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Intermeddling With An Estate Could Land You in Jail - Lawyer Wangu
Intermeddling With An Estate Could Land You in Jail - Lawyer Wangu
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Some obligations are pressing such as medical/funeral expenses, school fees for
children etcetera. and because you may have not anticipated a sudden absence
they catch you by surprise. You begin looking at the deceased’s assets that can
quickly realise cash and so you sell a motor vehicle or some personal effects they
own. While your actions may be in good faith, before the law you have committed
an offence by interfering/intermeddling with the estate of the deceased before
administration and it could land you in jail.
What is intermeddling?
:
What is intermeddling?
There are many circumstances where you can be said to be intermeddling but
the test is set out in Section 45(1) of the Law of Succession Act (LSA). It provides
that no person is authorized to take possession, dispose or otherwise intermeddle
with the free property of a deceased person for any purpose unless expressly
authorized by the LSA or other written law or by a Grant of Representation. It is
plain and simple that you have no business handling any free property (estate) of
a deceased person unless you are permitted through a grant of representation or
other enabling law or order. Section 45(2) provides that if you breach this
provision you are guilty of a criminal offence – Intermeddling and are liable to a
fine not exceeding Kshs.10,000 or to a term of imprisonment not exceeding one
year or both. You would also be answerable to the rightful executor or
administrator of the estate to the extent of the assets that you intermeddled with
or appropriated. This article will take you through administration of an estate,
what grants you require for different circumstances and where to get the Grants.
Section 3 of the LSA defines an estate as the free property of a deceased person.
It goes ahead to define free property as property which that person was legally
competent freely to dispose during his lifetime, and in respect of which his
interest has not been terminated by their death.
Depending on the state of affairs of the deceased’s estate different people will be
entitled to take out Grants. For example, where a person died with a will and had
appointed executors, those executors would be entitled to take out Grant of
Probate.
Section 66 of the LSA provides that where deceased dies without a will (intestacy)
the court shall have final discretion as to the person(s) to whom Grant of Letters
of Administration shall issue having regard to the best interest of all concerned
but as a general guide the following order of preference is accepted:
property or estate.
In order to get a Grant one must apply to Court. One may apply to the High Court
or the Magistrates’ Court.
Section 47 of the LSA provides that the High Court has jurisdiction to entertain any
application and determine any dispute under the LSA and to make orders that
they deem expedient.
Section 48 of the LSA as read together with the Magistrates’ Courts Act No.26 of
2015, raises the jurisdiction of the Resident Magistrate to subject matter whose
value does not exceed five million shillings. The Resident Magistrate can therefore
preside over a probate application/petition where the value of the estate is below
five million shillings and below provided it is not an application for revocation or
annulment of a grant.
Types of Grants
As we saw earlier there are different types of Grants that one can apply for
depending on the state of affairs of the estate. If the deceased died with a will
appointing executors the grants you apply for will be different from where the
deceased died without a will.
The following are the different types of Grants and Forms used to apply for them:
i. Grant of Probate
This is a Grant that is applied for where the deceased died with a will where
they appointed an executor. That executor(s) is to apply for Grant of
Probate.Application is made in Petition Form 78 and Affidavit Form 3.
ii. Grant of Letters of Administration with Will Annexed.
This Grant is applied for when a person dies with a will, but without appointing
and Executor. The spouse, children, parents, siblings etc. may apply for letters.
:
and Executor. The spouse, children, parents, siblings etc. may apply for letters.
Application is made in Petition Form 79 and Affidavit Form 3.
iii. Grant of Probate of Proof of Oral Will
This Grant is applied for where a person makes an oral will naming an executor
and dies within 3 months of making it, or in the case of a member of the armed
forces within the same period of active service. Application is made in Petition –
Form 44 and Affidavit form 3.
iv. Grant of Letters of Administration Intestate
This Grant is applied for where a person dies without a will.Application is made
in Petition Form 80; Affidavit Form 5; Affidavit of Means Form 12 Affidavit of
Justification of Proposed Sureties Form 11; and Guarantee of Personal Sureties
Form 57.
v. Limited Grant (Grant ad Coligenda bona)
Rule 36 of the Probate and Administration Rules 1980 provides that where
because of special conditions or urgency it is not possible to make a full Grant
of Representation on may apply to court for Grant ad colligenda bona to
prevent estate from waste.
The purpose of this Grant is limited to only; collecting, receiving and
preservation of an estate pending issuance of full Grant of Representation.
Application is made in Petition Form 85 and Affidavit Form 19.
vi. Grant for Special Purposes
These Grants are made in special circumstances e.g. where there is urgency,
where an administrator/executor dies before completing administration or
where the estate is subject to litigation. They include:
Administration ad Litem – This grant is used to institute or defend against suits
to the estate only.
Administration pendete lite – Where parties are disputing over the estate, the
Court issues this grant to ensure the estate does not go to waste. No division or
apportionment of the estate is done during this time. To apply for this grant you
require Petition – Form 90 and Affidavit –Form 19.
Grant of Letters of administration de bonis non administratitis or Probate at
Rest – when the executor or administrator dies before completing
administration another person may apply for this Grant for the purposes of
completing administration. To apply for this grant you require Petition – Form
:
completing administration. To apply for this grant you require Petition – Form
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