P& A Final
P& A Final
P& A Final
1.0 INTRODUCTION.
A grant of probate can be both contentious1 (probate in solemn form) and
non-contentious. (Probate in common form).it is said to be contentious when
there is a dispute as to the following;
a) Validity of a will,
b) Entitlement of grant
c) Action being taken against grant made under common form and
d) Where probate of a lost will is sought.
These are common in relation to making or confirmation of grant,
revocation of grant and family provisions. In non -contentious probate, there
is no dispute at to the documents being lodged and as such, there is rarely
any hearing or court attendance.
Before lodging of an application for grant, there are several other acts or
omissions that may occur. For instance or administrators as the case may
be, may refuse to take up grant when and if cited, they may renounce the
will, some of the beneficiaries may refuse to give consent to an
administrator appointed to apply for grant among others. Meanwhile, we
shall be looking at application that may arise at pre- application of grant
stage.
1.1 Applications at the pre-application of grant stage.
a) Renunciation.
Renunciation applications are provided for under part V of probate and
Administration Rules that is Rule 18- 20.An executor or an administrator
as the case may be, may opt to decline applying for grant. The
renunciation has to be by writing signed by a person entitled to apply or
orally declared in an open court. This not a hard and fast rule in the
sense that renunciation of grant can be done before application of either
grant or even after issue of grant. Once made, it cannot be retracted
except by order of court. However, an intermeddler 2 of the estate of the
1
Contentious probate means that parties are in disagreement with regard to who is to be
the personal representative of the estate of the deceased.
2
Section 45 of the Act provides No intermeddling with the property of the deceased
person.
b) Citations.
A citation is a command by a court to a person who is entitled to apply for
grant ordering him or her to apply the same within a specific period.
Citations are provided for under rules 21-24 of probate and Administration
rules. The applicant (citor) swears an affidavit (Form P&A 20 -24)4 asking
the registry to issue a citation. This is done after the payment of a
prescribed fee. If there are good grounds the registrar signs the citation
and cause it to be served on the person cited (citee). The citee must enter
appearance within 15 days by filling Form 275 the form has to support by
an affidavit. The citee may accept or refuse to take grant, if the cite accepts
to take grant he must fill the petition for application of grant. Having said
that, there are grounds that may necessitate or prompt an application for
citation based on the following grounds:
i.
ii.
iii.
iv.
Types of grants.
The manner in which the deceased dies determines the type of grant to be
sought. Depending on how the deceased died and left his affairs, different
applications of grant have to be applied for. In order to understand this we
ii.
The effect of grant of probate is that, it acts as proof of terms and proper
execution of the will.it also confirms executor authority to act. The title
becomes and his duties after the death of the testor.
Persons entitled to apply are the persons and only persons expressly
appointed or named in the will as a general rule. Section 60 provides that
where a will appoints more than one executors, they are all granted
simultaneously8. Accordingly, rule 25(b) provides for the number of
executors to be appointed in a will and states that it should be one person
or two but should not exceed four.
Where the executor or executrix intermeddles with the estate of the
deceased between the date of the death of the deceased and the date of
grant, the principle of relation back will then apply, this seeks to prevent the
estate of the deceased against harm 9.
Of importance to us is the stage at which this application is made.
Application for grant comes at least three months from the day of the death
of the testator.comfirmation of grant is made if the registrar, the judge and
all the parties are satisfied that the grant be made to the applicant. This is
usually the very first step in both contentious and non-contentious probate.
The executor named in the will, applies for grant of probate unless
he refuses or declines to apply. This is done three (3) months after
the death of the deceased.
Section 60. When several executors are appointed, probate may be granted to them all,
simultionouesly, or at different times.
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II.
The executor files the following forms with the courts deputy
registrar in the high court registrar, district registry or principle
registry, a petition and an affidavit, attach the original will, two
photocopies of the will and the original death certificate and a
letter from the area chief.
III.
When the deputy registrar is satisfied that all the documents are in
order, it is then placed before the honorable judge.
IV.
