Reforms in the Succession (Amendment) Act of 2022.
The Succession (Amendment) Act of 2022
was assented to by the President on 10th 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.
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