THE LAW OF SUCCESSION ACT (cap 160 of the Laws of Kenya)

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THE LAW OF SUCCESSION ACT (cap 160 of the Laws of
Kenya)

• TYPES OF GRANT
• By Lady Justice M.A. Angawa, Judge of the High
  Court of Kenya
• 2005

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Types of Grants

• There are different types of grants.
• 3.1 Grant of Probate
• 3.2 Grant of letters of
• Administration with
• will annexed
• 3.3 Grant of Probate or
• Oral will.
• 3.4 Grant of letters of
• administration intestate.
• 3.5 Resealing of Grant of Probate or
• Grants letters of administration.
• 3.6 Limited Grant ad colligenda bona defuncti.
• 3.7 Limited Grant Grants for special purposes.

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3.1 Grant of Probate
A

• B Forms
• Form P.A 78 (petition).
• Form P A 3 (affidavit)
• the original will plus
• 2 photocopies of the will
• original death certificate.

C PROCEDURE Grant issued P A 45
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3.1 Grant of Probate

• A
• The deceased died having written a will
• named the person to be in charge of his
• affairs (executrix/executor). The said
• person named is to apply for the grant of
• probate unless he refuses or declines to
• do so.

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3.1 Grant of Probate

• Procedure
• If all documents are in order the file is placed
  before the Hon.Judge by the deputy registrar. It
  is given orders to have the matters advertised in
  the Kenya Gazette. If no objections are raised
  before 30 days, letters of grant Probate is
  issued with a copy of the will attached. Grant
  issued by Court (P A 45).
• Period of 6 months is given for the parties to
  confirm the said grant.
• Accounts need to be submitted within 6 months
  after the confirmation of grant.

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3.2 Grant of letters of administration with Will
annexed.
A

• B Forms
• Form P A 79 (petition).
• Form P A 3 (affidavit)
• the original Will plus
• 2 photocopies of the Will
• original death certificate.

C PROCEDURE Grant issued P A 43
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3.3 Grant of Probate of Proof or Oral Will.

• Oral Will and
• Dies within 3 months

Person Under customary Law.
Gives
The Beneficiary can apply for Grant of Probate,
for proof of oral Will.
Grant issued by Court (P A44)
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3.4 Grant of Letters of Administration Intestate

• A

Any person may apply for grant of letters of
Administration intestate. Priority is given
to a survivor and in the order of Consanguinity
(i.e. wife, husband, children, parents etc).
Person dies Having not written a will.
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3.4 Grant of Letters of Administration Intestate
3.4.1 General Basic Situation
A

• B Forms
• the following forms should be filed.
• Form P A 80 (petition).
• Form P A 5 (affidavit)
• Form P A 11 (affidavit of justification of
  proposed sureties)
• Form P A 12 (affidavit of means)
• Form P A 57 (guarantee of personal sureties)
• Death Certificate (mandatory).

C PROCEDURE Grant issued P A 41
Refer to 3.1
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3.4 Grant of Letters of Administration Intestate
3.4.2 Widow or a widower adult children as
survivors.
A

• B Forms
• the following forms should be filed.
• Form P A 80 (petition).
• Form P A 5 (affidavit)
• Form P A 12 (affidavit of means)
• Death Certificate (mandatory).
• Form P A 38 (Consent form).

C PROCEDURE Grant issued P A 38a Adult
children are required to give their consent to
the widow/widower. Refer to 3.1
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3.4 Grant of Letters of Administration Intestate
3.4.3 Widow or a widower with minor children
as survivors.
A

• B Forms
• the following forms should be filed.
• Form P A 80 (petition).
• Form P A 5 (affidavit)
• Form P A 12 (affidavit of means)
• Form P A 11 (affidavit of justification of
  proposed suits)
• P A 57 (guarantee of personal sureties)
• Death Certificate (mandatory).

