The Law of Succession in Kenya

The Law of Succession in Kenya

In Kenya, succession law governs the transfer of property and obligations from a deceased person to their heirs or beneficiaries. The key legislation guiding this process is the Law of Succession Act (Cap. 160), which outlines how estates are managed, distributed, and administered. Below, we explore the constitution of an estate and the rules for its distribution in Kenya.

What Constitutes an Individual’s Estate?

An individual’s estate includes all their assets, liabilities, rights, and obligations at the time of their death. These may consist of real estate, bank accounts, shares, vehicles, personal belongings, and any other property owned by the deceased.

In Kenya, estates can be distributed either through a valid will (testate succession) or according to the rules of intestacy if no will exists.

Special Gifts or Contributions

If the deceased made significant gifts during their lifetime, such as transferring property or financial support to certain beneficiaries, these gifts (termed special benefits) may be considered during the distribution of the estate. Kenyan courts may take these into account to ensure fair distribution among heirs.

Freedom of Disposition Over Property

During One’s Lifetime

In Kenya, individuals are free to dispose of their property during their lifetime through sales, gifts, or transfers. However, certain transactions that contradict public policy, such as fraudulent dealings or transfers meant to disinherit lawful dependants unfairly, can be challenged in court.

Upon Death

A person can distribute their estate through a will, provided it complies with the formalities of the Law of Succession Act. However, Kenyan law includes a forced heirship regime, ensuring that certain dependants, such as spouses, children, and other close relatives, are not unfairly disinherited. For example, courts can intervene to provide for dependants who are left out of a will under Section 26 of the Act.

Distribution of an Estate Without a Will (Intestacy)

When a person dies without a valid will, their estate is distributed according to the intestacy provisions of the Law of Succession Act:

1. If the deceased is survived by a spouse and children
   • The surviving spouse is entitled to life interest in the entire estate. Upon their death, the estate is divided equally among the children.
   • If the spouse remarries, their life interest ceases, and the estate passes to the children.
2. If the deceased is survived by a spouse but no children
   • The spouse inherits the entire estate.
3. If the deceased leaves children but no spouse
   • The estate is distributed equally among the children.
4. If the deceased is survived by neither spouse nor children
   • The estate passes to other relatives in the following order of priority: parents, siblings, and other close relatives.

Treatment of Adopted and Illegitimate Children

Under Kenyan law, adopted children and illegitimate children have the same rights to inherit as biological children. This aligns with constitutional protections ensuring equality and non-discrimination.

Formalities for Wills in Kenya

A valid will must meet the following requirements under the Law of Succession Act:

• Be in writing.
• Be signed by the testator or someone directed by the testator.
• Be witnessed by two or more competent witnesses who also sign the will.

Kenya also recognizes oral wills for estates valued under Kshs. 30,000, provided they are made in the presence of two witnesses and the testator dies within three months of making the will.

Administration of Estates in Kenya

The process of administering an estate involves:

1. Appointment of Executors or Administrators: If there is a valid will, the executor named in the will oversees the estate. In cases of intestacy, an administrator is appointed by the court.
2. Confirmation of Grant: Executors or administrators must apply for a grant of representation (either a grant of probate or letters of administration) to manage and distribute the estate.
3. Distribution of the Estate: The estate is distributed according to the will or intestacy laws. Beneficiaries must agree on the distribution plan, which is subject to court confirmation.

Resolving Disputes

Disputes over the distribution of estates are common in Kenya, particularly in cases of intestacy or where dependants feel unfairly excluded. The courts have the power to resolve such disputes, taking into account factors like special contributions, dependants’ rights, and fairness.