Law of Succession in Kenya
Succession derives its meaning from a Latin term ‘succesio’ meaning following after or the coming into another’s place.
Succession Laws are the train of laws that includes the transfer and distribution of a title in form of a property, insurance, taxes and trusts instruments under the legal procedures from an individual who formally held them to another who undertakes current responsibilities to execute this powers.In Kenya, succession laws are governed by the Law of Succession Act Cap 160.
Historically, the Law of Succession in Kenya came into position and application thereafter in 1981, where then, there exited a multi social-cultural ethnic set, these groups comprised of the Africans, Muslims, Hindus and finally the Europeans. Under this regime, they constructed their own Succession laws which were specifically based on customary Laws, race and religion, and construed specifically to govern the groups within that circle.
The Law of Succession Act came into consideration on 1967 and in 17th March 1967, the Late Mzee Jomo Kenyatta appointed a Succession Commission and a Marriage and Divorce Commission to research and investigating on matters pertaining on what happens to property on death, the existing laws on Succession, the making and proving wills, and lastly the legal administration of estates and for the Marriage and Divorce it was majorly to investigate on existing family laws, property owned during and after marriage, children protection rights during and after marriage and disputes and divorce procedures during marriage. For the succession committee they were to design a model considering the following;
- The recommendation for a new law providing a comparative and comprehensive, practicable uniform a law that covers all the ethnic groups entirely.
- Drafting new succession laws and rules in accordance with the commission.
- In 1981, the Law of Succession statute, currently the Law of Succession Act Cap160 was made effective. Asides, there were a chain of Statutory laws which they followed before which were then repealed by the current Law of Succession Act Cap160 which are the Indian succession Act (1865), the Hindu Wills Act (1961), the Administration of Estate Incorporations Act, The Commonwealth Probate Act (1881), The African Wills Act (1961) to one single document which standardizes the laws relation all the ethnic groups within the geographical boundary in Kenya.
Testate and Interstate
Testate succession is the distribution of rights and property, through a valid will upon death on the other hand interstate is the reverse, If one does not have a will upon death, the state Interstate rules fill in the gap by determining how a person’s assets shall be distributed equally. Further to that, in this a situation when one dies without a will, the testators wishes becomes, null and void abnitio.
Executors
Executor or an administrator is a person who is appointed by the testator and as in section 3 to execute or carries out or performs instructions as per the will as per section 79 through administering the distribution of estates to the surviving beneficiaries as stated in section 81. Additionally, he may describe any wishes on the funeral or burial arrangements and may designate guardians for minor children and protects the assets until they are distributed.
Beneficiaries
One who’s benefit a trust is created is given this term cestui que vie In simpler terms it’s a person or entity that receives an additional advantage or benefit under a will or a trust .He is the sole recipient in the event of succession, and the personal instrument after which trust is created.
Dependants
Dependant is a person who is in reliance with another primarily for aid, favour or support majorly for financial support or source of income as obliged by the Law. For this case, in succession law, a dependant can be a wife (s), former wife (s) and the children of the deseased,this is highlighted in Section 29.
WILLS
Wills as interpreted in Section 3 of the Law of Succession Act defines a “wills” as a legal declaration by a person of his wishes or intentions regarding the disposition of property after his death, duly made and executed according to the provisions of the act .
Further to that, it is a legal document that indicates how a person wants his or her estate, interest, taxes, insurance or property to be distributed after death. They must be made under any given circumstances and meet the capacity and the formalities. Wills are very central to the maker and therefore in the event of probate succession, a will is made valid through proper and formal jurisdiction, with the grant of representation to the executor in respect of the estate.
Types of wills
Wills can either be written or oral.
However it is much more preferred that wills be reduced into writing the main reason behind it is that it’s nearly impossible to proof oral wills due to the conflict in the evidence adduced by the witness ,
The Kenya law also recognises privilege wills.This are informal wills which are valid even in the event that it does not need to fulfil the legal requirements.Mostly its used among the Military in their active service.
Characteristics of a valid will
The testators wishes to be effected, it should be upon the death
The will only be impactful after death as per section 3 of the act as it is before the demise, the testator still enjoys the benefit of no limitation of the use and abuse of his property ,or even transferring his rights for the benefits of others.
The subject matter of intention
It means that a will can only operate as a declaration of mere intention and this can be stipulated through a gift or a sale. Its important to note here that at this point, the testator cannot ascertain of a specific asset or property can go to a specific beneficiaries.
A will hereby is only directed to the distribution of the property, and it is not a space for emotional feelings like gratitude, love or despair as it is upon the death of the testator the will is publically expressed based on the testator intentions.
