LAW OF SUCCESION

Succession means taking the rights owned by the transferor

If A transfer’s property to B, B success to that property

The law gives a system to be followed in succession i.e. how and to whom the property of the deceased person can be
distributed

When a person makes a will before he dies, he is said to have died testate.

Where one dies before making a will he is said to die intestate.

WILL

It’s a written document by which the person making it provides for distribution of property after his death.

Testator is the person making the will. If she is a woman she is called testatrix.

N/B the will is active from the time of death only and depend on the items mentioned on it only.

If it states all my property then all the property will be transferred to the person concerned .This will not include the items he
had sold before his death.

CAPACITY TO MAKE A WILL

Any person of full age and sound minded can be able to make a will.

If anybody possesses a will claiming that the will was made when the testator was unsound minded he has to prove with
evidence i.e medical evidence.

Women can as well make wills

An infant can’t make a valid will.

THE WILL ACT PROVISSIONS

 A will must be in a form of a written document.

 It must be signed by a testator or by his agent in his presence and by his authority.
 Initials/signature or a mark or a thumb print as well as a stumped seal may be used but all this should be at the foot
of the will.
 Those statements appearing after the signature are not valid.
 Witnesses must be present to attest to [prove/ acknowledge] the testator’s signature on the day the will is offered to
the beneficiaries after the death of the testator.
 A blind man cannot be the witness of a will because he cannot see.
 The testator must sign the will in the presence of two witnesses.
 A witness cannot be a beneficiary of that will
 No one convicted of murdering a testator or causing his death may benefit under the will of his victim.

N/B -Where the will is in oral form it is not valid unless;

a. It is made in the presence of the two or more competent persons

b .The testator die within a period of three months from the date of making the will

Characteristics of a will

1. Dispositive nature
A will may dispose off the testator’s property
2. Declaration of intention
It operates only as a declaration of intention. It does not take away the testator’s right to deal with his property in his
life time. He may still sell or otherwise deal with his property not withstanding that he has by his will made a gift of
it to some other person
3. Formalities
A will must be in the form prescribed by law.
4. Revocability
A will may always be revoked by the testator.
5. Posthumous
A will becomes effective only after the death of the testator.
6. Ambulatory
A will is capable of dealing with the property acquired by the testator after making the will so long as it is owned by
him at his death.

DEVICES AND LEGACIES

Device- is a disposition of freehold land contained in a will as a gift to another person

Legacy/bequest- is a disposition of any other form of property including leasehold of the diseased to a beneficiary [inheritor]

The people receiving gift through a device are called devices while those receiving under legacy are called legatees

TYPES OF LEGACIES/BEQUESTS

General legacy-

Is where a gift to be given does not refer to a particular/specific object but it ’s only described by name e.g a horse/a car e.t.c.

Specific legacy-

Is a gift which is specifically described e.g my blue car, my flats in Nakuru

Demonstrative legacy-

Is a gift to be taken out of a given property or amount of sum of money available somewhere e.g a gift of sum of money to be
paid out of a particular fund. e.g 1million from my equity savings account.

Pecuniary legacy

Also called financial or money legacy .Include an annuity/ a general legacy /demonstrative legacy as far as it is not
discharged from a specific fund or property and any other general direction by the testator for the payment of the money .eg
50000 to my cousin john.

Conditional legacy

Is one whose vesting or enjoyment is made out of some conditions by the testator.eg where the will imposes some condition
to be fulfilled before the legatee can take interest in the thing bequeathed.
Residual legacy

Is that which remains after all debts have been paid and all devices and legacies have been distributed.

Vested legacy-

Is one in respect to which the legatee is entitled to be paid and has a right to enforce immediate payment. Generally a legacy
becomes vested at the time of the testator’s death but the provision in the will might defer it’s vesting to some other time.

N/B-Where a legatee or a devicee dies before the testator his gift lapses ie fails to get the gift. However a provision can be
included in the will for close relatives of the beneficiary to benefit

FAILURE OF TESTAMENTARY DISPOSITIONS

Testamentary succession can fail due to the following reasons:

Disclaimer- a beneficiary can refuse to take the gift bequeathed to him the law cannot force a man to take an estate against
his will

A person can refuse to take the gift due to any potential liability or unfavorable conditions.

Lapse- the vesting of the legacy presupposes the continued existence of the legatee upto the time of the testator’s death.

A legacy can only vest if the legatee proved to have lived longer than the testator.

But where the legatee dies before the testator the legacy will lapse.

A legacy cannot take effect when the legatee dies before the testator

Ademption- if anything 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 deferent kind then the legacy is a deemed.

Abatement- if after payment of all debts and other liabilities the testator’s estate is insufficient to meet all legacies in full the
legacy will abate.ie the legacy will terminate or diminish value so that the legatee gets either nothing or only part of the
legacy

Instances for grand of probate and letters of administration

Where the testator has prevented his dependants from benefiting from his property the dependants can apply to court for a
provision to be made for them out of the will.

