Where one person transfers his property to another, the transferee becomes entitled to the rights of the transferor. Almost all the legal systems make provisions for the transfer of property owned or possessed by the deceased. Success-ion normally occurs either on the death of a person or on his bankruptcy. In this chapter we will discuss the succession upon death.
Where a person makes a valid will how his property is to be distributed he is said to die ‘testate. Where there is no will or where a will has failed to take effect, he is said to die `intestate.
Estate The property both movable and immovable of a deceased person.
Will. A disposition or declaration by which a testator (person who makes a will) provides for the distribution or administration of property on and after the event of his death.
Codicil. A testamentary document which adds to, explains, alters or confirms a will previously made by the testator.
Revocation. The effect of cancellation of a will.
Personal representatives. Persons who administer the estate of a deceased person.
Executors. Personal representatives, appointed under a will.
Administrators. Persons appointed by the court to administer the estate, where there is no executor.
Probate. Official evidence of a personal representative’s authority, in the form of a document issued by the court.
A general legacy. This is a gift of personal property distinguished from other property of the same kind, e.g. a horse. In practice such a gift is often pecuniary in form, e.g. Shs. 1,000.
A specific legacy. This is a gift of a specific asset, distinguished from all other property of the same kind, e.g. my horse ‘Prince.
A demonstrative legacy.
This is a gift of a general nature but payable out of a particular fund or property, e.g. Shs. 10,000 payable out of my “Housing Finance Bonds.”
The distinction between these three types of legacies is important because general legacies must be used in full to pay off the testator’s creditors before specific legacies. Specific legacies are subject to doctrine of ademption whereas general legacies are not. Demonstrative legacies have the advantages of both specific and general legacies, i.e. they are only abated when general legacies are exhausted and they are not subject to ademption.
Law of Succession Act Kenya.
Before the Law of Succession Act was enacted there were several Acts in operation in Kenya which governed the law of testate and intestate in succession, depending on the racial origins of the deceased. This was in addition to the rules of tribal customary law. However, the Law of Succession Act, has now consolidated the law relating to intestate and testate success¬ion and the administration of estates of deceased persons.
Formalities of a valid will.
As a safeguard against fraud the law of Succession Act prescribes the following formalities:
- Writing. The will must be in writing. Any written document , e.g. a letter , will suffice.
- Signature. it must be signed by the testator or by someone else in his presence and by his direction. Signature need not necessarily be in writing but may consist of initial, partial signature, mark, or thumb print.’
- Attestation. The testator must sign or acknowledge the will in the presence of two witnesses. A witness must sign the will in the testator’s presence.
- The testator’s signature must appear at the foot of the will, and nothing should be added to the will after signature.
The Act also makes provisions as to the making of an oral will. But an oral will shall not be valid unless:
(i) it is made before two or more competent witnesses and
(ii) the testator dies within a period of three months from the date of making the will.
However, an oral will made by a member of the armed forces or merchant marine during a period of active service is valid if the testator died during the period of active service notwithstanding the fact that he died more than three months after the date of making the will. This part of the law is important to members of Kenya’s armed forces.
Capacity to make a will.
The Law of Succession Act provides that every son of full age, of sound mind may make a will and can declare that succession per to his estate shall be governed by any law he chooses. A will however may be set aside by the court if it is procured by fraud or coercion
Old age, illness blindness and illiteracy can affect a person’s capacity to make a will. It may therefore be advisable for an advocate to ask a medical practitioner to attest a will made by such a person. A further necessary precaution would be for the contents of the will to be read over to the testator before it is executed; Before probate is granted, the court has to be satisfied that a testator suffering from such disability, as aforesaid, was aware of the contents of the will before execution.
Revocation of wills. According to law wills are said to be ‘ambulatory’ that is they ‘walk’ about until the death of the testator. This means that they can be revoked by the testator before he dies. There are three ways of revoking a will
(such of the deceased’s parents, step-parents, grandparents, grand-children, step-children, children whom the deceased had taken into his family as his own, brothers, and half-brothers and half-sisters, as being maintained by the deceased prior to his death; and
(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to her death.
However, before deciding whether to interfere with the will the court must take into account the financial position of the applicant, past relations between the dependant and the testator and any other matrimonial circumstances. Application under the Act must be made within six months from the date on which representation in respect of the estate is first taken out.