10) Law of Succession i) History of the Law of Succession ii) Testate Succession iii) Intestacy iv) Grant of representation

of estates INTRODUCTION This is the branch of law that deals with inheritance. The key factors in inheritance are the death of the property owner and the devolution of the property to the heirs and beneficiaries. The law of succession provides the mechanism by which property devolves from its deceased owner to the people who are left behind by him. In all societies, the law of succession seeks to ensure that the ri htful claimants inherit the property of a deceased person. It also provides for the procedure by which such ri htful claimants accede to the estate of the deceased person. HISTORY OF THE LAW OF SUCCESSION IN KENYA The period prior to !st "uly !#$!, when the Law of Succession %ct came into force, was characterised by a plural application of succession laws in &enya. 'ach socio(cultural roup had its own body of succession law. This scenario obtained because of historical reasons. There were four le islations in force overnin the law of succession in &enya to ether with customary law. These were) a. %frican *ills %ct. b. Hindu Succession %ct. c. Indian Succession %ct. d. +ohammedan +arria e and divorce %ct. *hen the Law of Succession %ct ,ap. !-. was enacted as %ct /o !0 of !#12. It was intended to mer e and consolidate all the above le islations into uniform law of succession applicable to all the section of the &enyan population. However, due to intense a itation by the +uslim community between !#$! when the %ct came into force till !##. the %ct was amended by statute law 3miscellaneous amendment) %ct /o 2 of !##. which misapplied the law of Succession %ct 3,ap. !-.) to persons who at the time of their death were +uslims. Instead, Islamic law as contained in the &oran would overn the estate of such persons. The law of succession came about as a result of report compiled by a commission appointed by the late 4resident ". &enyatta on !1Th +arch !#-1 to en5uire into the law of succession. TESTATE SUCCESSION Testate succession occurs where a person who desires to retain absolute or limited control over his property after death, arran es to ensure that upon his death the property passes to a person or persons of his choice throu h a valid will. The word 6will7 refers to all that a person wishes to happen on their death. In the conte8t of the law of succession, it refers to the document or documents in which a person e8presses their wishes on death. It means therefore a will is a record of a deceased person9s wishes and intentions pertainin to the devolution of his property upon his death. It is defined under section :3!) as the le al declaration by a person of his intentions or wishes re ardin the disposition of his property after his death duly made and e8ecuted in accordance with %ct. %ccordin to Sir ".4. *ilde in Lemage vs. Goodban (1865) LR 1 P&D 57:
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The will of a man is the a re ate of his testamentary intentions, so far as they are manifested in writin , duly e8ecuted accordin to the statute. % will bein a testamentary document has no le al effect until the maker dies. *hile he is alive, it neither limits his ri hts of ownership nor confers any benefits to anyone. ;efore the testator9s death, the document is a mere declaration of intention with no le al effect whatsoever. % will has five essential characteristics<elements) Wishes expressed are intended to take effect upon death The document should clearly make reference to the death of the maker. *here there is nothin in the instrument or document showin that it has reference to the death of the person e8ecutin it cannot take effect as a will. The will only takes effect on death: ;eneficiaries under a will do not ac5uire an interest in the property before the testator9s death = so that a ift to a beneficiary who dies between the makin of the will and the death of the testator elapses. A will can only operate as a declaration of intention: The e8ecution 3makin ) of a will does not affect the way in which the testator deals with his property durin their lifetime. It is not a fetter to the testator9s freedom to deal with their property as they please durin their lifetime. >urin their lifetime, the will is only a mere e8pression of intention since the testator cannot be certain that a beneficiary will receive a particular asset, which is iven to them by will. A will is ambulatory: However, this is only possible if the will carries a eneral clause. It is capable of dealin with property which is ac5uired after the date of the will 3even after its e8ecution) A will is always revocable: S ? of Law Succession %ct ives freedom to dispose property by will. @reedom of testation includes the freedom to revoke it before testator diesA because a will takes effect upon death and because it is a mere declaration of intention it is always revocable. It may be revoked even where it e8pressly states that it is not revocable. THE AD!ANTA"ES OF #AKIN" A WILL There are advanta es to be ained from makin a will. 3a) Maintaining contro over !ro!ert" The makin of a will enables the testator to maintain control over property. This is especially important for a person with a spouse and children. @or e8ample, if a wife makes a will leavin the entire estate to her husband, she loses control over the ultimate destination of the property on the death of her husband if she dies first. She simply has to hope that he will dispose of what was ori inally her estate to the children of the marria e rather than marryin someone else after her death and leavin the combined estate to his second wife. She could achieve control by ivin her husband simply a life interest in her estate with the remainder passin on his death to the children. % life interest only entitles the husband the income for the estate. 3b) #voiding t$e r% es o& intestac" The decision to make, chan e or revoke a will ives the testator an opportunity to consider his own affairs and to decide with a sober mind who should inherit what from his estate, instead of leavin this important decision to be made by other people after his death. The makin of a will avoids the rules of intestacy. The intestacy provisions ensure that the ne8t of kin of the deceased benefit from his estate, but the shares of the estate which the ne8t of kin receive are arbitrary and they are often unsuitable in the circumstances. % will is a personal document and it is preferable to use it as a last beneficial act rather than to allow the impersonal provisions of intestacy to take effect. 3c) 'nab ing t$e deceased to a!!oint !ersona re!resentatives o& $is o(n c$oice
2

