WILLS, GIFTS AND LEGACIES

WILLS
A will is the legal declaration by a person of his wishes or intentions regarding the
disposition of his property after his death, duly made and executed according to the
provision of the Law of Succession
Act. It is a declaration made a person during his lifetime regarding certain matters which he
desires to take effect on or after his death. These matters relate to the disposition of his
properly, directions intended to satisfy his wishes e.g the manner in which he should be
buried.
A person who makes a will is called a testator or testatrix in the case of a female. The
person who takes charge of the deceased’s estate and fulfills the deceased’s desire as
expressed in the will is called a personal representative. A personal representative
appointed by will is called an executor or an executrix in the case of a female. In situation
where there is no executor, the personal representative may be appointed by the court and
he is known as an administrator. A will only takes effect after the testator’s death, however
its powers are not absolute but are confined and restricted by law which imposes certain
restrictions on testamentary freedom
STATUTORY REQUIREMENTS OF A WILL
A will is a legal declaration and has to satisfy some conditions to be valid. These include:-
The testator must have testamentary capacity
The testator must have animus testandi
The will must follow certain formal requirements
(i). Capacity to Make a Will:
In order to make a valid will the testator must have testamentary capacity. Minor, infants
and person of unsound mind do not have the capacity to make a valid will. A person of
sound mind and not a minor may dispose of all or any part of his free property by will and
may thereby make any disposition by reference to any secular or religious law that he
chooses. A female person (whether married or not) has the same capacity to make a will as
a male.
Any person making or purporting to make a will, shall be deemed to be of sound mind
unless, at the time of executing the will, he is in such a state of mind, whether arising from
mental or physical illness, drunkenness or from any other cause, as not to know what he is
doing. The burden of proving that the testator was not of sound mind lies with the person
who alleges it.
(ii). Animus Testandi
The testator must also have animus testandi i.e the intention to make a will. If a will, or any
part of a will, was made by fraud or coercion, or by such importunity as takes away the free
agency of the testator, or has been induced by mistake, the will, or that part of it, is void.
The burden of proof is on the person attempting to upset the will.
Formalities of a Will:
A will must in the in the form prescribed by law. Formalities of a valid will are contained in
Section 8 and 16 of the Law of Succession Act (CAP.160). These are outlined below:-
a) A will may be either orally or in writing
b) No oral will shall be valid unless:
It is made before two or more competent witnesses
The testator dies within a period of three months from date of making a will
 An oral will made by a member of the armed forces or merchant marine during a period
of active service is valid if the testator dies within the same period of active service despite
the fact he died more than three months after the date of making thewill.
If an oral will is made after a written will has not been revoked, the oral will is not valid in
so far as it is contrary to the written will; if a written will is made after an oral will, the written
will be the valid will (unless some property disposed of by the oral will is not disposed of by
the written will.)
If there is any conflict in evidence of witnesses as to what was said by the deceased in
making an oral will, the oral will is not valid except so far as its contents are proved by a
competent independent witness (an independent witness is one who is not a beneficiary or
the spouse of a beneficiary under a will).
Probate
This is the legal recognition of a will. A will gives authority to the executor to operate but he
cannot prove this until he has obtained a probate. An application for a grant of
representation is made by the executor to the court. A court may give legal recognition to
will where it is proved that a deceased person has left a valid will. In case of intestate estate,
the letter of administration is issued by the court.

GIFT IN ANTICIPATION OF DEATH (“DONATIO MORTIS CAUSA”)

Under Section 31 of the Law of Succession Act (CAP. 160) it is provided that a gift made in
contemplation of death shall be valid inspite of the fact that there has been no complete
transfer of legal title, subject to the following conditions:
a) The person making the gift is , at the time contemplating the possibility of death, whether
or not expecting death, as the result of present illness or present imminent danger.
b) A person gives movable property (which includes any debt secured upon movable or
immovable property which he could otherwise dispose of by will.
c) There is delivery to the intended beneficiary of possession or the means of possession of
such property or of the documents or other evidence of title thereto.
d) A person makes a gift in such circumstances as to show that he intended it to revert to
him should he survive the same illness or danger.
LEGACY
A legacy is defined as gift by will. Where it relates to movable property, it is known as a
bequest and
where it relates to immovable property it is called a devise.
TYPES OF LEGACY
There are various types of legacies as defined in Section 3 and First schedule of the Law of
Succession
Act. These include:-
(a) Special Legacy: A special (or specific) legacy is a testamentary gift of a particular part
of the
property of the testator, which identifies that part by a sufficient description, whether in
specific
or in general terms and manifests an intention that that part shall be enjoyed as taken in the
state
and condition indicated by the description. E.g. I leave my house in Ridgeways, Nairobi, to
my
eldest son Peter.
