate estate of the deceased was Customary Law and not the intestacy provisions in Part
5 of the Act. A portion of the Court of Appeal judgment says “the intestate succession of a
deceased Kikuyu is governed by Kikuyu Customary Law. the asset involved is a piece of land
and the matter must therefore be determined by Kikuyu Customary Law relating to land
inheritance.” That portion of the decision is inconsistent with the Law of Succession Act.

In another matter the case of John Kinuthia Githinji v Githua Kiarie and 2 others Gachuhi J
A. said obiter “ the other aspect of the claim is under the provisions of the law of succession
where a person dies without a will. this will be in the case of intestacy. The distribution on
intestacy shall be governed by the law or custom applicable to the deceased community or
tribe as the case may be.”

The High Court on the other hand has been consistent in maintaining the correct
interpretation of Sections 32 and 33. The interpretation given by Bosire J as he then was in
Mwathi v Mwathi was the right interpretation of Section 32 and 33 was the right
decision. “Kiambu was not one of the District mentioned in Part 5”.

Justice Githinji also correctly interpreted the provisions in the matter of the Estate of Kihara
Githamba. This was a case where the deceased was survived by two wives and 17
children. The first wife had four sons and four daughters while the other wife had 2 sons
and 7 daughters. Some of the daughters were married while the others were
unmarried. The sons claimed that the deceased had made an oral will recorded in a
book. The effect of the alleged oral will was to give the prime land to the 6 sons equally. The
distribution of the other pieces of land was also to the 6 sons equally. The effect of the oral
will was to deny the surviving widow and her unmarried daughters a share of the deceased
piece of land. The Court declared the alleged will invalid and ordered that the Estate be
distributed in accordance with the law of intestacy. The sons sought to rely on Section 33 of
the Act arguing that the Estate ought to be distributed in accordance with Kikuyu
Customary Law which excludes daughters from inheriting. Justice Githinji said of Section
33 “Section 33 refers to the distribution of properties as specified in Section 32 of the Law of
Succession Act situated in the areas as the Minister may by notice specify. There is no
evidence that the Minister by a Gazette Notice has specified that the lands located in the
area the Estate is situated should be distributed as provided under Section 33 of the Law of
Succession Act. In any case, the deceased died after the Law of Succession Act came into
operation and the law applicable by virtue of Section 2(1) of the Law of Succession Act is
Part 5 of the Act. ” He then proceeded to apply Part 5 of the Act to the Estate providing for
the sons and unmarried daughters of the deceased. The decision of the Court of Appeal in
this case is incorrect. One can only conclude that the Judges in this case decided the matter
as Africans.

The Act provides for both monogamous and polygamous situations and the nature of the
devolution of property upon intestacy depends on whether the deceased was monogamous
or polygamous and on whether there were children or not.

SPECIFIC PROVISIONS OF PART V

There has been a recent decision by the CA it does not purport to review the decision in
Mwathi v Mwathi, this is in the case of Mary Rono v Jane Rono & Another Civil Appeal 66 of
2002 The land in dispute was situated in Uasin Gichu District. The deceased was
polygamous and the 2nd wife had daughters only and most of them were unmarried and
they had children. The children of the senior wife i.e, the sons argued that Section 33 of the
Act applied African Customary Law and most specifically Keiyo Customary Law to the
Estate of the deceased and under that system of law daughters were not entitled to inherit
their deceased father. The Court of Appeal held that Section 2(1) of the Law of Succession
Act excludes the application of African Customary Law unless the Act specifically makes
provision for the Application of the African Customary Law. The Court went on to state that
the Act does so under Sections 32 and 33 but the Application is limited to such areas as the
Minister may gazette. They further stated that Legal Notice No. 94 of 1991 has applied
African Customary Law to property in some districts but that does not include Uasin Gichu
and for that reason Keiyo Customary Law does not apply to the Estate of the
deceased. Then the court proceeded to apply Part V of the Act and to distribute the Estate
equally to all the children of the deceased including the daughters.

The Law of Succession Act makes provisions under Part V for both monogamous and
Polygamous situations and the nature of the devolution of property upon intestacy depends
on whether the deceased was monogamous or polygamous and whether there were children
or not.

SPECIFIC PROVISIONS OF PART V

Section 35
Section 35 governs the monogamous situation where the couple has children. In such cases
the surviving spouse is entitled to the personal and household effects of the deceased
absolutely with a life interest on the whole residue of the net intestate Estate. A proviso to
Section 35(1) says that if the surviving spouse is a widow, the life interest terminates upon
remarriage of the widow. Life interest refers to the right by the widow to use the property
making up the estate but without power to dispose of it.

Personal and Household effect are defined in Section 3 of the Act to mean clothing, articles
of personal use, furniture, utensils, appliances, pictures, ornaments, food, drink and all
other articles of household use and decoration normally associated with a matrimonial
home and it is to such that the surviving spouse is entitled.

Section 35(2) gives the surviving spouse power of appointment i.e. the power to distribute
the capital of the intestate by way of gift taking effect immediately among the surviving
children. Under this provision the power of appointment cannot be exercise by way of will
and it cannot take effect on a future date primarily because the surviving spouse does not
have absolute right to property. He/she enjoys a mere life interest of the property. It is not
their property and they cannot give it as a gift by will.

Section 35 (3) and (4) allow a child who is aggrieved by the exercise of the power of
appointment to challenge the same in court.

