PART VI – SURVIVORSHIP
- Presumption of survivorship
Where two more persons have died in circumstances rendering it uncertain which of them survived the other or others, the deaths shall, for all purposes of this Act, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder:
Provided that, in the case of spouses who died in those circumstances, the spouses shall be presumed to have died simultaneously.
PART VII – ADMINISTRATION OF ESTATES
- Application of Part
- The provisions of this Part shall not, in cases of intestacy, apply to those types of property mentioned in section 32.
- The Minister may, after consultation with the Chief Justice, by order in the Gazette, suspend in any area referred to in the order all or any of sections 45, 46, 48 and 49.
- Where the operation of sections 48 and 49 is suspended in any area, the High Court may make a grant of representation in respect of the estate of a deceased person whose last known place of residence was in that area, whether the value of the estate exceeds or does not exceed one hundred thousand shillings.
- In this section “area” means a province, district or other part of Kenya.
[Act No. 7 of 1975, Sch.]
- No intermeddling with property of deceased person
- Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
- Any person who contravenes the provisions of this section shall—
- be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
- be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
- Duties of officers in relation to protection, etc., of deceased’s property
- Whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the death to the sub-chief of the sub-location or to the chief or administrative officer of the area where the deceased had his last known place of residence.
- Any person to whom a report is made under subsection (1) shall—
- at the request of any person who appears to have a legitimate interest in the estate of the deceased; or
- if no application for representation in respect of the estate has been made within one month after the date of the death of the deceased,
forthwith proceed to the last known place of residence of the deceased, and take all necessary steps for the protection of his free property found there, for ascertainment of his other free properties (if any), for ascertainment of all persons appearing to have any legitimate interest in succession to or administration of his estate, and for the guidance of prospective executors or administrators as to formalities and duties:
Provided that if the last known place of residence of the deceased is situated in a municipality, or when the deceased dies outside Kenya wherever his property is situated, the person to whom a report is made under subsection (1) shall not take the action which he is required to take under this subsection unless and until he has first reported the death to the Public Trustee, who may if he so wishes himself take the action instead of that person.
- If any person to whom a report is made under subsection (1) finds that there is any free property of the deceased, or that the person appearing to have the greatest legitimate interest in succession to or administration of his estate are resident in any other sub-location or area, he shall forthwith report those facts to the sub-chief, chief or administrative officer of that other sub-location or area, who shall thereupon take, in respect of the property or persons, the steps prescribed by subsection (2).
- An assistant chief, chief or administrative officer becoming aware that there is in his sub-location or area any free property of a deceased person, or that there are resident in his sub-location or area any persons appearing to have the greatest legitimate interest in succession to or administration of the estate of a deceased person, but that no grant of representation in respect of that estate has yet been made, shall, at the request of any person who appears to have any legitimate interest in that estate, and without waiting for a report under this section, forthwith take, in respect of the property or persons, all such steps prescribed by subsection (2).
- A person who is required to take the steps referred to in subsection (2)—
- shall forthwith report to the Public Trustee the death of the person concerned; and
- notify the Public Trustee of the steps taken by him pursuant to that subsection.
[Act No. 8 of 1976, s. 10.]
- Jurisdiction of High Court
The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:
Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.
[Act No. 16 of 1977, Sch.]
- Jurisdiction of magistrates
(1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 of this Act, a Resident Magistrate shall have jurisdiction to entertain any application other than an application under section 76 of this Act and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings:
Provided that for the purpose of this section in any place where both the High Court and a Resident Magistrate’s Court are available, the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under this Act.
(2) For the avoidance of doubt it is hereby declared that the Kadhi’s courts shall continue to have and exercise jurisdiction in relation to the estate of a deceased Muslim for the determination of questions relating to inheritance in accordance with Muslim law and of any other question arising under this Act in relation to such estates.
[Act No. 16 of 1977, Sch., Act No. 21 of 1990, Sch.]
- Territorial jurisdiction of magistrates
The Resident Magistrate within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed one hundred thousand shillings, have in respect of that estate the jurisdiction conferred by section 48:
- the magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other resident magistrate where it appears that the greater part of the estate is situated within the area of that other magistrate or that there is other good reason for the transfer;
- if the deceased had his last known place of residence outside Kenya, the High Court shall determine which magistrate shall have jurisdiction under this section;
- every Resident Magistrate shall have jurisdiction, in cases of apparent urgency, to make a temporary grant of representation limited to collection of assets situated within his area and payments of debts, regardless of the last known place of residence of the deceased.