The judge gives orders to the effect that the matter be advertised
in the Kenya gazette.
V.
VI.
3.0 GRANT OF
ANNEXED.
LETTERS
OF
ADMINISTRATION
WITH
WILL
This type of grant applies when, the deceased dies and leaves behind his
will but has not named the person who should handle his affairs or
executors, the executor appointed has pre-deceased the testor, where the
appointed executor has renounced executorship and where the executor is
cited to take out a grant of probate and has failed to do so (failed to apply
for grant).
Any beneficiary can apply for grant of letters of administration with will
attached. Finally, it can also be issued where the executor had failed to
apply or act for whichever reason failed to apply.
The persons entitled to grant of letters of administration with letters
annexed include in order of priority.
a) The universal or residuary legatee.
b) A personal representative of the deceased residuary legatee.
c) Public trustee or trust corporation and
d) A creditor/ bank by virtue of section 6510 of the Act.
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3.1
b)
c)
d)
e)
Death certificate.
f)
A person who dies having not written a will or given instructions as to what
should occur to his or her property the letters may be sought and granted
accordingly.
Any person may apply for letters of administration intestate e.g. applied
first by a person who is a survivor and in order of consanguinity (i.e. wife,
husband, children, parents, brothers, and sisters etc.)
5.1 Forms and documents required Requirements.
The person applying for letters of administration intestate should file the
following;
a) Form P & A 80 (petition).
b) Form P & A 5 (affidavit).
c) Form P & A 11 (affidavit of justification of proposed sureties).
d) Form P & A 12 (affidavit of means).
e) Form P & A 57 (guarantee of personal sureties).
f) Death Certificate (mandatory).
g) A letter from the chief
h) A certified consent of all the beneficiaries.
6.0 RESEALING/ FOREIGN GRANT.
Resealing is provided for under rule 42 (2) of probate and Administration
rules. Resealing contemplates a situation either where a testator is a
foreigner and has property in Kenya or where a Kenyan dies and has
property abroad.
In an instance of a foreigner, dying abroad and has property in Kenya, a
grant is applied in his country and brought to the high court of Kenya for
resealing.by this we mean that the normal procedure is of gazettement is
followed.
Should the deceased be a Kenyan domiciled abroad and has property in
Kenya and vice versa, the same procedure is followed?
6.1 Documents and forms required.
a) Form P & A 81 OR P & A 82 (petition)
b) Form P & A 7 (affidavit)
Section 54 of the law of succession Act. A court may, according to the circumstances of
each case, limit
a grant of representation which it has jurisdiction to make, in any of the
Forms described in the Fifth Schedule.
13
Mary Angawa, procedure in the law of succession, (2011) law Africa p.16
14
15
Rule 36 (1) provides Where, owing to special circumstances the urgency of the matter
is so great that it would not be possible for the court to make a full grant of
representation to the person who would by law be entitled thereto in sufficient
time to meet the necessities of the case, any person may apply to the court for
the making of a grant of administration ad colligenda bona defuncti of the estate
of the deceased.
10
16
Section 49 (iii) a resident magistrate shall have jurisdiction, in certain matters of agency
to issue temporary grant for purposes of collection and preservation of the deceased and
payment of debts.
17
5th schedule para 15, provides limited grant to property to an interested party who has a
beneficial interest.
11
Its taken out where the executors or administrators are minors and
are not entitled to grant as their own right. The grant expires when
the minor reaches the age of majory or some other time the court
may order so.
b) Grant durante absentia.
Where the personal representative is outside the jurisdiction,
the court may grant of representation to another person for the
duration that the personal representative shall be away. The
limited grant shall expire on return of the holder of the grant.
Paragraph, 4, 5, and 6 of the 5th schedule.i8n the aforesaid
paragraphs, an attorney takes out the grant in absence of the
executor or administrators.
c) Grant where will is unavailable.
Where the testator has made a will but the same, is lost, or
misplaced or unavailable for whichever reason a limited grant
may be issued until the original will is found or a more
authentic is found or availed.
d) Administration for use and benefit of a person of unsound mind.