Section 35(5) deals with what should happen in the event of the death of the surviving
spouse or the widow remarries. In that event the portion of the Estate which is subject to
the life interest devolves upon the surviving child or children. If there are many children the
property should be divided equally among them taking into consideration any property held
in trust for a child. Refer to the case of The Estate of Anjuri P&A No. 357 OF 1997 the
deceased was survived by the wife and 3 children. She applied for letters of administration
of his intestate Estate and her application was opposed by several persons who claimed to
be beneficiaries. Among them were the deceased person’s brothers, sisters, mother and a
person who was claiming to be a daughter of the deceased. The court found that except for
the mother the rest had not proved dependency and dismissed their application. In finding
for the widow, the court observed that under intestacy, the Estate would be administered
under Section 35(1) of the Act and that 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 among other factors that the fact that the
assets forming the estate had been acquired jointly by the deceased and the widow during
marriage. And further that she was the owner of half of all the properties as of right.

In the matter of the Estate of the late Wanjihia Njuguna Succession Cause 533 of 2002 the
court emphasised that under Section 35 there should be equal distribution of the Estate
among all the children of the deceased including daughters. In this case the court rejected a
proposal to share the Estate between the widow, a son and daughter in law of the deceased
on the grounds that the application did not disclose whether the deceased had daughters or
not and ordered the Applicant to file a fresh application making a full disclosure of all the
children of the deceased.

A similar point was made in the case of the Estate of Grace Michobo Succession Cause No.
1978 of 2000 an application for confirmation of grant of letters was refused on the grounds
that it did not comply with Section 35. The proposed distribution excluded a married
daughter and gave a very small share of the Estate to an unmarried daughter of the deceased
with the bigger share going to the sons of the deceased. The court held that the there should
be no discrimination between male and female children and that the property should be
shared equally among all the children including the daughter as per Section 35.

Section 36

Section 36 deals with a case where the deceased has left one surviving spouse but no child or
children. The surviving spouse is entitled out of the net intestate to the following:
1. To the personal and household effects of the deceased absolutely;
2. To the first Kenya Shillings 10,000/- out of the residue of the net intestate Estate; or 20%
of the residue of the net of the intestate Estate whichever is greater;
3. A life interest in the whole of the remainder i.e. over the 80% of the residue,

The life interest is lost on the remarriage of the surviving spouse if the surviving spouse is a
widow. Please note that Section 36(2) gives the Minister discretion to alter or vary the
amount of KShs. 10,000/-. This discretion has not been exercised so far though the amount
of 10,000/- was fixed in 1972 although a variation is overdue given the present economic
situation.

Section 37
Under section 37 a surviving spouse during life interest may sell any of the property the
subject of the life interest for their own maintenance subject to the following restriction: It
has to be with the consent of all the court trustees and all the adult children and where the
court trustees and the children withhold the consent then the surviving spouse may seek the
consent of the court. where the subject property is immovable, the consent of the court is
mandatory.

Section 38
Section 38 deals with the situation where the intestate has left a surviving child or children
but no spouse. In such circumstances the net intestate devolves upon the child or
children. Where the children are more than one the Estate is divided equally among
them. The Act merely refers to children and makes no distinction as to whether they are
male or female emphasising that property should be shared equally by children regardless of
gender. In the matter of Mary Wanjiru Thairu H.C. Succession Cause No. 1405 of 2002 a
single parent was survived by a son and 6 daughters. The son attempted to inherit the
entire estate basing himself on Kikuyu Customary Law. His application was rejected by the
court on the basis that it did not comply with Section 38 which required that the property be
shared equally among the 7 children.

A similar finding was made in the case of Patrick Mungai Kugega H.C. Succession Cause No.
1374 of 200 in this case the deceased was survived by his children , 5 sons and 2
daughters. The children proposed equal distribution of the Estate in accordance with
Section 38 except for one child who opposed the proposal on the ground that the deceased
had bought the properties with money sent to him by the objector. He was arguing that he
was entitled to a larger share. The court found that Section 38 allows equal distribution of
the property between the children or among the children and dismissed the objection.

In the matter of the Estate of Ela Warue Nthawa H.C. Succession Cause 579 of 2001 the
deceased was survived by 3 adult children, two sons and a daughter, grant of letters of
administration was made to the sons with the consent of the daughter. The administrators
proposed to give the majority of the property to the sons giving the female survivor only a
small portion. The proceeds of the bank account were given to the two male survivors
only. The court relying on Section 38 held that the property could be shared equally
amongst all the children. The administrators proposed distribution was rejected.

Section 39
Section 39 is about where the intestate leaves no surviving spouse or children either because
he/she never got married or they predeceased her, the property should devolve upon the
kindred of the intestate or blood relatives of the deceased in the following order of priority;
1. Father; if dead
2. Mother of the deceased; if dead
3. Brothers and Sisters and any child or children of the deceased brothers and sisters of the
deceased in equal shares; if no such relatives
4. Half brothers and half sisters and any child or children of the deceased half brothers and
sisters in equal shares; if there are relatives
5. Relatives of the deceased who are in the nearest degree of consanguinity up to and
including the 6th degree in equal shares including cousins, uncles etc. if no such relatives
can be traced;
6. The net intestate Estate would devolve upon the State in bona vacantia and the Estate
would be liquidated and the proceeds paid into the consolidated fund.

Refer to the case of the Estate of Muchiri Komu Nakuru H.C. Succession Cause No. 441 of
1998 the deceased in this case was survived by his brothers and sisters, the man had never
married and had no children and his parents had predeceased him and therefore the only
immediate relatives were his brothers and sisters. One brother applied for and obtained
grant of letters of administration and listed the beneficiaries as himself, his brother and a
sister in law. His sisters were excluded. The Court in this case held that under Section 39
the Estate of the deceased devolved upon his brothers and sisters in equal shares. The grant
made to the brother was revoked.

In the Estate of Beatrice Amalemba H.C. Succession Cause 2160 of 2000 the father of the
deceased and her mother in law and brother in law were unable to agree on who would
apply for the letters of administration of the deceased estate. The deceased had no children
and the husband had predeceased her. The court found that the father of the deceased had
priority over the mother in law and brother in law by virtue of Section 39 of the Act.