The makin of a will entitles the testator to appoint personal representatives of his own choice to administer his estate. Since these are personally appointed by the testator he would be reasonably sure that his estate will be well administered after his death by persons in whom he has confidence and who probably are already ac5uainted with the estate durin his lifetime. If a person dies intestate the persons who administer the estate 3personal representatives) are appointed by the court and the deceased will have no choice in the matter. 3d) #dministrative convenience %dministrators of estates derive their authority to administer the estate from the rant of letters of administration while the e8ecutors derive their authority from the will. %s they derive their authority from the will e8ecutors can be in to administer the estate from the date of the deceased9s death. The rant of probate merely confirms their authority. The rant of letters of administration takes time which means thee is always a considerable lapse of time between the death of the deceased and the rant of letters. The estate of an intestate cannot be administered until after the rant of letters has been obtained. The dependants of an intestate are therefore e8posed to inconvenience. Thus throu h a will a testator ensures that their estate may be dealt with immediately upon his death. % further aspect of administrative convenience in e8ecutin a will is that it is possible to ive many useful and desirable powers of administration to the e8ecutors under the will. The powers of the administrator of an intestate9s estate are limited by statute = the Law of Succession %ct = they are statutory. 3e) )% disc os%re o& t$e deceased*s !ro!ert" The makin of a will enables the testator to make a full disclosure of all the property they own or die possessed of, which is not possible in case of intestacy where a lot of the undisclosed property or assets may be lost. 3f) #voiding dis!%tes over t$e estate In the first place, by providin how and to whom property is to pass upon the testator9s death makin a will avoids s5uabbles between heirs and survivors over the estate. 3 ) +ene&iting !ersons o%tside t$e immediate &ami " The rules of intestacy only make provision for the deceased9s ne8t of kin. It is only by makin a will that a testator can benefit persons outside the immediate family circle. 3h) #!!ointment o& testamentar" g%ardians % will enables a parent who has minor children, if they so wish, to appoint a uardian or uardians to take parental responsibility for the children should he or she die while the children are minors. This is important where the parent is sin le. 3i) Directions regarding dis!osa o& deceased*s bod" % will may also be used to ive directions re ardin the disposal of the dead person9s body. This could be in terms of the precise method by which their body is to be disposed of 3i.e. burial where and how, cremation etc) or they may wish that their body or a part of it be donated to medical education, research or treatment of patients. Such provisions or directions have no bindin le al effect as the law reco niBes no property in the dead body of a human bein . This would mean that the testator cannot by will dispose of his dead body. Such provisions amount to a mere re5uest to e8ecutors to comply with the testator9s wishes. &wach " stated inA Pa% ine ,dete -in"ota Maingi vs. Rae -in"ota Maingi ,airobi1
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There is no property in a corpse which a testator can validly dispose of by his will, the e8ecutor9s obli ation is to ive effect to the deceased9s wishes in relation to the disposition of his corpse as far as practicable. The e8ecutor is not bound to ive effect to those wishes if they are either impracticable or in conflict with the personal law of the deceased. Similar remarks were made by Law "% inA .ames #!e i & anot$er vs. Prisca +% %/% (Mrs) -is%m%0 *here it was said that there can be no property in a dead body and a person cannot dispose of his body by will. The wishes of the deceased, thou h not bindin must, so far as possible, be iven effect, so lon as they are not contrary to custom nor contrary to the eneral law or public policy or safety. WAYS OF $ASSIN" $RO$ERTY ON DEATH OTHER THAN %Y WILL &a) Su'(i(o's)i* This applies in cases of Coint tenancies, that is where property is Cointly owned. *here a co(owner of property is a beneficial Coint(tenant of the property, whether real or personal, their interest will automatically pass to the survivin Coint tenant3s) on their death by virtue of that principle of survivorship = the principle of 1%s accrescendi. Dpon the demise of one of the tenants, that tenant9s interest would mer e with that of the survivin tenant. The LS% at section 0: provides that for the purposes of determinin survivorship in the event of two or more persons dyin simultaneously it shall be presumed that the deaths occurred in order of seniority with the youn er person survivin the older person, but in the cases of spouses, it shall be presumed that they died simultaneously. Such property in the case on non(spouses should devolve to different people upon the tenant9s death, it is therefore necessary to determine who died first. In the case of spouses, the property should pass to their children or to the same dependants it would not matter therefore who between husband and wife died first. &+) No,ina-ion % nomination is a direction by a person, called the nominator, to another who is holdin investment on their behalf, to pay the funds on the nominator9s death to a third party, called the nominee, nominated by the nominator durin the nominator9s lifetime. The direction is made by the nominator durin the nominator9s lifetime, but like a will, the ift only takes effect upon the death of the nominator. % nomination may be revoked by) a later nominationA the subse5uent marria e of the nominatorA and the death of the nominee prior to the death of the nominator. % nomination cannot be revoked by a subse5uent will or codicil. In &enya, nominations are made mainly with respect to savin s and investments in co(operative societies and provident or pension schemes. The nominations under the ,o(operative Societies %ct !##1 are statutory. Section :#3!) of the ,o(operative Societies %ct !##1 provides that on the death of a member, a co(operative society may transfer the share or interest of the deceased member to) a person nominated in accordance with the %ct or the rules made under itA or if, no person has been nominated, to such person as may appear to be the personal representative of the deceased member. The shares can only be transferred to the personal representative of the deceased member where there is no valid nomination in place. The nomination under the discretionary pension schemes are not bindin on the trustees of the scheme since the trustees are usually iven discretion under the rules of the scheme to e8ercise their discretion in favour of the nominated person or pay disre ard the nomination alto ether and make payment to the dependants of the deceased.
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Dnder rule !# of the Eetirement ;enefits 3Individual Eetirement ;enefits Schemes) Ee ulations 2..., the scheme rules should provide that on the death of a member the benefits payable from the scheme should be paid to the nominated beneficiary, and if the deceased had not named a beneficiary then the trustees should e8ercise their discretion in the distribution of the benefits to the dependants of the deceased. There is a proviso that the trustees may refuse the nominated beneficiary for stated reasons. Eule 2: of the Eetirement ;enefits 3Fccupational Eetirement ;enefits Schemes) Ee ulations 2... is in similar terms. &c) "if-s in Con-e,*.a-ion of Dea-) (Donatio mortis causa) % donatio mortis ca%sa is a ift made by a person durin their lifetime that is conditional upon their death in the sense that the property does not pass to the donee until the death of the donor. It is neither an inter vivos ift 3where there is delivery and transfer of ownership of the property durin the lifetime of the testator) nor a testamentary ift. ;uckley L.". in Re: +ea%mont 3!#.2) ! ,h. $$# at pa e $#2 said of donatio mortis ca%sa: It may be said to be of amphibious nature bein a ift which is neither entirely inter vivos nor testamentary. % ift in contemplation of death is outside the ambit of the LS% and cannot be revoked by a subse5uent will or codicil. It cannot be iven away as a ift under a will to someone else. It is not free property it cannot therefore be the subCect of a will. This means that if a donor delivers property durin their lifetime, with the intention of makin the ift conditional on death, and then thereafter makes a ift of the same property by will to another person, the beneficiary named in the will receives nothin . The followin conditions as set up by Lord Eussell in the case ofA 2ain v. Moon3 The donor ori inally delivered a deposit note to her mother for safe custody. She later became very ill and at a time when it was likely that she was oin to die she told her mother that the deposit note alon with other property was to be the mother9s should she die. It was held that there was effective delivery of the property. The Cud e further stated that such a ift must fulfill the followin conditions for it to be valid) The gift must be made by the donor in the contemplation of death. Section :!3a) provides that a ift in contemplation would be valid if the person makin the ift is at the time contemplatin the possibility of his death because of a present illness or present or imminent dan er. The death of a donor need not be imminent, but the donor must believe that they are dyin or they are likely to die in a particular way e. . They may believe that they are dyin from a terminal disease or at risk of dyin from a dan erous e8pedition. It is enerally irrelevant that the donor dies from some cause other than the one within their contemplation so lon as the condition from which the deceased thou ht he was dyin continued up to the date of the donor9s death. Section :!3e) provides that the ift would be valid if the person makin the ift dies from any cause without havin survived the illness or dan er. 4i /es vs. # ington5 This condition was deemed not even thou h the deceased thou ht he was oin to die of cancer but in fact died of double pneumonia.
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The ift would fail if the donor survives the contemplated illness or dan er but dies of a different cause. The condition that the ift be made in contemplation of death cannot be satisfied where the donor contemplates their own death by suicide, section :!3c) provides that no ift made in contemplation of death shall be valid if the death is caused by suicide. #gne( vs. +e &ast +an/ing 2o5 It was held it was a ainst public policy to uphold a ift which was intended to take effect by means of suicide. Re: D%dman>onor committed suicide, as he could not cope with his terminal illness. The court followed #gne( vs. +e &ast +an/ing 2o and in addition, held that the donation failed on the round of public policy. The gift must be conditional on the donor s death If the donor does not die, the ift will not take effect and the donor will be entitled to recover possession of the property from the donee as the ift must be conditional upon the death of the donor. % ift can e8pressly be stated by the donor to be conditional upon death. It may also be implied from the circumstances. The courts are likely to imply that the ift is conditional on death if it is made in the last few days of the donor9s final illness. However, where a ift in these circumstances is made in writin as opposed to orally it is presumed by the court that the ift is not a donatio mortis ca%sa, but either an attempted lifetime ift or a failed testamentary ift. The sub!ect matter of the gift must be delivered to the donee The donor must have handed over to the donee or his a ent the subCect matter of the ift or the means of controllin it. The donor must have parted possession with or parted with dominion over the subCect matter of the ift. Section :!3c) of the %ct states that a ift in contemplation of death would be valid if there is delivery to the intended beneficiary of the possession of the property or of the documents or other evidence of title of the party. 4i dis$ vs. )o( er7 % landlady was handed property by her sick tenant with instructions 6take care of this7. It was held there had been no donatio mortis ca%sa of the property as the donor had not parted with dominion over the property. The property was delivered merely for the purpose of safe custody.