(b) General Legacy: A general legacy is a testamentary gift, whether specific or general, of
property
described in general terms to be provided out of the general estate of the testator, whether
or
not also charged on any specific part of his estate. This gift is not distinguishable from all
others
of the same kind. E.g.. A gift of Mercedes Benz to Sharon.
CAUSES OF FAILURE OF LEGACIES,DEVISES AND GIFTS OF RESIDUE
Testamentary gifts can fail due to a number of reasons. These reasons include the
following:-
1. Ademption
Where the testator in his will bequeaths a specific legacy to a legatee, but disposes of the
property
during his lifetime, the legacy is said to be adeemed. It is void and the person to whom it is
left
gets nothing. In other words, If property which has been specifically bequeathed does not
belong
to the testator at the time of his death, or has been converted into property of a different
kind, the
gift cannot take effect by reason of the subject of the gift having been withdrawn from the
operation of the will; where a gift fails on this account, it is said to be "adeemed". There
must be a
substantial change in the subject of a specific legacy to cause ademption and a merely
nominal
change shall not have that effect. For instance, if the testator devised “my hostel in London
to
Peter” and the house was sold during the testator’s lifetime, the devise is said to have
adeemed
2.Disclaimer
A legatee can refuse to take the gift bequeathed to him. The law cannot compel a person to
take estate against his will. A beneficiary may therefore disclaim a legacy or a devise.
Disclaimer can be made either by deed or by conduct. A person can refuse to take the gift
due to any potential liability or any unfavourable condition. The subject matter then falls to
residue. If the gift is one of residue, the subject matter devolves as intestacy.
3. Uncertainty
A gift or disposition not expressive of any definite intention shall be void for uncertainty, i.e
A gift under a will fails where there is uncertainty as to:
What is being given
To whom it is being given, or
The quantity of the interest being given
A disposition therefore fails if it does not satisfy the certainty of legatee or legacy. For
instance if a testator leaves his four hotels to his four sons in Mombasa then his
disposition can fail due to the reason that it was impossible to determine which of the
hotels intended to be given to which son.
4.Lapse
The vesting of a legacy presupposes the continued existence of the legatee up to the time
of the testator death. If the legatee dies (i.e. predeceases) before the testator, the legacy
lapses. A legacy is said to lapse where it cannot take effect by reason of the legatee having
died during the lifetime of the testator. This is known as the doctrine of lapse.
Exceptions to the rule of lapse:
There is no lapse in either of the following cases:
Where the gift or disposition is made in discharge of a moral obligation recognized by
the testator; or
Where the gift or disposition is in favour of any child or other issue of the testator, for
any estate or interest not determinable at or before the death of the child or other issue and
the child or other issue leaves issue surviving the testator
E.g. In his will, Klein left his house to his eldest son Micheal. Micheal predeceases his father,
but leaves his children Peter and Quinton who are alive at the time of his father's (i.e. Klein's
death).
In his will, Micheal leaves all of his estate to his wife Mrs. May. The fact that Peter and
Quinton are alive at K's death keep in place the gift to Micheal.; the house passes to
Micheal.'s estate, and by means of Micheal.'s will, passes to Mrs. May (PER STIRPES RULE).
Where two or more persons have died in circumstances rendering it uncertain which of
them survived the other or others, the deaths shall, for all purposes of the Succession Act,
be presumed to have occurred in order or seniority, and accordingly the younger shall be
deemed to have survived the older; however, in the case of spouses who die in these
circumstances, the spouses shall be presumed to have died simultaneously. This situation
is referred to as Law of Commorientes or the presumption of survivorship.
5. Abatement
Where there are insufficient assets after the payment of debts to pay the whole of the
legacies in full, the legacies will abate i.e. the legacies will terminate or diminish in value so
that the legatees get either nothing at all from the testator’s estate, or only a part of their
legacy. Therefore the
personal representative has no right to pay one legatee in preference to another nor to
retain any money on account of a legacy to himself or to any other person for whom he is a
trustee; however,
if the personal representative is entitled to a priority in respect of his remuneration, that
priority is upheld.
6. Illegality
A gift will fail if it has an illegal condition attached to it.
E.g. I give Shs.100, 000 to Moses provided he murders his house-keeper
7.Gifts subject to a condition which is contrary to public policy
Where a gift is subject to a condition which is contrary to public policy, the gift will not fail
but the beneficiary will take without the condition.
E.g. I give Shs.4m. to my wife on the condition that she shall not marry again.
The wife will take the legacy but remain free to marry again.
ABATEMENT OF LEGACIES
(a) If the assets, after the payment of debts, necessary expenses and specific legacies, are
not sufficient to pay all the general legacies in full, the latter abate in equal proportion, and
the personal representative has no right to pay one legatee in preference to another nor to
retain any money on account of a legacy to himself or to any other person for whom he is a
trustee; however, if the personal representative is entitled to a priority in respect of his
remuneration, that priority is upheld.