C PROCEDURE Grant issued P A 41Minimum of
two persons must apply for the grant to create
a continuing trust. See section 58 of the Act.
Refer to 3.4 (b)(I)
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Points to Note

• Section 84 deals with continuing trust where
  there is a life interest.
• Section 56 (1) (b) The total number of persons
  to apply for grant of letters of administration
  intestate should be four.
• Rule 7 (8). Any of the four could swear an
  affidavit.

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3.5. Resealing (rules 42 (2)

• A 3.5.1
• Foreigner

DIES abroad but has property in Kenya
A grant is applied in his country
Foreign Grant is filed in the High Court of
Kenya for Resealing.
Normal procedure including gazettement takes
place.
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3.5 Resealing (rules 42 (2)

• A 3.5.2
• Kenyan

DIES abroad his domicile determines where he
should apply for the grant.
If he generally resides in Kenya but dies abroad
then the grant would apply in Kenya.
Important note The Commonwealth Countries
allow applications for resealing in any of of
its countries.
Normal procedure including gazettement takes
place.
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3.5 Resealing (rules 42 (2).
A

• B Forms
• the following forms should be filed.
• Form P A 81 OR P A 82 (petition)
• Form P A 7 (affidavit)
• Certified copy of the grant issued by foreign
  country.

C PROCEDURE Grant issued by court (P A 81).
The grant from Foreign country is filed. The
file is minuted. The notice to the Kenya Gazette
is issued. If there are no objections then
letters are issued. A grant given by the High
Court can be used in the foreign courts for
resealing.
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3.6 Limited Grants

• A
• In order to ensure that estate does not go to
  waste an applicant can apply for a limited grant.
  
• Grant of administration ad colligenda bona
  defuncti. Under section 67 rule 36.

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3.6 Limited Grants
A
B Forms the following forms should be filed. P
A 85 (petition) P A 19 (affidavit) Copy of
death certificate (where signature endorsed by
the applicant is required).
C Procedure Grant issued (P A 47).
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3.7 Grants for Special Purposes

• Grants can be issued for special purposes.
• These grants are as follows
• 1) Probate Limited to purposes specified
• 2) Administrator Pendente lite
• 3) Grant of letters de bonis non.

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4 Who Is Entitled to A Grant?

• The persons are entitled to apply for a grant
• are-
• i) Persons who have been appointed in a
• will as executors.
• ii) Persons who are NOT a minor, of
• unsound mind or bankrupt.
• Any person can apply for a grant but priority is
  given to spouses, children, parents according to
  the degree of consanguinity. Not more than 4
  people apply at once.

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5 Objections Section 68 69 (1)
All Grants once applied for must be advertised
in the Kenya Gazette
Within 30 days
(i) Objection filed in triplicate to the court.
No objections received By the courts
Letters of Grants issued.
(ii) Objection entered into a register by the
register rule 17 (12)
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5 Objections Section 68 69 (1)
(iii) Registrar
Step 1 - The registrar sends a notification in
Form P A 61 to applicant (proposed
administrator).
Or alternatively he may send a copy of the
objection by post to the applicants address.
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5 Objections Section 68 69 (1)
(iii) Registrar
Step 2 - The registrar sends a notification in
Form P A 67 to objector requiring the objector
to file an answer to the petition by way of
cross application rule 17 (5)
If no objection has been filed the answer and
cross petition, the court may proceed as if no
objections has been raised (see section 69 (1)
70 71.
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5 Objections Section 68 69 (1)
(iii) Registrar
Step 3 DIRECTIONS The registrar refers the
matter to court for directions once all the
requisite paper has been filed.
Step 4 Judge gives directions as to who is
entitled to start during the trial.
Step 5 Registrar notifies both parties
(petitioner objector) of the time place set
for hearing, of the petition, answer cross
applications. The dispute is then determined
(see section 69 (2).
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Important Note

• Objections may be withdrawn, by way of a notice
  to withdraw. Form P A 66 (rule 17 (7))
• Any objector may amend his objections by
  lodging an amended answer cross application. A
  copy is required to be served on the petitioner.

