Presentation on theme: "THE LAW OF SUCCESSION ACT (cap 160 of the Laws of Kenya)"— Presentation transcript:
1 THE LAW OF SUCCESSION ACT (cap 160 of the Laws of Kenya) TYPES OF GRANTBy Lady Justice M.A. Ang’awa, Judge of the High Court of Kenya2005
2 Types of Grants There are different types of grants. 3.1 Grant of Probate3.2 Grant of letters ofAdministration withwill annexed3.3 Grant of Probate or“Oral will”.*3.4 Grant of letters ofadministration intestate.3.5 Resealing of Grant of Probate orGrants letters of administration.3.6 Limited Grant –ad colligenda bona defuncti.3.7 Limited Grant – Grants for special purposes.
3 C PROCEDURE – Grant issued P & A 45 3.1 Grant of ProbateAB FormsForm P.A 78 (petition).Form P & A 3 (affidavit)the original will plus2 photocopies of the will &original death certificate.C PROCEDURE – Grant issued P & A 45
4 A 3.1 Grant of Probate The deceased died having written a will & named the person to be in charge of hisaffairs (executrix/executor). The saidperson named is to apply for the grant ofprobate unless he refuses or declines todo so.
5 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.
6 3.2 Grant of letters of administration with Will annexed. B FormsForm P & A 79 (petition).Form P & A 3 (affidavit)the original Will plus2 photocopies of the Will &original death certificate.C PROCEDURE – Grant issued P & A 43
7 3.3 Grant of Probate of Proof or Oral Will. Oral Will andDies within 3 monthsPersonUnder customaryLaw.GivesThe Beneficiarycan apply forGrant of Probate, for proofof oral Will.Grant issued byCourt(P & A44)
8 3.4 Grant of Letters of Administration Intestate Any person may applyfor grant of letters ofAdministration intestate.Priority is givento a survivor and in theorder of Consanguinity(i.e. wife, husband,children, parents etc).Person diesHaving not written a will.
9 A C PROCEDURE – Grant issued P & A 41 3.4 Grant of Letters of Administration Intestate General Basic SituationAB Formsthe 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 41Refer to 3.1
10 3. 4 Grant of Letters of Administration Intestate 3. 4 3.4 Grant of Letters of Administration Intestate Widow or a widower – adult children as survivors.AB Formsthe 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 38aAdult children are required to give their consent tothe widow/widower. Refer to 3.1
11 3. 4 Grant of Letters of Administration Intestate 3. 4 3.4 Grant of Letters of Administration Intestate Widow or a widower – with minor children as survivors.AB Formsthe 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 twopersons must apply for the grant to create a continuing trust.See section 58 of the Act. Refer to 3.4 (b)(I)
12 Points to NoteSection 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.
13 DIES abroad but has property in Kenya 3.5. Resealing (rules 42 (2)A 3.5.1ForeignerDIES abroad but has property in KenyaA grant is applied in his countryForeign Grant is filed in the High Court of Kenya for Resealing.Normal procedure including gazettement takes place.
14 3.5 Resealing (rules 42 (2) A – 3.5.2 Kenyan DIES abroad his domicile determines wherehe should apply for the grant.If he generally resides in Kenya but dies abroadthen the grant would apply in Kenya.Important note – The Commonwealth Countries allow applicationsfor resealing in any of of its countries.Normal procedure including gazettement takes place.
15 A 3.5 Resealing (rules 42 (2). 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 fromForeign country is filed. The file is minuted. The notice to the KenyaGazette is issued. If there are no objections then letters are issued.A grant given by the High Court can be used in the foreign courtsfor resealing.
16 3.6 Limited GrantsAIn 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.
17 A B Forms 3.6 Limited Grants the following forms should be filed. P & A 85 (petition)P & A 19 (affidavit)Copy of death certificate (where signatureendorsed by the applicant is required).C Procedure – Grant issued (P & A 47).
18 3.7 Grants for Special Purposes Grants can be issued for special purposes.These grants are as follows:1) Probate Limited to purposes specified2) Administrator Pendente lite3) Grant of letters de bonis non.
19 4 Who Is Entitled to A Grant? The persons are entitled to apply for a grantare:-i) Persons who have been appointed in awill as executors.ii) Persons who are NOT a minor, ofunsound 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.
