THE LAW OF SUCCESSION ACT • TYPES OF GRANT

THE LAW OF SUCCESSION ACT
(cap 160 of the Laws of Kenya)
• TYPES OF GRANT
By Lady Justice M.A. Ang’awa, Judge of the
High Court of Kenya
2005
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.
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
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.
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.
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
3.3 Grant of Probate of Proof or
Oral Will.
Person
Under customary
Law.
Grant issued by
Court
(P & A44)
Gives
Oral Will and
Dies within 3
months
The Beneficiary
can apply for
Grant of Probate, for proof
of oral Will.
3.4 Grant of Letters of
Administration Intestate
A
Person dies
Having not written a will.
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).
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
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
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)
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.
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.
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.
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.
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.
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).
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.
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.
iii) 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.
5 Objections Section 68 & 69 (1)
All Grants once applied for must be
advertised in the Kenya Gazette
Within 30 days
No objections received
By the courts
Letters of Grants issued.
(i) Objection filed in triplicate
to the court.
(ii) Objection entered into
a register by the register rule 17 (12)
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 applicant’s address.
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.
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).
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.
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
(i) 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)
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).
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).
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.
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
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.
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.
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.
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.
7 Revocation
Section 76 rule 44
(C) Procedure
Applicant files Form 107 & P & A
(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)
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.
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.
Reasons for Revocation
Section 76
(a)
Where proceedings obtained were
defective in substance. 76 (a)
(b)
(c)
(d)
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).
8 Citations
Rule 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.
8 Citations
Rule 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.
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.
10 Renounciation
Rule 18
• (a) All survivors
Procedure
must be notified of • Renounciation is
the probate.
filed. No retraction
• (b) Survivors may
is permitted at a
renounce the
later stage.
estate whether
testate or intestate.
• Forms
• P & A 98 to 102.
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.
(a)
Rectification after a grant has
been issued, with or without a
confirmed grant. Section 74
rule 43.
(b) Forms
P & A 110 summons for
rectification of grant.
P & A 13 (affidavit) (Unless
exempted by the registrar).
(C) 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.
12 Appeals
Section 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.
•
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.
14 Trust Companies
• Trust companies are provided for!