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6 Confirmation of a Grant

• A After 6 months has expired
• from the date a grant has been issued,
• that grant may be confirmed if there is
• no objective pending rule 40 (1).

• B Forms
• Where a grant has been issued for a Will.
• Form 108 (application). Form 8 (affidavit).
• (ii) Grant for letters of administration with
  Will annexed.
• Form 108 (application)
• Form 8 (affidavit)

(iii) Grant of letters of administration
intestate. Form 108 (application) Form 9
(affidavit)
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6 Confirmation of a Grant

• Note
• Before 6 months are up a grant may be issued in
  certain circumstances section 71 (3).
• Form 109 (application)
• Form 8 9 (affidavit) (Whichever is applicable).
  

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6.2 Grant letters of administration intestate.
Parties must be disclose the apportionment of
each survivor entitled to the estate. A list of
all the beneficiaries, names, ages and
Relationships must be disclosed see rule P A
40 (3) (a, b) (4).
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C Procedure
Step 1 Forms filed, date taken in registry.
Applicant appears before Hon Judge.
Consent its confirmation of grant may be field
in certain cases Form 37 Dispensing attendance of
parties to court.
Step 2 Hon Judge or Magistrate whatever the
case confirms grant.
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6.2 Grant letters of administration intestate.

• Protest
• Rule 15
• Rule 40
• A - A person wishes to be informed when a grant
  is to be confirmed, he/she would file a caveat
  rule 15 (1) Form P A 28.

Caveat recorded in a book/register.
On the day the matter comes for confirmation of
grant the Registrar notifies the applicant
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6.2 Grant letters of administration intestate.

Notifies the applicant in Form P A 111.
Warning of the making of the consent.
Applicant requested to file form 10 if he wishes
to object to confirming of the grant.
If form 10 is not filed, grant is confirmed on
receipt of P A 37 being consent of all
parties.
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6.2 Grant letters of administration intestate.

If P A is filed
Court orders directions to be taken in chambers
on notice Form 74 to applicant.
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6.2 Grants of Administration Intestate.

• In a magistrates court Procedure of directions
  is not taken, but the file is placed before High
  Court who determines the protest on its behalf.

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6.2 Grants of Administration Intestate.

• A - Protest
• At the time of hearing the
• application for confirmation
• of grant would be read to the
• parties. The protest would also
• be read to the parties.
• If parties are in agreement
• satisfied the grant may be
• confirmed. If parties are not in
• agreement the High Court hears
• the full evidence of the parties.

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7 Revocation

• Section 76 rule 44
• (A) Once grant has been confirmed, no objections
  or protest may be filed. Only options
  revocations (with exception).
• (B) Forms
• P A 107 (application)
• P A 14 (affidavit)

• (C) Procedure
• Applicant files Form 107 P A
• 14 in the High Court.
• On receipt of application being
• filed, the Registrar issues Form
• P A 70 (notice) to the
• applicant (who is seeking
• revocation) to attend the judge
• exparte.

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7 Revocation

• Applicant takes dates
• appears before a Judge
• for directions exparte.
• Judge directs which persons
• should be served with the
• application (Form 107, 14).
• These person are those
• normally efficient by the
• revocation. The mode of
• service such persons
• (personal or otherwise)
• including the manner of efficiency
• such service.

• Applicant wishing to revoke grant then serves the
  persons named with Form P A 107 14 and a
  notice under 68.
• Each person served may fill an affidavit stating
  whether they support or oppose the application
  and the grounds for so doing.
• All affidavits are filed by parties named to the
  proposed revocation.
• Registrar gives notice to all concerned to
  appear before High Court for hearing.
• The Court, on the day set down for all parties to
  appear, may determine the application or make
  such orders that it deems fit.

