Law of Succession notes

Law of Succession

• Meaning of succession law
• Difference between testate and testamentary succession
• Use of wills and capacity to make a will
• Instances for grant of probate and letters of administration
• Interstate/Non-testamentary succession
• Issuance of gifts in contemplation of death

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NATURE OF SUCCESSION

 

Succession arises in the event of death. It is necessary to determine who is entitled to the deceased properties .It determines who to be the guardian of the deceased children and who administer the estate of the deceased.

The law of succession act is deals with both testate and intestate succession. This act repeals various acts which were prevailing in Kenya up to 1981. It provides that the succession in  immovable property of the deceased will be regulated by this law irrespective of his domicile at the time of his death. Movable property will be regulated by law of the country of his domicile.

TYPES OF SUCCESSION

There are three types of succession;

1. Testate succession
2. Intestate succession

• Partial testacy

1. Testate succession

This when a person  dies having left a valid will .A will is an instrument in writing containing the directions regarding affairs  after his death. He is said to have died testate. This type of succession is governed by Law of succession Act. (Cap 160)

2. Intestate succession

This is where a person dies without leaving a valid will .he said to have died intestate. Majority of Kenya die this way.

3. Partial testacy

This is a combination of testamentary and intestate succession.  It is a situation where the deceased some of properties are disposed of by a will and others are not.

Definition of terms

1. Will                            

A will is a declaration by a person during his lifetime regarding certain matters which     he desires to take effect after his death.

1. Legacy

Property will be disposed of by a will is called Legacy.

1. Testator/Testatrix

The person makes who the will is called the testator or testatrix if a female.

1. Beneficiary\legatee

The recipient is called the Beneficiary or legatee.

1. Personal representative

A person who takes charge of the deceased property  and fulfill his desires as expected by the will; .he is appointed by the will.

CHARASTERITICS OF A VALID WILL

1. Dispositive nature

A will disposes of testator’s property.

2. Declaration of intention

A will operates as a declaration of intention .It does not prevent the testator to deal with his properties during his life time he may se or do anything he desires. He may give to some one else as a gift. The beneficiary may be disqualified from sharing the property. The will may also be revoked by the make at any time before his death.

3. Formalities

A will must be made in a manner prescribed by law .Law requires  to be attested and in writing. Any additions, alterations need be explained .Additions may be done by an instrument called Codicil. It becomes part of the will

4. Revocability

A will may be revoked by the maker

5. Posthumous effect

A will becomes effective only after the death of the maker

6. Ambulatory nature

A will is capable of dealing with testators property acquired after making of the will as long as it is owned by him.

CAPACITY TO A WILL

Section 5 of Law of Succession Act cap 160 provides the persons who can make a will. These are;

1. A person of sound mind

A person is said to be of sound mind at the time of execution of the will unless he dose not know what he is doing. This state of mind may be affected by illness, drunkenness, old age, blindness and illiteracy. The court must be satisfied that the person was suffering from such a disability had the intention to make the will .Burden of proof lies on person alleges it.

1. Single or married woman

Single or married women can make a will.

NB: A will or any part of will may be void if making of the will was caused by fraud ;coercion; or induced by mistake

FORMALITIES OF MAKING THE WILL

Formalities of making wills are contained in sect 5 of law succession act. These are;

1. Orally
2. In Writing

Orally

An oral will is valid when;

1. Made before two o r more witnesses
2. Testator dies within a period of three months from the date he made the will e.g. a will made by an armed forces officer.

In Writing

A will may be made in writing .it is valid when;

1. Testator has signed or affixed a mark or has been signed by some other person in presence and direction of the testator.
2. The signature must be placed such that it appears that it was intended to give effect to the writing as a will.
3. A codicil or any other document may form part of the will
4. A gift attested in the will is valid if was attested before two independent witnesses
5. An executor can also be a witness
6. Wills executed before commencement of law of succession act is considered as properly executed if was executed according to requirement of the law.

NB: If a testator makes both oral and written will, the written will prevails. If there is conflict between oral and written will, oral will shall not be valid unless it is proved by a competent independent witness.

 

REVOCATION, ALTERATION and revival of the will

A will may be revoked, altered by the maker at any time when he is competent to dispose his property. A will may be revoked by;

1. Another will
2. Burning, tearing, or destroying
3. Some other person at the direction of of the maker
4. Marriage of the maker

NB: a written will cannot be revoked by an oral will

Alteration

No alteration can be made in written will after execution of the will, unless is signed and attested as a written will. A will revoked cannot be revived.

PROVISION FOR DEPENDANTS

Dependants are;

1. The wife, or wives and children whether or not maintained by the deceased immediately before his death
2. The deceased parents step parents grandparents and grand children and other children maintained by the deceased,
3. If the deceased is a woman, her husband if was being maintained by her.
4. NB; the court may make reasonable provision for a dependant from deceased property on application if proved that he was not considered by the will.
5. The court have the powers to order a specific amount be made to a dependant or lump some of money to be paid to him .It can also impose some conditions in this regard.