Mwathi v Mwathi – the property in dispute in this case should have been divided equally
between the brother and the two sisters in virtue of Section 39 but it was not so as the High
Court applied Kikuyu Customary Law.

Osiemo dies intestate, his wife has predeceased him and he is not survived by any
children. He leaves behind two brothers, Machoka and Nyambane, Nyambane has two
daughters Bonareli and Moraa. Osiemo has a sister Bosibori who predeceased him leaving
two sons. The residuary Estate is valued at KShs. 300,000/-. How is this Estate to be
divided? Who gets what? Since the brothers and sister are of full blood, they take equal
shares, Machoka takes KShs. 100,000/- Nyambane 100,000/- and Bosibori 100,000/- is
deceased so her children take her share equally each 50,000/-. If one of the children of
Bosibori is about the age of 18 he takes his share absolutely but if the child is below they do
not take absolutely but the money is held in trust for the child by the administrator until the
child attains the age of majority. The children of Nyambane receive nothing since their
father is still alive.
Section 40
This provides for division of the property of an intestate where the deceased is a
polygamist. The Estate of such a deceased person should be divided as follows:
1. His personal and household effects and residue of the Estate should in the first place be
divided among the houses according to the number of children in each house;
2. Distribution of the estate should thereafter be on the basis of the provisions of Sections
35-38 of the Law of Succession Act.
The Estate is divided in accordance to the number of children in each house.

In the case of Mary Rono v Jane Rono & Another this was a decision at Appellate level. The
High Court had distributed the Estate according to the Customary Law and the Law of
Succession Act. The Judge was of the view that Section 40 of the Act allowed equal
distribution among the children irrespective of gender but considered the fact that the
daughters may get married and inherit property from their new families. There were 6
daughters, each was given 5 acres and 3 sons who were given 30 acres each. The Court of
Appeal found that the finding of the HC was inconsistent with Section 40 which requires
that in a polygamous setting the property should be divided equally among the
children. The distribution was revised and each of the children were given 14.4 acres each
out of the estate.

The Estate of Benson Ndirangu Mathenge Nakuru HC Succession Cause 231 of 1988 – in
this case the deceased was survived by two widows, 8 sons and two daughters. For the
purpose of the distribution of the Estate under Section 40, the court stated that the two
houses made a combination of 12 units. The land was divided into twelve equal units. The
first two units were given to the widows while the remaining ten units went to the children.

Estate of Nelson Kimotho Mbiti H C Succession Cause 169 of 2000

Estate of Benson Kagunda Bururi H C Succession Cause 341 of 1993
Estate of Erastus Gakubu Chege H C Succession Cause 711 of 1998

Any surviving wife in a polygamous setting is treated as an additional unit to the children.

Section 41
It states that whenever property devolves around a child or children who are below 18 or
being female marry under 18 the same should be held in trust for such child or children.

DEPENDENCY: Section 29

The provisions relating to Dependency are to be found in Part III of the Act. Dependant is
defined under Section 29 and under this section dependants are divided into 3 categories.

In the first category are the wife or wives or former wife or wives and the children of the
deceased. Under this provision the children of the deceased need not be by his wife or wives
or former wife or wives. The dependants in this class do not have to prove
dependency. They do not have to show that they were dependent on the deceased prior to
his death all they need to show is that they were either wives or children of the
deceased. Under the law Reform Act and the Fatal Accidents Act the word dependant is
limited to a minor.

Please note that definition of child under Section 29 includes an adult child. This point was
made in the case of the Estate of Carey Muriuki, Succession Cause 765 of 1994 Child within
the meaning of Section 29(a) is not limited to a minor. The court was of the view that the
definition of a dependant under Section 29 (a) and (b) grouped children of the deceased
together with wives, parents and siblings of the deceased who obviously are not minors. The
court concluded that child under Section 29 means the child begotten by the deceased the
age of the child not withstanding. This provision 29 (a) was meant to take care of women
married under a system allowing polygamy and it also seeks to protect former wives who
after divorce did not get a share of the matrimonial property.

The second category of dependants includes the deceased parents, step parents,
grandparents, grandchildren, stepchildren, children whom the deceased had taken into his
family as his own, brothers and sisters and half brothers and half-sisters. Please note that
the dependants under this category have to prove dependency, they are not entitled to a
share of the Estate automatically.

The third category of dependants is the husband where he deceased was a woman. In the
case of the husband he has to prove dependency.

The definition in Section 29 is dependent on the provisions of Section 26 and the definition
in Section 29 is for the purposes of Section 26. section 26 makes provisions for dependants
who are not adequately provided for by will or intestacy. The law requires that a dependant
who feels inadequately provided for whether under the terms of the will or intestacy may
make an application to court asking the court to make reasonable provisions for him or her
out of the Estate of the deceased.

Section 26 is a fetter to Section 5 of the Act. Section 5 embodies the doctrine of the principle
of testation which gives the testator freedom to will away his estate as he wishes. It makes
reasonable provision for a dependant who has been disinherited or otherwise inadequately
provided for.

DEPENDENCY PROVISIONS

Dependency provisions are also referred to as family provisions. The Key provisions we
should bear in mind are Section 5 and Section 26 of the Act. Section 5 provides for freedom
of testation, freedom of testator to will away his Estate as he wishes without necessarily
providing for dependants.

Section 26 on the other hand empowers the court to interfere with the testator’s exercise of
freedom of testation by making provisions for any dependant who has not been adequately
provided for. Section 26 allows such a dissatisfied dependant to move the court under
Section 26 to challenge the provision.

Section 29 defines dependants and that definition is for the purpose of Section 26 i.e. only
the persons mentioned in Section 29 can challenge a provision under Section 26. the effect
therefore of Section 26 is to fetter the freedom of testation given under Section 5. This point
was made quite clear in the case of In the Matter of Miriam Chepkios Ngetich Eldoret H.C.
P&A 96 In this case the court stated that under Section 26 a Will is not absolute as the court
can intervene and make provision for a dependant left out of the inheritance. Section 26
also applies to Testate Succession and not just to Intestate Succession.

