FAILURE OF TESTAMENTARY DISPOSITIONS
- Principle of lapse
- Save as is provided in this Schedule no gift or disposition shall confer any benefit on any person who predeceases the testator, and where a gift or disposition fails on this account it is said to “lapse”.
- Subject to the provisions of section 43 of this Act, the burden of proving that a legatee or appointee under a will has survived the testator shall lie upon the person alleging survivorship.
- A statement in a will that there shall be no lapse shall have no effect, except and so far as a further legatee or appointee, capable of taking, is designated.
- Unless a contrary intention appears in the will, there shall be no lapse in either of the following cases—
- where the gift or disposition is made in discharge of a moral obligation recognized by the testator; or
- where the gift or disposition is in favour of any child or other issue of the testator, for any estate or interest not determinable at or before the death of the child or other issue and the child or other issue, as the case may be, leaves issue surviving the testator,
but in either case the gift or disposition shall take effect as if the deceased legatee had died immediately after the testator.
- Where a gift or disposition is in favour of a described class of persons, notwithstanding that one or more of the class is named, and any member of that class survives to take a vested interest, there shall be no lapse but the survivor or survivors shall take the whole:
Provided that, if property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but the vesting of their interest is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise, the property shall at that time go to such of them capable of taking as are then alive and to the personal representatives of any of them otherwise capable of taking who have died since the death of the testator.
- Gift to several named persons
Where there is a gift or disposition to several named persons, who do not constitute a class for the purpose of the will, and one or more of those persons predecease the testator, then—
- if an intention appears from the will that those persons should take as joint tenants, or that only the survivors of them should take, there shall be no lapse, if any of them survives the testator and is capable of taking the whole; but
- if an intention appears from the will that those persons should take as tenants in common, and no intention appears therefrom that only the survivors of them should take, there shall be a lapse in respect of the share or shares of any of those persons predeceasing the testator, subject only to the provisions of paragraph 2.
- Charges of gifts on gifts
Where one gift is charged on the subject of another gift—
- if the encumbered gift lapses, the charge shall continue to have effect notwithstanding the lapse;
- if the encumbering gift lapses, the legatee of the encumbered gift shall take the whole subject thereof free of the charge, unless a contrary intention is expressed or implied in the will.
- Lapse of limited interests
The lapse of a limited interest shall accelerate the interests in remainder expectant on the determination of the limited interest.
- Effect on gifts over
Where a gift or disposition is made to one person with a gift over to another person in such circumstances that the gift over would fail if the original legatee survived the testator, the lapse of the original gift or disposition shall result in the gift over taking effect.
- General effect of lapse
Subject only to the foregoing provisions of this Schedule, if a gift or disposition lapses, the property or interest in the subject thereof shall pass under any residuary bequest which, but for the gift or disposition, would have applied to such property or interest:
Provided that, if there is no such residuary bequest, or if the lapsed gift or disposition is itself a share of such residuary bequest and there is no ulterior residuary bequest under which it can pass, then there shall be intestacy in respect of the property or interest.
- Principle of ademption
- If property which has been specifically bequeathed does not belong to the testator at the time of his death, or has been converted into property of a different kind, the gift cannot take effect, by reason of the subject thereof having been withdrawn from the operation of the will; and where a gift fails on this account, it is said to be “adeemed”.
- There must be a substantial change in the subject of a specific legacy to cause ademption and a merely nominal change shall not have that effect.
- Change of subject without testator’s consent
Where property specifically bequeathed undergoes a change between the date of the will and the testator’s death, and the change is caused by a wrongful conversion, the gift shall not be adeemed, but where the change is caused by the authority of any written law, whether or not approved by the testator, there shall be ademption unless the written law effecting the conversion provides otherwise.
- Gift of interest in fund
The gift of an interest in a fund shall not be adeemed by any sale or change of investment of the fund by the persons having control thereof, nor shall it be adeemed by the testator receiving it before his death, whether or not thereafter sold or re-invested by him, if it can at his death be followed and distinguished.
- Non-ademption of demonstrative legacy
A demonstrative legacy shall not be adeemed by reason that the property on which it is charged by the will does not exist at the time of the death of the testator, or has been converted into property of a different kind, but it shall, in that case, be paid out of the general estate of the testator.