The will is ambulatory
Thus it means that the testator has the right to amend the will and he has the capacity of dealing with property acquired after the date of the will.
A will can be revocable, altered or revived
Revocation is the entirely disposing off the will either by way voluntary or involuntary or even in its express form as in Section 18 of the act. There has to be two to consider which are,
- There has to be actual destruction. This has to be in the physical presence of the testator or by someone in his presence. The general rule in the case of Re Aynsley is that destruction of the will must not be accidental as the testator must have the same legal capacity as it is necessary to execute a valid will.
- Secondly, there has to be an intention to revoke the will .In the case of Re Mortons Goods in this case, the testator scrapped off his signature with a knife hence revocation at his on intentional will. Under the doctrine of conditional revocation, in the circumstances where the testator revokes a will with the intention of making a new one,and for some reasons fails to make it,the initial original one will still be valid ,it will be atmost the discretion of the courts to be satisfied that the testator had no direct intention to revoke the will absolutey, this doctrine was visible in the caselaw of Re Adams.
CREATION OF A VALID WILL
Validity of a will can be effected when the following key principles are met as in the case of Banks v Good fellow, whereby Lord Cockburn CJ positioned the testator must have an understanding of the nature of wills a sound and disposing mind and memory before making a will.
Capacity
A will is deemed valid if during the initial creation, the maker of the will is of age per the law as in section 5(2) and not a minor and of sound mind. The general rule is that minors and persons of unsound mind are nearly incapable of making a will. Section 5(1) discloses the concept of testamentary freedom that a person has the free will of disposing of his property as long as he or she meets the requirements above.
Wills are invalid if they are made during infancy, however, there exist an exemption that when reaching the age of majority he can re- executes it or makes a codicil or a new will. Instances where a minor dies, the rules of intestacy are applicable and this is backed up by the Age of Majority Act Cap 67, Section 2.
Knowledge and approval
A testator can compliment his testamentary freedom through ascertaining, verifying or the Contents of the will. In the case of Vaghella v Vaghella , it laid down the principle that it is pre-eminence for the testator to understand the nature of the will, its effect and its extent. He r she must show that indeed he has the consent and well understands the form and terms of the will in a clear way.
Duress or undue influence from external and internal sources shouldn’t make him subjected to his declaration of the will either way expressly or orally.
Under section 7,states that a will that is made through coercion, mistake or fraud is framed as a void will. Mistake or fraud may deem the knowledge and approval of the testators good will wishes and hence should be absent.
Therefore, knowledge and approval is of great importance more so when such a declaration is made by a third party, for instance a legal professional advocate.
EXAMPLE OF PERTINENT LEGAL ISSUES FOR DETERMINATION
- Whether the witness who attestated the will were competent.
- Whether the customary law practice of unmarried daughters disinheriting the property was applicable.
- Should the additional clause of the executor benefitting from the will amounted to suspicious circumstances.
- Should the testator’s wishes of burring the body facing Mt Elgon and cremating his body be binding on the executor.
ISSUES EXPLAINED
Whether the attestation in the will, the witness were competent and had legal the Capacity .
No they were not,Peter and Rita were the beneficiaries of Daktari, Katana on the other hand is there watchman, and Kamau as the executor they are all witnesses, but in this case, for the case of Peter and Rita, two other independent witnesses should be present. Hence this will shall be deemed to be invalid based on the competency of attestation of the witnesses.
On to the issue arising, Under section 11(c),there are conditions that the will should be met and under attestation the basic standard requirements is that there has to be two competent attestations.In the case of Re Colling the testator went ahead a made nd sighed a will in the absence of both witnesses, this was held invalid by the Courts since attestation required physical presence.the testator must see the signatures of the witnesses affixed, during this time its not a must they be seen at the same time.
However, beneficiaries or bequest who are actually gaining the benefit are to be witnessed by two competent additional or independent witness. In Brown v Skirro, a testator went to a shop with a lady for the purposes of sighing a will before two shop attendants, she sighed the will in the presence of one of which he also sighed , while the other one was still in attendance of customers, it was determined that the attestation here was invalid since it required the presence of both independent witnesses.
