The Law of Succession Act in Practice: Who Actually Inherits in Kenya

Clients frequently arrive believing that a valid will settles who inherits. In Kenya it does not, entirely. The Law of Succession Act permits certain people to claim reasonable provision from an estate regardless of what the will says, and that provision is the source of most contested estates we handle.

Understanding who the Act protects is the starting point for any inheritance question, whether you are planning an estate or contesting one.

What law applies?

The Law of Succession Act (Cap 160) is the principal statute. It governs both testate succession, where there is a valid will, and intestate succession, where there is not.

Two significant carve-outs. Where the deceased was Muslim, Islamic law governs the succession and the Kadhis' Courts have jurisdiction — the Act expressly steps back. And certain agricultural land in specified areas has historically been treated under customary rules, though this has narrowed considerably.

Who inherits when there is no will?

The intestacy rules distribute by statute, not by fairness and not by what the family agreed after the funeral.

Surviving spouse and children

The spouse takes the personal and household effects absolutely, and a life interest in the remainder of the net estate. That life interest determines on the spouse's death or remarriage, at which point the property passes to the children in equal shares.

The life interest is the feature that surprises families most. The surviving spouse has the use and income of the estate but not the power to sell capital assets without the court's consent. Widows discover this when they attempt to sell the family home.

Spouse but no children

The spouse takes the personal effects and the first KES 10,000 or 20% of the residue, whichever is greater, plus a life interest in the remainder. On the spouse's death the estate passes to the deceased's parents, then siblings, then more remote relatives.

Children but no spouse

The estate passes to the children in equal shares. Children includes children born outside marriage and adopted children.

Polygamous households

Where the deceased was in a polygamous marriage, the net estate is divided between the houses according to the number of children in each house, with each wife counting as an additional unit. The mechanics are prescribed and frequently misunderstood, and they are a common source of dispute.

What is a dependant, and what can they claim?

This is the provision that overrides a will, and it is the most consequential section of the Act for planning purposes.

A dependant includes the wife or wives, former wives, and children of the deceased, whether or not maintained immediately before death. It extends to parents, step-parents, grandparents, grandchildren, step-children, adopted children, brothers, sisters, half-siblings — but for this second group only where they were being maintained by the deceased immediately before death.

A dependant who is not reasonably provided for may apply to court for provision out of the estate. The court considers the nature and amount of the estate, any past or present contributions by the applicant, the deceased's reasons where these can be ascertained, and the general circumstances.

The practical consequence for estate planning is direct: a testator who excludes a dependent adult child, a former wife, or an elderly parent they had been supporting has not prevented that person from taking. They have converted a distribution decision into litigation. Our estate planning practice addresses this by documenting the reasoning within the will, which the court is entitled to consider.

How is an estate actually administered?

1. Death certificate and identification of assets and liabilities.
2. Application for a grant — probate where there is a will naming executors, letters of administration where there is not.
3. Gazettement. The application is advertised, opening a window for objections.
4. Grant issued if unopposed, or a contested hearing if objections are filed.
5. Collection of assets and payment of debts and expenses.
6. Confirmation of the grant — not less than six months after the grant issues, on an application setting out the proposed distribution.
7. Distribution and transfer of assets to beneficiaries.

Note step six. The grant is not the end. Confirmation is, and no valid distribution of immovable property can occur before it. The six-month minimum exists so creditors and objectors can come forward. Families who treat the grant as authority to distribute create problems for the personal representative personally.

What is an executor personally liable for?

More than most people appointed as executors realise.

An executor or administrator who distributes the estate before creditors have been given the opportunity to come forward may be personally liable to those creditors for the amounts distributed. The protection is to advertise for claims and allow the statutory period to run before distributing.

Personal representatives also owe duties to account, to act in the beneficiaries' interests, and not to profit from the position. Intermeddling — dealing with estate assets without a grant — is an offence under the Act and exposes the intermeddler to liability for the full value dealt with.

What makes a Kenyan will valid?

The formalities are straightforward and the failures are usually elsewhere.