 

Factors considered before making any provisions.

1. Nature and amount of the deceased property
2. Any past, present or future capital or income from any source of dependant
3. The existing and future means and needs of the dependant
4. Any advanced made by the deceased or gift to the dependant before death
5. Conduct of the dependant in relation to the deceased.
6. General circumstances of case including reasons of not making any provision to the dependants
7. Situation of the deceased and other dependants and beneficiaries under the will.

 

GIFT IN CONTEMPLATION IF DEATH

 

Gift in contemplation of death is valid even if there has been no legal transfer of title. The following conditions must be met;

1. The person making the gift was at the time of making the gift expecting death as result of illness or present imminent danger
2. A person gives movable property which could also be disposed of by a will
3. There is delivery of he intended possession document of title  the property
4. A person gives the in a circumstances as to show that he intends it to be reverted to him should he survive the illness.
5. A person giving the gift dies as a result of any cause having survived tte same illness

NB; the gift can only be made of movable property but not on immovable property

LEGACIES

A Legacy is a gift by will. Where it relates to a movable property is called a bequest, hence to bequeath and where it relates to a immovable property it is called a device hence to devise

TYPES OF LEGACIES

1. Special legacy

Gift of a particular part of testator’s property which identifies by a sufficient description e.g. a LG TV to Kamau

1. General legacy

Gift whether specific or general described in general terms to be provided out of property of the testator.

1. Demonstrative legacy

Gift which is general in nature satisfied out of a specified fund e.g. 20000ksh out of my Barclays bank account.

1. Pecuniary legacy

Is an annuity general or specific out of  testators fund e.g. 50000ksh to my mother

1. Residue legacy

IT consist of surplus or residue after all debts are paid .a beneficiary is entitled to the residue e,g, pay residue to my wife.

1. Conditional legacy

Is gift which is enjoyed subject to some conditions. the beneficiary must meet these conditions

1. Vested legacy

Is one which a legatee is entitled to be paid and has a right to enforce it,

 

Failure of testamentary gift

A testamentary gift may fail due to the following reasons;

1. Disclaimer

A beneficiary may fail or refuse to take the gift bequeathed to him. The law cannot force a man to take an estate against his will. Disclaimer may be made by deed or conduct.

1. Lapse

A legacy may lapse if the legatee does not survive the testator. This is where the legatee died before the testator. This is known as doctrine of lapse

1. Ad emption

This is the property bequeathed has been converted into a legacy different in kind

1. Abatement

This is where all the testators properties are used to pay all the debts thus nothing remains to the beneficiary.

 

INTESTACY SUCCESSION

Sect32_42 of law of succession act relates to rules governing intestacy succession.  Intestacy succession is where a person dies without leaving a will or leaving an invalid will. These rules do not apply in some areas such as agricultural land and livestock, e.g. West Pokot ‘Samburu. The law applicable is the customary law applicable to the deceased community. Other property will be disposed of by intestacy succession.

Rules applicable

1. Where an intestate leaves a a child or children the surviving spouse is entitled to;

• the personal and house effects
• life interest of whole residue of the estate

NB; If surviving spouse is a widow the interest is determined by the re marriage to any person.

 

2. The surviving spouse has the power to appoint of all or any part of capital to dispose of to the children.

Disposition of property

1. The whole residue of the estate devolves upon one surviving child or more than one is divided equally
2. Where the surviving spouse is left with no child he \she is entitled to;

• –personal and household effects
• –the first 12000 out of residue of intestate
• –a life interest in the whole of remainder

1. When an intestate has left a surviving spouse and estate devolves  upon other relatives it will be disposed of in the order of priority;

• -father, if dead.
• -mother, if dead,
• -brother and sisters or any children of brothers and sisters equally
• -half brothers .sisters any surviving child of half brothers and  sisters
• -relatives who are nearest degree of consanguinity up to sixth degree in equal shares.

 

POLYGAMOUS FAMILY

When the intestate was polygamous family his personal households effects and residue estate is divided among the number of houses according to the number of children adding childless wife as one of the children. Grand children are also considered. An application is made to the court for administration of estate to be wound up by the administrators.

 

 REVIEW QUESTIONS

Q1. Explain the types of succession.                                                                          (4 marks)

Q2. Explain the characteristics of a will.                                                                               (8 marks)

Q3. Outline the conditions that must b fulfilled for a gift to take effect as “donatio mortis causa” (10marks)

Q4. Gift disposed of by a will may fail. Discuss                                                                   (10marks)

Q5. Munyiva, a businessman who is contemplating making a will on how to share out his property between his dependants upon his death, calls his wife and elder son and tells them in the presence of a friend that he has decided to share out his property equally amongst his wife and two children. He further informed them that he was going too meet his lawyer and put everything he had said in a written will. Unfortunately .on his way to the lawyer, he had a fatal accident. Stating the legal principles applicable advise them.                                                                                                            (10marks)

Q6.Explain five functions of a personal representative as stipulated in the Succession Act.
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