Note High Court on its own mention may revoke
grant rule 44 (5). If it does so, a notice in
Form P A 69 must be issued served on the
persons concerned, before revocation is done.
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Reasons for Revocation

• Section 76
• Where proceedings obtained were defective in
  substance. 76 (a)
• Grant obtained fraudulently. 76 (b)
• Grant obtained by means of untrue allegations or
  facts. 76 (c)
• Person whom the grant was paid to, failed to
  apply for confirmation of grant within one year
  or to proceed to produce inventory or accounts of
  the administration of grants as required under
  section 38 (e), (g) Section 76 (d).

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8 CitationsRule 21, 22, 23

• (a) What happens if the person entitled to apply
  for a grant fails to do so?
• Any applicant may apply but the procedure is by
  way of a citation signed by the registrar and
  supported by an affidavit.
• (b) Forms
• (I) Where there is a Will P A 31.
• (II) Where there is no Will P A 32.
• (III) Creditors P A 36.

• Procedure
• Step 1 - Service of citation done on the citor
  with a copy of the form duly sealed. (Method of
  service is as directed as per the registrar).
• Step 2 Persons cited once served is to enter
  appearance within 15 days.
• Step 3 If no appearance has been entered,
  applicant citor may petition for grant.
• Step 4 in the alternative summonses to be taken
  out or notices to such person cited to take out
  the grant or by other person.
• NB Proof of services required.
• Once application for citation is granted. The
  letters of administration is applied in the
  normal way.

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8 CitationsRule 21, 22, 23

• Purchaser
• (a) Public trustee has prior rights over an
  estate over a creditor.
• Creditor/purchaser asks consent of public trustee
  to apply for letters.
• If consent is granted purchaser and creditor may
  prove the estate owes them money by attaching a
  sales agreement.

• Purchaser/creditor applies for grant of letters
  by serving citations on all the beneficiaries.

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9 Death Certificate

• All applications for grants must be accompanied
  with a death certificate.
• The consolidated practise rules states a death
  certificate must accompany any application for
  probate or letters of administration.
• (a) If the application is not made by an advocate
• (b) If the death took place outside Kenya.
  (Section 118 presumption of death, must be made
  formerly in the civil courts.

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10 Renounciation Rule 18

• (a) All survivors must be notified of the
  probate.
• (b) Survivors may renounce the estate whether
  testate or intestate.
• Forms
• P A 98 to 102.

• Procedure
• Renounciation is filed. No retraction is
  permitted at a later stage.

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Rectification of Grant Rule 14 (1)

• (a) Rectification may be
• made before a grant is
• issued.
• (b) Forms
• P A 62 (Notice) Filed in original
  application.
• No affidavit required.
• (c) Procedure
• Notice served on objector
• Where there are no objectors or amendments are
  minor. Registrar may permit amendments without
  notice to any parties.

• Rectification after a grant has been issued, with
  or without a confirmed grant. Section 74 rule 43.
• Forms
• P A 110 summons for rectification of
  grant.
• P A 13 (affidavit) (Unless exempted by
  the registrar).
• Procedure Application placed before court
  without delay.
• Court makes order as rectification of
  grants. Alternatively, court may direct notices
  to issue to all parties first, including
  applicant to attend court.
• NB In both cases of rectification the procedure
  is administratively in the first instances.

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12 AppealsSection 50

• Appeals lie from the Magistrates' court to the
  High Courts.
• The decision is final.
• Muslims estate can appeal to the Court of Appeal
  on a point of Law, but with leave of the Court
  (Section 50 LN 21/90.

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13 Public Trustee

• Where there is no one to administer the estate of
  the deceased, the public trustee after 6 months
  takes over the administration by placing a notice
  in the Kenya Gazette.
• After an expiry of such notice the public trustee
  applies for a grant in the same procedure as
  applied in the act as for other litigants.

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14 Trust Companies

• Trust companies are provided for!