Law of Succession

Law of succession, also referred to as the law of inheritance i.e. transmission of property rights from the dead to the living. Most of the dependants are family members but this is not an aspect of family law.

It is the branch of law that prescribes the rules which determine what ought to happen to a person’s estate after his or her death. It is also referred to as the law of inheritance i.e. transmission of property rights from the dead to the living.

  • Testate Succession – occurs when a person makes a valid and enforceable will which ensures that upon the death of that person, his/her property passes to a person[s] of his/ her choice.
  • Interstate Succession – It occurs when a person dies without making a will or the will is invalidated.

It is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution.

It may be oral or written.

  • It helps in avoiding conflict between dependants over the estate.
  • The making of a will avoids the rules of intestacy.
  • It enables the testator to maintain control over the property.
  • It entitles the testator to appoint personal representatives of his choice to administer his estate.
  • It enables the testator to make a full disclosure of all property they own or die possessed of.

It enables a parent who has minor children to appoint guardians to take parental responsibility for the children in the event he or she dies while the children are minors.

  • Oral wills
  • Written wills
  • Made in the presence of two competent witnesses
  • The testator dies within three months after the will is made, however, where an oral will was made by a person in active service (defence forces or merchant marines), it can be valid even if it was made more than three months before their death.

• It is signed by testator or the testator affixes his mark to the will or it has been signed by some other person in the presence of and by the direction of the testator.
• It appears that the testator intended by his signature/mark/signature of the person signing on his behalf to give effect to the will
• The signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the time.
• The will is attested to by each witness in the presence of the testator.

All wills are revocable.

A will can be revoked either voluntarily or involuntarily e.g. through the marriage of the testator, unless the will was made in contemplation of marriage with a specified person.

A will can be revived through the re-execution of the will with the proper formalities or through a duly executed codicil.

Yes, a will can be altered but the effects of the changes depend on whether they were made before or after the execution of the will.

• Nomination – it is a direction made by a person(nominator)to another who is holding investment on their behalf to pay the funds on the nominators behalf to a third party(nominee).
A nominator’s estate does not form part of a will.
• Donatio mortis causa – it is a gift made by a person during their lifetime that is conditional upon their death.
It does not form part of the deceased estate; however, if the estate proves insufficient to the deceased debts the subject matter of a donation mortis causa may be used.
• Survivorship-it applies when property is jointly owned.
Jointly owned property whether real or personal cannot be passed through a will, interests automatically pass to the surviving tenant.

• Gift was made in contemplation of death.
• There is delivery of the gift to the intended beneficiary
• The maker of the gift dies from any other cause of death apart from the contemplated cause of death
• The intended beneficiary survives the person making the gift.

Any immovable or movable property disposed of under a will.

• Residuary Gifts-is a gift of a testators residuary estate. The residuary estate is all that is left in the testator’s estate after all valid gifts have been paid.
• Demonstrative Gifts-It is a gifts expressed as payable out of a particular fund or property
• Pecuniary Legacies-This is a gift of money, whether general or demonstrative.
• General Gifts-a gift that is not in any way distinguished from property of the same kind.
• Specific Gifts-is a gift forming part of the testator’s estate that is distinguished in the will from other property.

• Court
• Alternative dispute resolution mechanisms

It refers to the extent of a court’s official power to make legal decisions and judgments

• High Court- It has Jurisdiction to entertain and determine any dispute under the law of succession
• Magistrate Courts-It has the authority to entertain and determine any dispute under the Law of Succession act. This authority is only limited by the maximum value of the property/subject matter of the case that each level of magistrate is authorized to entertain and determine under the Magistrates Courts Act.
• Kadhis’ Court- the Law of Succession act gives authority to Kadhis’ Courts regarding administration of the estate of a deceased Muslim, and at the same time brings matters of administration of a deceased Muslim’s estate under the Act.

• Petition- A written application or prayer to the court to exercise its authority in the redress of some wrong, or to grant some favour, or privilege, or license.
• Caveat-It is a formal notice or warning given by an interested party to a court, judge, or ministerial officer in opposition to certain acts within his /her power and jurisdiction.
• Originating summons- One of the two modes in commencing a civil matter when: it is required by a statute; or a dispute, which is concerned with matters of law, and is unlikely to be any substantial dispute of fact.

A person named in the will of a deceased person as the one to distribute a deceased person’s property and to arrange for the payment of debts and expenses.

They are usually expressly appointed by a will.

• Spouses
• Advocate
• Public Trustee
• Banks

• Completion of administration of the deceased estate within the shortest time possible.
• Protection of their interests by the personal representative through proper administration of the estate.
• Receive interests and profits accrued from the estate until the completion of estate distribution

No, a divorced spouse cannot inherit property but a judicially separated spouse can.

Yes, the constitution protects the right of both men and women to acquire and own property of any description anywhere in the country.

Yes, a person living with a disability has the right to own and inherit property; this right is protected under the Convention on the rights of persons with disability.

The spouse is entitled to the;
Personal and Household effects of the deceased and Life interest in the whole residue of the net interstate estate.

Each house is entitled to his personal belongings and a portion if the net interstate estate depending on the number of children each house has.

The net interstate estate goes to the surviving child/children in equal shares as long a s the property of the minor child is held in trust.

A child is a person below the age of 18 years.

• Right to be provided for by both parents
• Best interests of a child
• Non-discrimination – Law of Succession makes no distinct between male and female children and does not discriminate in matters of inheritance.
• Adequate standard of living
• Trusteeship where beneficiary is a minor
• Right to apply for inclusion or adequate provision .Children have the right to contest their parent’s will if they have valid legal grounds.

Yes, if their child dies interstate and without a spouse or children his/her parents will inherit their property.

Yes, an illegitimate child can inherit property as he/she has the same inheritance rights as that of a legitimate child.

No, an adopted child cannot claim the property of their biological parents. He/she only claims the property of their adoptive parents.

• International Laws
• Constitution of Kenya
• Law of Succession Act
• Matrimonial Property Act
• Marriage Act
• Children’s Act
• Industrial Property Act

• Movable property
• Immoveable property
• Intellectual property eg Patents can be assigned or transferred

Probate is the process of proving a will, and it is the first step in the administration of the estate of the deceased. A successful probate will result in the grant of probate

It is a legal document that authorizes an executor (or executors) to manage the estate of a deceased person in accordance with the provisions of the deceased’s will.

Any person appointed under a will as an executor.

A beneficiary can apply for letters of administration with the will annexed.

A person or entity appointed by the court to collect, preserve and distribute the estate of the deceased.

Yes, it is governed by rules of succession enshrined in their Islamic religion eg only a third of a deceased persons will can be disposed of by a will, the remaining two thirds are distributed under the rules of intestacy which are laid out in the Quran.