- Revival of will does not revive adeemed legacy
The revival of a will shall not revive an adeemed gift, so as to give the legatee any interest in any property then representing the original subject of the adeemed gift.
- No presumption of intention
Apart from any intention which may be expressed or implied in the terms of the will itself, there shall be no presumption of intention that ademption shall or shall not in any particular circumstances result:
Provided that the intention of the testator, to be ascertained according to the ordinary rules of construction, shall always be relevant to determine the precise subject of the gift.
- Ademption by subsequent provision
Where a testator makes a gift by will to any person for a specific purpose, or to any child or other person to whom he stands in loco parentis by way of portion, and after the date of execution of that will provides by deed of settlement or otherwise for the same purpose or by way of portion for the same child or other person, there shall be a presumption that the gift is adeemed by the subsequent provision, so far as the subsequent provision extends.
- Principle of election
- Where a person, by a will validly made in accordance with Part II of this Act, purports to dispose of any property which is not his own, and bequeaths a gift to the person to whom that property belongs, the legatee accepting the gift so bequeathed to him may elect to give effect to the testator’s attempted disposition or to enforce his proprietary rights against that disposition.
- If a legatee elects under this paragraph to enforce proprietary rights, he shall make compensation, out of the gift bequeathed to him, to the person whom he has thereby disappointed, and the amount of the compensation shall be assessed on the value of the attempted disposition as at the date of the testator’s death, but shall not exceed the value of the gift bequeathed to the person electing to enforce his proprietary rights.
- Where property belongs to more than one person
Where a testator purports to dispose of property which belongs to more than one person, every such person, if also a beneficiary under the will of that testator, shall have the right of election provided by paragraph 1, to the extent of his interest in that property.
- Testator’s ignorance immaterial
It shall be immaterial to any case of election whether the testator, in purporting to dispose of property which is not his own, was aware of his lack of title, or proceeded on the erroneous supposition that he was exercising a power of disposition which belonged to him.
- Legatee’s ignorance material
A person shall not be bound to elect until all circumstances which may influence his election are known to him, and, if a person elects in ignorance of any material facts, he shall not be bound by that election.
- Implied election
Where there is no express election, it may be implied or inferred from acts, or from failure to dissent, but such an inference shall not arise unless the legatee actually knows of his right to elect.
- Postponement in case of disability
In case of any disability of a legatee entitled to elect, the election shall be postponed until the disability ceases, or until the election is made by some competent authority or representative.
- Extrinsic evidence inadmissible to prove intention
In order to raise a case of election the intention of the testator to dispose of the property not belonging to him must be apparent on the face of the will, and extrinsic evidence shall not be admissible.
- Cases to which doctrine does not apply
The principles of election set out in this Schedule shall not apply—
- to creditors; or
- to legatees who hold the property of which the testator has attempted to dispose in some capacity other than that in which the gift is made to them; or
- where the property of which the testator has attempted to dispose does not belong either to the testator or to the legatee, nor to any case where the legatee cannot by his own lawful act give effect to that disposition; or
- where the legatee, although subsequently becoming the owner of the property of which the testator has attempted to dispose, is not the owner of that property at the date of the testator’s death; or
- to persons who, although taking direct gift under the will, derive an indirect benefit therefrom.
- Application to appointments under powers
The principles of election set out in this Schedule shall apply to cases of invalid appointments under powers, but not where—
- the testator clearly shows he is aware that the appointment is of doubtful validity;
- the appointment is made to objects of the power absolutely, with merely a condition or proviso in favour of strangers to the power; or
- the appointment is void for remoteness.
FOURTH SCHEDULE Repealed by Act No. 6 of 1984, Sch.
FORMS OF LIMITED GRANT Grant Limited in Duration
- Probate of copy or draft of lost will
When a will has been lost or mislaid since the testator’s death, or has been destroyed by wrong or accident, and not by any act of the testator, and a copy
or the draft of the will has been preserved, probate may be granted of the copy or draft, limited until the original or a properly authenticated copy of it be produced.
- Probate of copy where original exists
When a will is in the possession of a person residing out of Kenya, who has refused or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that probate should be granted without waiting for the arrival of the original, probate may be granted of the copy so transmitted, limited until the will or an authenticated copy of it be produced.
