SUCCESSION AFTER DEATH

Highlights:

1. The Law in Kenya caters for the administration of the estate of a person who dies with or without having made a valid will. Quick Reference
2. A will left by a deceased person may be valid or invalid (void) under certain circumstances as stipulated by the Law of Succession Act, Cap 160, Laws of Kenya. Quick Reference
3. The Law empowers the immediate and extended family members of a deceased (dead) person to inherit his/her estate and clearly specifies the circumstances under which each category of relatives may benefit from the deceased’s estate. Quick Reference
4. The Law recognizes polygamous households in the administration of a deceased’s estate. Quick Reference
5. Married and unmarried daughters of a deceased person are entitled to the deceased’s estate. Quick Reference 1   Quick Reference 2
6. The Law does not consider age of sons or daughters of the deceased in determining each child’s share of the deceased’s estate.
7. It is highly advisable for people to make wills in order to ease the burden of their surviving dependents in the administration of their estates in the event of death. 

Main Article:

Introduction

When a person dies having made a valid will, then he is said to have died testate. When a person dies without having made a will, then he is said to have died intestate. The emphasis on a valid will is in consideration of the fact that if a will is found to be invalid, that is, it is not genuine, then the deceased person is considered to have died intestate and the law relating to intestate succession applies. The effect is that the will is not considered in the disposing of the deceased’s property.

Applicable law

In Kenya, the applicable law with regard to issues of succession is the Law of Succession Act, Cap 160, Laws of Kenya, which came into force on the 1st day of July 1981. Previously there were four systems of succession law which applied to the four different socio – ethnic groups of the people in Kenya; that is, the Africans, Muslims, Hindus and Europeans.

Sections 2(1) and (2) of the Act provide as follows:

“Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”

“The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.”

Basically, the above provisions provide that other systems of law of succession may apply but as exceptions to the Law of Succession Act. Therefore where different laws apply, the same must be provided for in the Law of Succession Act itself or through any other written law.

Customary Law

The position with regard to African customary law, which many people ascribe to or are forced to consider it owing to pressure from relatives and the community in general is as follows:-

Firstly, it is important to note that the Judicature Act, Chapter 8 of the Laws of Kenya provides for African customary law as one of the sources of law in Kenya. However, it only applies for as long as it is applicable and not repugnant to justice and morality or inconsistent with any written law.

The Law of Succession Act has also embodied the African Customary Law of Succession with the intention of providing Kenyans with a statute that translates the Kenyan customary beliefs and practices into law.

More specifically, the Law of Succession Act allows for the application of African Customary Law in the following instances:

1. Estates of persons dying before the application of the Law of Succession Act;
2. Testamentary dispositions in accordance with African Customary Law;
3. The application of African Customary Law by Section 33 in the event of intestacy.

Section 33 provides as follows:
“The law applicable to the distribution on intestacy of the categories of property specified in Section 32 shall be the law or custom applicable to the deceased’s community or tribe as the case may be."

Section 32 provides as follows:
“The provisions of this Part shall not apply to :–

1. agricultural land and crops thereon; or
2. livestock,

situated in such areas as the Minister may, by notice in the Gazette, specify."

Islamic Law

With regard to the issue of Islamic Law, it is important to note that Islamic Law is also a source of law in Kenya. The root of the application of Islamic Law in Kenya is the Constitution of Kenya. Section 82 of the Constitution allows the application of different personal laws as an exception to the general prohibition of discrimination. Islamic Law is considered a limited source of law since it only applies when all the parties profess the Islamic Religion.

In 1990, an amendment to the Law of Succession Act through Statute (Miscellaneous Amendment) Act (Act No. 2 of 1990) exempted Muslims from the substantive provisions of the Law of Succession Act – those relating to testamentary or intestate succession, thereby subjecting the estate of a deceased Muslim exclusively to Islamic Law.