(b) For the purposes of abasement, a legacy for life, a sum appropriated by the will to
produce an annuity, and the value of annuity when no sum has been appropriated to
produce it, shall be treated as general legacies.
(c) Where there is a specific legacy and the assets are sufficient for the payment of debts
and necessary expenses, the thing specified must be delivered to the legatee without any
abatement

ADMINISTRATION OF ESTATE
The process in which the deceased’s assets are collected, all debts and administration
costs are paid, and the balance of the estate assets transferred to the heirs, is known as the
administration of the estate. The person appointed to administer the estate of a deceased
person is known either as an executor (where the personal representative is appointed by
will) or an administrator (where the personal representative is appointed by court).
The Estate Administration Process
The primary function of the personal representative is to take control of the deceased’s
assets, to pay all creditors and administration costs, and then to transfer the balance of the
estate to the heirs of the deceased. Where the deceased left a valid will, the heirs are
usually determined in the will, failing which the heirs are determined in accordance with the
rules of the Intestate Succession Act, Section 32 to 42.
The whole administration process, from appointment of the executor until the finalization of
the estate, takes place under the supervision of the High Court.
The administration of an estate comprises briefly of the following:
1. As soon as an executor is appointed, he or she must place an advertisement in the
Government Gazette and in a local newspaper circulating in the district where the deceased
resided, calling on all creditors of the deceased to lodge their claims against the estate
within
30 days as from the date of the advertisement
2. At the same time the executor must take steps to identify all the deceased’s assets and
to take control of such assets. The executor must have the assets valued.
3. The executor must open a banking account in the name of the estate and must deposit
all funds received by him or her into such account. Any payments made by the executor
must be made out of the estate banking account.
4. The executor must notify institutions with which the deceased had any dealings, such as
banks, Pension Department, Insurance Companies, KRA (Kenya Revenue Authority) etc. of
the death of the deceased. In the case of KRA the executor must provide the estate number
and any details required by KRA to determine the deceased’s final tax liability to KRA.
5. Should there not be sufficient cash in the estate to pay all the creditors and
administration costs, then the executor must, after consultation with the heirs, sell
sufficient assets to cover the cash shortfall. Should their heirs not want to sell any assets,
they can undertake to pay the cash shortfall into the estate.

PROTECTION OF PROPERTY OF A DECEASED PERSON

(a) No person may take possession of or dispose of or otherwise intermeddle with, any free
b property of a deceased person, unless he is expressly authorised by the Succession Act
or by some other Act.
(b) If a person contravenes the above he is guilty of an offence and is answerable to the
rightful executor or administrator to the extent of the assets with which he has
intermeddled after deducting any payments made in the due course of the administration.
(c) Whenever it becomes known to any police or administrative office that any person has
died, he shall forthwith report the fact of his death to the administrative officer of the area
(unless he knows that this has already been done).
(d) If the administrative officer is requested by any person who appears to have a legitimate
interest in the estate or if no application for representation in respect of the estate has been
made within one month of the date of death of the deceased, the officer will proceed to the
last known place of residence of the deceased and take all necessary steps for the
protection of his free property found there, for ascertainment of his other free properties (if
any), for ascertainment of all persons appearing to have any legitimate interest in
succession to or administration of his estate and for the guidance of prospective executors
or administrators as to formalities and duties.
(e) The High Court has jurisdiction to deal with any application and determine any dispute
under the Succession Act.
INVESTMENT OF FUNDS TO PROVIDE FOR LEGACIES AND INTEREST ON
LEGACIES
The Seventh Schedule of the Succession Act contains the provisions regarding the
investment of funds to provide for legacies and interest in legacies. This include:-
(a) Where a general legacy is given for life, the sum bequeathed shall, at or before the end
of a year after the death of the testator, be invested in any authorised investment; however,
when an annuity is given and no fund is charged by the will with its payment, or
appropriated by the will to answer it, a sum sufficient to produce the annuity shall be
invested in any authorized investment.
(b) Where a general legacy is given to be paid, at a future time, the personal representative
shall invest a sum sufficient to meet it in any authorised investment. The intermediate
interest from the investment shall, unless expressly or by implication be payable to the
legatee or another, form part of the residue of the testator's estate.
(c) Where a gift is contingent, the personal representatives shall not be bound to invest the
amount of the legacy, but may transfer the whole residue of the estate to the residuary
legatee, if any, on his giving sufficient security for the payment of the legacy if and when it
becomes due.
PROVISION FOR DEPENDANTS OF THE DECEASED ESTATE
Section 26 to 30 of the Act relate to the provision for dependents. The dependents of a
deceased for the purpose of this Act includes:-
(a) The wife, wives and the children whether or not maintained by the deceased immediately
priorto his death.
