LAW OF SUCCESSION ACT, PART 1

LAWS OF KENYA

CHAPTER 160

Revised Edition 2012 [2010]

Published by the National Council for Law Reporting
with the Authority of the Attorney-General

CHAPTER 160

LAW OF SUCCESSION ACT

ARRANGEMENT OF SECTIONS
PART I – PRELIMINARY

Section

  1. Short title.
  2. Application of Act.
  3. Law applicable to succession.

PART II – WILLS

Capacity

Persons capable of making wills and freedom of testation. Appointment by will or executor.

Wills caused by fraud, coercion importunity or mistake.

Formalities

Form of wills.

Oral wills.

Proof of oral wills.

Written wills.

Incorporation of papers by reference.

Effect of gift to attesting witness.

Witness not disqualified by being executor.

Existing wills.

Formal validity of other wills.

Revocation, Alteration and Revival

Will may be revoked or altered.

Revocation of will.

Revocation of will by testator’s marriage.

Effect of obliteration, interlineation or alteration in will. Revival of will.

Construction

Construction of wills.

Failure of Dispositions

Failure of testamentary dispositions.

Election

Election.

Perpetuities, Remoteness and Accumulations

Repealed.

PART III – PROVISIONS FOR DEPENDANTS

Section

  1. Provisions for dependants not adequately provided for by will or on intestacy.
  2. Discretion of court in making order.
  3. Circumstances to be taken into account by court in making order.
  4. Meaning of dependant.
  5. Limitation of time.

PART IV – GIFTS IN CONTEMPLATION OF DEATH

PART V – INTESTACY

  1. Excluded property.
  2. Law applicable to excluded property.
  3. Meaning of intestacy.
  4. Where intestate has left one surviving spouse and child or children.
  5. Where intestate has left one surviving spouse but no child or children.
  6. Powers of spouse during life interest.
  7. Where intestate has left a surviving child or children but no spouse.
  8. Where intestate has left no surviving spouse or children.
  9. Where intestate was polygamous.
  10. Property devolving upon child to be held in trust.
  11. Previous benefits to be brought into account.

PART VI – SURVIVORSHIP

  1. Presumption of survivorship.

PART VII – ADMINISTRATION OF ESTATES

  1. Application of Part.

Protection

  1. No intermeddling with property of deceased person.
  2. Duties of officers in relation to protection, etc. of deceased’s property.

Jurisdiction

  1. Jurisdiction of High Court.
  2. Jurisdiction of magistrates.
  3. Territorial jurisdiction of magistrates.
  4. Appeals to High Court.

50A. Power to make rules.

Application for Grant

  1. Application for grant.
  2. Wilful and reckless statements in application for grant.

Forms and Grants

  1. Forms of grant.
  2. Limited grants.
  3. No distribution of capital before confirmation of grant.

Persons Entitled to a Grant

Section

  1. No grant to certain persons.
  2. Grant to body corporate.
  3. Number of administrators where there is a continuing trust.
  4. Renunciation of executorship.
  5. Probate where there are several executors.
  6. Discovery of codicil after grant of probate.
  7. No grant of administration until citation issued to
  8. Grant of administration to universal or residuary
  9. Right to administration of representative of deceased residuary legatee.
  10. Grant of administration where no executor nor residuary legatee nor representative of legatee.
  11. Preference to be given to certain persons to administer where deceased died intestate.

Procedure on Grants

  1. Notice of application for grant.
  2. Objections to application.
  3. Procedure after notice and objections.
  4. Powers of courts.

Confirmation of Grants

  1. Confirmation of grants.
  2. Grants not to be confirmed in certain circumstances.
  3. Duty of court to give notice to holder of grant to apply for confirmation.

Alteration and Revocation of Grants

  1. Errors may be rectified by court.
  2. Procedure where codicil discovered after grant.

75A.       Continuing trust arising.

  1. Revocation or annulment of grant.

Sealing of Commonwealth and Foreign Grants

  1. Sealing of Commonwealth and foreign grants.
  2. Duplicate or copy of foreign grant to have same effect as original.

Powers and Duties of Personal Representatives

  1. Property of deceased to vest in personal representative.
  2. When grant takes effect.
  3. Powers and duties of personal representatives to vest in survivor on death of one of them.
  4. Powers of personal representatives.
  5. Duties of personal representatives.
  6. Personal representatives to act as trustees in certain cases.
  7. Assent necessary to complete legatee’s title.
  8. Debts to be paid before legacies.
  9. Personal representatives not bound to pay legacies without indemnity.

