- The Law of Succession Act (Chapter 160, Laws of Kenya)
- Probate and Administration Rules (cap 160 Sub Leg)
Probate and all things Succession is divided into:
- Non-contentious (probate in common form) and
- Contentious probate (probate in solemn form).
The above types of Succession matters are further divided into;
- Testate: This is when one makes a valid and enforceable will which ensures that upon the death of that person, their property passes to a person/s of their choice.
- Intestate: When a person dies without making a will or the will is invalidated.
Related Constitutional Provisions
The Constitution of Kenya envisages under Article 27 and 40 the equal protection of property rights for men and women. The Constitution expressly provides that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
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Procedure For Applying for Grant Of Representation
The preference of the applicants ought to be as per the order of priority stipulated in section 66 of the Law of Succession as follows;
- Surviving spouse or spouses, with or without association of other beneficiaries;
- Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
- The Public Trustee; and
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.
Once one has confirmed that they meet the requisite threshold, you can then proceed to make the application under section 51 of the Kenyan Law of Succession Act and Rule 7 to 14 of the Probate and Administration Rules to make the application. Every application shall include information as to:
- The full names of the deceased;
- The date and place of his death
- His last known place of residence;
- The relationship (if any) of the applicant to the deceased;
- Whether or not the deceased left a valid will;
- The present addresses of any executors appointed by any such valid will;
- In cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
- A full inventory of all the assets and liabilities of the deceased; and
- Such other matters as may be prescribed.
Where it is alleged in an application that the deceased left a valid will;
- If it was written– the original will shall be annexed to the application, or if it is alleged to have been lost, or destroyed otherwise than by way of revocation, or if for any other reason the original cannot be produced, then either
- An authenticated copy thereof shall be so annexed; or
- The names and addresses of all persons alleged to be able to prove its contents shall be stated in the application.
- If it was oral– the names and addresses of all alleged witnesses shall be stated in the application.
NB: it is worth noting that as per section 56 of the Act, an application under section 51 will not be granted to a minor, a person of unsound mind or a person declared bankrupt. Further, the application ought to be made by not more than four persons who qualify as prescribed above.
The following forms are then prepared to be lodged at the High Court Registry after payment of the requisite fees;
- Form P & A 80 (Petition in form of Summons)
- Form P & A 5 (Affidavit in Support)
- Form P & A 12 (Affidavit of Means)
- Form P & A 11 (Affidavit of justification of proposed suits)
- Form P & A 57 (Guarantee of personal sureties)
- Death certificate
- Form P & A 38 (Consent Form)
- Letter from the chief or any authority confirming the Beneficiaries of the deceased estate.
- Evidence of ownership of assets (copies of title documents).
- Consent from adult beneficiaries not applying in cases of intestate succession.
- Original Will in matters of testate succession.
If the said documents have been lodged, the same will be advertised in the Kenya gazette as a succession cause for a thirty (30) days period to allow any person who feels aggrieved for any reason by the Petition ample time to lodge any objections.
An individual who feels entitled to the estate and is not included in the Petition, can file the said objection through another petition to stay the advertisement.
If there is no objection filed after the thirty (30) day notice period provided in the act, the person making the application receives letters of administration. The said Letters serve as an authority for the administration of deceased’s estate. However, the holder (s) of the letters of administration cannot distribute the estate of the deceased but is to collect and preserve the assets of the deceased.
After the lapse of six months from the date of issue of the letters of administration, the holder of the said Letters of Administration can petition the court for confirmation of grant of letters of administration.
The said application to confirm under Section 71(3) of the Law of Succession Act and Rule 40 of the Probate and Administration Rules. The court is moved under Summons, with an accompanying Affidavit in support. Apart from those, you are also to attach a schedule of assets that provides the description of the property and share of the heir.