II. Whether the customary law practice of unmarried daughters disinheriting the property is justifiable
No, in this case it is unjustifiable. Under section 2,it entails that except as otherwise provided in this act, or any other written laws, the provisions of this act shall constitute the law of Kenya, in lieu to all testate and interstate succession in which all the deceases dying after the commencement of the act has been enforced.Therefore customary laws are not applicable.In theMatter of the Estate of Mutiso Ikonyo the deceased died and left his wife 17 children and the deceased was a kamba ,and in the court positioned that they did not allow kamba ladies to inherit property,Mwera J said that a mkamba daughter of the deceased ought to have known that only unmarried daughters or divorced can only inherit.Hence such laws are inapplicable
The key principal of Succession rules is that the provisions of dependants are not precicely provided for through both interstate and testate.However,it is up to the courts to exercise their discretionary power under certain circumstances as per section 28 of the act .For this case,the court may give an order depending on the certainty the testators reasons for not making provisions for the defendant ,which for this reason it was based upon discrimination and for the existing and future means and needs for the dependants
As specified in the Constitution of Kenya, Article 2 (4) and the Judicature Act section 3(2) acknowledges any law,inclusive customary law which is conflicting or contrally to the laws of the land and that its repugnant with justice and morality its termed as invalid.In correlation to that, Chapter 4,Bill of Rights the Freedom from discrimination under article 27(3) points out women and men have the right to equal treatment including the right to equal opportunities in political,economic , cultural and social sphere,and part (5) states that a person shall not be discriminated on the grounds of origin,colour,age,disability religion ,conscience belief,culure,dress, language or birth.
In the Matter of Estate of Kihara Githambaa.The deceased died and left 2 wives and 17 children, the first wife had, 5 daughters and sons, the second had seven daughters and two sons,Out of the daughters 4 were married 3 unmarried and o one has 3 children and the other had none, after the death , the 6 sons claimed that the deceased had a made a oral will and also had a book record .The impact was that the sons would be entitled to the deceased property leaving the wife and the unmarried daughters with nothing.It was held by the court that there was a invlid will, therefore,it failed the test of attestation therefore the deceased said to have died interstate. Hence, the act applied in contrast with the customary law.
Hencefouth this issue,Tano,Rita,Makosa, and Roda are Daktaris dependants,They were discriminated based on ,social origin and culture mose so their Gullu Customary law for unmarried daughters to inherit their fathers property.Hence the issue on wheather to recover their fathers propertyis can be a positive based on the court’s decision.
III. Should the additional clause of the executor benefitting from the will amounted to suspicious circumstances.
Yes it resulted to a suspicious circumstance, whereby, Kamau being Daktaris executor adds a definite amount to himself chiefly for his personal benefits.Threfore this will can be invalidated,as based on the case of Wintle v Nye,a woman requested a solicitor to prepare a will and making himself the residuary beneficiary of the will under the codicil.In this event,the solicitors was kittys cousin, kitty dies and her sisters bring an action aganist the distribution of assests.V Simons stated tht this wa a concequence of suspicious circumstances,and thus the principle that the testatr should have the knowledge and approval before writting contents of the will.
Suspicion is the cautious distrust of belief without sure proof. Suspicion arises where there is uncertainty, doubt speculating ,trace or even on slight evidence Bough v Bough ,the individuals prepared a will for Ms Chumber, the executor of the will found it to have been invalid due to the attestation signatures by the third parties which were forged,this rose to a suspicious circumstances hence the executor invalidated the will.
In the law of succession, suspicious circumstances can arries where in the drafter of the will takes a substantial amount for his chiefly benefits as in the case above.Such an occurrence can invalidate a will. Moreover, in this event ,there exist a number of scenarios that amount to this concept. This are,
The person who writing the will has been given a substantial amount to draft the will. This can be an advocate appointed or suggested by the testator.
Where a close relative or a family member has drafted the will.
III Should the testators wishes of burring the body facing Mt Elgon and cremating his body be binding on the executor.
One of the pro functions of a will is that it gives clearways for the disposition of the deceased body by the executor. This point can be evidenced by Judge Kwach J in the case of Kinyota Maingi v Rael Kinyota Maingi, where he stated that “There can be no property in a corpse,it is up to the obligation of the executor to give effect to the wives wishes in the disposition of his corpse as far as it is practicable”.
This principal further explained that the executor cannot enforce the wishes only if they are repugnant with the personal laws of the deceased.
In addition,In the case of James Apeli and another v Pricila Buluku,supplemented the same principal of there exist no property in a decease person.A person cannot dispose his property at will so long as they are not in conflict with the customary laws of their traditions,the general laws of the country and the public policy.Also, in the case of S.M Otieno, the same principal is enshirined that there are no burial rights to a copse.
In this issue,under the new laws has the executor has the legitimate capacity of giving directions to the disposal of the body.
Based on Sir JP Wildes decision in Lemage v Good ban, “The will of a man is the testamentary intentions so far as they are manifested in writing and duly executed according to the statute”. From the above issues, it is clear to say that the will is invalid. This can be evidenced by the competency of the witnesses, the customary laws which were in dilemma with the Law of Succession Act and the Constitution of Kenya and the concept of suspicious circumstances and how it can invalidate a will.
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