- Administration until will produced
Where no will of a deceased is forthcoming, but there is reason to believe that there is a will in existence, letters of administration may be granted, limited until the will or an authenticated copy of it be produced.
Grants for the Use and Benefit of Others having Right
- Administration with will annexed to attorney of absent executor
When any executor is absent from Kenya and there is no executor within Kenya willing to act, letters of administration with the will annexed may be granted to the attorney of the absent executor, for the use and benefit of his principal, limited until he shall obtain probate or letters of administration granted to himself.
- Administration with will annexed, to attorney of absent person, who if present would be entitled to administer
When any person to whom, if present, letters of administration, with the will annexed might be granted, is absent from Kenya, letters of administration, with the will annexed, may be granted to his attorney, limited as above-mentioned.
- Administration to attorney of absent person entitled to administer in case of intestacy
When a person entitled to administration in case of intestacy is absent from Kenya, and no person equally entitled is willing to act, letters of administration may be granted to the attorney of the absent person, limited as before mentioned.
- Administration during minority of sole executor or residuary legatee
When a minor is sole executor or sole residuary legatee, letters of administration, with the will annexed, may be granted to the legal guardian of the minor, or to such other person as the court shall think fit until the minor has attained full age, at which period, and not before, probate of the will shall be granted to him.
- Administration during minority of several executors or residuary legatees
When there are two or more minor executors, and no executor who has attained majority, or two or more residuary legatees, and no residuary legatee who has attained majority, the grant shall be limited until one of them has attained full age.
- Administration for use and benefit of person of unsound mind
If a sole executor or a sole universal or residuary legatee or a person who would be solely entitled to the estate of the intestate according to the rules for the distribution of intestates estates, be a person of unsound mind, letters of administration, with or without the will annexed, as the case may be, shall be granted to the person to whom the care of his estate has been committed by competent authority, or, if there be no such person, to such other person as the court may think fit to appoint for the use and benefit of the person of unsound mind until he becomes of sound mind.
- Administration pendente lite
Pending any suit touching the validity of the will of a deceased person, or for obtaining or revoking any probate or any grant of letters of administration, the court may appoint an administrator of the estate of the deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing the estate, and the administrator shall be subject to the immediate control of the court and shall act under its direction.
Grants for Special Purposes
- Probate limited to purpose specified in will
If an executor be appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and, if he should appoint an attorney to take administration on his behalf, the letters of administration, with the will annexed, shall accordingly be limited.
- Administration with will annexed limited to particular purpose
If an executor appointed generally gives an authority to an attorney to prove a will on his behalf, and the authority is limited to a particular purpose, the letters of administration, with the will annexed, shall be limited accordingly.
- Administration limited to property in which person has beneficial interest
Where a person dies, leaving property of which he was the sole or surviving trustee, or in which he had no beneficial interest on his own account, and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to that property, may be granted to the person beneficially interested in the property, or to some other person on his behalf.
- Administration limited to suit
When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.
- Administration limited to purpose of becoming party to suit to be brought against administrator
If, at the expiration of twelve months from the date of any probate or letters of administration, the executor or administrator to whom the grant has been made is absent from Kenya, it shall be lawful for any court to grant to any person whom it may think fit, letters of administration, limited to the purpose of becoming and being made a party to a suit to be brought against the executor or administrator, and carrying the decree which may be made therein into effect.
- Appointment of person not normally entitled to a grant
Where it appears to the court to be necessary or convenient to appoint some person to administer an estate or any part thereof other than the person who would in ordinary circumstances be entitled to a grant of representation, the court may, in its discretion and having regard to all the circumstances of the case, appoint such other person to be administrator and grant letters of administration, whether limited or otherwise, as it shall think fit.
Grants with Exception
- Probate or administration with will annexed subject to exception
Whenever the nature of the case requires that an exception be made, probate of a will, or letters of administration with the will annexed, shall be granted subject to that exception.
- Administration with exception
Whenever the nature of the case requires that an exception be made, letters of administration shall be granted subject to that exception.