20 5 Objections Section 68 & 69 (1) (i) Objection filed in triplicate All Grants once applied for must beadvertised in the Kenya GazetteWithin 30 days(i) Objection filed in triplicateto the court.No objections receivedBy the courtsLetters of Grants issued.(ii) Objection entered intoa register by the register rule 17 (12)
21 Step 1 - The registrar sends a notification in Form 5 Objections Section 68 & 69 (1)(iii) Registrar –Step 1 - The registrar sends a notification in FormP & A 61 to applicant(proposed administrator).Or alternatively he may send a copy of theobjection by post to the applicant’s address.
22 Step 2 - The registrar sends a notification in Form 5 Objections Section 68 & 69 (1)(iii) Registrar –Step 2 - The registrar sends a notification in FormP & A 67 to objector requiring the objector to file ananswer to the petition by way ofcross application rule 17 (5)If no objection has been filed the answer and cross petition,the court may proceed as if no objections has beenraised (see section 69 (1) 70 & 71.
23 Step 4 – Judge gives directions as to who is 5 Objections Section 68 & 69 (1)(iii) Registrar –Step 3 – DIRECTIONSThe registrar refers the matter to court fordirections once all therequisite paper has been filed.Step 4 – Judge gives directions as to who isentitled 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).
24 Important NoteObjections 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.
25 6 Confirmation of a Grant A After 6 months has expiredfrom the date a grant has been issued,that grant may be confirmed if there isno objective pending rule 40 (1).B FormsWhere 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)
26 6 Confirmation of a Grant NoteBefore 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).
27 6.2 Grant letters of administration intestate. Parties must be disclose the apportionmentof each survivor entitled to the estate.A list of all the beneficiaries, names, ages andRelationships must be disclosed seerule P & A 40 (3) (a, b) (4).
28 C Procedure Step 1 – Forms filed, date taken in registry. Applicant appears before Hon Judge.Consent its confirmation of grant maybe field in certain cases Form 37Dispensing attendance of parties to court.Step 2 – Hon Judge or Magistratewhatever the case confirms grant.
29 6.2 Grant letters of administration intestate. ProtestRule 15Rule 40A - 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 ofgrant the Registrar notifies the applicant
30 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 toconfirming of the grant.If form 10 is not filed, grant is confirmed onreceipt of P & A 37 – being consentof all parties.
31 6.2 Grant letters of administration intestate. If P & A is filedCourt orders directions to be taken in chambers onnotice Form 74 to applicant.
32 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.
33 6.2 Grants of Administration Intestate. A - ProtestAt the time of hearing theapplication for confirmationof grant would be read to theparties. The protest would alsobe read to the parties.If parties are in agreement &satisfied – the grant may beconfirmed. If parties are not inagreement the High Court hearsthe full evidence of the parties.
34 7 Revocation (C) Procedure Section 76 rule 44(A) Once grant has been confirmed, no objections or protest may be filed. Only options – revocations (with exception).(B) FormsP & A 107 (application)P & A 14 (affidavit)(C) ProcedureApplicant files Form 107 & P & A14 in the High Court.On receipt of application beingfiled, the Registrar issues FormP & A 70 (notice) to theapplicant (who is seekingrevocation) to attend the judgeexparte.
35 7 Revocation Note: High Court on its own mention may revoke Applicant takes dates &appears before a Judgefor directions exparte.Judge directs which personsshould be served with theapplication (Form 107, 14).These person are thosenormally efficient by therevocation. The mode ofservice such persons(personal or otherwise)including the manner of efficiencysuch 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 revokegrant rule 44 (5). If it does so, a notice in Form P & A 69 must beissued & served on the persons concerned, before revocation is done.
36 Reasons for Revocation Section 76Where 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).
37 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.ProcedureStep 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.
38 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.
39 9 Death CertificateAll 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.
40 10 Renounciation Rule 18(a) All survivors must be notified of the probate.(b) Survivors may renounce the estate whether testate or intestate.FormsP & A 98 to 102.ProcedureRenounciation is filed. No retraction is permitted at a later stage.
41 Rectification of Grant Rule 14 (1) (a) Rectification may bemade before a grant isissued.(b) FormsP & A 62 (Notice) Filed in original application.No affidavit required.(c) ProcedureNotice served on objectorWhere 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.FormsP & 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.
42 12 Appeals Section 50Appeals 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.
43 13 Public TrusteeWhere 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.
44 14 Trust CompaniesTrust companies are provided for!