Law of Succession Act

An oral will is invalid if witness evidence conflicts unless its contents are proved by a competent independent witness.

A written will is one where the testator has signed or affixed his mark to the will, or it has been signed by another person in the presence of and by the direction of the testator.

If a testator refers in a will or codicil to another written document that clearly identifies itself as the document referred to, that document is treated as part of the will or codicil.

A bequest to an attesting witness or to the witness's spouse is void unless the will is also attested by at least two additional competent and independent witnesses, in which case the bequest is valid.

A person is not disqualified from being a witness just because they are an executor of a will.

Wills executed before this Act began are to be treated as properly executed if they met the law's requirements at their date of execution.

Formal validity of other wills.

The maker of a will may revoke or alter the will while competent to dispose of his free property by will.

A will or codicil can only be revoked by another will or codicil declaring an intention to revoke it, by the testator burning, tearing or otherwise destroying it with intent to revoke, or by a person acting at the testator's direction; and a written will is not revoked by an oral will.

A will is revoked when its maker marries, except if the will was made in contemplation of marriage to a specified person, in which case that marriage does not revoke the will.

Alterations to a written will made after execution have no effect unless the alteration is signed and attested as required for a will under section 11, though a will altered with signatures or witness subscription in the margin or referred to in a signed memorandum may be deemed duly executed.

A wholly revoked will can only be revived by re-executing it; a partly revoked will can only be revived by re-execution or by a subsequent will or codicil that shows an intention to revive it.

Construction of wills

Section 23. Failure of testamentary dispositions

Section 24. Election

Section 25 has been repealed.

Persons of sound mind and not minors may dispose of their free property by will; females have equal capacity; makers of wills are presumed of sound mind unless incapacitated; burden of proof that a testator lacked sound mind lies on the person alleging it.

A person may, by will, appoint one or more executors.

Section 7 concerns wills that are caused by fraud, coercion, importunity, or mistake.

A will may be made either orally or in writing.

An oral will is valid only if it is made before two or more competent witnesses and the testator dies within three months of making it.

The court may order reasonable provision from a deceased's net estate for a dependant if, after the Act commenced and where succession is governed by the Act, an application is made and the court considers the will, gifts or intestacy do not make reasonable provision.

The court has complete discretion to decide what provision to make for a dependant, including ordering a share of the estate, periodical payments, a lump sum, and imposing conditions.

The court must take into account the nature and amount of the deceased's property when making an order.

A "dependant" is defined as the deceased's wife or wives, former wife or wives, and the children of the deceased, whether or not they were maintained by the deceased immediately prior to his death.

No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.

A gift-maker must be, at the time, contemplating the possibility of death.

Excluded property: agricultural land and crops thereon

The law applicable to distribution on intestacy of property specified in section 32 is the law or custom of the deceased's community or tribe.

A person is deemed to die intestate in respect of all free property of which they have not made a will capable of taking effect.

If an intestate person leaves a surviving spouse and child or children, the surviving spouse is entitled to the personal and household effects and a life interest in the residue; the surviving spouse has a power to appoint capital to the children by immediate gift (not by will or to take effect in future); children may apply to court if that power is unreasonably exercised or withheld; on the spouse's death or (if a widow) re-marriage the residue devolves to the child or children, subject to sections 41 and 42 and any appointment.

If an intestate dies leaving one surviving spouse and no children, the spouse receives the deceased's personal and household effects absolutely; the first ten thousand shillings of the residue or twenty per cent thereof, whichever is greater; and a life interest in the remainder. The Cabinet Secretary may, by order in the Gazette, vary the amount specified for the monetary share in paragraph (b). On termination of that life interest, the property devolves in the order of priority set out in section 39.

A surviving spouse entitled to a life interest may, with required consents, sell property subject to the life interest if necessary for their maintenance; immovable property sales always need the court's consent.

If someone dies leaving children but no spouse, the deceased's net intestate estate goes to the surviving child if there is only one; otherwise it is equally divided among the surviving children, subject to sections 41 and 42.

If an intestate person left no spouse or children, estate devolves in the order: father; if dead, mother; if none, siblings (and their children) equally; if none, half-siblings (and their children) equally; if none, nearest relatives up to sixth degree equally; if no such relatives, the net intestate estate goes to the State and is paid into the Consolidated Fund.

If a person who died intestate had multiple marriages under a polygamous system, their personal and household effects and the residue of the estate are first divided among the houses by number of children in each house, counting any surviving wife as an additional unit.

