[2013] KEHC 4608 (KLR)
The court held that under Section 35 of the Law of Succession Act, a surviving spouse is only entitled to personal and household effects absolutely and a life interest in the remainder of the estate, not absolute ownership. The ultimate beneficiaries of the remainder are the children of the deceased, and where the...
Source-derived case information.
- Citation
- [2013] KEHC 4608 (KLR)
- Parties
- Applicant: Safia Soy; Applicant: Omar Sheriff; Respondent: Brian Kipwegon Soy; Respondent: Tonny Kiptoo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2284\'B\' of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Confirmation of Grant
- Outcome
- Application for confirmation of grant allowed with modifications.
- Judges
- DN Musyoka
- Legal Topics
- Intestate Succession, Life Interest, Trust for Minors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safia Soy
Applicant
Omar Sheriff
Applicant
Brian Kipwegon Soy
Respondent
Tonny Kiptoo
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Grant
Legal Issues
- 1 Whether the widow is entitled to the entire estate of the deceased absolutely or only to a life interest over the property.
- 2 How the estate of a deceased intestate with a surviving spouse and minor children should be distributed under the Law of Succession Act.
Ratio Decidendi
The court held that under Section 35 of the Law of Succession Act, a surviving spouse is only entitled to personal and household effects absolutely and a life interest in the remainder of the estate, not absolute ownership. The ultimate beneficiaries of the remainder are the children of the deceased, and where the children are minors, the property must be held in trust for them until they reach the age of majority. The proposal to devolve the entire estate absolutely to the widow was therefore untenable. The grant was confirmed on the basis that the estate would devolve upon the children in equal shares, to be held in trust by the widow, who would enjoy a life interest in the property...
Court Disposition
Application for confirmation of grant allowed with modifications.
Orders
- The grant made on 19th March 2012 is confirmed subject to the estate devolving upon the surviving children in equal shares, to be held in trust by Sofia Soy until they attain eighteen years.
- Sofia Soy shall enjoy a life interest over the property subject to Section 35(1) and (5) of the Law of Succession Act.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Succession Cause 2284'B' of 2011 [if gte mso 9]><xml>
14. 00
</xml><![endif]
IN THE MATTER OF THE ESTATE OF GEORGEARAP SOY – (DECEASED)
RULING
The application dated 1st October 2012 has been brought by the administrators of the estate of deceased. It seeks confirmation of the grant made on 19th March 2012 to Safia Soy and Omar Sheriff.
It is premised on Section 71 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules.
The deceased was survived by his widow, Safia Soy and two minors – Brian Kipwegon Soy and Tonny Kiptoo. He left several properties, set out in the affidavit in support of the petition for letters sworn on 20th September 2011by the administrators as well as the affidavit sworn on 1st October 2011 by Sofia Soy in support of the confirmation application. It is proposed that the entire estate devolve absolutely upon the widow, Sofia Soy. This was also the plea of Counsel for the administrators when he argued the application on 22nd January 2012.
The deceased died on 8th September 2009, and therefore distribution of his estate is governed by the Law of Succession Act. As he died interstate, the estate falls for distribution in accordance with Part V of the Law Succession Act. Since the deceased was survived by a spouse and children the relevant provision in Part V is Section 35 of the Law of Succession Act. Section 35 provides as follows:-
‘’ (1) Subject to the provisions of section 40, Where an interstate has left a survivingSpouse and a child or children, the surviving spouse shall be entitled to:-
(a)The personal and household effects of the deceased absolutely; and
(b)A life interest in the whole residue of the net interest estate:
Provided that, if the surviving spouse is a widow that interest shall determine upon re-marriage.
(5)Subject to the provisions of sections 41 and 42 andSubject to any appointment or award made underthis section, the whole residue of the net intestateshall on the death, or, in the case of a widow, re-marriage, devolve upon the surviving child, if therebe only one, or be equally divided among the surviving children”.
By dint of these provisions the surviving spouse is entitled to personal and household effects of the deceased absolutely and to enjoy a life interest on the remainder. The effect of this is that the surviving spouse is not entitled absolutely to the remainder of the estate, as they should only enjoy a life interest over such property. By virtue of Section 35(5) of the Law of Succession Act, the ultimate destination of the remainder of the estate is to the children of the deceased. This is the reason why surviving spouse cannot take the property absolutely. The life interest is held trust by the surviving spouse for the benefit of the children.
Where the children are minors, Section 41 of the Law of Succession Act is relevant. The property shall be held in trust for the minors until they turn eighteen.
Going by the provisions stated above, the proposal to have the assets in this estate devolve upon the widow is untenable. She only enjoys a life interest over the property, which actually devolves upon the children. She can only hold the assets in trust for the children who will ultimately share the same equally.
I will allow the application dated 1st October 2012 and the grant made on the 19th March 2012 is confirmed subject to the following order: The estate of the deceased shall devolve upon the surviving children of the deceased in equal shares, to be held in trust for them by Sofia Soy until the children turn eighteen. Sofia Soy shall be entitled to enjoy life interest over the property subject to Section 35(1) (5) of the Law of Succession Act.
Costs shall be in the cause.
DATED, SIGNED and DELIVERED at NAIROBI this 7TH DAY OF MARCH, 2013.
W.M. MUSYOKA
JUDGE