Section 5 of Law of Succession Act CAP 160: Persons capable of making wills and freedom of testation
(1) Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.
(2) A female person, whether married or unmarried, has the same capacity to make a will as does a male person.
(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.
(4) The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.
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- Section 6 - Appointment by will or executor
A person may, by will, appoint an executor or executors.
- Section 7 - Wills caused by fraud, coercion, importunity or mistake
A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.
- Section 8 - Form of wills
A will may be made either orally or in writing.
- Section 9 - Oral wills
(1) No oral will shall be valid unless—
(a) it is made before two or more competent witnesses; and
(b) the testator dies within a period of three months from the date of making the will:...
- Section 10 - Proof of oral wills
If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except so far as its contents are proved by a competent...
- Section 11 - Written wills
No written will shall be valid unless—
(a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;...
- Section 12 - Incorporation of papers by reference
If a testator, in a will or codicil, refers to another document then actually written, and expressing any part of his intentions, that document, where it is clearly identified as the document to which...
- Section 13 - Effect of gift to attesting witness
(1) A will shall not be considered as insufficiently attested by reason of any benefit thereby given, either by way of bequest or by way of appointment to any person attesting it, or to his or her...
- Section 14 - Witness not disqualified by being executor
No person, by reason of his being an executor of a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.
- Section 15 - Existing wills
Notwithstanding the provisions of this Part, any written will executed before the commencement of this Act shall, whether the testator dies before or after the commencement of this Act, be treated as...
- Section 16 - Formal validity of other wills
Notwithstanding the provisions of this Part, every will, whether of movable or immovable property, and whether executed before or after the commencement of this Act, shall be treated as properly...
- Section 17 - Will may be revoked or altered
A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will.
- Section 18 - Revocation of will
(1) Save as provided by section 19, no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it, or by the burning, tearing...
- Section 19 - Revocation of will by testator’s marriage
A will shall be revoked by the marriage of the maker; but where a will expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so...
- Section 20 - Effect of obliteration, interlineation or alteration in will
(1) No obliteration, interlineation or other alteration made in a written will after the execution thereof shall have any effect unless the alteration is signed and attested as a written will is...
- Section 21 - Revival of will
(1) No will which has been in any manner wholly revoked shall be revived otherwise than by the re-execution thereof.
(2) Where only part of a will has been revoked that part shall not be revived...
- Section 22 - Construction of wills
Wills shall be construed in accordance with the provisions of the First Schedule to this Act.
- Section 23 - Failure of testamentary dispositions
Testamentary gifts and dispositions shall fail by way of lapse or ademption in the circumstances and manner and to the extent provided by the Second Schedule.
- Section 24 - Election
Beneficiaries under testamentary gifts or dispositions shall be put to election in the circumstances and manner and to the extent provided by the Third Schedule.
- Section 26 - Provisions for dependants not adequately provided for by will or on intestacy
Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the...
- Section 27 - Discretion of court in making order
In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of...
- Section 28 - Circumstances to be taken into account by court in making order
In considering whether any order should be made under this Part, and if so what order, the court shall have regard to—
(a) the nature and amount of the deceased’s property;
(b) any past, present...
- Section 29 - Meaning of dependant
For the purposes of this Part, “dependant” means—
(a) the wife or wives, or former wife or wives, and the children of the
deceased whether or not maintained by the deceased immediately prior to...
- Section 30 - Limitation of time
No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.
- Section 31 - Characteristics
A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if—
(a) the person making the gift is at the time contemplating the...
- Section 32 - Excluded property
The provisions of this Part shall not apply to— (a) agricultural land and crops thereon; or
(b) livestock, in various Districts set out in the Schedule:
West Pokot Wajir Samburu Lamu...
- Section 33 - Law applicable to excluded property
The law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased’s community or tribe, as the case may...
- Section 34 - Meaning of intestacy
A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.
- Section 35 - Where intestate has left one surviving spouse and child or children
(1) Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to— (a) the personal and household...
- Section 36 - Where intestate has left one surviving spouse but no child or children
(1) Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to—
(a) the personal and household effects of...
- Section 37 - Powers of spouse during life interest
A surviving spouse entitled to a life interest under the provisions of section 35 or 36 of this Act, with the consent of all co-trustees and all children of full age, or with the consent of the court...
- Section 38 - Where intestate has left a surviving child or children but no spouse
Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be...
- Section 39 - Where intestate has left no surviving spouse or children
(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—
(a) father; or if dead...
- Section 40 - Where intestate was polygamous
(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first...
- Section 41 - Property devolving upon child to be held in trust
Where reference is made in this Act to the “net intestate estate”, or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in...
- Section 42 - Previous benefits to be brought into account
Where—
(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b) property has been appointed or...
- Section 43 - Presumption of survivorship
Where two more persons have died in circumstances rendering it uncertain which of them survived the other or others, the deaths shall, for all purposes of this Act, be presumed to have occurred in...
- Section 44 - Application of Part
(1) The provisions of this Part shall not, in cases of intestacy, apply to those types of property mentioned in section 32.
(2) The Minister may, after consultation with the Chief Justice, by order...
- Section 45 - No intermeddling with property of deceased person
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or...
- Section 46 - Duties of officers in relation to protection, etc., of deceased’s property
(1) Whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the...
- Section 47 - Jurisdiction of High Court
The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:
Provided...
- Section 48 - Jurisdiction of magistrates
(1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 of this Act, a Resident Magistrate shall have jurisdiction to entertain any application...
- Section 49 - Territorial jurisdiction of magistrates
The Resident Magistrate within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed one hundred thousand...
- Section 50 - Appeals to High Court
(1) An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.
(2) An...
- Section 50A - Power to make rules
The Chief Justice may in consultation with the Chief Kadhi, make rules of court for the better carrying into effect in relation to the estates deceased Muslims of the provisions of sections 47, 48, 49...
- Section 51 - Application for grant
(1) Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
(2) Every application shall...
- Section 52 - Wilful and reckless statements in application for grant
Any person who, in an application for representation, wilfully or recklessly makes a statement which is false in any material particular shall be guilty of an offence and liable to a fine not...
- Section 53 - Forms of grant
A court may—
(a) where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect...
- Section 54 - Limited grants
A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.
- Section 55 - No distribution of capital before confirmation of grant
(1) No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been...