[Act No. 8 of 1976, s. 10C.]
- Appeals to High Court
- An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.
- An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi’s Court in respect of the estate of a deceased Muslim and, with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.
[Act No. 8 of 1976, s. 10D, Act No. 13 of 1978, Sch., Act No. 21 of 1990, Sch.]
50A. Power to make rules
The Chief Justice may in consultation with the Chief Kadhi, make rules of court for the better carrying into effect in relation to the estates deceased
Muslims of the provisions of sections 47, 48, 49 and 50 and, in particular regulating the exercise of the jurisdiction conferred by this Act.
[Act No. 21 of 1990, Sch.]
Application for Grant
- Application for grant
- Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
- Every application shall include information as to—
- the full names of the deceased;
- the date and place of his death;
- his last known place of residence;
- the relationship (if any) of the applicant to the deceased;
- whether or not the deceased left a valid will;
- the present addresses of any executors appointed by any such valid will;
- in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
- a full inventory of all the assets and liabilities of the deceased; and
- such other matters as may be prescribed.
- Where it is alleged in an application that the deceased left a valid will—
- if it was written, the original will shall be annexed to the application, or if it is alleged to have been lost, or destroyed otherwise than by way of revocation, or if for any other reason the original cannot be produced, then either—
- an authenticated copy thereof shall be so annexed; or
- the names and addresses of all persons alleged to be able to prove its contents shall be stated in the application;
- if it was oral, the names and addresses of all alleged witnesses shall be stated in the application.
- No omission of any information from an application shall affect the power of the court to entertain the application.
- Wilful and reckless statements in application for grant
Any person who, in an application for representation, wilfully or recklessly makes a statement which is false in any material particular shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment.
Forms and Grants
- Forms of grant
A court may—
- where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect of all property to which such will applies, either—
- probate of the will to one or more of the executors named therein; or
- if there is no proving executor, letters of administration with the will annexed; and
- if and so far as there may be intestacy, grant letters of administration in respect of the intestate estate.
[Act No. 21 of 1990, Sch.]
- Limited grants
A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.
- No distribution of capital before confirmation of grant
- No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been confirmed as provided in section 71.
- The restriction on distribution under subsection (1) does not apply to the distribution or application before the grant of representation is confirmed of any income arising from the estate and received after the date of death whether the income arises in respect of a period wholly or partly before or after the date of death.
[Act No. 8 of 1976, s. 11, Act No. 18 of 1986.]
Persons Entitled to a Grant
- No grant to certain persons
- No grant of representation shall be made—
- to any person who is a minor, or of unsound mind, or bankrupt; or
- to more than four persons in respect of the same property.
- No grant of letters of administration, with or without the will annexed, shall be made to a body corporate other than the Public Trustee or a trust corporation.
- Grant to body corporate
No grant of representation shall be made to a syndic or nominee on behalf of a body corporate:
Provided that, where a body corporate applies for a grant of probate or (in the case of a trust corporation) letters of administration, the application may be signed, and any necessary affidavits may be sworn, by an officer authorized in that behalf by the body corporate or the directors or governing body thereof.
- Number of administrators where there is a continuing trust
- Where a continuing trust arises—
- no grant of letters of administration in respect of an intestate estate shall be made to one person alone except where that person is the Public Trustee or a Trust Corporation;
- no grant of letters of administration with the will annexed shall be made to one person alone except where—
- that person is the Public Trustee or a Trust Corporation, or
- in the will the testator has appointed one or more trustees for the continuing trust who are willing and able to act.
- Where an application for a grant of letters of administration in respect of an intestate estate is made by one person alone an a continuing trust arises the court shall, subject to section 66, appoint as administrators the applicant and not less then one or more than three persons as proposed by the applicant which failing as chosen by the court of its own motion.
[Act No. 8 of 1976, s. 12, Act No. 18 of 1986, Sch.]