(b) The deceased’s parents, step-parents, grandparents, grand children and other children
who the deceased has taken into his family as his own; brother and sisters who were being
maintained by the deceased immediately prior to his death.
(c) Where the deceased was a woman, her husband if he was being maintained by her
immediately prior to her death.
(d) Adopted children are treated as though they were children of the adopting parent.
(e) Illegitimate children are children born out of wedlock. They will be legitimized by the
subsequent marriage of its parents, otherwise they should not share with legitimate
children unless there is every indication that they were meant to be in the will.
Under this act, the court can make a provision for s dependant from the deceased’s
property on the application by or on behalf of the dependant. In making the provision for the
dependant, the court shall have complete discretion to order a specific share of the estate
given to the dependant. The court swill give consideration to the following factors:-
The nature and amount of the deceased’s property.
 The existing and future means and needs of the dependant
The conduct of the dependant in relation to the deceased
The situation and circumstances of the deceased’s other dependants and the
beneficiaries under any will.
APPLICATION FOR GRANT
(a) An application for a grant of representation ("representation" means the probate of a will
or the grant of letters of administration) is made in such a form as is prescribed, signed by
the applicant and witnessed in the prescribed manner. Probate is the certificate of a court
of competent jurisdiction that a will, of which a certified copy is attached in the case of a
written will, has been proved a valid will with a grant of representation to the executor in
respect of the estate.
The application must include information as to:
The full name of the deceased;
2. The death and place of his death;
3. Whether or not the deceased left any will;
4. The relationship (if any) of the applicant to the deceased;
5. Whether or not the deceased left any will;
6. The present addresses of any executors appointed by any such will;
7. In cases of total or partial intestacy the names and addresses of all surviving
sponsors,children, parents, brothers and sisters of the deceased, and of the children of any
child of his or hers then deceased.
8. A full inventory of all the assets and liabilities of the deceased; and,
9. Such other matters as may be prescribed.
(b) If in the application it is claimed that the deceased left a valid will, then
1. If it was written the original will must be annexed to the application, or it is alleged to
have been lost or destroyed otherwise than by revocation, or if for any other reason the
original cannot be produced, then either
i. An authenticated copy thereof shall be annexed; or
ii. The names and addresses of all persons alleged to be able to prove its contents shall be
stated in its application.
2. If it was oral, the names and addresses of all alleged witnesses shall be stated in the
application. the names and addresses of all alleged witnesses shall be stated in the
application.
(c) No permission of any information from an application shall affect the power of the court
to entertain the application.
(d) Any person who makes an application and willfully or recklessly makes a statement in it
which is false is guilty of an offence punishable by a fine of Shs.10,000 or to up to a year, or
both.
(e) A court may:
1. Wherein a deceased person is proved whether by production of a will or authenticated
copy of the will or by oral evidence of its content, to have left a will, grant, in respect of all
property to which the will applies either:
i. Probate of the will ("Probate" means the certificate of a court of competent jurisdiction
that a will of which a certified copy is attached in the case of a written will, has been proved
a valid will with a grant of representation to the executor in respect of the state) to one of
more of the executors name therein; or
ii. Where there is no providing executor, letters of administration, with the will annexed
DISTRIBUTION OF ESTATE
Distribution of estate refers to the process of apportioning of the estate of a deceased
among the persons entitled to share in it. It is the lawful division of the assets of a
deceased among his legates or beneficiaries. The term “estate” refers to all the assets and
liabilities which a deceased person leaves behind at his or her death. If the deceased’s
assets are more than his or her debts and the assets are enough to discharge all liabilities
of the estate, it is referred as a solvent estate. An insolvent is that estate which cannot
discharge all of its liabilities since the deceased’s debts are more than his or her assets.
No person may administer or distribute the estate of a deceased person except under
letters of executorship or letters of authority granted to him or her by the court. The
personal representative must distribute the assets of deceased’s estate to the person
entitled to them in the following order of priorities:-
1) Secured creditors as far as they can be paid out of the proceeds of their securities.
2) Reasonable funeral expense for the deceased
3) Reasonable testamentary and administration expenses.
4) Unsecured creditors and secured creditors for their balances, in the following order of
priorities
Specially preferred creditors Preferential Creditors
Ordinary Creditors
Interest on the debts of preferential and ordinary creditors from the date of death
Deferred Creditors
5) Beneficiaries in the following order of priorities:-
Specific Legatees
General Legatees
Residuary Legatees
The distribution of estate may take two forms namely testate distribution and intestate
distribution.
DISTRIBUTION UNDER THE INTESTACY PROVISIONS
Intestate succession in Kenya is governed by Section 32 to 42 of the Law of Succession Act
(Cap.160) and applies to persons dying intestate in whole or in part without leaving a will or
leaving
a will which is invalid.
The law of intestate succession determines the beneficiaries to a deceased estate.