When making a provision for dependant the court may order a specific share of the estate to be given to the dependant or
periodic payment of lump sum or any condition it thinks fit in determining whether to make such an order, the court
considers:

a. The nature and the amount of the deceased’s property.

b. Any past present future income from the source of the dependant
c. The existing and future means of the dependant.
d. Whether the deceased had made any advancement or any gift to the dependant during his life time.
e. The conduct of the dependant in relation to the deceased.
f. The situation and the circumstances if the deceased’s other dependant
 g. The testator reasons for not making provision for the dependant

Categories of dependant

 Wife/husband
 Children of the deceased
 The deceased parents, step parents, grand children, adapted children, brothers and sisters as were being maintained
by the deceased immediately before his death.

Gift inter vivos

 It is the transfer of property by the donor to the donee while all of them are still alive.
 It is transferred with intention that ownership in the goods shall be transferred to the donee.
 The donor requires no consideration from the donee.
 The transfer of the donor becomes operative during the life of the donor.

Donatio mortis causa [gift in contemplation of death]

 It is the delivery of the property to the donee in contemplation of the donor’s eminent death on condition that it is
not effective until the donor dies.
 The donor must be in imminent danger of death either by sickness or otherwise.
 If the donor recovers from the danger the gift is automatically revoked.
 The revocation may be express where the donor informs the done that the gift is revoked or implied as where the
donor resumes possession in the property.

INTESTATE/NON TESTAMENTARY SUCCESSION

If a person dies without making a valid will his property will be distributed according to the section 32 to 42 of the
succession Act

Rules governing the distribution of an intestate estate

A. Where the intestate lives a surviving spouse and children:

1. The surviving spouse is entitled personal effect of the deceased absolutely

2. Surviving spouse during the continuation of life interest has power of appointment of all or any part of the capital of
the net estate by way of gift taking immediate effect among the surviving children.
3. Where any child considers that the power of appointment under [2] is unreasonably exercised or withheld, he can
apply o the court for appointment of his share. If he is a minor then his representatives may apply to the court.
4. Where an application is made under [3] the court may award the applicant a share of the net intestate estate and in
determining whether an order is to be made, the court takes into consideration the following:

a) The nature and the amount of the deceased property.

b) The past, present and future capital income from any source of the applicant and the surviving spouse.
c) Whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will.
d) The conduct of the applicant in relation to the deceased and the surviving spouse.
e) The situation and circumstances of any other person who has any vested or contingent interest in the net estate of the
deceased.
f) The general circumstances of the case including the surviving spouse reasons for withholding or exercising the
power in the manner in which he/she did.
 5. The whole residue of net intestate shall on the death or in case of a widow, remarriage of the surviving spouse
dissolve upon the surviving children.

B. Where the intestate has left a surviving spouse with no child:

1.The surviving spouse becomes entitled out of the net estate to:[a] the personal and household effects of the deceased [b] the
first 10,000 shillings from the residue of the net intestate estate or 20% thereof whichever is greater, [c] the life interest of the
whole remainder and is terminated upon her re-marriage to any other person.

2. The cabinet secretary by order in the gazette can vary the amount specified above

CONDITONS OF REVOKING A WILL

A will can be revoked any time before the death of the testator.

Revocation can be done in the following ways:

A. By subsequent will or codicil

This arises by making another will or codicil revoking the previous one.
Where a letter will or codicil does not clearly revoke the previous one the two documents are read together.
To avoid this a subsequent will commences with a clause, “I hereby revoke all the previous wills”
B. By destruction of the will
If the testator or some other person in the presence of and by the direction of the testator burns or otherwise destroy
the will with an intention to revoke it, the will is revoked.
C. By subsequent marriage
A subsequent marriage revokes the previous will unless it is expressed to be made in contemplation of this
marriage i.e if a man made a will leaving everything to his fiancée x and then marries miss x then the will will not
be revoked.
PERSONAL REPRESENTATIVES
Both on non-testamentary and under a will, all property of the deceased property vests in the personal
representatives.
They may be appointed by a will /by the court
Representatives appointed by the will are known as executors and as such and they are entitled to probate.
Those appointed by the court are known as administrators
If one person is appointed by the will or the person so named in the will or will not apply for probate or dies before
obtaining probate. Some people interested in the probate will have to apply to the court for letters of administration.

Duties of personal representative

 To collect all assets of the estate
 To pay the general and the testamentary expenses of the deceased.
 To pay all the liabilities of the deceased debts and if necessary to sell part of this estate for this purpose.
 To give effect to any legacies bequeathed and to distribute all the residue of the estate among the persons
entitled thereto under the will or intestacy of the deceased.