In succession matters, there can be two scenarios. That is when a deceased makes a will (testate) or when a deceased dies without making a will (intestate[1]). Generally, it is prohibited to deal with the deceased’s estate without lawful authorization.[2] The proper procedure is that you apply to the court for authority to deal with any estate of a deceased. This is referred as to an application for grants. For testate succession, it is referred to as a grant of probate and a grant of letters of administration for intestate succession. The Act makes provisions for various types of grants. These various grants apply to various instances. These range from authority to sue to authority to discover, collect and preserve the deceased’s estate. Therefore focus shall be on those applicable to intestate succession with properties abroad. These are listed below as:
- Grant ad litem
- Grant ad colligenda bona defuncti
- Grantee pendente lite
Whereas in testate succession the deceased, appoints an executor who administers the deceased’s estate in the Will. The executor applies for letters of probate. In intestate succession, there are no appointees of any kind. The administration of such an estate is only through application to the court for letters of administration.
Applicable law
For the grant of letters of probate intestate, any one of the beneficiaries can make an application to the court. However, priority is given to the surviving spouse and or in the alternative, to the order of consanguinity.[3] Where the deceased is survived by beneficiaries or was polygamous[4], there is a prerequisite for consent from the beneficiaries of the estate on the application for letters of grant of administration. A grant of representation obtained in Kenya only enables the personal representatives to deal with the deceased’s property that is within the Kenyan jurisdiction. To deal with property situated outside Kenya, you need to apply for a grant that satisfies the requirements of the succession laws of that respective country. Generally, practice is that for commonwealth countries, resealing of the grants is permissible.[5] It is important to note that for resealing of foreign grants, they must be in the form of confirmed grants.[6] It was remarked obiter that the purpose of resealing foreign grants is to eliminate frauds and conflicts.
Therefore you need to ascertain the nature of the estate. For intestate, grants of letters of administration are issued, and where it is testate, the court would grant probate.
Relevance
It is important to make the distinction between moveable and immovable properties. Immovable property is governed by the law of the country it is situated in, regardless of the nationality of the deceased.[7] The provision of the LSA is that succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, the domicile of the deceased at the time of his death notwithstanding. Section 4(1) (b) provides that succession to the movable property of a deceased person, wherever situated, shall be regulated by the law of the country of the domicile of the person at the time of his death. This would mean that foreign grants are recognized in Kenya to the extent only of movable property. However, for commonwealth countries, resealing of grants is permitted.
[1] Section 34
[2] Section 45 of the Act
[3] Section 39 of the Law of succession
[4] Section 40 of the Laws of succession
[5] Re Estate of Naftali (deceased) (2002) 2 KLR 684 (Waki J)
[6] ibid
[7] Section 4 of the LSA