Property that devolves upon a child is to be held in trust and, if more than one child, in equal shares for children who attain age eighteen (or females who marry under that age) and for issue of any child who predeceases the intestate and who attain that age or so marry, with issue taking the deceased child’s share by degrees in equal shares.

If an intestate paid, gave or settled property to or for the benefit of a child, grandchild or house during life or by will, those benefits are to be brought into account.

If two or more persons die and it is uncertain who survived whom, their deaths are presumed to have occurred in order of seniority (the younger is deemed to have survived the elder); but if the persons are spouses in those circumstances, they are presumed to have died simultaneously.

Section allows the Cabinet Secretary, after consulting the Chief Justice and by order in the Gazette, to suspend specified sections in an area; when sections 48 and 49 are suspended the High Court may grant representation for deceased persons from that area regardless of whether the estate exceeds one hundred thousand shillings; "area" is defined.

Persons must not take possession of, dispose of, or otherwise intermeddle with any free property of a deceased person except where expressly authorized; doing so is an offence punishable by a fine up to ten thousand shillings or imprisonment up to one year, and the intermeddler is answerable to the rightful executor or administrator for the assets intermeddled.

Local police or administrative officers must promptly report deaths to local sub-chiefs or chiefs; local officers who become aware of free property or interested persons must promptly take prescribed steps and report to the Public Trustee.

The High Court has jurisdiction to hear applications and disputes under this Act and may be represented for this purpose by Resident Magistrates appointed by the Chief Justice.

Magistrates have jurisdiction over estate matters below the pecuniary limit set in section 7 of the Magistrates' Courts Act, subject to section 49; Kadhis' courts retain jurisdiction over Muslim inheritance matters.

The magistrate may transfer administration of an estate to another Magistrate's court.

The Court may order non‑participants to be excluded from hearings about estate administration and may prohibit publication of those proceedings.

An appeal lies to the High Court from orders or decrees made by a Resident Magistrate and from orders or decrees made by a Kadhi's Court in respect of the estate of a deceased Muslim; the decision of the High Court is final, and appeals on points of Muslim law to the Court of Appeal require prior leave.

Power to make rules.

Sets the required contents and formalities for applications for a grant of representation and states that omissions do not prevent the court from entertaining the application.

Section 52. Wilful and reckless statements in application for grant

Grants probate of the will to one or more of the executors named therein.

A court may limit any grant of representation, depending on the circumstances of each case, and in any form described in the Fifth Schedule to this Act.

A grant of representation does not confer power to distribute capital assets or to divide property until the grant has been confirmed as provided by section 71; however, that restriction does not apply to distribution or application of income arising from the estate and received after the date of death.

No grant of probate or letters of administration to persons who are minors, of unsound mind, bankrupt, to more than four persons in respect of the same property, or to a body corporate except the Public Trustee or a trust corporation.

No grant of representation shall be made to a syndic or nominee on behalf of a body corporate; however, where a body corporate applies for probate or (for a trust corporation) letters of administration, an officer authorized by the body corporate or its directors/governing body may sign the application and swear necessary affidavits.

If a continuing trust arises from an intestate estate applied for by one person alone, the court must appoint the applicant plus between one and three additional persons as administrators (subject to section 66).

An appointed executor may renounce executorship by oral declaration before the court or in writing; after renouncing they are finally precluded from applying for probate of that will.

If several executors are appointed, probate may be granted to all of them at once or to some of them at different times.

If a codicil is found after probate, the executor may be granted a separate probate for that codicil provided it does not repeal the appointment of executors in the will.

When one or more of several executors have proved a will, the court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved.

Grant of administration to universal or residuary legatee

If a residuary legatee who survived the testator later dies before the estate is fully administered, that legatee's representative is entitled to administer the estate with the will annexed in the same way as the residuary legatee would have been.

If there is no executor and no residuary legatee or representative (or they decline, are incapable, or cannot be found), persons entitled on intestacy, the Public Trustee, any legatee with a beneficial interest, or a creditor may apply to prove the will and be granted letters of administration.

When a person dies intestate, preference must be given to certain persons to administer the estate.

Before any grant of representation (other than a limited grant for collection and preservation of assets) is made, notice of the application must be published inviting objections for a specified period of not less than thirty days from the date of publication, and that specified period must have expired; such a notice must be exhibited conspicuously in the court-house and published in such other manner as the court directs.

If a notice of objection is lodged, the court must notify the objector to file an answer and a cross-application within a specified period.

