SUCCESSION AFTER DEATH cont.

INTESTATE SUCCESSION

Section 34 of the Law of Succession Act provides as follows:

“A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.”

It therefore follows that intestacy occurs in the following instances:-

1. when a person dies without having made a will
2. when a person’s attempt to die testate, fails upon the invalidation of his will
3. when a person revokes his will and subsequently dies without reviving his earlier revoked will or without having made another will

The rules of intestacy determine the question of who is entitled to the property of the estate of an intestate. Provisions relating to intestacy are contained in Part V of the Law of Succession Act. It is important to note that the intestacy rules only benefit people who also have a direct blood link with the intestate apart from spouses. In the absence of blood relatives, the estate passes on to the state bona vacantia (for lack of an heir).

The rules of intestacy only apply to property that is capable of being disposed off by a will. The said rules do not apply in the following instances:

1. when property is jointly owned as it passes by survivorship e.g. where the matrimonial home is held by a husband and wife as joint tenants and the husband predeceases the wife, the house will pass to the wife because of the survivorship.
2. nomination – This involves the direction by a person, called the nominator, to another who is holding an investment on the nominator’s behalf, to pay the funds on the nominator’s death to a third party, called the nominee, nominated by the nominator during his lifetime. The said direction only takes effect upon the death of the nominator.
3. Gift in contemplation of death – Donatio mortis causa

This is provided for in Section 31 of the Law of Succession Act

1. Life policies written in trust

The Law of Succession Act makes provisions for both monogamous and polygamous situations and the nature of devolution of property upon intestacy depends on whether the deceased was monogamous or polygamous. Section 35 and 36 deal with the monogamous situations, Section 40 deals with the polygamous situation while Sections 37 to 39 are general provisions.

As aforestated herein, under the heading “Customary Law”, the rules of intestacy do not apply to the provisions of Section 32 of the Act.

Intestacy provisions

(a)        where intestate leaves one spouse and child or children (Section 35)
           
            The surviving spouse is entitled to:

1. the personal and household effects of the deceased absolutely
2. life interest in the whole residue of the net intestate estate

In the event that the surviving spouse dies, or, in the case of a widow, she re-marries, then the whole residue of the net intestate estate devolves upon the surviving child ( if there is only one) or is equally divided among the surviving children.

Life interest only entitles the surviving spouse to the use and utility of the property, the subject of the life interest. The surviving spouse holds the property during their life interest as a trustee and stands in a fiduciary position in relation to the property. The property does not pass to the surviving spouse absolutely.

(b)        where intestate leaves one spouse and no children (Section 36)

            The surviving spouse is entitled to:

1. the personal and household effects of the deceased absolutely
2. the first ten thousand shillings out of the residue of the net intestate estate or twenty per centum thereof, whichever is greater
3. life interest in the remainder

Upon determination of the life interest aforementioned, that is, if the surviving spouse dies, or, in the case of a widow, she re-marries, then the property subject to the life interest shall devolve in the order of priority set out in Section 39 of the Act.

Section 39(1) of the Act provides as follows:-

“Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority –

1. father; or if dead
2. mother; or if dead
3. brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
4. half – brothers and half – sisters and any child or children of deceased half – brothers and  half – sisters, in equal shares; or if none
5. the relatives who are in the nearest degree of consanguinity up to and including the sixth degree in equal shares.

(c)        where intestate leaves a surviving child or children but no spouse (Section 38)

In this instance, the net intestate estate devolves upon the child, if there be only one, or be equally divided among the surviving children. 

(d)       where intestate leaves no surviving spouse or children (Section 39)

In this instance, the net intestate estate shall devolve upon the kindred of the intestate in accordance to the provisions of Section 39, which provisions have been stated hereinabove.

(e)        where intestate was a polygamist (Section 40)

In this instance,

1. his personal and household effects and the residue of the net intestate estate should in the first place be divided among the houses according to the number of children in each house
2. distribution of the estate should thereafter follow the provisions in Sections 35 to 38 of the Act

In the Matter of the Estate of Benson Ndirangu Mathenge (deceased) Nakuru High Court Succession Cause No. 231 of 1998 (Ondeyo J), the deceased was survived by his two widows and their children. The first widow had four children, while the second widow had six children. The court stated that the first house was comprised of  five units while the second had seven units. The two houses of the deceased combined and looked at in terms of units made up twelve units. The court distributed the estate to the children and the widows treating each as a unit. The land available for distribution was forty acres, which was divided by the court into twelve units. Out of the twelve units, five were given to the first widow and her four children, while the remaining seven units went to the second widow and her six children.

In the Matter of the Estate of Mwangi Giture (deceased) High Court Succession Cause No. 1033 of 1996 (Koome J), the quarrel between the two houses was over the distribution of the estate. One house argued for equal distribution in accordance with customary law, while the other favoured distribution according to Section 40 of the Act. It was held that the court had no discretion in the matter and was bound to follow Section 40 of the Act, which provides that the estate be divided between the houses taking into account the number of children in each house. The court, however, decried the unfairness of the provision to the widows who are treated the same as the children. This unfairness is particularly glaring where the first wife participated in the acquisition of the greater part of the estate, but in the end has to take a share equal to that of the younger wife who is married many years after the acquisition of the bulk of the estate, and who has contributed very little to the acquisition of the assets making up the estate.

Further it is absolutely necessary to note that reference to children does not distinguish between sons and daughters, neither is there distinction between married and unmarried daughters.

In conclusion, when a person dies intestate, his property is administered and disposed off in accordance to the aforementioned provisions. The procedure involves having the administrator obtain a Grant of Letters of Administration which ideally give the administrator the authority to deal with the property of the deceased in accordance with the provisions of the law.

In conclusion the survivors of a deceased person are advised to work with their lawyer to obtain a Grant of Letters of Administration to the estate of the deceased.