THE REFORMS INTRODUCED BY THE SUCCESSION (AMENDMENT) ACT OF 2022

 

Reforms in the Succession (Amendment) Act of 2022.

The Succession (Amendment) Act of 2022 was assented to by the President on 10^th April 2022 and introduces some vital reforms to the Succession Act Cap 162 as demonstrated here under;

Revised percentages for distribution of intestate’s estate.

The Succession (Amendment) Act of 2022 amends section 27 of the Principal Act by revising percentages for the distribution of the intestate’s estate. It increases the percentage of the spouse from 15% to 20%, reducing that of dependent relatives from 9% to 4% and maintaining the percentages of the lineal descendants at 75% and the customary heir at 1%.

 

Setting aside 20% of the deceased’s estate to be held in trust

The Succession (Amendment) Act of 2022 amends section 14 of the principal Act to provide that 20% of a deceased’s estate shall not be distributed but shall be held in trust for the education, maintenance, and welfare of the minor children;  children above 18 years but below 25 years, if at the time of the death, these children were undertaking studies and were not married; children with disabilities who are above 18 years if at the time of the death, these children were not married and were wholly dependent on the intestate for their livelihood.

 

Application to court in case the testator does not make reasonable provision.

The Succession Amendment Act of 2022 replaces section 37 of Cap 162 by providing that a testator shall make reasonable provisions for the maintenance of his or her spouse, lineal descendants and dependent relatives. It also stipulates that where a testator, by his or her will, disposes of all his or her property without making reasonable provision for them in the will, they who can apply to court for maintenance pursuant to section 38 of Cap 162.

 

Devolution of residential holdings.

The Succession (Amendment) Act of 2022 amends section 26 of principal Act by inserting after subsection (2), (2a) which provides that upon the death of a surviving spouse, the residential holding shall devolve to the lineal descendants equally, and who shall occupy it.

It further inserts subsection (2b) which makes it an offence for a person to evict or attempt to evict a surviving spouse, lineal descendant or dependent relative who is entitled to occupy the residential holding and the prescribed penalty is a fine not exceeding one hundred and sixty-eight currency points or imprisonment not exceeding seven years or both.

Separation of husband and wife.

The Succession (Amendment) Act of 2022 amends section 30 of the Principal Act to provide for more exceptions to the law that stops spouses who were separated from the intestate at the time of the intestate’s death from taking interest in the estate of the intestate.  It stipulates that the rule shall not apply where the intestate was at the time of his or her death, the one who had separated from the surviving spouse or the intestate is the one who caused the separation.

Customary guardians.

The Succession (Amendment) Act of 2022 amends section 44 of the Principal Act by introducing customary guardians where;

a) both parents of the minor are dead or cannot be found;

(b) the surviving parent of the minor is incapable of being a guardian or is not eligible to be appointed as a guardian; or

(c) the minor has no guardian or other person having parental responsibility over him or her.

 

Powers of High court to remove a guardian.

The Succession (Amendment) Act of 2022 replaces section 45 by stipulating the High court is the only one with power to remove a guardian.

 

Execution of wills.

The Succession (Amendment) Act of 2022 amends execution of wills stipulated under section 50 of the Principal Act by requiring that each witness, in the presence of the testator, signs and writes his or her name and address on every page of the will.

The principal Act did not require signing and writing the name and address of the witnesses on every page of the will. The amendment also stipulates that where a person attesting the will does not write his or her name or address on a page of a will, the will shall be valid except that the page of the will which does not bear the name or address of the testator shall, unless otherwise directed by court, be void.

 

Proof of execution of a will.

The succession (Amendment) Act of 2022 substitutes section 55 of the Principal Act by stipulating that section 55(1) shall not apply to advocates. That means that advocates shall be disqualified from being witnesses to prove the execution of a will or to prove the validity or invalidity of a will.

 

Property transferable by gift made in contemplation of death.

The Succession (Amendment) Act of 2022 amends section 179(3) of the Principal Act by introducing a timeline of 6 months of recovery for repossession of a gift made in contemplation of death.

The old provision stated that a gift made in contemplation of death may be resumed by the donor without providing a timeline for repossession.

The new Act also inserts a provision which stipulates that every donation of a gift made in contemplation of death, the value of which exceeds twenty-five currency points, shall be in writing.

 

Persons to whom probate cannot be granted.

The Succession (Amendment) Act amends section 184 of the Principal Act by substituting for the words “is of unsound mind” with the words “who has a mental illness” which is a lesser derogatory term. 