4ood(ard vs. 4ood(ard$ % father handed over keys to his car to his son at a time when he was seriously ill, but the father kept a duplicate set. It was held that the father had effectively parted with dominion over the car because in the circumstances he was so ill only the son had access to the car. The property must be capable of forming the sub!ect"matter of a donatio mortis causa#
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The property the subCect of the ift should be capable of bein the subCect matter of such a ift. It should be capable of bein donated. Section :!3b) of the %ct provides that a ift in contemplation of death would be valid if a person ives movable property that he could otherwise dispose of by will. 4roperty that cannot be disposed of by will cannot be donated. % testator can only dispose of free property by will, therefore only free property can be subCect of donation. ,he5ues and promissory notes drawn by the donor cannot be a donatio mortis ca%sa. It was held inA Re +ea%mont6 % che5ue cannot form the subCect of a donatio mortis ca%sa as it is not enforceable without consideration. It was held similarly in Lea!er 3!#!-) ! ,h. ?1# with respect to a promissory note. Donee must survive the donor The ift is not be effective where the donee predeceases the donor. Section :!3f) provides that the ift would be valid if the donee survives the person who made the ift to him. If the intended donee predeceases the donor, his estate would have no cause of action a ainst the estate of the donor. The burden of provin that all the above conditions have been met lies with the donee. THE CREATION OF A !ALID WILL % will is only valid if a person of sufficient a e and of sound mind makes it in the proper form. The process of provin validity of a will must prove thatA a. That the testator had capacity to make will and that capacity was e8ercises without duress, undue influence or by mistake. b. *hether the formal re5uirements have been complied with. c. *hether the document alle ed to be a will was in fact revoked by the testator before his death. CA$ACITY %s a rule infants and persons of unsound mind are incapable of makin a valid will. This is the common law position re ardin testamentary capacity and is reflected in section ? of the Law of Succession %ct. A/e % will made durin infancy is invalid unless the testator upon reachin the a e of maCority re(e8ecutes it or makes a new will or codicil confirmin it. *hen a minor dies, his estate should pass in accordance with the rules of intestacy. #en-a. o' -es-a,en-a'0 ca*aci-0 4ersons of unsound mind are incapacitated from makin a valid will, althou h this does not mean that such persons are destined to die intestate. If such a person makes a will before his mind becomes afflicted or makes, it durin a lucid interval such a will is valid. 7i1a" 2$andra/ant 8$a$ vs. 9$e P%b ic 9r%stee1: The deceased was very sick from syphilis and diabetes at the time he e8ecuted his will, but it was held by the ,ourt of %ppeal, on the evidence, that he e8ecuted the same durin a lucid moment and therefore the will was valid. The test of mental capacity to make a will is not directly linked to mental disorder. ,ockburn ,.". set the test inA
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+an/s vs. Good&e o(11 In the followin terms)( 6he mustHhave a sound and disposin mind and memory . In other words, he ou ht to be capable of makin his will with an understandin of the nature of the business in which he is en a ed, a recollection of the property he means to dispose of, and of the persons who are the obCects of his bounty and the manner it is to be distributed between them.7 The followin issues affect testamentary capacityA $nsane delusions: The fact that the testator is labourin under insane delusions at the time of makin the will is not necessarily fatal to the validity of a will so lon as the delusions leave the testator9s power of understandin unimpaired. %n insane delusion will only affect the testator9s capacity to make a will if it in some way affects the way he disposes of his property. De( vs. 2 ar/10 The testator made a will which was rational superficially, but which e8cluded his dau hter from benefit. The dau hter showed by way of e8trinsic evidence that the testator had an insane aversion of her. He had refused to see her for the first three years of her life and he had made her sleep with an insane woman. The court in invalidatin the will held thatA % person suffers from an insane delusion if he holds a belief of a particular matter which no rational person could hold and the belief cannot be eradicated from his mind by reasonin with him. %n insane delusion will only affect the testator9s capacity to make a will if it in some way affects the way he disposes of his property Re ,ig$tinga e Lack of mental capacity was shown when a son was e8cluded from his father9s will because the father wron ly and insanely believed that the son was tryin to kill him. The son had on two occasions pushed the father back on the pillow when he was havin difficulty breathin A and he thou ht he was on a mission to kill him. %nowledge and Approval: These affect the validity of a will. In addition to havin testamentary capacity, a testator must know and approve the contents of their will. % testator knows the contents of the will if he is aware and understands the terms of the will. He need not understand the precise le al effect of the terms. % testator approves the terms of the will if he e8ecutes it in those terms on his own volition and not because of coercion or undue influence of another. The knowled e and approval of the testator may also be absent because of mistake or fraud. The point at which the testator must know and approve the contents of their will is at the time of e8ecution. % presumption of knowled e and approval arises once it is established that the testator had testamentary capacity and that the proper formalities for the e8ecution of the will have been complied with. The evidential burden shifts to the person attackin the will to provide evidence to rebut the presumption. The followin factors affect knowled e and approval. 8%s!icio%s circ%mstance *here a person who writes or prepares the will takes a substantial benefit under the will, a suspicion is likely to develop as to whether the testator knew the contents of the will. M(at$i v M(at$i
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The deceased died at -?, he never married and left behind no wife and children. % brother and 2 sisters survived him. He owned real property. Two days before his death he made a *ill under the terms of which he be5ueathed the property to the brother. %ccordin to the brother, the deceased dictated his wishes and the brother reduced them into writin . The *ill was then thumb printed by the deceased and witnesses by, amon others, the brother and his wife. @ollowin the death of the deceased the brother applied for rant of probate for the *ill of the deceased and letters of administration were issued to him. The sisters sou ht a revocation of the rant on the rounds of suspicious circumstances. It emer ed shortly before the e8ecution of the alle ed *ill, the brother had removed the deceased from their mother9s house to his for baptism and then shifted him back. It also emer ed that when the brother wanted the deceased to dictate and e8ecute the alle ed *ill he removed the deceased a ain from their mother9s house to his own house. The brother e8hibited reat animosity towards the sisters whom he prevented from enterin his house. It was held that the rant ou ht to be revoked. The brother wasn9t Cust the author of the *ill but also the sole beneficiary under it. . The hi h court found that the circumstances e8cited suspicion and the will was declared invalid and the will made to the brother was revoked. Mista/e The knowled e and approval of the testator may be absent because of a mistake on the part of the testator or of a person employed by him to draft the will. The mistake may relate to part or whole of the will. % mistake relatin to the whole will renders it invalid, while a partial mistake may be corrected or otherwise that portion of the will revoked. Re Morris The testator made a will but after some time decided to alter the provisions she instructed a solicitor to prepare a codicil to effect the chan es. The solicitor made mistake when draftin and inserted an erroneous fi ure. The testatri8 e8ecuted the codicil without receivin the contents. It was held that the erroneous fi ure inserted by the solicitor should be omitted from the *ill and the ri ht fi ure in the ori inal *ill should be introduced in the codicil. 2oercion or %nd%e in& %ence The knowled e or approval may be absent owin to coercion or undue influence bein e8ercised on the testator. ,oercion can take a number of forms. If violence is threatened a ainst the testator in order to e8tract a *ill from him, this will amount to undue influence. The same applies if the testator is confined to a locked room starved for food or fati ued by continuous talkin to when ill or weak. Dndue influence is common in circumstances of what may be described as confidential relationship particularly those of a reli ious nature between a pastor and a member of the con re ation. Re ;arden The relationship was between a woman and spiritualist medium. The testatri8 left property to the spiritualist medium after he alle edly transmitted messa es from the other side to her as to what she should do with her property on death. The messa es were dictated to her and resulted in her e8ecutin two testaments which made the +edium a substantial beneficiary of her 'state. It was held that the +edium had taken control of the testatri8 mind to the e8tent that she had written what he had wanted rather than the record of her mind. The will was invalidated on rounds of undue influence. Par&it v La( ess The testatri8 left her residue estate to a Eoman ,atholic 4riest who was her confessor and who lived with her and her husband. It was alle ed that the confidential relationship between them ave rise to the presumption of undue influence. However after the priest e8plained the situation, the ,ourt came to the findin that althou h there e8isted a confidential relationship between the two there was no positive evidence of undue influence.
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However these two coercion and undue influence must be distin uished from persuasion. 4ersuasion is lawful where a person is persuaded to will away his property or influence which is undue is e8ercised on a person who has a weak mind or is in ill health, where a person is well and stron , it will be presumed that he disposed of his property the way he did upon the e8ercise of his persuasion. In the case ofA 4ingrove v 4ingrove % youn man became cau ht in the toils of a harlot who was able to e8ert much influence over him and induced him to make a will in her favour to the e8clusion of his wife and children this would not amount to undue influence, it would tend towards persuasion rather than undue influence. Dndue influence and coercion will thus occur if the testator is induced to makin a will or some part of it that he does not want to make. It is common where the testator is of weak or impaired mental capacity or in failin health. )ra%d &nowled e and approval will also be absent if the testator makes a ift by will or e8cludes a person from benefit as a result of false statements which have been made about an intended beneficiary9s character or conduct. %ny fraudulent conduct invalidates the will. 4i /inson 7s .o%g$in % ift in a will to a married woman who represented to the testator that she was free to marry him while indeed her marria e with another man was still subsistin , was held to be fraudulent and so it was omitted from probate )orged. % will shall also be void if it is for ed. The burden of provin for ery lies with the person alle in it. FOR# Dnder &enyan law, no specific form of a will is re5uired. S $ provides that a will may either be oral or in writin and may thus take any form provided it satisfies the laid down re5uirements of formal validity. S # provides the formal re5uirements for an oral will, while S !! deals with written wills. S !. provides that where a conflict arises between the contents of a written and an oral will the contents of the written will shall prevail. In the case of an oral will, accordin to S #, its only valid ifA ( it is made in the presence of two or more competent witnesses ( the testator must die within three months after it is made. The rationale behind the provision in S #3b), the time stipulation, is that bein oral there is a dan er that some details may be for otten or misreported where a lon er period is allowed. The other reason is that such wills are usually made in a state of panic, fear, or an8iety. The three(month period is intended to allow them time to reconsider the terms of the will and, if possible, reduce the same to writin . % proviso to section #3!) provides an e8ception to these re5uirements. The e8ception covers persons in active service in t$e armed &orces or merc$ant marine. %n oral will made by such persons is valid if the persons die in active service notwithstandin that the will was made more than three months before their death. Such wills, which do not comply with the formal re5uirements, are called !rivi eged (i s. Written wills: S !! provides that no written will shall be valid unless)
10