Grants of the Rest
- Probate or administration of rest
Whenever a grant, with exception, of probate, or letters of administration, with or without the will annexed, has been made, the person entitled to probate or administration of the remainder of the deceased’s estate may take a grant of probate or letters of administration, as the case may be, of the rest of the deceased’s estate.
Grants of Effects Unadministered
- Grant of effects unadministered
If the executor to whom probate has been granted has died, leaving a part of the testator’s estate unadministered, a new representative may be appointed for the purpose of administering such part of the estate.
- Administration when limited grant expired and still some part of estate unadministered
When a limited grant has expired by effluxion of time, or the happening of the event or contingency on which it was limited, and there is still some part of the deceased’s estate unadministered, letters of administration shall be granted to those persons to whom original grants might have been made.
[Sections 88 and 91.]
ABATEMENT AND REFUNDING OF LEGACIES
- Abatement of general legacies
- If the assets, after payment of debts, necessary expenses, and specific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or be diminished in equal proportion, and the personal representative has no right to pay one legatee in preference to another nor to retain any money on account of legacy to himself or to any person for whom he is a trustee:
Provided that nothing contained herein shall prejudice or affect the priority of the remuneration to which any personal representative may be entitled under the will (including any general legacy which is expressly or impliedly conditional on his proving the will) or otherwise.
- For the purpose of abatement, a legacy for life, a sum appropriated by the will to produce an annuity, and the value of an annuity when no sum has been appropriated to produce it, shall be treated as general legacies.
- Non-abatement of specific legacy when assets sufficient to pay debts
Where there is a specific legacy, and the assets are sufficient for the payment of debts and necessary expenses, the thing specified must be delivered to the legatee without any abatement.
- Right under demonstrative legacy when assets sufficient to pay debts and necessary expenses
Where there is a demonstrative legacy, and the assets are sufficient for the payment of debts and necessary expenses, the legatee shall have a preferential claim for payment of his legacy out of the fund from which the legacy is directed to be paid until such fund is exhausted, and, if, after the fund is exhausted, part of the legacy still remains unpaid, he shall be entitled to rank for the remainder against the general assets as for a legacy of the amount of the unpaid remainder.
- Rateable abatement of specific legacies
If the assets are not sufficient to answer the debts and the specific legacies, and abatement shall be made from the latter rateably in proportion to their respective amounts.
- Distribution after notice
Where personal representatives have given such notice as may be prescribed for creditors and others to send in their claims against the estate of the deceased, the personal representatives shall, at the expiration of the time therein named for sending in claims, be at liberty to distribute the assets of the estate or any part thereof, in discharge of any lawful claims of which they have notice, and shall not be liable for the assets so distributed to any person of whose claim they have not had notice at the time of distribution:
Provided that nothing herein contained shall prejudice the right of any creditor or claimant to follow the assets or any part thereof, in the hands of the persons who may have received them respectively.
- Refund of legacy to personal representatives
Where personal representatives have paid any legacy which, but for the payment, would have been liable to abatement in accordance with the foregoing provisions of this Schedule, they shall be entitled to call upon the legatee to refund the amount by which the legacy should have been abated—
- if the legacy was paid under any order of the court; or
- if and so far as the abatement is rendered necessary by discovery of a debt of which notwithstanding compliance with the provisions of section 90 of this Act, the personal representatives had no notice at the time of voluntary payment of the legacy,
but not otherwise.
- Creditors may call upon legatee to refund
A creditor who has not received payment of his debt may call upon a legatee who has received payment of his legacy to refund the legacy whether the assets of the testator’s estate were or were not sufficient at the time of his death to pay both debts and legacies, and whether the payment of the legacy by the personal representatives was voluntary or not.
- When legatee not satisfied or compelled to refund, he cannot oblige one paid in full to refund
If the assets of a testator’s estate were sufficient to satisfy all the legacies at the time of the testator’s death, a legatee who has not received payment of his legacy, or who has been compelled to refund the legacy in accordance with the provisions of paragraph 7, cannot oblige another legatee who has received payment in full to refund his legacy, whether that legacy was paid to him with or without suit, although the assets have subsequently become deficient by waste on the part of the personal representatives.