The same point was also discussed in the case of Ndolo v Ndolo C.A. 128 of 1985 where the
deceased had left a written will which provided for only one out of his 3 wives. It was held
with regard to Section 26 that if a man by his will disinherits his wife who was dependent on
him during his lifetime, the Court would interfere with his freedom to dispose off his
property by making proper provisions for his disinherited wives. The court stated that
Section 26 clearly puts limitation on the testamentary freedom given by Section 5.

Please note that Section 26 allows the Court to make adequate provision for the disinherited
person or dependant. It does not deal or provide for equity or equality in distribution i.e.
the dependants should not be complaining that the distribution was unfair or unequal, he or
she should be saying that she has not been provided for at all or that the provision is not
adequate for her needs taking into account the extent of the Estate and the circumstances.

The issue of equity in distribution came up in the case of John Gitata Mwangi & Others v
Jonathan Njuguna Mwangi & Others the circumstances in this case were that the deceased
was a polygamist and in his Will he gave a vast estate of big Estate to his 1st wife and her
children and a considerably smaller share to the children of his 2nd wife. There was
evidence that he was not in very good terms with his 2nd wife and her children. The
Children of the 2nd wife challenged the distribution under Section 26 and the High Court
Found that the distribution was inequitable and being guided by Kikuyu customary Law
proceeded to interfere under Section 26 with the distribution to make a more equal
distribution. On Appeal several issues arose the first one relating to the adequacy and
reasonableness of the provision or distribution as against equal distribution. The Court of
Appeal on this point held that what the court ought to take into account is the adequacy of
the provision or reasonableness thereof as opposed to equality or equity. The court should
consider whether the provision is adequate for that person’s needs, if it is, then the court
does not have to interfere. The Court also considered Section 5 on testamentary freedom
and on that point it held that in making reasonable provision for a dependant, the court
should not remake the Will of the testator. The Court concluded that the children of the 2nd
House were merely saying that the distribution was unequal rather than inadequate and
proceeded to reverse the decision of the High Court.

With respect to Children the Law appears to be fairly clear and children within the meaning
of Section 3(2) and Section 29 are understood to mean any child of the deceased whether by
his lawful wife or not.

It is with respect to definition of wife that the law is not clear and a lot of controversy has
been generated on this point. Who is a wife for purposes of Succession? The problems
arising from definition of wife are traceable to Section 37 of the Marriage Act. “A man who
has contracted a marriage in church has no capacity to contract another during the
subsistence of that marriage.” Marriages contracted under Customary law by persons who
are married under statute have been held to be null and void by the Courts and the wives so
married have been found to be not wives for purposes of Succession. That point has been
addressed by the High Court in the cases of Re Ruenji’s Estate and Re Ogolla’s Estate – the
point that a wife married under Customary Law is not wife. These two cases were decided in
1978 i.e. before the Act came into force.

Please note that the Act was intended to operate alongside the law of Matrimony Bill which
was intended to among other things provide for conversion of statutory monogamous
marriages into polygamous marriages. The failure to pass the Matrimony Bill resulted in
disharmony between the law of Succession Act and the Family Law Statutes and meant that
the women were to be dependent on men for the rest of their lives and when the husbands
died they would not be recognized.

Parliament sought to address this problem through Act No. 10 of 1981 which introduced
Section 3(5) into the Act, which is a later insertion into the Act and provides as follows
“notwithstanding the provisions of any other written law, a woman married under a system
of law which permits polygamy is, where her husband has contracted previous or
subsequent Monogamous marriage to another woman, is nevertheless a wife for the
purposes of the Act and in particular Sections 29 and 40 thereof, and her children are
accordingly children within the meaning of the Act.”

The effect of Section 3(5) is to reverse the purpose of the decisions in Re Ogolla and Re
Ruenji which meant that the wives married subsequently by a person who had previously
contracted a monogamous marriage were wives for the purpose of Succession. Section 3(5)
is not a good provision as it conflicts with provisions of another Statute and creates an
untidy situation in the sense that under the marriage Act the Woman Married under Statute
is the lawful wife and by virtue of Section 37 the others are not wives and here we are saying
that under 2(5) they become wives.

This section was considered in the case of Reuben Nzioka Mutua. In this case the deceased
contracted a statutory marriage under Cap 151 in 1961 and in 1980 during the subsistence of
the Statutory Marriage, he married another wife under Customary Law and there were 3
issues of that marriage. He died testate in 1986 and in his Will he left his entire Estate to his
1st wife and her children with nothing for the Customary Law wife and her children. The
Customary Law wife then made an application under Section 26 of the Act for reasonable
provisions as a dependant together with her children and she was relying on Section
3(5). Three issues were considered by the Court but only two are relevant for our purposes
1. Whether the Customary law wife was a wife for the purpose of the Law of Succession Act
and if not whether a marriage could be presumed from prolonged cohabitation;
2. Whether the children were lawful dependants of the deceased under the Act.