( It is si ned by the testator or he affi8es his mark to the will or it has been si ned by some other person in the presence of and by the direction of the testator. It must appear that the testator intended by his si nature or mark or si nature of the person si nin for him to ive effect to the will. ( The si nature is made or acknowled ed by the testator in the presence of two or more competent witnesses present at the same timeA and, each witness must attest and si n the will in the presence of the testator but not necessarily in the presence of the other witnesses. 4itnessing: S !! 3c) of the LS% provides that the testator9s si nature must be made in the presence of two witnesses who need not be present at the same time. If the witness is present but unaware of what the testator is doin , the attestation will be invalid. S !!3c) of the LS% refers to the acknowled ement of a si nature. Instead of bein present when the testator is e8ecutin the document, the witnesses may be called after he has si ned the document, in which event the testator should acknowled e his si nature or mark or the si nature of the person si nin on his behalf and at his direction, to the witnesses. ;oth witnesses must be present at the acknowled ement at the same time. If the witness is present but unaware of what the testator is doin , the attestation will be invalid. +ro(n vs. 8/irro(13 % testatri8 took her will to a rocer9s to be e8ecuted. She asked two shop assistants to act as witnesses. %s she was si nin the document, one of the assistants was busy servin a customer. The will was held invalid. In Re 2o ing 3!#12) ! *LE !00. it was stated obiter that if a witness left the room before the testator completed his si nature, the attestation will also be invalid. S !! 3c) re5uires that the witnesses must be capable of seein the si nature and understandin what they are doin . This provision therefore makes the blind and the illiterate unsafe witnesses. +inors, drunks and insane persons should not be chosen. % witness competent to attest a will is defined in s :3!) as a person of sound mind and full a e. #ttestation: S !! 3c) provides that each witness must si n the will in the presence of the testator. They need not necessarily si n in the presence of each other. Dnder S ?0 of the Indian Succession %ct, !$-? a beneficiary under a will cannot attest the e8ecution of a will. If he so does he loses his be5uest and the will is deemed to be improperly attested. This is also the common law position. However, Dnder S !: a will should not be considered as insufficiently attested merely by the fact that it is attested by a beneficiary provided that where that is done the si natures of such beneficiaries are further attested by at least two additional competent and independent witnesses. The witnesses9 si natures need not be in a particular place in the will, but it should be so placed or positioned as to show the intention to ratify the testator9s si nature. Re +ead e15 *itnesses si ned the envelope containin a will but the will itself was unattested. It was held that the will was invalidly attested. S !2 of the %ct provides for incorporation of papers by reference embodyin the doctrine that allows documents that satisfy certain conditions to be re arded as part of a will even thou h the documents themselves are not e8ecuted. Such documents if incorporated into a will are admissible to probate as part
!: !0