Grant limited to the duration of insanity, disability or mental
incapacitation of a solely entitled in intestate. Issued where the
estate of the testator.
e) Temporary grant limited to collection of assets and payment of
debts.
This is provided for under S 49 of the LSA and rule 37 of the P
& A Rules. It is related to the grant ad colligenda bona, the only
difference between them being that the limited grant under S
49 goes beyond collection of assets to cover payment of debts.
It is made pending the making of a full grant.it is similar to
grant by a resident magistrate.
f)
12
Where a grant has been issued for a will, forms 108 and 8 are
filled.
II.
III.
IV.
The difference in forms for letters of administration is that the forms must
disclose the appointment of each survivor who is entitled to the said estate.
18
Section 73.
19
20
Section 29 of the law of succession Act defines dependents within the meaning of the act.
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21
22
23
24
25
Supra, section 27
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b) Where the estate duty has not been paid and the certificate of
estate duty issued by the commissioner26.
9.0 RECTIFICATION/ALTERATION OF GRANT
A grant may be rectified by the court to correct errors. This provided
for by Section 74 of the Law of Succession Act,27
Therefore, rectification of grant may be done where errors are
superficial in nature, however, fundamental errors tending to change
the character of the grant cannot be rectified, and instead the grant
should be revoked altogether.
In the matter of the Estate of Muniu Karugo (Deceased), the intestate
was the father of two administrators, a brother, and a sister.
Rectification of the confirmed grant was sought by the brother
alleging that the confirmation introduced the name of a third
beneficiary who was not entitled to a share in the estate. The court
dismissed the application on the grounds that rectification seeks to
deal with obvious errors, and it cannot be used to fundamentally alter
the mode of distribution of the estate.
In Kamau v. Kirima Khamoni J stated that Where a confirmed
beneficiary dies, the right procedure to replace him as a beneficiary, is
not by rectification of the grant, but by first obtaining a grant of
representation to his estate and thereafter seek rectification of the
confirmed grant in the first estate to replace the original beneficiary
with the administrator of the estate.
10.0 REVOCATION OF GRANTS
A grant of representation may be annulled or revoked by the court
suo moto (on its own motion) or on application by an interested party
pursuant to section 76 28of the Law of succession Act as read together
26
27
Section 74, Errors in names and descriptions, or in setting out the time and place of the
deceaseds death, or the purpose in a limited grant, may be rectified by the court, and the
grant of representation, whether before or after confirmation, may be altered and amended
accordingly.
28
Section 76 of the law of succession Act provides A grant of representation, whether or not
confirmed, may at any
time be revoked or annulled if the court decides, either on application by
Any interested party or of its own motion.
15
16
he was a grandson of the deceased. The deceased was in fact not his
grandmother, but a sister of his grandmother. The persons who had
prior right to the grant had not given their consent. It was held that
the grant had been obtained fraudulently by the making of a false
statement and it was revoked
c) Concealment of material facts for instance where the beneficiary has
been excluded from the petition. . In the Matter of the Estate of
Robert Napunyi Wangila Nairobi HCSC No. 2203 of 1999, the
sister of the deceased applied for and obtained letters of
administration. She didnt disclose in her petition that the deceased
had died testate and that a grant of probate had already been issued
to the executors. Her grant was revoked on application of the
executors.
d) The holder of grant has failed to apply for confirmation of grant within
a year.
e) Lack of diligence on the part of the executors or administrators in
failing to provide accounts among others. Failure to produce into
court accounts or inventories as may be required of them are the
other ground for revoking a grant. In the Matter of the Estate of
Mohamed Mussa (1997), the grant was revoked because the
administrators had not kept any records of accounts of their
administration and one of the administrators was not capable of
discharging her duties on grounds of poor mental health and old age.
10.1 Procedure for applying for revocation.
i.
ii.
iii.
However, a court may suo moto revoke a grant. Where it does so it has to be
on grounds set out under section 76 of the Act, this position is affirmed in
17
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