UNDERSTANDING LAW OF SUCCESSION IN KENYA: A GUIDE TO WILLS AND INHERITANCE

Succession law plays a pivotal role in ensuring that a person’s property is passed on in an orderly, lawful, and fair manner after they are gone. Whether one leaves behind a written will or passes away without one, the law provides specific frameworks that govern the distribution of their estate. This post marks the beginning of a four-part series on the Law of Succession in Kenya, designed to break down its key elements in a simple and practical way. By the end of this series, you'll have a clearer understanding of how succession works, both when a will is present and when one is not.

The law of succession is a legal framework that governs how a person’s estate is passed on after their death. Inheritance typically involves two key elements: the passing away of the property owner and the subsequent transfer of their assets to rightful heirs or beneficiaries. This area of law outlines the process through which ownership of property transitions from the deceased to those left behind. In Kenya, the primary legal instrument governing this process is the Law of Succession Act. Notably, this Act also incorporates elements of African customary succession practices, reflecting an effort to harmonize statutory law with traditional beliefs and systems. 

TESTATE SUCCESSION IN KENYA 

Testate succession refers to the distribution of a deceased person's estate according to his/her valid will. This occurs when the deceased has left a legally enforceable document specifying how their property and assets should be distributed after his/her death. According to Sir JP Wilde in Lemage v. Goodban (1865) LR I P and D 57, a will is the aggregate of a person's testamentary intentions, manifested in writing and duly executed according to the statute[1] 

Section 3(1) of the Law of Succession Act (Cap 160 Laws of Kenya) defines a Will as a legal declaration executed in accordance with Part II of the Act, by a person expressing his preferences or intentions about the distribution of his property after death, including a codicil. 

A will usually names the individuals who are to receive certain parts of the deceased's estate and appoints an executor to manage the estate in line with the instructions given in the will. This process, known as testate succession, differs from intestate succession, which occurs when someone passes away without leaving a valid will, resulting in their estate being distributed based on intestacy laws.

Although a will mainly deals with the distribution of property, it also covers other related matters, such as:

  • naming executors or personal representatives,
  •  appointing trustees for any trusts created within the will,
  • choosing guardians for underage children and giving directions for settling debts and taxes, and
  • giving instructions on how the deceased’s body should be handled. 

FORMAL VALIDITY OF A WILL 

For a will to be legally recognized, it must be made by someone of sound mind who meets the required age and follows the proper legal procedures for signing and witnessing. Before a will can be acted upon, its formal validity must be established through a process known as propounding the will. This process confirms that the will meets all legal requirements from the beginning, including confirming the testator had mental capacity, was not pressured or influenced unfairly, and that any earlier wills were properly revoked. 

The validity of a will depends on three key requirements:

  • whether the deceased had the legal capacity to create the will,
  • whether the will was made with the full knowledge and consent of the deceased, and
  • whether it was correctly signed and witnessed according to the law
 
Understanding the basics of the Law of Succession is crucial for anyone looking to secure the future of their loved ones. However, creating a valid will ensures that your wishes are respected and can help minimize family disputes and legal battles. In the next part of this series, we will dive deeper into the characteristics of a will and the requirements for creating a valid will in Kenya and the key elements you should include to make your intentions legally binding.





 

 Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES

[1]Class Handout: Testate Succession - P. Ager

 Kimanzi, A. (2014, April). The Law of Succession. Africa Law Centre.

Class Handout: Testate Succession - P. Ager


Comments

Post a Comment

Popular posts from this blog

VITIATING FACTORS: WHEN CAN A CONTRACT BE SET ASIDE. PART 2

Last week, I published a blog post discussing two key vitiating factors in contract law, that is, misrepresentation and mistake , see VITIATING FACTORS IN CONTRACT LAW . These factors can render a contract void or voidable. This week, I will delve into the remaining two: duress and undue influence , and illegality . These doctrines also play a crucial role in determining the validity of agreements, particularly in cases where one party’s consent was obtained unfairly or where the contract itself violates legal principles. Let’s break them down.          3. DURESS AND UNDUE INFLUENCE   No force or coercion should be used to secure an agreement. If a party does enter a contract because he/she was coerced by the other party, then the law recognizes that the contract should be set aside and the party coerced should be relieved of their own obligations under the contract. If various elements of the contract are proved, then the contract would be void rathe...
Read more

VITIATING FACTORS IN CONTRACT LAW:WHEN CAN A CONTRACT BE SET ASIDE?

In contract law, the principle of freedom of contract allows parties to enter into legally binding agreements. However, not all contracts remain enforceable. Certain vitiating factors can undermine the validity of a contract, making it void or voidable. This blog examines these vitiating factors, exploring when and how a contract may be set aside.  A vitiating factor is one that may operate to invalidate an otherwise validly formed contract, that is a contract that conforms to all the rules of formation that I had already identified for you in one of my previous blog. (See  UNDERSTANDING CORE ELEMENTS OF A VALID CONTRACT ) To vitiate, basically means to impair the quality of, to corrupt or to debase. The role of law is to provide a remedy to the party who may not have wished to enter the contract given the full knowledge of the vitiating factor at the time of formation.  There can be two effects if a contract is vitiated: it may be void or voidable . Whether the contract...
Read more

MY JOURNEY THROUGH LAW SCHOOL

I know most of my blog posts are usually about breaking down and simplifying legal concepts, but today, I want to do something different. I want to pause the educating and take a moment to share my journey through law school, raw, unfiltered, and straight from the heart. My hope is that as you read this, you’ll be reminded that it’s okay to stumble, it’s okay to take time to find your path, and most importantly, it’s okay to be human. If you’ve ever felt like giving up, I hope this encourages you to keep going and stay focused on your goal. You’re not alone.  I’ve spent the last few years walking through one of the most demanding yet beautiful journeys of my life, law school. From the moment I received my admission letter, I knew my life was about to change, but I didn’t fully grasp just how much I would grow, learn, and evolve not just as a future lawyer, but as a woman of purpose, discipline, and faith. Now, as I prepare to turn the page and step into a new season, I feel led to...
Read more