EXECUTORSHIP LAW: THE LAW OF SUCCESSION

7.1 EXECUTORSHIP
Executorship is the body of statute law, case law and practice concerning the management of the estate of a
deceased person. In what follows, we shall express the law as applying to a masculine person, but it applies
equally to women, whether married or not.
When a person dies, he dies:-

(a) TESTATE — he leaves a valid will, which disposes of all his free property (i.e the property of
which he was legally competent to dispose during his lifetime, and in respect of
which his interest does not terminate by his death)
OR

(b) INTESTATE — he does not leave a valid will, or the will does not dispose of all his free
property.

Since the vast majority of people in Kenya die intestate i.e. without leaving a will, we will deal with this situation
first.

7.2 DISTRIBUTION UNDER THE INTESTACY PROVISIONS

When a person dies without leaving a will, his estate is distributed according to the Law of Succession Act.
When a person dies, four situations can be distinguished:

1. The intestate leaves no spouse and no children;

2. The intestate leaves no spouse but children;
3. The intestate leaves one surviving spouse, but no children;
4. The intestate leaves one spouse and children (or in the case of a male intestate who married under any
system of law which permits polygamy, a number of wives and children).

The rules of intestacy:

Agricultural land, crops and livestock in certain areas of Kenya are not covered by these rules; they are
distributed according to the law or custom of the tribe or community to which the deceased belonged.

(a) The intestate leaves no spouse and no children

The net estate devolves as follows: to his

1. Father; or if dead
2. Mother; or if dead
3. Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or
if none
4. Half—brothers and half—sisters and any child or children of deceased half—brothers and half—
sisters, in equal shares; or if none
5. Relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in
equal shares; or if none
6. The Consolidated Fund of the Government.

Example;
A dies intestate; he never married. His father and brother have pre-deceased (i.e died before) him.
 A is survived by his brothers C and D, and sisters E and F; his brother B pre-deceased him, but left a
wife K and children L and M. His net estate was worth Shs. 3m. How will it be divided on his death?
His brothers and sisters and the children of his deceased brother receive equal shares i.e C, D, E, F, L and
M each receive Shs.500,000, to give a total of Shs.3m.

Note
Section 39(1)(c) of the Law of Succession Act (on which this example is based) is not in accordance with
recommendation No. 41 of the Report of the Commission on the Law of Succession; whether the
difference is intentional or accidental is difficult to say.

(b) The intestate leaves no spouse but children

The net estate devolves upon the surviving children and is divided equally between them. If any child has
not, at the time of intestate's death, reached his majority, his share of property will be held in trust until he
reaches the age of 18 years, or, in the case of a female until she marries under that age.

Example
Mr A dies intestate; his wife Mrs A died some years ago. Mr A is survived by his sons B (22 years old) and
C (18 years only). His daughter is at school; she is not yet married. His net estate is worth Shs.3m. How
will his property be divided?

It will be divided equally between B, C and D. D's share will be held in trust see Chapter 8) until she
reaches the age of 18 years, or until she marries, if she marries before she reaches the age of 18.
If a child of the deceased intestate predeceases him, but leaves his or her own issue (i.e. children,
grandchildren, etc.), then the issue take, through degrees, in equal shares, the share which their parent would
have taken had he not pre-deceased the intestate (PER STIRPES RULE).

Example
Mr K dies intestate; his wife Mrs K died two weeks before Mr K. Mr K's eldest son, M, died some years
ago; M's children P, Q and R are alive at the time of Mr K's death. B, C and D, Mr K's other children were
all alive when Mr K died. His net estate is worth Shs.3.6m; how will it be divided?

B, C and D will each receive one quarter of the estate i.e Shs.900,000 each. If M had been alive he would
also have received Shs 900,000. Since M predeceased his father, but left issue alive at the time of his father's
death, his children will share the Shs.900,000 equally i.e. P, Q and R will each receive Shs.300,000.
If the intestate during his life—time or by will paid to, gave to or settled any property on a child, grandchild
or house, that property shall be taken into account in determining the share of the net intestate estate finally
accruing to the child, grandchild or house.

Example
Mr K dies intestate, his wife and eldest son J having predeceased him. Mr K is survived by A and B the son
and daughter of this eldest son J, and his own sons M and N. During Mr. K's life—time, he (Mr. K) had
made gifts of Shs.1m. to N, and Shs 500,000 to B. Mr. K left net estate worth Shs.5m: How would it be
divided?
 Total J M N
Shs m Shs m Shs m Shs m
Mr. K Net Estate 5
Add:
Advancement
To N 1
Total 6 2 2 2
Deduct:
Advancement (1) (1)
5 2 2 1

A B
Add:
Advancement
To B 0.5
Total 2.5 1.25 1.25
Deduct:
Advancement (0.5) (0.5)
2.0 1.25 0.75

(c) The intestate leaves one surviving spouse, but no child or children.
The surviving spouse is entitled to:

1. The personal and household effects of the deceased absolutely: "personal and household effects" are:
clothing and articles of personal use and adornment, furniture, appliances, pictures, ornaments, food,
drink, utensils and all other articles of household use or decoration normally to be associated with a
matrimonial home, but not any motor vehicle or any other thing connected with the business or
profession of the deceased; and
2. The first Shs.10,000 out of the residue of the net intestate estate, or 20% thereof, whichever is the
greater; and
3. A life interest in the whole of the remainder; if the surviving spouse is a widow, this life interest ceases
upon her re—marriage to any person. When the spouse dies (or re—marries, if a widow), the property
subject to the life interest devolves in the order of (a) above.

(d)

1. The intestate leaves one surviving spouse and children

The surviving spouse is entitled to:

a. The personal and household effects of the deceased absolutely;

b. A life interest in the whole residue of the net intestate; if the surviving spouse is widow, this interest
ceases upon her re—marriage to any other person. On the death of the surviving spouse (or on her
re—marriage if she is a widow), the residue of the net intestate estate is equally divided among the
children alive at the moment of death (or re—marriage) of the surviving spouse.
2. The intestate leaves several wives, married under any system of law which permits polygamy
 His personal and household effects and the residue of the net intestate estate shall first be divided among
the houses ("house" means family unit, comprising a wife, whether alive or dead at the date of death of the
husband, and the children of that wife) according to the number of children in each house, but also adding
any wife surviving him as an additional unit to the number of children.
The personal and household effects and the residue of the net intestate estate are distributed within each
house as above.

Example
Mr O dies intestate, leaving two wives, A and C whom he married under a system of law which permits
polygamy; a third wife B had predeceased him.A has children P, Q and R; B had children S and T; C has no
children.
All the children are alive at the time of Mr O's death. The value of his personaland household effects was
Shs.700,000 and the value of the net residue of theestate was Shs.2,800,000. How should his estate be divided?

House 1 2 3 Total(units)
Wife A B(dead) C 2 units
Children P:Q:R S:T NONE 5 units
7 units
To wife absolutely:

1. Personal and 4/7 x Shs 700,000 1/7 x Shs 700,000

household
effects = Shs 400,000 N/A = Shs 100,000

2. 20% of the
Residue N/A N/A 1/7 x Shs2.8m x
20%
= Shs 80,000

Wife's life 4/7 x Shs 2.8m 1/7 x Shs 2.8m -

interest in Shs 80,000
the whole residue = Shs 1.6m N/A = Shs 320,000
or remainder

To be shared
between S and
T absolutely:

Personal and N/A S:Shs 100,000 N/A

household T:Shs 100,000
effects Shs 200,000

Residue N/A S:Shs 400,000 N/A

T:Shs 400,000
Shs 800,000