Evidence was led to the effect that the requisites of Kamba Customary rites in marriage had
been performed. Was she a lawful wife for purposes of Succession? She was. She was being
represented by Dr. Situma who argued that for purposes of Section 3(5) she was a
wife. Lady Justice Aluoch had a different view. On the first question she held that the
deceased having contracted a statutory marriage lacked capacity to contract another
marriage under Customary Law and for that reason the Customary Law wife was not a wife
for any purpose including succession. She also concluded that presumption of marriage
could not arise because of lack of capacity on part of the husband. On the second question
that judge found that children were children within the meaning of Section 3(2) of the
Act. The decision was bad law as it was clearly inconsistent with Section 3(5)

The court of Appeal in the case of Irene Njeri Macharia v Margaret Wairimu Jomo and
Another found that the decision of the High Court in the decision of Reuben Mutua was
wrong. The CA stated that Section 3(5) was intended to cater for women who were married
under Customary Law to a man who had previously or subsequently contracted a statutory
marriage. It held that the Customary Law wife in the case of Reuben Mutua was one such
woman as she was married to a man who had previously contracted a statutory marriage
and had married under a system of law which recognized polygamy and therefore the court
should have found that she was a wife within the meaning of Section 3(5). The CA also
decided that the cases of Re Ruenji’s Estate and Re Ogolla’s Estate are no longer good law as
they were decided before Section 3(5) came into force and concluded that the two cases
were otherwise good law at the time they were decided.

Section 3(5) has also been applied in the case of Muigai v Muigai & Another Reported in
1995-1998 Vol. 1 E.A 206. The facts were that the deceased had contracted the first
marriage under Statute but thereafter purported to contract two other marriages under
Customary Law and there were issues from all the 3 marriages. Upon his death the 1st wife
obtained a grant of letters of administration on the basis that she was the lawful wife and
married under statute. The Customary Law wives challenged the grant on the basis that
they were also dependants of the deceased who should be provided for from the Estate. The
1st wife’s contention was that by virtue of Section 37 of the Marriage Act the deceased had
no capacity to marry the customary law wives. The High Court found that the Customary
Law wives were wives for purposes of Succession. The court concluded that in view of
Section 3(5) of the Law of Succession Act Section 37 of the Marriage Act did not bar the
marriage of subsequent wives under customary law. the Customary Law wives were
therefore dependants under Section 29.

ADMINISTRATION OF ESTATES

This entails 3 main things:

1. The collection and preservation of the Estate, bringing the assets together and preserving
them. Collection may involve litigation.
2. Payment of deceased, funeral, testamentary and administration expenses and all the
deceased’s debts and other liabilities.
3. The distribution of the Estate.

These 3 are the stages of administration. The administration of the estate is the
responsibility of the personal representative of the deceased whether the deceased died
testate or intestate. The provisions relating to administration of the Estate are to be found
in Part VIII of the Act i.e. Section 44-95 of the Act. Sections 44 to 46 deal with the
protection of the Estate. Section 45 makes it an offence for any person to deal with an
Estate without legal authorisation i.e. without grant of representation or some legal
authority.

Section 46 vests authority on public officers with regard to Estate of persons who die within
their jurisdiction and by public officers we refer to junior officers at the grassroots like a
police officer, chief or assistant chief. They have power to proceed to the residence of the
deceased, ascertain his free property and preserve or protect it. This provision applies
mainly in cases where the deceased does not appear to have close relatives who can take
care of the Estate or where the relatives have failed to take steps with respect to the
administration of the Estate.

If the deceased person’s last place of residence is within a municipality or the deceased died
outside Kenya, no action should be taken by the public officers with regard to the property
before a report is made to the public trustee.

After securing the property the public officers should report to the public trustee. Sections
47-50 deal with jurisdiction i.e. the jurisdiction of the courts. Section 47 vests the High
Court with jurisdiction over Probate and Administration matters to the High Court. Under
the same provision the Chief Justice is empowered to appoint Resident Magistrates to
represent the High Court in stations where there is no High Court. Where there is a High
Court like in Nairobi, the Magistrates have no jurisdiction over Probate and Administration
matters.
Note however that the jurisdiction of the Resident Magistrate is limited by Sections 48 and
49 of the Act. In the first place the Magistrate cannot entertain applications seeking to
revoke a grant or letters of probate and therefore if one is seeking to revoke a grant that one
would have to make their application at HC.

Secondly Magistrates cannot make orders regarding Estates whose gross value exceeds
Kenya Shillings 100,000/- where it exceeds the petition should be filed at the High Court.

Lastly the Magistrates have no jurisdiction in any place where there is a High Court. There
is a decision that was made by Justice Ang’awa in the Matter of the Estate of Kuria Wairagu
H.C. Cause 705 of 2002. Her Ladyship held that the RM represents the High Court and
therefore the RM exercises the same power and jurisdiction as the High Court and that the
RM’s jurisdiction is not limited to KShs. 100,000/- a decision that is inconsistent with
Sections 48 and 49 of the Act.

Section 50 provides for the right of Appeal from the Resident Magistrates courts to the High
Court and the decision of the High Court on the matter would be final. There is a right of
appeal when the High Court is exercising its original jurisdiction to the Court of Appeal.

Sections 51-52 provide the procedure for applying for a Grant of Representation. Basically
the petition should contain the full particulars of the deceased such as his age, date of birth,
place of birth, date of death, particulars of petitioner, particulars of dependants, particulars
of dependant’s relation with the deceased etc. If the deceased left a written will it should be
annexed to the petition and the details of the executors given in the Application. If it is
alleged that he left an Oral Will, particulars of the witnesses should be given in the
petition. It is an offence under Section 52 for the petitioner to give false information or to
make a false statement in the petition.

Section 53 provides for 2 forms of Grant: A grant of probate and a Grant of Letters of
Administration.

A Grant of Probate issues in respect of the Estate of a Testate where it is proved that the
deceased left a valid will whether oral or written. The Grant of Probate should be in respect
of all the property to which the will provides which means property that is not provided for
in the will is the subject of intestacy. A grant of Probate is made to the executor or executors
named in the Will.

A Grant of Letters of Administration is given in two instances:

1. Where the deceased left a will but there is no proving executor either because the will has
not named an executor or the executor has died or the executor is unwilling to act;
2. Where the deceased died intestate, the Grant should be made in respect of the intestate
estate.