Section

  1. Abatement and refunding of legacies.
  2. Insolvent estates.
  3. Investment of funds to provide for legacies and interest on legacies.
  4. Transfer of assets from Kenya to personal representatives in country of domicile for distribution.
  5. Protection of persons acting on representation.
  6. Validity of transfer not affected by revocation of representation.
  7. Neglect or misapplication of assets by personal representatives.
  8. Offences by personal representatives.

PART VIII – MISCELLANEOUS

  1. Sane murderer not to share in victim’s estate.

SCHEDULES

FIRST SCHEDULE                                    –

CONSTRUCTION OF WILLS SECOND SCHEDULE              –

FAILURE OF TESTAMENTARY DISPOSITIONS THIRD SCHEDULE            –

ELECTION

FOURTH SCHEDULE                               REPEALED

FIFTH SCHEDULE                                    –

FORMS OF LIMITED GRANT SIXTH SCHEDULE  –

ABATEMENT AND REFUNDING OF LEGACIES SEVENTH SCHEDULE      –

INVESTMENT OF FUNDS TO PROVIDE FOR LEGACIES AND INTEREST ON LEGACIES

EIGHTH SCHEDULE                                –

LAWS REPEALED

NINTH SCHEDULE                                   –

LAWS AMENDED

CHAPTER 160
LAW OF SUCCESSION ACT

[Date of assent: 13th November, 1972.] [Date of commencement: 1st July, 1981.]

An Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons; and for purposes connected therewith and incidental thereto

[Act No. 14 of 1972, Act No. 7 of 1975, Act No. 8 of 1976, L.N. 256/1976, Act No. 16 of 1977, Act No. 13 of 1978, Act No. 10 of 1981, L.N. 93/1981, Act No. 6 of 1984; Act No. 19 of 1984, Act No. 18 of 1986, Act 21 of 1990.]

PART I – PRELIMINARY

  1. Short title

This Act may be cited as the Law of Succession Act.

  1. Application of Act
  • Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons.
  • The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.
  • Subject to subsection (4), the provision of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law.
  • Notwithstanding the provisions of subsection (3), the provisions of Part VII relating to the administration of estates shall where they are not inconsistent with those of Muslim law apply in case of every Muslim dying before, on or after the 1st January, 1991.

[Act No. 16 of 1977, Sch., Act No. 13 of 1978, Sch., Act No. 21 of 1990, Sch.]

  1. Interpretation
  • In this Act, except where the context otherwise requires—

“active service” means service with the armed forces or merchant marine on a field of military operations or at sea, or proceeding to or from or such field or sea, or under orders to proceed to such field or sea, or in being in some place for the purpose of proceeding to such field or sea;

“administrator” means a person to whom a grant of letters of administration has been made under this Act;

“agricultural land” means land used for agricultural purposes which is not within a municipality or a township or a market but does not include land registered under the provisions of any written law;

“authorized investment”, with reference to the investment of any fund, means an investment of such type as is authorized for investment of that fund by any will applying thereto, or as is for the time being authorized by any written law for the investment of trust funds;

“charitable purpose” includes the relief of poverty, the advancement of education, the advancement of religion, and any other purpose of a public nature and capable of administration by a court of law which benefits the community at large or the inhabitants or a particular class of inhabitants of a particular locality;

“codicil” means a testamentary instrument made in relation to a will, explaining, altering or adding to its dispositions or appointments, and duly made and executed as required by the provisions of this Act for the making and execution of a will;

“competent witness” means a person of sound mind and full age;

“court” means a court having jurisdiction under this Act in the matter in question;

“demonstrative legacy” means a testamentary gift which is in its nature general but which manifests an intention that the gift shall be primarily satisfied out of a specified fund or a specified part of the property of the testator, but shall, upon failure of that fund or property, be met from the general estate;

“estate” means the free property of a deceased person;

“executor” means a person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided;

“free property”, in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death;

“full age” means having attained the age of eighteen years;

“general legacy” means a testamentary gift, whether specific or general, of property described in general terms to be provided out of the general estate of the testator, whether or not also charged on any specific part of his estate;

“general power of appointment” means an unfettered power of appointment to such object or objects as the appointer may think fit;

“general residuary bequest” means a testamentary gift of all the property of the testator not otherwise disposed of;

