INTRODUCTION TO SUCCESSION: AN OVERVIEW OF THE PRINCIPAL LEGISLATION GOVERNING INHERITANCE IN KENYA.
INTRODUCTION
Succession is the process of transferring or distributing the property, rights and obligations of a deceased person to their rightful heirs. Succession in Kenya is guided by The Law of Succession Act (Cap 160). The Law of Succession Act is a cornerstone of inheritance law, providing the framework for the distribution of a deceased person’s estate. The act gives a more systematic approach to succession. It governs the distribution of property when an individual dies, whether testate (with a will) or intestate (without a will). This article provides an overview of the Act, its main features, and its role in shaping inheritance practices in Kenya. In Kenya succession can either be intestate or testate. Contact today our Family & Estate Planning Lawyers for assistance
INTESTATE SUCCESSION IN KENYA
When a person dies without a will, the Act provides a clear structure for the distribution of the estate. The Act prioritizes the deceased’s surviving spouse, children, and other dependents. The distribution is based on a fixed formula that ensures fair and equitable division among the heirs. This is as in the case of Re Estate of the Late Jane Wanjiku [2017] eKLR this case highlighted the principle of equal distribution of property among children in intestate succession. The court reaffirmed the statutory requirement that all children, regardless of their status, are entitled to equal shares of the estate.
TESTATE SUCCESSION
The Act outlines the requirements for making a valid will and the process for administering an estate according to a deceased’s wishes. Key aspects include:
Validity of Wills– For a will to be valid, it must be in writing, signed by the testator, and witnessed by at least two individuals. The testator must have the mental capacity to make a will and must not be under undue influence.
Probate Process – The process for proving the validity of a will and appointing an executor to administer the estate. Executors are responsible for ensuring that the deceased’s wishes are carried out and that debts and taxes are settled. In the case of Karanja v. Karanja [2019] eKLR the court dealt with the validity of a will and the role of the executor in administering the estate. The court emphasized the need for executors to act in accordance with the testator’s wishes and the procedural requirements outlined in the Act.
The primary provisions regarding succession include:
- Survivorship Rights – The surviving spouse is entitled to a specific portion of the estate, and the remainder is divided among the children and other dependents.
- Children’s Shares – Children of the deceased, regardless of their age or marital status, are entitled to equal shares of the estate.
- Provision for Dependents-The Act also provides for the distribution of assets to dependents who were financially reliant on the deceased.
ESTATE ADMINISTRATION
The Act provides detailed procedures for the administration of estates, including:
Appointment of Administrators – When there is no will, the Act provides for the appointment of administrators to manage and distribute the estate. The priority for appointment is given to the surviving spouse, children, or other close relatives.
Distribution of Assets – The Act specifies how assets should be valued, debts settled, and the remaining assets distributed among the heirs or beneficiaries.
INTERACTION WITH CUSTOMARY LAW
Kenya’s diverse ethnic communities have their own customary laws regarding succession. The Law of Succession Act recognizes the coexistence of customary practices but aims to harmonize them with statutory requirements. In cases where customary laws conflict with statutory provisions, the Law of Succession Act generally takes precedence, ensuring consistency in the application of inheritance laws. In Mbugua v. Mbugua [2015] eKLR the court focused on the interaction between statutory law and customary practices. The court ruled that while customary practices are recognized, they must align with the principles of equality and fairness enshrined in the Law of Succession Act.
CONCLUSION
The Act provides a structured approach to both testate and intestate succession, balancing the rights of the deceased’s family members with the need for efficient estate administration. While the Act is the cornerstone of succession law, it is essential to acknowledge the interplay between statutory provisions and customary practices. The law seeks to harmonize these two systems, promoting fairness and justice in the distribution of property.
Ultimately, the Law of Succession Act plays a pivotal role in safeguarding the rights of heirs and ensuring the orderly transfer of assets upon the demise of an individual.
Disclaimer:
“The information provided in this article is intended for general legal advice and does not constitute legal advice for any specific transaction or case. Since each transaction presents a unique legal context, it is advisable to retain a legal adviser for specific transactions.”