Section 54 allows the court to make a limited grant of representation. It is limited because it
is restricted or limited to either a special purpose, it is not a full grant or it is limited to a
specific property or it is limited in time or duration. There are several types of limited
grants serving several purposes.
Types of Limited Grants:
Grant ad colligenda bona
This is provided for under Rules 36 and 37 of Probate and Administration Rules. It is
granted where the assets of the Estate consist of perishables or assets which need quick
action or attention and one is afraid that applying for a full grant will waste time. The Grant
is intended to give the administrator power only to collect and preserve the Estate pending
the making of a full grant. One normally goes for this grant where the family does not agree
on who is to apply for the Grant. Normally a full Grant is made within 2 months period but
a grant ad colligenda bona can be obtained after two days of petitioning for it.

Grant ad Litem
This is provided under Rules 14 and 15 of the 5th Schedule to the Act and it is granted to
enable someone represent the Estate where the Estate has been sued or where the Estate
intends to sue but a full grant has not been made i.e. where limitation period is running out
and one is afraid they wont get the full grant before it expires one can rush to court and
apply for grant ad litem. It cannot be used to distribute the Estate but one can use it to sue.

Grants limited to Property or for particular purpose

This is granted under Rules 11, 12 and 13 of the 5th Schedule and it may be granted where
the testator appoints executors only of certain assets or assets in a specified area.

Grant de bonis non

This grant is provided for under Rules 20 and 21 of the 5th Schedule and is limited for the
purpose of administering the unadminstered part of the Estate. It is normally granted
where the personal representative has not completed the administration of the Estate either
because the personal representative has died and therefore cannot complete the exercise or
for some reason the representative has ceased acting as such. It is only limited for ensuring
that the Estate is fully administered

Grant limited in time or in duration

There are several of such grants and they are provided for in Rules 1-10 of the 5th Schedule
1. Where the will limits the time within which the executor is to act as a representative of the
deceased for example during the minority of the testator’s children, a grant may be made to
the duration of the minority, ceases to be administrator when children reach majority
2. Where the deceased has made a will but the same is lost, misplaced or unavailable a
limited grant may be given until the original or more authentic copy is found or
availed. Refer to the case of the Estate of Motichand Devji Shah where such a limited grant
was given P&A cause 234 of 1964
3. Where the personal representative is outside the jurisdiction: the Court may grant
representation to another person limited to the duration of the absence of the personal
representative. This is called administration durante absentia which means when the actual
representative returns to the jurisdiction the grant ceases.
4. Administration pendente lite this is granted where there is a dispute as to the validity of
the will or the validity to administer. It is limited to the duration of the pendency of the suit
which means when the dispute is resolved the grant ceases to be of any value. Refer to the
decision of Ang’awa J. in Re Succession Limited Grant 2000 V0l 2 E.A. 495.

WHO IS ENTITLED TO APPLY TO APPLY FOR A GRANT OF LETTERS

This is dealt with under Sections 3, 56 and Section 66 of the Act. With respect to grant of
letters of administration, those entitled to apply include those connected to the intestate by
marriage or consanguinity. As a general rule the order of next of kin in respect of right of
administration is as follows:

1. Husband/Wife
2. Children
3. Grandchildren
4. Great Grandchildren
5. Ascendants i.e. parents of the deceased led by

(a) Father/Mother
(b) Brothers Sisters
(c) Grandparents
(d) All other relatives

If there are no relatives or the relatives cannot agree, then the public trustees.
Creditors of the deceased may also apply.

The practice in Kenya is that where the Petitioner’s right of administration is inferior or
equal to that of other persons, the consent of those others with prior right or equal right
must be obtained. This takes the form of renunciation of the right of probate or right of
administration. If a child for example is applying when mother or father is alive, they must
obtain consent of the other person before they apply.

Grant of administration should not be made to minors, persons of unsound mind or

drunkards neither should they be made to more than four persons in respect of the same
property or the same estate. They should also not be made to a body corporate other than
the public trustee or Trust corporation. Trust Corporation is defined in Section 3 of the Act
to include a Bank, Insurance Company or any other company formed for the purpose of
holding property in trust.

GRANTS OF REPRESENTATIONS

OBJECTIONS

A grant of representation should not be issued until there has been published a notice of the
publication of the Grant inviting objections. It is basically a notice telling the world that a
person has applied for a grant of representation and if one has an objection they can raise
it. It is published in the Kenya Gazette although it may also be published in the daily
press. Any objections should be lodged with the court. upon the lodge of the objection the
court should give notice to the objector to file an answer to the petitioner for grant of
representation and a cross petition. A cross petition is an application by the objector asking
that a Grant be made in their favour.

The objection seeks to stop the grant being made to the person who has petitioned for
it. What the petitioner would be saying is that the person applying for the grant is not
qualified to be issued with the grant. If this happens a cross petition is needed so that if the
petitioner is not the proper person then they can give the grant to the objector. Where an
objection is filed in court but subsequently no answer or cross petition is made within the
prescribed period the court should be at liberty to make a grant in terms of the original
petition.

Where an answer or cross petition is filed, the court should proceed to determine the
dispute i.e. it becomes contentious and at this point the court has got to conduct a full trial
or hearing. Normally petitions for grants of representations are dealt with administratively
in the sense that after filing the petition the same is scrutinised by the P& A registry and a
Grant signed by the judge or magistrate where there are no objections. Where there are
objections the court has to hear the dispute before it can make a grant.

In the case of Swaboa Hadi v Swalleh Hadi H.C. P&A No. 52 of 1992 the Petitioner was the
eldest daughter of the deceased who had died intestate. Her uncle filed an objection saying
that the Petitioner was not competent to manage the Estate. She had just turned 18 before
applying for the Grant and on Grounds of Age the uncle was saying she was not
qualified. The Petitioner argued that the Objector did not have interest in administering the
Estate for the benefit of the minor in beneficiaries of the Estate. Her position was that the
uncle was only interested in plundering the Estate. the court found that none of them was
qualified to administer the Estate and made the grant to the public Trustee.