“house” means a family unit comprising a wife, whether alive or dead at the date of the death of the husband, and the children of that wife;

“income” includes rents and profits;

“independent witness” means a witness who is not a beneficiary under a will or the spouse of any such beneficiary;

“limited residuary bequest” means a testamentary gift which, but for some specific limitation therein expressed or implied, would constitute a general residuary bequest;

“minor” means any person who is not of full age;

“Muslim” means any person who professes the religion of Islam and accept the unity of God and Mohammed as his prophet;

“Muslim law” means the law applicable to a person who is a Muslim at the time of his death;

“net estate” means the estate of a deceased person after payment of reasonable funeral expenses, debts and liabilities, expenses of obtaining probate or letters of administration, other reasonable expenses of administration and estate duty, if any;

“net intestate estate” means the estate of a deceased person in respect of which he has died intestate after payment of the expenses, debts, liabilities and estate duty set out under the definition of “net estate”, so far as the expenses, debts, liabilities and estate duty are chargeable against that estate;

“particular residual bequest” means a testamentary gift of all of a particular property not otherwise disposed of;

“pecuniary legacy” includes an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the specified fund or property, and any other general direction by the testator for the payment of money, including all death duties free from which any gift is made to take effect;

“personal and household effects” means clothing and articles of personal use and adornment, furniture, appliances, pictures, ornaments, food, drink, utensils and all other articles of household use or decoration normally to be associated with a matrimonial home, but does not include any motor vehicle or any other thing connected with the business or profession of the deceased;

“personal representative” means the executor or administrator, as the case may be, of a deceased person;

“portion” means provision by a parent or person in loco parentis to establish a child in life;

“power of appointment” means power vested in some person to determine the disposition of property of which that person is not the owner;

“probate” means the certificate of a court of competent jurisdiction, that a will, of which a certified copy is attached in the case of a written will, has been proved a valid will, with a grant of representation to the executor in respect of the estate;

“purchaser” means a purchaser for money or money’s worth;

“representation” means the probate of a will or the grant of letters of administration;

“special legacy” means a testamentary gift of a particular part of the property of the testator, which identifies that part by a sufficient description, whether in specific or in general terms, and manifests an intention that that part shall be enjoyed or taken in the state and condition indicated by that description;

“special power of appointment” means power of appointment to such object or objects within a special description or class as the appointer may think fit;

“trust corporation” means an incorporated banking or insurance or guarantee or trust company having a subscribed capital of not less than five hundred thousand shillings, or any body corporate which has a subscribed capital of not less than five hundred thousand shillings and which is for the time being empowered (by or under any written law, its charter, memorandum of association, deed of settlement or other instrument constituting it or defining its powers), to undertake trusts, but for so long a time only as that body corporate shall not, by any prospectus, circular, advertisement or other document issued by it or on its behalf, state or hold out that any liability attaches to the Public Trustee or to the Consolidated Fund in respect of any act or omission of that body corporate when acting as an executor or administrator:

Provided that a body corporate which would be a trust corporation but for the fact that its subscribed capital is less than five hundred thousand shillings may act as executor or administrator in any case with the leave of the court on giving such security as the court may determine, and thereupon for the purpose of so acting as executor or administrator that corporation shall have all the rights and privileges conferred on a trust corporation by this Act;

“wife” includes a wife who is separated from her husband and the terms “husband” and “spouse”, “widow” and “widower” shall have a corresponding meaning;

“will” means the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed according to the provisions of Part II, and includes a codicil.

  • References in this Act to “child” or “children” shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.
  • A child born to a female person out of wedlock, and a child as defined by subsection (2) as the child of a male person, shall have relationship to other persons through her or him as though the child had been born to her or him in wedlock.
  • Where the date of birth of any person is unknown or cannot be ascertained, that person shall be treated as being of full age for the purposes of this Act if he has apparently attained the age of eighteen years, and shall not otherwise be so treated.
  • 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 a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.

[Act No. 8 of 1976, s. 2, Act No. 10 of 1981, Sch., Act No. 21 of 1990, Sch.]

  1. Law applicable to succession
  • Except as otherwise expressly provided in this Act or by any other written law—
  • succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicile of that person at the time of his death;
  • succession to the movable property of a deceased person shall be regulated by the law of the country of the domicile of that person at the time of his death.
  • A person who immediately before his death was ordinarily resident in Kenya shall, in the absence of proof of domicile elsewhere, be presumed to have been domiciled in Kenya at the date of death.

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