- Renunciation of executorship
Any person who has been appointed by a will as an executor thereof may, either by oral declaration before the court or by writing under his hand, renounce executorship, and shall thereafter be finally precluded from applying for grant of probate of that will.
- Probate where there are several executors
When several executors are appointed, probate may be granted to them all simultaneously, or at different times.
- Discovery of codicil after grant of probate
- If a codicil is discovered after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way repeals the appointment of executors made by the will.
- If different executors are appointed by the codicil, the probate of the will shall be revoked, and a new probate granted of the will and the codicil together.
- No grant of administration until citation issued to executor
When a person who has been appointed by a will is an executor thereof has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to renounce his executorship or apply for a grant of probate of the will:
- when one or more of several executors have proved a will, the court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved; and
- there may be such limited grants of letters of administration in accordance with the provisions of section 54 of this Act as may, in the opinion of the court, be necessitated by any special circumstances.
- Grant of administration to universal or residuary legatee
When a deceased has made a will, but—
- he has not appointed an executor; or
- the only executors appointed are legally incapable of acting, or have renounced their executorship, or have died before the testator or before receiving a grant of probate of the will, or have failed within the time limited by a citation to apply for probate thereof; or
- all proving executors have died before completing administration of all the property to which the will applies,
a universal or residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.
- Right to administration of representative of deceased residuary legatee
When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative shall have the same right to administration with the will annexed as the residuary legatee.
- Grant of administration where no executor nor residuary legatee nor representative of legatee
When there is no executor, and no residuary legatee or representative of the residuary legatee, or if every such person declines or is incapable of acting, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or the Public Trustee, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the will, and letters of administration may be granted to him or them accordingly.
[Act No. 8 of 1976, s. 13.]
- Preference to be given to certain persons to administer where deceased died intestate
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—
- surviving spouse or spouses, with or without association of other beneficiaries;
- other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
- the Public Trustee; and
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.
[Act No. 8 of 1976, s. 14.]
Procedure on Grants
- Notice of application for grant
- No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.
- A notice under subsection (1) shall be exhibited conspicuously in the courthouse, and also published in such other manner as the court directs.
- Objections to application
- Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow.
- Where notice of objection has been lodged under subsection (1), the court shall give notice to the objector to file an answer to the application and a crossapplication within a specified period.
- Procedure after notice and objections
- Where a notice of objection has been lodged under subsection (1) of section 68, or no answer or no cross-application has been filed as required under subsection (2) of that section, a grant may be made in accordance with the original application.
- Where an answer and a cross-application have been filed under subsection (2) of section 68, the court shall proceed to determine the dispute.
[L.N. 256/1976, Act No. 16 of 1977, Sch.]
- Powers of courts
Whether or not there is a dispute as to the grant, every court shall have power, before making a grant of representation—
- examine any applicant on oath or affirmation; or
- call for further evidence as to the due execution or contents of the will or some other will, the making of an oral will, the rights of dependants and of persons claiming interests on intestacy, or any other matter which appears to require further investigation before a grant is made; or
- issue a special, citation to any person appearing to have reason to object to the application.
Confirmation of Grants
- Confirmation of grants
- After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.
- Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may—
- if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or
- if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 of this Act, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or
- order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or
- postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:
Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed such grant shall specify all such persons and their respective shares.
(2A) Where a continuing trust arises and there is only one surviving administrator, if the court confirms the grant, it shall, subject to section 66, appoint as administrators jointly with the surviving administrator not less than one or more than three persons as proposed by the surviving administrator which failing as chosen by the court of its own motion.
- The court may, on the application of the holder of a grant of representation, direct that such grant be confirmed before the expiration of six months from the date of the grant if it is satisfied—
- that there is no dependant, as defined by section 29, of the deceased or that the only dependants are of full age and consent to the application;
- that it would be expedient in all circumstances of the case so to direct.
- Notwithstanding the provisions of this section and sections 72 and 73, where an applicant files, at the same time as the petition, summons for the immediate issue of a confirmed grant of representation the court may, if it is satisfied that—
(a) there is no dependant, as defined by section 29, of the deceased other than the petitioner;
- no estate duty is payable in respect of the estate; and
- it is just and equitable in all circumstances of the case, immediately issue a confirmed grant of representation.
[Act No. 19 of 1984, Sch., Act No. 18 of 1986, Sch.]