In Re Estate of Ngetich 2003 KLR 84 it is one of the decision in circulation and (In Matter
of Miriam Chepkois Ngetich) in this case the deceased died testate and the executor applied
for a Grant of Probate. The objector was the customary law wife of the deceased. This was a
woman to woman marriage and the grounds upon which she was objecting to the grant were
that as a wife she was not listed among the dependants in the application. The Court
applied the provisions of Section 26 and make provisions for her out of the Estate.

In Atemo v Imujaro 2003 KLR 435, the Petition was filed by the wife of the deceased person
while the objection was filed by a woman who was claiming to be the 2nd wife of the
deceased person under Teso Customary Law. her objection was that she was not on the list
of the beneficiaries mentioned in the petition together with her children. She was also
stating that her consent as a beneficiary was not obtained by the petitioner before filing for
Grant of Letters. The High Court dismissed her objection on the grounds that the deceased
had not paid dowry for her. The Judge finding that payment of dowry is a crucial element of
Customary Law Marriage. On appeal the CA reversed the decision of the High Court on the
grounds that dowry was paid after the burial of the deceased which was an acceptable
custom among the Teso which meant that she was the lawful wife of the deceased. The
Court then ordered that the Grant of Representation be made to both wives, petitioner and
objector.

In Juma v Chelang’a 2002 1KLR 339 the Petitioner in this case was the wife of the
deceased. The objectors were the mother, brothers and the alleged children of the deceased
born out of wedlock. The objections were founded on the grounds that the petitioner was
not the lawful wife of the deceased and therefore she was not entitled to the Grant. Their
argument was that the petitioner had not been married in total compliance with the
requirements of Islamic law relating to marriage. The objections were dismissed and the
Grant made to the Petitioner. The court found that the petitioner was properly married in
keeping with Islamic Law. and that the objectors were Christians who had no right of
inheritance under Islamic Law.
CONFIRMATION OF GRANT

The personal representatives are obliged by Section 71 of the Act to apply for confirmation
of the Grant after the expiration of 6 months for the confirmation of the Grant. There is
provision also for applying within a shorter time i.e. other than the expiration of 6 months
or as the court may direct. The confirmation entitles the personal representatives to
distribute the capital assets, they enable the personal representative to distribute personal
assets. The confirmation is a confirmation of the capital assets that make up the estate and
which are available for distribution and it is also meant to confirm the beneficiaries of such
assets and to confirm the shares that each of the dependants are entitled to.

Upon the application being made the court may confirm the grant or if not satisfied that the
applicant will properly administer the Estate issue a confirmed grant to another person i.e.
other than the personal representative who has made the application. It may also postpone
the confirmation to allow the applicants to put his affairs in order. Please note that the
confirmation can only be applied for by the person named in the grant. It is only the holder
of the grant who can apply for confirmation of the grant. This point was made in the case of
the Estate of Njoroge and Another 2003 KLR 73 Where the court dismissed an application
for grant on the grounds that the application was made by a person other than the holder of
the grant. That other person was a stranger and had no locus standi to apply for the grant.

In respect of intestacy the grant of letters should not be confirmed until the court is satisfied
about the identities and shares of all persons beneficially entitled. At the time of
confirmation of grant in intestacy the confirmed grant should specify all such persons and
their respective shares. It is the confirmed grant that one presents to the bank to get the
money left to various beneficiaries. We looked at the case of Matter of the Late Wanjihia
Njuguna H.C. Succession Cause No. 5383 of 2002 and in the matter of the Estate of Ela
Warue Nthawa Succession Cause No. 971 of 2001. The court declined to confirm the grant
in both cases mainly because it was not satisfied that the daughters of the deceased had
been given an equal share to that of the male children. In both cases the court postponed
confirmation. By postponement we mean that the parties are given time to go and agree on
an equitable distribution and to go back to court and confirm the distribution.

REVOCATION OF GRANTS

A Grant whether or not confirmed may be revoked or annulled at any time by the Court on
its own motion or on application by an interested party. This is provided for under Section
76 of the Act.

Revocation can be made on any of the following grounds:

1. Where the proceedings to obtain the Grant are defective in substance;

2. where the grant is obtain by reliance on a false statement, non-disclosure or concealment
of important information or matter
3. Where the person to whom the Grant was made has failed to apply for confirmation
within the prescribed period or failed to diligently administer the Estate 6 months or as the
court directed,
2nd ground is the ground most relied upon where people do not disclose. In the case of
Samuel Wafula Wasike v Hudson Simiyu Wafula Civil Appeal No. 161 of 1993. It was
alleged that the Grant was obtained by reliance on a false statement. The Appellant
allegedly deceived the Court that he was a grandson of the deceased. The deceased was not
the grandmother of the Appellant as claimed but was a sister of his grandmother. The court
found that the Appellant had not obtained the consent of the persons who had a prior right
to the grant. The court found that the Grant had been obtained fraudulently and proceeded
to annul it on those grounds.

The case of Julius Wainaina Mwathi v Beth Mbene Mwathi & Another Civil Appeal 123 of
1992. The application for annulment was made under Section 76 of the Act on the Ground
that the basis of the Grant was not genuine. The court found that the will was invalid as it
had been procured by fraud and undue influence. The Court found that the Grant made to
the Petitioner had been obtained irregularly i.e. the proceedings for obtaining the same were
irregular and the same was revoked.

In the matter of the Estate of Robert Napunyi Wangila Succession Cause No. 2203 of 1999
the Grant of Letters issued in this case was revoked on the grounds that the proceedings for
obtaining the same were defective in substance or irregular and secondly on the grounds
that it was obtained by reliance on a false statement. The deceased died testate and a Grant
of Probate had already been issued to the Executors who were in the process of
administering the Estate at the time the Grant in intestacy was made. the court found that
those facts were not disclosed to the Court and that the proceedings were irregular and
revoked the same.