3!#.2) 4 : 3!#10) ! %ll 'E 0#:

11

of the will. @or incorporation to be effective the document must be in e8istence at the date the will is e8ecuted, referred to in the will as e8istent and clearly identified. RE!OCATION OF A WILL This is an e8pression of the freedom of testation. % will can be revoked voluntarily or involuntarily. There are three 3:) methods of voluntary revocation, namely) e<!ress revocation= im! ied revocation and revocation b" destr%ction. S !1 of the LS% provides that its maker may revoke a will at any time when he is competent to dispose of his free property by will. '8press Eevocation Section !$ 3!) provides for the revocation of a will or codicil by another will or codicil declarin an intention to revoke it. Eead to ether with Section !1 this provision enables testators to revoke their wills so lon as they have the capacity to do so. 4rofessionally drawn wills invariably contain an e8press revocation clause takin this form) 6I revoke all former .wills and testamentary dispositions heretofore made by me7. It is not be sufficient to say, 6This is the last will and testament made by me7. This would not be an e8press revocation clause. It was held in Re ;a(/s e"*s 8ett ement 3!#:0) ,h. :$0 that the description of the will as the testator9s Ilast will9 was not sufficient for an e8press revocation clause. Eevocation may be of whole or part of the will or codicil. % codicil is often used when only parts of the will are to be revoked. '8press revocation re5uires an intention to revoke on the part of the testator. Implied Eevocation The wordin of section !$ 32) is wide enou h to cover the possibility of implied revocation. % will or codicil is impliedly revoked by a later will or codicil to the e8tent that the latter is inconsistent with the earlier will or codicil. It is a matter of construction of the will or codicil to decide whether and to what e8tent a later will impliedly revokes an earlier will. '8trinsic evidence is admissible for establishin implied revocation. Eevocation by >estruction Section !$3!) provides for revocation by the burnin , tearin or otherwise destroyin of the will with the intention of revokin it by the testator or by some one else at his direction. Eevocation by destruction involves two distinct elements) the actual destruction of the will and an intention to revoke the will. ;oth elements must be present. The actual destruction must be by burnin , tearin or otherwise destroyin the will. IFtherwise destroyin 9 has been construed usin the e1%sdem generis rule to re5uire that the acts of destruction are of the same kind as burnin and tearin . 2$eese vs. Love1o"15 % testator cancelled his will by strikin out its clauses and his si nature with a pen and then writin at the back of the will I%ll these are revoked9. He threw the will in a pile of waste paper in the corner of the room where his house cleaner retrieved it and kept it in a kitchen drawer until the testator9s death ei ht years later. It was held that what he did not amount to 6otherwise destroyin 7. %lthou h he intended to revoke the will, it had not been destroyed and it was admitted to probate. I Re: Morton*s Goods16 the testator9s si nature was completely scratched out. It held that the same amounted to otherwise destroyin .
!? !-

