W OF SUCCESSION

Introduction

The law of succession on death is the branch of the Kenya law which governs the
"transmission" of property vested in a person at the moment of his death to some other
person or persons. The transmission occurs in two stages, namely:

(i) A passing by operation of law to one or more representatives of the deceased person
for the purposes of administration, and

(ii) A transference, usually by the act of the representatives, to the persons entitled to the
beneficial enjoyment of the "net estate" (i.e. the property left after funeral expenses,
taxes and debts have been paid).

The transmission to a personal representative is advantageous because:

(a) It enables the property left by the deceased to be preserved and protected
pending its distribution.

(b) It affords an orderly and equitable machinery for the proper adjustment of the
rights and duties of the deceased's creditors and debtors.

(c) It provides machinery for the property distribution of the balance among
those beneficially entitled thereto.

Testamentary and intestate succession

The law of succession falls into two branches, namely:

(i) The law of testamentary succession. This regulates the devolution and distribution of
the property of a person who dies testate (i.e. after having made a will disposing of it).

(ii) The law of intestate succession. This regulates the devolution and distribution of the
undisposed-of property of a deceased person.
Wills

A 'will' is defined by S.2 of the Law of Succession Act as "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 (of the Act), and includes a
codicil".
 Codicil

A codicil is defined by the said section as "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".

A will is a means of disposing of property taking effect at the disponor's death on the
property then his or which falls into his estate after his death, but meantime having no legal
effect and remaining secret and revocable. It is not effective until the testator's death; until
then it is liable at any time to be wholly revoked, it is a mere expression of intention at the
time that it is made. It is said to be ambulatory.

8.2.4 Capacity to make a will

S.5(1) provides that "any person who is of sound mind and not a minor may dispose of all or
any of his free property by will, and may thereby make any disposition by reference to any
secular or religious law that he chooses".

A "minor" is defined as "any person who is not of full age" (i.e. 18 years).

8.2.5 Formalities

S.8 provides that a will may be made either orally or in writing.

(i) Oral will

No oral will shall be valid unless:

(a) it is made before two or more competent witnesses, and

(b) the testator dies within a period of three months from the date of the making of
the will.

However, an oral will made by a member of the armed forces or merchant marine
during a period of active service shall be valid if the testator dies during the same
period of active service, notwithstanding the fact that he died more than three
months after the date of the making of the will.

If there is any conflict in evidence of witnesses as to what was said by the deceased in
making an oral will, the oral will shall not be valid except so far as its contents are
 proved by a competent independent witness. (S.10). No oral will shall be valid if it is
contrary to any written will which the testator has made, and which has not been
validly revoked (S.9(2)).

(ii) Written will

S.11 provides that no written will shall be valid unless:

(a) the testator has signed or affixed his mark to the will, or it has been signed by
some other person in the presence and by the direction of the testator;

(b) the signature or mark of the testator, or the signature of the person signing for
him, is so placed that it shall appear that it was intended thereby to give
effect to the writing as a will;

(c) the will is attested by two or more competent witnesses, each of whom must
have seen the testator sign or affix his mark to the will, or have seen some other
person sign the will, in the presence and by the direction of the testator, or have
received from the testator a personal acknowledgement of his signature or mark,
or of the signature of that other person.

Each of the witnesses must sign the will in the presence of the testator, but it
shall not be necessary that more than one witness be present at the same time. No
particular form of attestation shall be necessary.

S.13(1) provides that a will shall not be considered as insufficiently attested by

reason of any benefit thereby given, either by way of bequest or by way of
appointment to any person attesting it, or to his or her spouse.

8.2.6 Bequest to witness

S.13(2) provides that a bequest to an attesting witness or his or her spouse shall be void
unless the will is also attested by at least two additional competent and independent
witnesses. S.2 defines an "independent witness" as " a witness who is not a beneficiary under
a will or the spouse of any such beneficiary".

8.2.7 Revocation

S.17 provides that a will may be revoked or altered by the maker of it at any time when he is
competent to dispose of his free property by will. A will or codicil may be revoked by -
 (a) Another will or codicil declaring an intention to revoke it.
(b) The burning, tearing or otherwise destroying of the will with the intention of revoking
it by the testator, or by some other person at his discretion (S.18(1)). However, a
written will shall not be revoked by an oral will. (S.18(2)).

(c) The marriage of the maker, unless the will was expressed to be made in
contemplation of marriage with a specified person and the marriage was with the
specified person. (S.19).

8.2.8 Alteration

No alteration made in a written will after the execution thereof shall have any effect unless
the alteration is signed and attested as a written will is required to be (Under S.11)

8.2.9 Provision for dependants

When a person dies, 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.(S.26).

Such provision may be:

(a) a specific share of the deceased's net estate;

(b) any past, present or future capital or income from any source of the dependant;
(c) a lump sum, subject to such conditions as the court thinks fit (S.27).

Before making the order the court shall have regard to:

(a) the nature and amount of the deceased property,

(b) any past, present or future capital or income from any source of the dependant;
(c) the existing and future means and needs of the dependant;
(d) whether the deceased had made any advance or other gift to the dependant during his
lifetime;
(e) the conduct of the dependant in relation to the deceased;
(f) the situation and circumstances of the deceased's other dependants and the
beneficiaries under his will;
(g) the general circumstances of the case, including, so far as can be ascertained, the
testator's reasons for not making provision for the dependant. (S.28)
 "Dependant" is defined by S.29 as—

(a) 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;

(b) 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

(c) where the deceased was a woman, her husband if he was being maintained by her
immediately prior to the date of her death.

8.2.10 Personal representative

S.2 defines a "personal representative" as "the executor or administrator of a deceased

person".

(a) An "executor" means "a person to whom the execution of the last will of a deceased
person is, by the testator's appointment, confided". (S.2)

(b) An "administrator" means "a person to whom a grant of letters of administration has
been made".