In the matter of the Estate of Benjamin Ngumba Gachanja Succession Cause No. 2172 of
1994 the Letters were made intestate to the petitioner and an application was made for
revocation on the grounds that the deceased had infact died testate and therefore what
should have been granted was a Grant of Probate and not Grant of Letters of
administration. The Court proceeded to revoke the Grant of Letters on the grounds that the
proceedings to obtain them were irregular and defective.

The court faced with an application for revocation of Grant may make such orders as it
deems fit in the given circumstances i.e. rather than revoke the grant the court may make
orders as it thinks fit for example in the case of Kipkurgat Arap Chepsiror & Others v
Kisugut arap Chepsiror Civil Appeal No. 24 of 1999 the Respondents had sought the
revocation of grant of letters of administration on the grounds that it had been obtained by
reliance on a false statement in that their names had not been listed as beneficiaries. The
court declined to grant the prayer for revocation but instead entered the names of the
objectors in the grant as beneficiaries. It ordered that the names of the objectors be entered
in the grant as beneficiaries to avoid squabbling instead of revoking the grant.

POWERS AND DUTIES OF PERSONAL REPRESENTATIVES:

These are dealt with under Section 79 – 95 of the Act. The Executor or Administrator who
has received a grant of representation should represent the deceased for all purposes of the
grant and the property of the deceased should vest in him as the personal
representative. He represents the deceased in the sense that he/she can do anything that
the deceased would have done in the circumstances i.e. sell properties and so on.
The Personal Representative has the following powers:
1. Power to enforce all causes of action which survived the deceased or arise out of his death
on behalf of the Estate i.e. he can sue or be sued on behalf of the Estate. Case Law shows
that no person has a right to enforce any cause of action which survives the deceased or
arises out of his death without a Grant of Representation. There are several cases on this
point. The case of Wambui Otieno v Joash Ougo & Another 1982-1988 vol. 1 KAR
1048. This was a burial dispute mainly but one of the grounds that was argued by the
Appellant was that she was the personal representative of the deceased and therefore the
persona entitled in law to dispose off the remains of her deceased husband. On this ground
the Court of Appeal found that she had no legal basis to claim a right to bury her husband as
a personal representative because she had not obtained a grant of representation. The court
stated that she could only assert her right to do so if she had a right to act on behalf of the
deceased which right could only stem from grant of representation. The Court in this case
relied on Section 80 of the Act which states that the powers of an administrator in intestacy
stem from the Grant of Representation. The court further made the point that the principle
of relation back is of no application under Section 80(2) of the Act. (principle of relation
back the very fact of obtaining the grant validates what was done before the grant was given,
it operates in the sense that when one obtains the grant the very fact of getting the grant
validates all the other actions that were done before the grant was obtained. – principle of
relation back applies in England).

This case was followed in the case of Martin Odera Okumu v Edwin Otieno Ombajo H.C. C C
No.947of 1996 and in the case of Coast Bus Services Limited v Samuel Mbuvi Lai, Civil
Appeal No. 8 of 1996. Martin Odera was a case of burial dispute but Samuel Mbuvi was a
personal injury claim. Troustik Union International v Mrs. Jane Mbeyu and Another Civil
Appeal No. 145 of 1991. In these two cases, the respondents had filed suit claiming
compensation for fatal injuries to their deceased. Both suits were commenced before grant
of letters of administration had been obtained and the issue arising was whether the
Respondent were entitled to recover damages on behalf of the Estate of the deceased person
and the court found that the suits were not competent since they were commenced before
grant of representation was made. the Respondents had no locus to commence the same as
they had no power to enforce the cause of action on behalf of the Estate. Both suits were
brought by personal representatives of the deceased. The court is making it clear that a suit
that is commenced where there is no grant of representation is incompetent.

2. The power to sell or any part of the assets is vested in the Representatives which means
that the only person who can sell the assets of the deceased person is the personal
representative. Any other person selling or disposing such assets would be intermeddling
with the Estate contrary to the provisions of Section 45 of the Act because such a person
would not have permission in law. capital assets cannot be sold before the personal
representative has obtained a confirmed grant.

3. To assent after the confirmation of the Grant to the vesting of property in the
beneficiaries, this means that the personal representative has the power to distribute the
capital assets once grant is confirmed

4. To appropriate after confirmation of the Grant any of the assets of the Estate vested in
them. Appropriation applies mainly in testate succession where the liabilities of the Estate
exceed the assets and it would apply in cases where after paying debts and liabilities the gifts
of the gifts available are not sufficient to the purpose of complying with the wishes of the
deceased person. Where liabilities exceed assets the representative would be forced to sell
some of the gifts to settle the liabilities which means that the beneficiary who is entitled to
the gift sold has to be given an alternative gift and this is what we are calling appropriation.

The duties of the representatives

1. In the first place there is the duty to provide and pay out of the Estate expenses of a
reasonable funeral for the deceased. Funeral expenses are always a cost paid out of the
Estate.

2. Secondly there is a duty to collect all the free property of the deceased including debts
owing to him and money payable to his personal representative by reason of his death such
as insurance policies, gratuity payments and it is in exercise of this duty that the personal
representatives sues debtors.

3. To pay out of the estate all the expenses of obtaining the letters of administration and all
other expenses.

4. The duty to ascertain and pay out of the Estate all the debts and liabilities of the deceased.

5. The duty to apply for confirmation of grant within six months of the date of the grant.

6. The representative must in the application produce and furnish to the court a full and
accurate inventory of assets and liabilities of the deceased.

7. The duty to distribute or retain in trust for the minor beneficiaries all the assets
remaining.

8. The duty to complete the administration of the Estate within six months after the date of
confirmation of the grant.

at October 06, 2019