3!$11) 2 4> 2?! 3!$$1) !2 4> !0

12

;obbs vs. -nig$t17 It was held that 6tearin 7 include cuttin . RE!I!AL OF A WILL % testator may revive a will, codicil or any one of them that has been revoked, provided that it has not been completely destroyed. Eevival usually involves the re(e8ecution of the will with proper formalities or a duly e8ecuted codicil. There should be in either case an intention to revive the revoked document. Dnder S 2. it is permissible to make alterations to a will, both before and after e8ecution. %lterations made after e8ecution would be invalid unless they are duly e8ecuted in accordance with the formalities re5uired for the e8ecution of a valid will. The formalities are deemed to be duly complied with if the testator and witnesses si n on the mar in ne8t to the alteration or in the memorandum referrin to the alteration. INTESTATE SUCCESSION Intestacy occurs where a person dies without havin made a will or the person9s attempt to die testate fails upon the invalidation of his will or the person revokes his will and subse5uently dies without havin made another will 3S :0 of the LS%). Intestacy may be a tota or !artia . It is total where the intestate has left no valid will. It is partial where) a person fails to include all his property in his otherwise valid will or part of the will is declared invalid or a part of the will is revoked or a person ac5uires property subse5uent to the makin of the will that is not ambulatory. The property not covered by the will is overned by the intestacy provisions or is subCect to intestate succession. In the absence of blood relatives, the estate passes to the state bona vacantia. The intestacy rules only benefit people who also have a direct blood link with the intestate that is apart from spouses. Intestacy is provided for in sections :?(0. of the %ct Section :? Section :? overns the mono amous situation where the couple has children. In such cases the survivin spouse is entitled to the personal and household effects of the deceased absolutely with a life interest on the whole residue of the net intestate 'state. % proviso to Section :?3!) says that if the survivin spouse is a widow, the life interest terminates upon remarria e of the widow. Life interest refers to the ri ht by the widow to use the property makin up the estate but without power to dispose of it. 4ersonal and Household effect are defined in Section : of the %ct to mean clothin , articles of personal use, furniture, utensils, appliances, pictures, ornaments, food, drink and all other articles of household use and decoration normally associated with a matrimonial home and it is to such that the survivin spouse is entitled. Section :?32) ives the survivin spouse power of appointment i.e. the power to distribute the capital assets of the intestate by way of ift takin effect immediately amon the survivin children. Dnder this provision the power of appointment cannot be e8ercise by way of will and it cannot take effect on a future date primarily because the survivin spouse does not have absolute ri ht to property. He<she enCoys a mere life interest of the property. It is not their property and they cannot ive it as a ift by will. Section :? 3:) and 30) allow a child who is a rieved by the e8ercise of the power of appointment to challen e the same in court.
!1

3!$:-) ! ,urt 1-$

13

Section :?3?) deals with what should happen in the event of the death of the survivin spouse or the widow remarries. In that event the portion of the 'state which is subCect to the life interest devolves upon the survivin child or children. If there are many children the property should be divided e5ually amon them takin into consideration any property held in trust for a child. 'state o& Grace Mic$obo18 %n application for confirmation of rant of letters was refused on the rounds that it did not comply with Section :?. The proposed distribution e8cluded a married dau hter and ave a very small share of the 'state to an unmarried dau hter of the deceased with the bi er share oin to the sons of the deceased. The court held that the there should be no discrimination between male and female children and that the property should be shared e5ually amon all the children includin the dau hter as per Section :?. Section :Section :- deals with a case where the deceased has left one survivin spouse but no child or children. The survivin spouse is entitled out of the net intestate to the followin ) !. To the personal and household effects of the deceased absolutelyA 2. To the first &enya Shillin s !.,...<( out of the residue of the net intestate 'stateA or 2.J of the residue of the net of the intestate 'state whichever is reaterA :. % life interest in the whole of the remainder i.e. over the $.J of the residue, The life interest is lost on the remarria e of the survivin spouse if the survivin spouse is a widow. 4lease note that Section :-32) ives the +inister discretion to alter or vary the amount of &Shs. !.,...<(. This discretion has not been e8ercised so far thou h the amount of !.,...<( was fi8ed in !#12 althou h a variation is overdue iven the present economic situation. Section :1 Dnder section :1 a survivin spouse durin life interest may sell any of the property the subCect of the life interest for their own maintenance subCect to the followin restriction) It has to be with the consent of all the court trustees and all the adult children and where the court trustees and the children withhold the consent then the survivin spouse may seek the consent of the court. where the subCect property is immovable, the consent of the court is mandatory. Section :$ Section :$ deals with the situation where the intestate has left a survivin child or children but no spouse. In such circumstances the net intestate devolves upon the child or children. *here the children are more than one the 'state is divided e5ually amon them. The %ct merely refers to children and makes no distinction as to whether they are male or female emphasisin that property should be shared e5ually by children re ardless of ender. Mar" 4an1ir% 9$air%16 % sin le parent was survived by a son and - dau hters. The son attempted to inherit the entire estate basin himself on &ikuyu ,ustomary Law. His application was reCected by the court on the basis that it did not comply with Section :$ which re5uired that the property be shared e5ually amon the 1 children. Section :#

!$ !#

Succession ,ause /o. !#1$ of 2... H.,. Succession ,ause /o. !0.? of 2..2

14

Section :# is about where the intestate leaves no survivin spouse or children either because he<she never ot married or they predeceased her, the property should devolve upon the kindred of the intestate or blood relatives of the deceased in the followin order of priorityA !. @atherA if dead 2. +other of the deceasedA if dead :. ;rothers and Sisters and any child or children of the deceased brothers and sisters of the deceased in e5ual sharesA if no such relatives 0. Half brothers and half sisters and any child or children of the deceased half brothers and sisters in e5ual sharesA if there are relatives ?. Eelatives of the deceased who are in the nearest de ree of consan uinity up to and includin the -th de ree in e5ual shares includin cousins, uncles etc. if no such relatives can be tracedA -. The net intestate 'state would devolve upon the State in bona vacantia and the 'state would be li5uidated and the proceeds paid into the consolidated fund. +eatrice #ma emba0: The father of the deceased and her mother in law and brother in law were unable to a ree on who would apply for the letters of administration of the deceased estate. The deceased had no children and the husband had predeceased her. The court found that the father of the deceased had priority over the mother in law and brother in law by virtue of Section :# of the %ct. '<am! e Fsiemo dies intestate, his wife has predeceased him and he is not survived by any children. He leaves behind two brothers, +achoka and /yambane, /yambane has two dau hters ;onareli and +oraa. Fsiemo has a sister ;osibori who predeceased him leavin two sons. The residuary 'state is valued at &Shs. :..,...<(. How is this 'state to be dividedK *ho ets whatK Since the brothers and sister are of full blood, they take e5ual shares, +achoka takes &Shs. !..,...<( /yambane !..,...<( and ;osibori !..,...<( is deceased so her children take her share e5ually each ?.,...<(. If one of the children of ;osibori is about the a e of !$ he takes his share absolutely but if the child is below they do not take absolutely but the money is held in trust for the child by the administrator until the child attains the a e of maCority. The children of /yambane receive nothin since their father is still alive. Section 0. This provides for division of the property of an intestate where the deceased is a poly amist. The 'state of such a deceased person should be divided as follows) !. His personal and household effects and residue of the 'state should in the first place be divided amon the houses accordin to the number of children in each houseA 2. >istribution of the estate should thereafter be on the basis of the provisions of Sections :?(:$ of the Law of Succession %ct. The 'state is divided in accordance to the number of children in each house. Mar" Rono v .ane Rono & #not$er This was a decision at %ppellate level. The Hi h ,ourt had distributed the 'state accordin to the ,ustomary Law and the Law of Succession %ct. The "ud e was of the view that Section 0. of the %ct allowed e5ual distribution amon the children irrespective of ender but considered the fact that the dau hters may et married and inherit property from their new families. There were - dau hters, each was iven ? acres and : sons who were iven :. acres each. The ,ourt of %ppeal found that the findin of the H, was inconsistent with Section 0. which re5uires that in a poly amous settin the property
2.

