Law of Succession

1. How is a will revoked by destruction?

A will is revoked by burning, tearing, or other acts of destruction. This must be done with intention to revoke. Destruction by another person must happen under the testator's direction and presence. Partial destruction may not revoke the whole will unless the essential parts are destroyed. Where destruction is unclear, courts presume the will continues unless proved otherwise. Case: Cheese v Lovejoy.

2. What are the duties of an estate administrator?

Collect all free property, pay debts, taxes and funeral expenses, distribute the estate to rightful heirs, file a full inventory and accounts, preserve property before distribution, complete administration within a reasonable time, avoid intermeddling, and act honestly in the best interest of the estate.

3. What is a grant de bonis non administratis?

A grant issued when the original grant is revoked or becomes useless, for example when an administrator dies or is removed before completing administration. It covers the remaining unadministered estate, and a new administrator is appointed. Common in large estates or where administration has been delayed.

4. What is recorded in a cash account during estate administration?

All cash transactions of the estate, including cash received by the personal representatives and payments of expenses. It has a credit and debit side like any other account, and shows any cash balance handed over to residuary legatees. The cash balance is posted to the distribution account.

5. Who is entitled to a grant of letters of administration in intestacy?

The surviving spouse, with or without other beneficiaries, especially where there is a minor under eighteen. Otherwise, beneficiaries in order of priority: children, then the father if the parent is dead, then the mother, then brothers and sisters or their children, then half brothers and half sisters, then relatives up to the sixth degree, then the public trustee, then creditors.

6. What are the types of grants issued in succession matters?

A simple grant, issued at the expiry of thirty days' notice. A final grant, used after confirmation, six months after completion. And a limited grant, issued for specific purposes such as grant ad litem or grant de bonis non.

7. What do the memorandum and schedule in an estate book contain?

The memorandum contains background information on the deceased, their family, deaths of beneficiaries, lists of debtors and creditors, and decisions on investment of estate funds. The schedule records the assets and liabilities at the death of the deceased, and contains two parts: assets and liabilities.

8. What is succession, and what is the difference between testate and intestate succession?

Succession is the inheritance of a deceased person's property. Testate succession happens where the deceased leaves a valid will stating how their estate should be distributed. Intestate succession happens where the deceased has not left any valid will before they die.

9. What are the characteristics of a will?

A will expresses a person's wishes to be fulfilled upon death. It is a revocable document, meaning it can be changed at any time, and it only takes effect upon death.

10. What does case law say about mental capacity to make a will?

In Vijay Chandrakant v Public Trustee, the deceased was very sick from syphilis and diabetes when he executed his will and was of unsound mind, but it was held that he executed it during a lucid moment, so the will was valid. In Re Nightingale, a father excluded his son from his will due to an insane delusion. The court held that an insane delusion only invalidates a will if there is a genuine connection between the delusion and the will.

11. What are the requirements for a testator's signature on a will?

The will must be signed by the testator, or by someone else in the testator's presence and at their direction. The signature shows the will is final, that the testator approved it, and it helps prevent fraud. It must be at the end of the will.

If the signature is missing, the will becomes invalid, which can lead to intestate succession. Case: Brown v Skirrow, where a witness did not know what she was attesting, and the will was held invalid.

12. In what ways can a written will be revoked?

By the testator's clear intention, made while of sound mind and free from duress. By making a new will. By physical destruction, such as burning or tearing with intent to revoke. By marriage, which automatically revokes an earlier will. Or by operation of law.

13. How can a will be revoked by physical acts of destruction?

Tearing, where the testator tears the document partially or completely. Burning, where the testator sets fire to the will or part of it. Cancelling, where the testator strikes through the text or writes 'cancelled' on it. Erasing or scratching out part of the will. And cutting parts of the document as a sign of revocation. Case: Estate of Ndung'u.

14. What information is required in an application for letters of administration in intestacy?

The name and identity of the deceased, the date and place of death, marital status, a list of heirs and dependants, assets and liabilities, the petitioner's relationship to the deceased, a death certificate, and consent from co-petitioners or renunciation forms where needed.

15. What factors are considered when dividing an estate among dependants?

The number of dependants, including minors, their relationship to the deceased, their contribution to the estate, whether a beneficiary murdered the deceased (which disqualifies them), provision for minor children through a trust, and balancing equality against the equity of individual needs. Relevant cases include Re Estate of Munyoka and Rono v Rono.

16. What is intermeddling, and what is the effect of a letter of administration?

Intermeddling is unauthorized interference with a deceased's estate, illegal under section 45 of the Law of Succession Act, covering things like taking, selling or using estate assets without authority. A letter of administration gives legal authority to administer the estate, allows collection and distribution of assets, and requires the administrator to act in a fiduciary capacity with accountability and transparency.

17. How is a polygamous man's estate divided under intestacy?

The net estate is divided according to units, where each wife and her children count as one unit, similar to how an unmarried child is treated as a separate unit. The total number of children determines distribution, and a child who murdered the deceased is excluded, as in Rono v Rono.

18. What are the rights of children to inherit under intestacy?

All children, whether male or female, married or unmarried, are entitled to inherit equally when a parent dies without a will, unless there are official reasons for exclusion. The surviving spouse holds the estate as trustee for the children rather than inheriting it personally. The law does not distinguish based on gender or marital status, and children of a male intestate include those born to women he was not married to. Case: Rono v Rono, where the court held all children get equal treatment regardless of how many wives their father had.

19. What is donatio mortis causa, and how can a gift in a will fail?

Donatio mortis causa is a gift given in contemplation of death, made during the donor's life but only taking effect on death. It requires that the donor actually dies, and that the donee survives the donor. A gift in a will can fail due to uncertainty, being witnessed only by the beneficiary receiving it, the beneficiary being convicted of murdering the testator, fraud or mistake, refusal of the beneficiary to accept it, or where the estate's debts exceed its assets.

20. What is the effect of survivorship and nomination, and when is a grant given to the public trustee?

Survivorship means that when one joint owner dies, the surviving owner automatically gets the property, common with married couples or joint bank accounts. Nomination lets a person name someone to receive benefits directly on their death. A grant goes to the public trustee when no suitable person is willing or able to serve, often where minors are the only survivors or there is a dispute, and the trustee manages the estate until a proper administrator is found.

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