A written will must be signed by the testator, or by someone else in their presence and at their direction, and the signature must be made or acknowledged in the presence of two or more competent witnesses present at the same time, who then attest in the testator's presence. A beneficiary who witnesses the will does not invalidate it, but their gift fails — a trap that catches families who ask an adult child to witness.

Oral wills are recognised but narrowly: they must be made before two or more competent witnesses and the testator must die within three months, except for members of the armed forces on active service. They are a poor substitute for a written will and are frequently contested.

Capacity is presumed but can be challenged. Where a testator is elderly, unwell, or making a significant change to a previous disposition, contemporaneous evidence of capacity — a medical note, a detailed attendance record by the drafting advocate — is what defeats the challenge later.

Grounds for challenging a will

Four routes exist, and they succeed at very different rates.

Dependant provision is by some distance the most successful. It does not require proving anything wrong with the will; only that reasonable provision was not made for a qualifying dependant.

Lack of testamentary capacity requires showing the testator did not understand the nature of the act, the extent of their property, or the claims to which they ought to give effect. Difficult where the will was professionally drafted and the advocate kept a record.

Undue influence requires proof of coercion, not merely persuasion or a close relationship. The burden sits with the challenger and it is a high one.

Defective execution — witnesses not present simultaneously, no attestation, signature not acknowledged. Rare where an advocate supervised, common in home-made wills.

Families frequently choose the harder argument. Where a dependant has been excluded, the provision claim is usually the stronger route. Our dispute resolution practice advises on which ground actually fits before proceedings are filed.

Cross-border estates

Kenyan land in the estate of a person who died domiciled abroad requires a Kenyan grant. Where a grant has already been obtained in a country whose grants may be resealed in Kenya, resealing is available and is generally faster. Where it is not, a fresh Kenyan application is required.

Diaspora families frequently discover this only after a UK or US probate has concluded, at which point the Kenyan process starts from the beginning. Planning for it at the point the Kenyan asset is acquired is straightforward; addressing it afterwards is not. Our property and leasing team coordinates with the estate planning side on this because Kenyan land is usually the asset that triggers it.

How are estate assets actually transferred?

Confirmation of the grant authorises distribution, but each asset class transfers differently and the mechanics catch families out.

Land transfers by registering the confirmed grant and a transfer by personal representative at the relevant Lands Registry. Rates and rent clearance are required, as on any transfer. Where the land is agricultural, Land Control Board consent may also be needed.

Bank accounts are released against the confirmed grant. Banks will not release funds on the grant alone, which is why families who assume the grant is sufficient find accounts still frozen months later.

Shares in a company transmit to the personal representative on production of the grant, and are then transferred to beneficiaries. Where the company's articles contain pre-emption provisions, those may be triggered by the transmission, which is one reason estate planning and shareholders' agreements should be drafted together.

Motor vehicles transfer through NTSA on production of the confirmed grant.

Pension and insurance proceeds frequently fall outside the estate entirely. Where a valid nomination exists, the benefit passes to the nominee directly and is not distributed under the will or the intestacy rules. This surprises families regularly, and it means an outdated nomination form can defeat a carefully drafted will. Review nominations whenever the will is reviewed.

Where disputes actually come from

No will. Intestacy applies rules that rarely match what the family expected, particularly on the life interest.

A will that ignores a dependant. The dependant applies for provision, and the estate is litigated.

Undisclosed assets or liabilities. Assets discovered after confirmation require a fresh application to vary.

Distribution before confirmation. Personal representatives who distribute early are exposed personally.

Second families. Where the deceased maintained households not known to each other, both have standing, and the resulting litigation is long and expensive.

What to do about it

Make a will, and make it with the dependant provision in mind rather than in ignorance of it. Where you intend to exclude someone who might qualify as a dependant, record the reasons. Where a business forms part of the estate, coordinate the will with the shareholders' agreement so the two do not contradict each other. And review the will after any marriage, divorce, birth or significant acquisition.

The estates that avoid litigation are not the ones with the simplest families. They are the ones where the planning anticipated the claim the Act permits.