H.,. Succession ,ause 2!-. of 2...

15

should be divided e5ually amon the children. The distribution was revised and each of the children were iven !0.0 acres each out of the estate. 'state of ;enson /diran u +athen e2! The deceased was survived by two widows, $ sons and two dau hters. @or the purpose of the distribution of the 'state under Section 0., the court stated that the two houses made a combination of !2 units. The land was divided into twelve e5ual units. The first two units were iven to the widows while the remainin ten units went to the children. %ny survivin wife in a poly amous settin is treated as an additional unit to the children. Section 0! It states that whenever property devolves around a child or children who are below !$ or bein female marry under !$ the same should be held in trust for such child or children. De*en1enc0 Section 2# The provisions relatin to >ependency are to be found in 4art III of the %ct. >ependant is defined under Section 2# and under this section dependants are divided into : cate ories. In the first cate ory are the wife or wives or former wife or wives and the children of the deceased. The dependants in this class do not have to prove dependency. They do not have to show that they were dependent on the deceased prior to his death all they need to show is that they were either wives or children of the deceased. &hildren: Dnder this provision the children of the deceased need not be by his wife or wives or former wife or wives. It means any child of the deceased whether by his lawful wife or not. 3includin mipan o ya kando 38am%e (an1ir% b%ria iss%e)) 4lease note that definition of child under Section 2# includes an adult child 3/Cen a &arume e8ample). 'state o& 2are" M%ri%/i00 ,hild within the meanin of Section 2#3a) is not limited to a minor. The court was of the view that the definition of a dependant under Section 2# 3a) and 3b) rouped children of the deceased to ether with wives, parents and siblin s of the deceased who obviously are not minors. The court concluded that child under Section 2# means the child be otten by the deceased the a e of the child not withstandin . This provision 2# 3a) was meant to take care of women married under a system allowin poly amy and it also seeks to protect former wives who after divorce did not et a share of the matrimonial property. Wife: Thou h the definition of child is clear, not of the wife. The law is not clear and a lot of controversy has been enerated on this point. *ho is a wife for purposes of SuccessionK The problems arisin from definition of wife are traceable to Section :1 of the +arria e %ct. ># man ($o $as contracted a marriage in c$%rc$ $as no ca!acit" to contract anot$er d%ring t$e s%bsistence o& t$at marriage.? Initially, marria es contracted under ,ustomary law by persons who are married under statute were held to be null and void by the ,ourts and the wives so married were found to be not wives for purposes of Succession. That point was addressed by the Hi h ,ourt in the cases of) Re R%en1i*s 'state (1677) -LR 01
2! 22

/akuru H, Succession ,ause 2:! of !#$$ Succession ,ause 1-? of !##0

16

The deceased, ;ernard EuenCi, a &ikuyu domiciled in &enya, contracted a valid ,hristian marria e with Loise +buni and althou h no decree of divorce had been ranted, he participated in ceremonies for marria e in accordance with &ikuyu customary law with two other ladies namely +ary *aithera and +ary *anCohi on subse5uent occasions. %fter his death, the public trustee petitioned the court to decide whether in view of the first marria e of the deceased he could enter into other lawful marria es under &ikuyu customary law. If he could do so, whether he had entered into the subse5uent marria es accordin to the re5uirements of &ikuyu customary law, who the children of those marria es were and what should be the shares of wives and children in the deceased estate. Held by Sachdeva " that) 6in the absence of a decree of divorce, the claims would not be allowed as section :1 of the +arria e %ct precluded any person whose marria e was re arded as valid under the %ct from contractin a valid marria e under /ative law or custom durin the subsistence of that marria e.L Re @go a*s 'state (1678) -LR 18 %lso in Ee F olla s 'state, the deceased ;oaB F ola, a Luo domiciled in &enya, married Gladys F ola on 2#th %u ust !#-0 under the %frican ,hristian +arria e and >ivorce Frdinance 3,ap !?!). ;ona F olla claimed to have married the deceased in accordance with Luo customary law in !#10 before he died intestate in the same year on $th %pril !#10. The public trustee applied to the court for a decision as to the lawful heirs to the estate of ;oaB F olla and their respective shares of his estate. Held by Simpson ") LThe deceased was incapable under section :1 of the +arria e %ct of contractin any valid marria e as lon as his ori inal marria e subsisted. %ccordin ly, ;ona did not become his wife and could not in such capacity inherit on his intestacy.L The point was that a wife married under ,ustomary Law is not wife. These two cases were decided in !#1$ i.e. before the %ct came into force. 4lease note that the %ct was intended to operate alon side the law of +atrimony ;ill which was intended to amon other thin s provide for conversion of statutory mono amous marria es into poly amous marria es. The failure to pass the +atrimony ;ill resulted in disharmony between the law of Succession %ct and the @amily Law Statutes and meant that the women were to be dependent on men for the rest of their lives and when the husbands died they would not be reco niBed. 4arliament sou ht to address this problem throu h %ct /o. !. of !#$! which introduced Section :3?) into the %ct, which is a later insertion into the %ct and provides as follows 6notwithstandin the provisions of any other written law, a woman married under a system of law which permits poly amy is, where her husband has contracted previous or subse5uent +ono amous marria e to another woman, is nevertheless a wife for the purposes of the %ct and in particular Sections 2# and 0. thereof, and her children are accordin ly children within the meanin of the %ct.7 The effect of Section :3?) is to reverse the purpose of the decisions in Re @go a and Re R%en1i which meant that the wives married subse5uently by a person who had previously contracted a mono amous marria e were wives for the purpose of Succession. Section :3?) is not a ood provision as it conflicts with provisions of another Statute and creates an untidy situation in the sense that under the marria e %ct the *oman +arried under Statute is the lawful wife and by virtue of Section :1 the others are not wives and here we are sayin that under :3?) they become wives. Arene ,1eri Mac$aria v Margaret 4airim% .omo and #not$er The ,% stated that Section :3?) was intended to cater for women who were married under ,ustomary Law to a man who had previously or subse5uently contracted a statutory marria e. It held that the
17