- When unsatisfied legatee must first proceed against personal representatives if solvent
If the assets of the testator’s estate were not sufficient to satisfy all the legacies at the time of the testator’s death, a legatee who has not received payment of his legacy shall, before he can call on a satisfied legatee to refund, first proceed against personal representatives, if they or any of them be solvent, but, if no personal representative be solvent or liable to pay, the unsatisfied legatee can oblige each satisfied legatee to refund in proportion:
Provided that the refunding by one legatee to another shall not exceed the sum by which the satisfied legacy ought to have been abated if the estate had been properly administered.
- Refund when legacy has become due on performance of condition within further time allowed
Where the time prescribed by the will for the performance of a condition has elapsed, without the condition having been performed, and the personal representatives have thereupon, without fraud, distributed the assets of the testator’s estate, in such case, if further time has for any reason been allowed by the court for the performance of the condition, and the condition has been performed accordingly, the legacy cannot be claimed from the personal representatives, but those to whom he has paid it shall be liable to refund the amount.
- Refunding to be without interest
In all cases arising under this Schedule, any refunding shall be without interest.
INVESTMENT OF FUNDS TO PROVIDE FOR
LEGACIES AND INTEREST ON LEGACIES
- Investment of sum bequeathed where general legacy given for life
Where a general legacy is given for life, the sum bequeathed shall, at or before the end of a year after the death of the testator be invested in any authorized investment:
Provided that, where an annuity is given and no fund is charged by the will with its payment or appropriated by the will to answer it, a sum sufficient to produce the annuity shall be invested in any authorized investment.
- Investment of general legacy to be paid at future time
- Where a general legacy is given to be paid at a future time, the personal representatives shall invest a sum sufficient to meet it in any authorized investment.
- The intermediate interest from the investment shall, unless expressly or by implication payable to the legatee or another, form part of the residue of the testator’s estate.
- Transfer to residuary legatee subject to contingent gift
Where a gift is contingent, the personal representatives shall not be bound to invest the amount of the legacy, but may transfer the whole residue of the estate to the residuary legatee, if any, on his giving sufficient security for the payment of the legacy if and when it becomes due.
- Investment of residue bequeathed for life without direction to invest in particular securities
Where a testator has given any property to a person for life without any direction to invest it in any particular securities, so much thereof as is not at the time of the testator’s death invested in an authorized investment, shall be converted into money, and invested in such an investment.
- Interest payable pending conversion and investment
Until conversion and investment are completed in accordance with the provisions of this Schedule, or with the terms of the will, as the case may be, the person who would for the time being be entitled to the income of the fund when so invested shall receive interest at the rate of six per centum per annum upon the market value (to be computed as at the date of the testator’s death) of such part of the fund as has not yet been so converted and invested.
- What contingent and future testamentary gifts carry the immediate income
- A contingent or future as well as an immediate specific legacy and a residuary bequest not contingent in its terms of property, whether immovable or movable, shall, subject to the provisions of section 25 of this Act and paragraph 5 of this Schedule, carry the intermediate income of that property from the death of the testator, except so far as the income, or any part thereof, may be otherwise expressly disposed of.
- In the case of any contingent or future gift, either specific or residuary, not falling under the provisions of subparagraph (1), the bequest shall not comprise the intermediate income of the property or fund bequeathed between the death of the testator and the vesting of the bequest.
- Interest on general legacy
Where no time has been fixed for the payment of a general legacy, interest shall begin to run from the expiration of one year form the testator’s death, but where a time has been fixed for payment, interest shall begin to run from the time fixed; and, in either event, the interest up to such period shall form part of the residue of the testator’s estate:
Provided that interest shall run from the death of the testator where—
- the legacy is bequeathed in satisfaction of a debt; or
- the testator was a parent or more remote ancestor of the legatee, or has put himself in the place of a parent of the legatee, and the legatee is a minor, and no specific sum is given by the will for maintenance; or
- the legacy is bequeathed to a minor with a direction to pay for his maintenance thereout.
- No interest on arrears of annuity within first year of testator’s death
No interest shall be payable on the arrears of an annuity within the first year from the death of the testator, although a period earlier than the expiration of that year may have been fixed by the will for making the first payment of the annuity.
- Interest on sum to be invested to produce annuity
Where a sum of money is directed to be invested to produce an annuity, interest shall be payable on that sum from the death of the testator until so invested.