- Grants not to be confirmed in certain circumstances
No grant of representation shall be confirmed until the court—
- is satisfied that no application under Part III of this Act is pending; and
- has received a certificate from the Estate Duty Commissioner that he is satisfied that all estate duty payable in respect of the estate concerned has been or will be paid, or that no estate duty is payable in respect thereof; or
- is itself satisfied that no estate duty is payable in respect of the estate concerned.
- Duty of court to give notice to holder of grant to apply for confirmation
The court shall within one year from the date of any grant of representation, give notice to the holder of the grant to apply for confirmation thereof.
Alteration and Revocation of Grants
- Errors may be rectified by court
Errors in names and descriptions, or in setting fourth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.
- Procedure where codicil discovered after grant
If, after the grant of letters of administration with the will annexed or after confirmation thereof, a codicil be discovered, it may be added to the grant on due proof and identification, and the grant altered and amended accordingly.
75A. Continuing trust arising
- If, after confirmation of the grant of letters of administration at any time there is a continuing trust and only one surviving administrator, that administrator shall without delay apply to the court to appoint, subject to section 66, as administrators jointly with him not less than one or more than three persons as proposed by him, which failing as chosen by the court of its own motion.
- If a sole surviving administrator fails to apply to the court in accordance with subsection (1) within three months of there being a continuing trust and only one surviving administrator, on the application of any interested party in, or a creditor or debtor of the estate or of its own motion, the court may appoint additional administrators in accordance with subsection (1).
[Act No. 18 of 1986, Sch.]
- Revocation or annulment of grant
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
- that the proceedings to obtain the grant were defective in substance;
- that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
- that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
- that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
- to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
- to proceed diligently with the administration of the estate; or
- to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
- that the grant has become useless and inoperative through subsequent circumstances.
Sealing of Commonwealth and Foreign Grants
- Sealing of Commonwealth and foreign grants
- Where a court or other authority, having jurisdiction in matters of probate or administration in any Commonwealth country or in any other foreign country designated by the Attorney-General by notice in the Gazette, has, either before or after the commencement of this Act, granted probate or letters of administration, or an equivalent thereof in respect of the estate of a deceased person, such grant may, on being produced to, and a copy thereof deposited with the High Court, be sealed with the seal of that court, and thereupon shall be of like force and effect, and have the same operation in Kenya, as if granted and confirmed by that court.
- Before sealing a grant under subsection (1) the High Court—
- shall satisfy itself as to the payment of estate duty as provided by section 72;
- may require such evidence if any as it thinks fit concerning the domicile of the deceased person;
- may, on the application of any creditor of the estate, require that adequate security be given for the payment of debts due from the estate to creditors residing in Kenya.
- Duplicate or copy of foreign grant to have same effect as original
For the purposes of this Act, a duplicate of any grant sealed with the seal of a court or other authority in a Commonwealth or foreign country, or a copy thereof certified as correct by, or duly on behalf of, that court or authority, shall have the same effect as the original.
Powers and Duties of Personal Representatives
- Property of deceased to vest in personal representative
The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.
- When grant takes effect
- A grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such.
- A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.
- Powers and duties of personal representatives to vest in survivor on death of one of them
Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:
Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him.
- Powers of personal representatives
Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—
- to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
- to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:
- any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and
- no immovable property shall be sold before confirmation of the grant;
- to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;
- to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation:
Provided that except so far as otherwise expressly provided by any will—
- no appropriation shall be made so as to affect adversely any specific legacy;
- no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required.
- Duties of personal representatives
Personal representatives shall have the following duties—
- to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him;
- to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;
- to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);
- to ascertain and pay, out of the estate of the deceased, all his debts;
- within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;
- subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;
- within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration;
- to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;
- to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.
[Act No. 18 of 1986, Sch.]
- Personal representatives to act as trustees in certain cases
Where the administration of the estate of a deceased person involves any continuing trusts, whether by way of life interest or for minor beneficiaries or otherwise, the personal representatives shall, unless other trustees have been appointed by a will for the purpose of the trust, be the trustees thereof:
Provided that, where valid polygamous marriages of the deceased person have resulted in the creation of more than one house, the court may at the time of confirmation of the grant, appoint separate trustees of the property passing to each or any of those houses as provided by section 40.