,ustomary Law wife in the case of Eeuben +utua was one such woman as she was married to a man who had previously contracted a statutory marria e and had married under a system of law which reco niBed poly amy and therefore the court should have found that she was a wife within the meanin of Section :3?). The ,% also decided that the cases of Ee R%en1i*s 'state and Re @go a*s 'state are no lon er ood law as they were decided before Section :3?) came into force and concluded that the two cases were otherwise ood law at the time they were decided. M%igai v M%igai & #not$er03 The facts were that the deceased had contracted the first marria e under Statute but thereafter purported to contract two other marria es under ,ustomary Law and there were issues from all the : marria es. Dpon his death the !st wife obtained a rant of letters of administration on the basis that she was the lawful wife and married under statute. The ,ustomary Law wives challen ed the rant on the basis that they were also dependants of the deceased who should be provided for from the 'state. The ! st wife9s contention was that by virtue of Section :1 of the +arria e %ct the deceased had no capacity to marry the customary law wives. The Hi h ,ourt found that the ,ustomary Law wives were wives for purposes of Succession. The court concluded that in view of Section :3?) of the Law of Succession %ct Section :1 of the +arria e %ct did not bar the marria e of subse5uent wives under customary law. The ,ustomary Law wives were therefore dependants under Section 2#. The second cate ory of dependants includes the deceased parents, step parents, randparents, randchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters and half brothers and half(sisters. 4lease note that the dependants under this cate ory have to prove dependency, they are not entitled to a share of the 'state automatically. The third cate ory of dependants is the husband where the deceased was a woman. In the case of the husband he has to prove dependency. The definition in Section 2# is dependent on the provisions of Section 2- and the definition in Section 2# is for the purposes of Section 2-. Section 2- makes provisions for dependants who are not ade5uately provided for by will or intestacy. The law re5uires that a dependant who feels inade5uately provided for whether under the terms of the will or intestacy may make an application to court askin the court to make reasonable provisions for him or her out of the 'state of the deceased. Section 2- is a fetter to Section ? of the %ct. Section ? embodies the doctrine of the principle of testation which ives the testator freedom to will away his estate as he wishes. The testator is at freedom to will away his 'state as he wishes without necessarily providin for dependants. Section 2- on the other hand empowers the court to interfere with the testator9s e8ercise of freedom of testation by makin provisions for any dependant who has not been ade5uately provided for. Section 2allows such a dissatisfied dependant to move the court under Section 2- to challen e the provision. AD#INISTRATION OF ESTATES $ERSONAL RE$RESENTATI!ES ;ecause the will does not take effect durin the testators life time, this means that someone else must take char e of the testators estate and fulfil his desires as contained in the will. Such a person is called a personal representative.
2:

Eeported in !##?(!##$ Mol. ! '.% 2.-.

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There are two types of personal representatives namely)( ( '8ecutor andA ( %dministrator. The personal representative appointed by testator in the will is called '8ecutor if male and '8ecutri8 if female. %n e8ecutor is appointed by the will and derives his authority there from. In some cases, the appointment of an e8ecutor may be impliedA Such an e8ecutor is called an e8ecutor by implication or an e8ecutor accordin to the tenor of the will. 4robate can only be ranted to an e8ecutor who is appointed by the will, by e8press or by necessary implication. Sometimes, a testator may not name any person to be the e8ecutor but may assi n duties to him which are more or less the duties of an e8ecutor. Such a person can be treated as a constructive e8ecutor. In such cases however, it should be shown that the testator intended to impose such duties on such person. The personal representative appointed by the court is called an administrator if male and administratri8 if female. Dpon death of testator, all his property lies with the personal representatives. This is a position of trust and confidence hence it cannot be transferred to any other person. Generally, any person can be appointed as a personal representative. However, no letter of administration can be iven to a minor, person of unsound mind, a bankrupt or to more than four persons in respect to the same property. % body corporation e8cept a public trustee or a trust corporation cannot be appointed a personal representative. % person appointed as a personal representative is not compelled to take up the functions of his office. He may renounce the appointment either orally before the court or in writin under his hand. $owe's of $e'sona. Re*'esen-a-i(e i. To take over cases that survives or arises out of the death of the deceased. ii. To sell the assets of deceased vested in them where necessary. iii. To ive consent rantin specific property to a particular beneficiary. iv. To invest funds of the estate, to provide for more property. Du-ies of $e'sona. Re*'esen-a-i(e i. To collect and take into custody all the properties of the deceased. ii. To determine and pay out of the estate all the debts of the deceased. iii. To pay out of the estate the e8penses of a reasonable funeral of the deceased. iv. To pay out of the estate all testamentary and other reasonable e8penses of administration. v. To produce to court a full inventory of assets and liabilities and how they are dealt with upon the date of such accounts. vi. To distribute or retain on trust all assets remainin after payment of e8penses and debts. vii. To complete the administration of the estate and produce to court a full and accurate account of such completed administration. The personal representatives will, by notice, invite creditors of the deceased to submit proof of their claims a ainst the estate. %fter e8piration of the ststed time for sendin in the claims, the personal representatives dischar e the lawful claims, if any, and then distribute the assets. 4ersonal representatives are liable to make ood any loss occasioned by their ne li ence or misapplication. "RANT OF $RO%ATE AND LETTERS OF AD#INISTRATION Generally a personal representative accepts functions of his office by applyin for probate and letter of administration.
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4robate means proof of validity of a will. It9s the copy of a will certified under the seal of the court of a competent Curisdiction with a rant of administration to the estate of the testator. It certifies that the ori inal will was proved on a certain date. % certified copy of the will is attached to the probate. This is important because it establishes validity of will and also enhances the authority or status of the personal representative. %n application must also be made for rant of letter of administration. This application must contain the followin information and particulars) i. The full names of the deceased. ii. The date and place of death of the deceased. iii. The last known place of residence of the deceased. iv. The relationship of the applicant with the deceased. v. *hether or not the deceased left a will. vi. The present address of the e8ecutor appointed in the will. vii. /ames and addresses of dependants of the will. viii. % full inventory of all the assets and liabilities of the deceased. *here the deceased left a valid written will, the ori inal copy must be attached to the application. 4articulars of the witnesses must be iven in the application in case of an oral will. It is important to note that the rant of probate or letter of administration does not confer power to the personal representative to distribute capital or property of the deceased until the court has confirmed the rant. Grant of probate or letters of administration cannot be done to minors or persons of unsound mind.

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