This guide breaks down key concepts in Kenyan succession law to help you navigate inheritance matters.
• Succession – means inheritance or simply transmission of ownership of property from the deceased person to those who are still living. Therefore, succession law deals with how to distribute a deceased individual’s property.
• Estate – means a deceased’s assets as at the time of his death. The Law of Succession Act defines estate as the free property of the deceased person available for distribution under the rules of succession so that property that is subject of an encumbrance is not free property and cannot be distributed unless the encumbrance is removed.
• Heir – the successor or person who can receive the assets that formerly belonged to a deceased individual
• Testate Succession – occurs where the deceased person has left a written will and refers to the disposal of the deceased’s property according to his written will.
• Intestate Succession – occurs where a person dies without having made a will or having made a will that is invalid. If the deceased does not leave a will behind, the Law of Succession Act (Cap 160) lists procedures for identifying who receives the inheritance according to principles of legitimate succession.
• Grant of Representation – means a certificate issued by the court to confirm that a particular person is to act as a personal representative of a dead person. In testate succession where there is a Will it is called a Grant of Probate while in intestacy (no will) it is a grant of letters of administration.
• Personal Representative – means the person responsible for the administration of an Estate. Representation is in the sense that the personal representative is standing in the place of or acting for the deceased person. The property of the estate vests in the personal representative or administrator, he has power to sell and/or capacity to enter into contracts on behalf of the estate. Where the administrator or personal representative is appointed by the court he is known as an administrator but where he is appointed under a will he is called the executor.
• Administration of an estate – refers to the management and distribution of the estate of a dead person which entails:
o the collection and preservation of the Estate.
o the settlement debts owed by the Estate.
o distributing the remainder of the Estate to those entitled to a share of the Estate.
Settlement of debts takes priority of the distribution of the Estate to the beneficiaries.
KEY CONCEPTS IN KENYAN SUCCESSION LAW
The Law of Succession Act embodies certain principles of the English Law of Succession.
1. Principle of Testamentary Freedom – provides people with the freedom to leave their estate to whomever they choose in their Will, and without any legal obligation to provide for any particular family member or other individual.
2. Principle of survivorship – otherwise known as the principle of jus accrescendi applies in cases of joint tenancies where property is jointly owned, where a co-owner of a property is a beneficial joint tenant of the property, their interests will automatically pass to the surviving joint tenant or tenants on their death by virtue of the principle of survivorship. Upon the demise of one of the tenants, that tenant’s interest merges with that of the surviving tenant. There is a merger of interest. For example, where a matrimonial home is owned by husband and wife as joint tenants and husband predeceases the wife the house will pass to the wife by reason of her survivorship, the husband’s interests would merge with that of the wife.
3. Principle of tenancy in common – In the principle of tenancy in common the interests of common tenants are clear and distinct, they are not united. In the event of the death of one tenant there is no merger or union of interest and this means that the beneficial share of a common tenant who is deceased can pass by will. In other words the principle of tenancy in common does not remove property from the ambit of the Law of Succession, its only joint tenancies that are excluded from the operation of the law of succession.
If you have questions on this article, please reach out to Divinah Ongaki (dso@smc-legal.com).