- Assent necessary to complete legatee’s title
- The assent of the executor shall be necessary to complete the title of the legatee to a specific legacy.
- Such assent may be verbal, and either express or implied from the conduct of the executor, and shall be sufficient to divest his interest as executor therein, and (subject to any registration required by any other written law) to transfer the subject of the bequest to the legatee.
- When the executor is a legatee, his assent to his own specific legacy shall be necessary to complete his title thereto as legatee.
- The assent of the executor to a specific legacy shall give effect thereto from the death of the testator.
- Debts to be paid before legacies
Debts of every description enforceable at law and owed by or out of an estate shall be paid before any legacy.
- Personal representatives not bound to pay legacies without indemnity
If an estate is subject to any contingent liabilities, a personal representative shall not be bound to pay any legacy without a sufficient indemnity to meet the liabilities whenever they may become due.
- Abatement and refunding of legacies
Legacies shall abate and be refunded according to the provisions of the Sixth Schedule.
- Insolvent estates
- Where an application for a grant of probate or letters of administration shows by the inventory therein that the estate the subject thereof will, after payment of funeral and other expenses, be insolvent, the court shall of its own motion order the administration of that estate in bankruptcy as provided by section 121 of the Bankruptcy Act (Cap. 53).
- If and so soon as any personal representative knows or has reason to believe that the estate in respect of which probate or letters of administration have been granted to him will prove to be insolvent, he shall forthwith petition for administration thereof in bankruptcy as aforesaid.
- This section shall have effect notwithstanding anything contained in the Bankruptcy Act (Cap. 53).
- Investment of funds to provide for legacies and interest on legacies
Personal representatives shall invest funds to provide for legacies in the manner and according to the provisions set out in the Seventh Schedule to this Act; and legacies shall carry interest in accordance with those provisions.
- Transfer of assets from Kenya to personal representatives in country of domicile for distribution
Where a person not having his domicile in Kenya has died leaving assets both in Kenya and in the country in which he had his domicile at the time of his death, and there has been a grant of representation in Kenya with respect to the assets there, and a grant of representation in the country of domicile with respect to the assets in that country, the personal representatives in Kenya, after having given such notices as are required by paragraph 5 of the Sixth Schedule and after having discharged, at the expiration of the time therein named, such lawful claims as have come to their notice, may, instead of themselves distributing any surplus or residue of the deceased’s property to persons residing out of Kenya who are entitled thereto, transfer, with the consent of the personal representatives in the country of domicile, the surplus or residue to those personal representatives for distribution to those persons.
- Protection of persons acting on representation
- Every person making or permitting to be made any payment or disposition in good faith under a grant of representation shall be indemnified and protected in so doing, notwithstanding any defects or circumstances whatsoever affecting the validity of the grant.
- Where a grant of representation is revoked or varied, payments and dispositions made in good faith to a personal representative under that grant before the revocation or variation thereof shall be a valid discharge to the person making the same, and a personal representative who has acted under the revoked or varied grant may retain and reimburse himself in respect of any other person to whom representation is afterwards granted might have properly made:
Provided that a personal representative who so acted shall account for all payments, dispositions, retentions or reimbursements made by him to the person or person to whom representation is afterwards granted.
- Validity of transfer not affected by revocation of representation
- All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.
- A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for.
- Neglect or misapplication of assets by personal representatives
When a personal representative neglects to get in any asset forming part of the estate in respect of which representation has been granted to him, or misapplies any such asset, or subjects it to loss or damage, he shall, whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.
- Offences by personal representatives
- Any personal representative who, as regards the estate in respect of which representation has been granted to him—
- wilfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or
- wilfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of section 83; or
- wilfully or recklessly produces any such inventory or account which is false in any material particular; or
- knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy,
shall be guilty of an offence, and shall be liable to a fine not exceeding ten thousand shillings, or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment.
- Any personal representative who, as regards the estate in respect of which representation has been granted to him if at any time there is a continuing trust and he is the sole surviving administrator, wilfully fails to apply to the court within three months in accordance with section 75A for the appointment of further administrators shall be guilty of an offence and shall be liable to a fine not exceeding five thousand shillings.
[Act No. 18 of 1986, Sch.]