LAW OF SUCCESSION ACT, PART 3

PART III – PROVISIONS FOR DEPENDANTS

  1. Provisions for dependants not adequately provided for by will or on intestacy

Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.

[Act No. 8 of 1976, s. 5.]

  1. Discretion of court in making order

In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.

  1. Circumstances to be taken into account by court in making order

In considering whether any order should be made under this Part, and if so what order, the court shall have regard to—

  • the nature and amount of the deceased’s property;
  • any past, present or future capital or income from any source of the defendant;
  • the existing and future means and needs of the dependant;
  • whether the deceased had made any advancement or other gift to the dependant during his lifetime;
  • the conduct of the dependant in relation to the deceased;
  • the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;
  • the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.

[L.N. 256/1976.]

  1. Meaning of dependant

For the purposes of this Part, “dependant” means—

  • the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
  • such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
  • where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
  1. Limitation of time

No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.

PART IV – GIFTS IN CONTEMPLATION OF DEATH

  1. Characteristics

A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if—

  • the person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger; and
  • a person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will; and
  • there is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title thereto; and
  • a person makes a gift in such circumstances as to show that he intended it to revert to him should he survive that illness or danger; and
  • the person making that gift dies from any cause without having survived that same illness or danger; and
  • the intended beneficiary survives the person who made the gift to him: Provided that—
  • no gift made in contemplation of death shall be valid if the death is caused by suicide;
  • the person making the gift may, at any time before his death, lawfully request its return.

PART V – INTESTACY

  1. Excluded property

The provisions of this Part shall not apply to—

  • agricultural land and crops thereon; or
  • livestock,

in various Districts set out in the Schedule:

  1. Law applicable to excluded property

The law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased’s community or tribe, as the case may be.

[Act No. 8 of 1976, s. 6.]

  1. Meaning of intestacy

A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.

  1. Where intestate has left one surviving spouse and child or children
  • Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—
  • the personal and household effects of the deceased absolutely; and
  • a life interest in the whole residue of the net intestate estate:

Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.

  • A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.
  • Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made.
  • Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so, what order, shall have regard to—
  • the nature and amount of the deceased’s property;
  • any past, present or future capital or income from any source of the applicant and of the surviving spouse;
  • the existing and future means and needs of the applicant and the surviving spouse;
  • whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;
  • the conduct of the applicant in relation to the deceased and to the surviving spouse;
  • the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and
  • the general circumstances of the case including the surviving spouse’s reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.
  • Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.

[Act No. 8 of 1976, s. 7, Act No. 16 of 1977, Sch.]

  1. Where intestate has left one surviving spouse but no child or children
  • Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to—
  • the personal and household effects of the deceased absolutely; and
  • the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and
  • a life interest in the whole of the remainder:

Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person.

  • The Minister may, by order in the Gazette, vary the amount specified in paragraph (b) of subsection (1).
  • Upon the determination of a life interest created under subsection (1), the property subject to that interest shall devolve in the order of priority set out in section 39.

[Act No. 8 of 1976, s. 8.]

  1. Powers of spouse during life interest

A surviving spouse entitled to a life interest under the provisions of section 35 or 36 of this Act, with the consent of all co-trustees and all children of full age, or with the consent of the court shall, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance:

Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court.

[Act No. 8 of 1976, s. 9.]

  1. Where intestate has left a surviving child or children but no spouse

Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.

  1. Where intestate has left no surviving spouse or children

(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority

  • father; or if dead
  • mother; or if dead
  • brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
  • half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
  • the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
  • Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.
  1. Where intestate was polygamous
  • Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
  • The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.
  1. Property devolving upon child to be held in trust

Where reference is made in this Act to the “net intestate estate”, or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.

  1. Previous benefits to be brought into account

Where—

  • an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
  • property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act,

that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

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