The section also inserts subsection (2) which states that court shall have the discretion to determine whether a person who is otherwise qualified to be granted probate, is fit and proper and court may defer the appointment of an executor or executrix to a later date or refuse to grant probate where an applicant is not suitable.

This section envisages situations where a person with suffers from mental illness may be granted probate under the Mental Health Act during the period when they are not suffering with mental illness or when court adjudges them as fit and proper to manage their affairs.

 

Criminalization of misapplying the estate of the deceased or subjecting it to loss.

Section 192 of the Succession Act Cap 162 is amended by inserting a provision which criminalizes misapplying the estate of the deceased or subjecting it to loss or damage. the amendment prescribes a punishment of two years imprisonment or to a fine not exceeding forty currency points, or both. In addition to the penalty, the convicted person shall be liable to make good the loss or damage occasioned to the estate and the beneficiaries of the estate.

 

Order of preference in administering the estate.

The Succession (Amendment) Act of 2022 amends section 201 by inserting section 201A which stipulates that the surviving spouse shall have preference over any other person in the administration of the estate of a deceased intestate. It further states that the preference of the surviving spouse may be disregarded by the Administrator General where –

(a)  the surviving spouse is not fit and proper person to administer the estate of the deceased spouse; or

(b)  the Administrator General finds it necessary, in the circumstances of the estate, to grant the administration of the estate to another person.

 

Administration where child is sole beneficiary or residuary legatee.

The Succession (Amendment) Act of 2022 amends section 215 replaces twenty-one years of age with the age of majority. The guardian may be granted letters of administration with will annexed until the child attains the age of majority. Under the Constitution, the age of majority if 18 years of age.

 

Revocation or annulment for just cause.

The Succession (Amendment) Act of 2022 amends section 234 by adding to just cause for revocation or annulment the following paragraph;

“(f) the person to whom the grant was made has mismanaged the estate”

 

Criminalizes obtaining grant fraudulently and mismanagement of the estate.

The Succession (Amendment) Act of 2022 amends section 234 by criminalizing obtaining grant by fraudulently by making a false suggestion, or concealing from the court something material to the case, and mismanagement of the estate and it prescribes a punishment of a term of three years or to a fine not exceeding seventy-two currency points or both, on conviction.

It also stipulates that in the same process for revocation of letters of administration, court may grant of letters of administration to another person that court determines fit and proper.

 

Powers of Chief magistrate and magistrate.

The Succession (Amendment) Act of 2022 amends section 236 by substituting the term “district legatee” for “chief magistrate and a magistrate”. This therefore means that the chief magistrate and a magistrate have like powers and authority in relation to the granting of probate and letters of administration and all matters connected thereto.

 

Petition for probate to be made within one year.

The Succession (Amendment) Act of 2022 amends section 244 by stipulating a timeline within which the application for probate is to be made, that is within one year from the date of the death of the testator.

It also stipulates that where the person named as executor in the will does not apply for probate within one year from the death of the testator, a beneficiary under the will may with will annexed, apply for letters of administration.

 

Punishment for false statement in petition or declaration.

Section 249 of the Succession Act is amended by introducing a punishment of imprisonment not exceeding seven years or a fine not exceeding one hundred sixty-eight currency points, or both.

 

Lodging a caveat against petition for probate or letters of administration.

Section 255 of the Act is amended by inserting provision 255A which stipulates that a petitioner for probate or letters of administration in respect of which a caveat has been lodged shall, within six months from the date the caveat was lodged, file a suit for removal of caveat.

Section 255A (2) also states that a person who lodges a caveat in respect of a petition for probate or letters of administration shall, within six months from the date the caveat was lodged, commence proceedings to prove objections contained in the caveat.

 

Lapse of caveat and petition.

Section 255 A (3) states that if the person who lodges a caveat does not commence proceedings to prove objections or in case of a petitioner for letters of administration or probate, if the petitioner does not file a suit for removal of caveat, the caveat and the petition for probate or letters of administration shall lapse.

 

Timelines for carrying out duties authorized by grant of probate and administering the estate.

The Succession (Amendment) Act of 2022 amends sections 258 and 259 by providing a timeline of a period not exceeding two years for carrying out duties authorized by grant of probate and for administration of the estate respectively. This period can be extended on application to court.

 

Gender sensitivity.

The Succession (Amendment) Act of 2022 amends the Succession Act to make it applicable to both males and females by using gender neutral language for example, use of terms like “his or her”, “person”, “spouse”. Before amendment, the Succession Act only made reference to a specific male or female gender by suing the term “he”, “man”, “husband”, “wife” etc.