If an answer and cross-application are filed under section 68(2), the court must proceed to determine the dispute; if no answer or cross-application is filed as required, a grant may be made according to the original application.

Section title: "Powers of courts".

After six months (or a shorter period the court directs), the holder of a grant must apply to the court for confirmation so the estate's capital assets can be distributed; the court may confirm, issue another confirmed grant, order delivery of assets, or postpone confirmation, and where a continuing trust arises with one surviving administrator the court shall appoint between one and three joint administrators.

If the section is satisfied that no Part III application is pending, certain grants are not to be confirmed.

The court must give notice to the holder of a grant to apply for confirmation.

The court may rectify errors in names, descriptions, time and place of death, or purpose in a limited grant; and may alter or amend a grant of representation before or after confirmation.

If a codicil is discovered after grant or confirmation, it may be added to the grant on due proof and identification, and the grant may be altered accordingly.

When after confirmation of letters of administration there is a continuing trust and only one surviving administrator, that administrator must without delay apply to the court to have between one and three persons appointed jointly with him; if he fails to apply within three months the court may appoint additional administrators on application or of its own motion.

Section 76 — Revocation or annulment of grant

Foreign or Commonwealth grants of probate or administration, when produced and a copy deposited and sealed by the High Court, have the same force and effect in Kenya as if granted by the High Court.

A duplicate or copy of a foreign grant has the same effect as the original.

An executor or administrator granted representation shall be the personal representative of the deceased, and the deceased's property vests in that personal representative, subject to any limitation in the grant.

A grant of probate establishes the will from the date of death and validates intermediate acts of the appointed executor(s); a grant of letters of administration takes effect only from the date of that grant.

When one or more executors or administrators die, their powers and duties vest in the surviving executors or administrator; but a sole surviving administrator who is not a trust corporation has no power concerning a continuing trust until the court grants joint representation.

Personal representatives have the power to enforce, by suit or otherwise, causes of action that survive the deceased or arise from the deceased's death.

Personal representatives must provide and pay, out of the deceased's estate, the expenses of a reasonable funeral for him.

When an estate's administration involves continuing trusts, the personal representatives must act as the trustees unless a will appoints other trustees.

The executor must assent to complete a legatee's title to a specific legacy; assent may be verbal and, when the executor is also a legatee, his assent is required to complete his own title. Assent takes effect from the testator's death.

Debts enforceable at law and owed by or out of an estate are to be paid before any legacy.

If an estate has contingent liabilities, a personal representative is not required to pay any legacy unless given a sufficient indemnity to meet those liabilities.

Legacies must abate and be refunded in accordance with the Sixth Schedule.

Section 89 was repealed by Act No. 19 of 2015, s. 24.

Personal representatives must invest funds to provide for legacies according to the Seventh Schedule; legacies shall carry interest under those provisions.

If a non‑Kenyan domiciled person dies leaving assets in both Kenya and their domicil country, the personal representatives in Kenya may transfer the surplus or residue of the deceased's property to the personal representatives in the country of domicil for distribution, with the other representatives' consent and after required notices and the expiration of the claim period.

Persons who make or allow payments or dispositions in good faith under a grant of representation are protected and indemnified; payments made in good faith before a grant is revoked or varied discharge the payer; personal representatives who acted under a revoked or varied grant may retain and reimburse themselves but must later account for such transactions.

Transfers of interests in property to a purchaser by a person granted representation remain valid even if the grant of representation is later revoked or varied; a transfer of immovable property by a personal representative to a purchaser is not invalidated merely because the purchaser knew the deceased’s debts or expenses were unpaid.

A personal representative who neglects, misapplies, or causes loss to estate assets must make good the resulting loss or damage.

Section 95 creates offences for personal representatives who wilfully or recklessly mismanage estate assets, fail to produce required inventories or accounts, produce false inventories, or continue administration of an insolvent estate; and requires a sole surviving administrator in a continuing trust to apply to the court within three months for further administrators, with a penalty of a fine not exceeding five thousand shillings.

The Acts listed in the first column of the Ninth Schedule are amended as specified in the second and third columns of that Schedule.

Saves the Trustee Act (Cap. 167).

A sane person who murders another person must not receive any share of the murdered person's estate; beneficiaries are ascertained as if the murderer had died immediately before the victim.

Courts must follow the procedure when determining applications under section 26 or subsection (3) of section 35.

Proceedings commenced under any written law or part thereof repealed by this Act must, so far as practicable, be continued under this Act.