 

Illegitimate and legitimate children

The Succession (Amendment) Act of 2022 amends Section 2 by repealing the words ‘legitimate’ and ‘illegitimate’.

 

Criminalizing Intermeddling.

Section 268 of the Succession Act is amended to criminalize intermeddling with the estate of the deceased and prescribes a punishment of a fine not exceeding one thousand currency points or imprisonment not exceeding ten years, or both.

The Succession (Amendment) Act of 2022 further defines intermeddling to where a person, while not being the Administrator General, an agent of the Administrator General, or a person to whom probate or letters of administration have been granted in court –

(a)  takes possession or disposes of the property of deceased person; or

(b)  does any other act which belongs to the office of executor or administrator.

The Succession (Amendment) Act, however, stipulates that before the grant of letters of administration or probate, a person may take possession of the estate of the deceased person three months from the death of the deceased person or until the grant of letters of administration or probate, whichever occurs first. Taking possession of the estate of the deceased beyond 3 months attracts a criminal penalty of a fine not exceeding one thousand currency points or imprisonment not exceeding ten years, or both.

 

Disposal of property.

Section 270 is amended by requiring the written consent of a surviving spouse, lineal descendant or guardian of a minor before an executor, executrix or administrator can dispose of the property of the deceased. It also provides a remedy where the surviving spouse, lineal descendant or guardian of a minor withhold their consent to the disposal of the property belonging to a deceased person. The executor or administrator may apply to court of competent jurisdiction for redress.

 

Safe guard against abuse of fiduciary powers.

Section 270 is amended to provide a safeguard against abuse of fiduciary powers granted to the executor, executrix or administrator in case of disposal of property belonging to the estate. It provides that an executor, executrix or administrator shall account for the proceeds of sale to the beneficiaries and in case the beneficiary is a minor, the executor or administrator shall account for the proceeds of sale to court.

The Succession (Amendment) Act of 2022 further provides that an executor, executrix or administrator shall not be eligible to purchase property of the estate, except where such executor, executrix or administrator is a surviving spouse or lineal descendant, and has obtained the consent to purchase the property from the spouse or lineal descendant as the case may be.

Discrimination against married women.

The Succession (Amendment) Act of 2022 repeals section 276 of the Principal Act which stipulated that when probate or letters of administration have been granted to married woman, she has all the powers of an ordinary executor or administrator. This provision was discriminatory to married women since it meant that once granted probate or letters of administration, they would not be treated as beneficiaries to the estate.

 

Protects residential property where no spousal consent was given.

The Succession (Amendment) Act of 2022 amends section 279 by protecting the deceased’s residential property from debts incurred against the residential property during the deceased’s marriage and where there was no written consent of the spouse who prior to the death of the deceased shared the residential property. It stipulates that such debts shall be void and excluded from payment from the estate of the deceased person.

 

Criminalization of misapplication or misappropriation of the estate by executor, executrix, administrator or administratrix.

Section 332 of the Principal Act is amended by making it criminal for the executor, executrix, administrator or administratrix to

(a)  misapply the estate of the deceased;

(b)  misappropriate or fail to account for proceeds accruing to the estate of a deceased person, or beneficiary;

(c)   subject the estate or beneficiary to loss or damage.

The succession (Amendment) Act of 2022 prescribes penalty of imprisonment for a term of three years or to a fine not exceeding one thousand currency points, or both. In addition to the penalty, the court shall order the person to make good the loss or damage occasioned to the estate or beneficiary.

 

Criminalization of executor or administrator for neglect.

The Succession (Amendment) Act of 2022 criminalizes an executor, executrix or administrator who occasions loss to the estate by neglecting to do an act which causes loss to the estate. It prescribes a penalty of a term of imprisonment for three years or to a fine not exceeding one thousand currency points or both and court may in addition to the penalty imposes, order the person to make good the loss or damage occasioned to the estate or beneficiaries.

 

Beneficiary’s estate not to form part of payment

The Succession (Amendment) Act of 2022 inserts section 333A which prohibits any person who acts for the beneficiary of an estate in any matter, from acquiring any part of the interest of the beneficiary in the estate as payment for services rendered. Any violation to this provision is criminal and attracts a fine not exceeding one hundred twenty currency points or imprisonment not exceeding five years, or both.

 

Currency point.

The Succession (Amendment) Act amends schedule 1 by stipulating that a currency point is equivalent to twenty thousand shillings.

 

Persons entitled to occupation of residential holdings.

The Succession (Amendment) Act of 2022 amends the second schedule by including a lineal descendant above eighteen years of age, who is undertaking studies and a lineal descendant who has mental or physical disability, among persons entitled to occupation of residential holdings.