Law of Succession Act CAP 160 — Sections and Provisions

Section 1 of Law of Succession Act CAP 160: Short title

This Act may be cited as the Law of Succession Act.

Section 2 of Law of Succession Act CAP 160: Application of Act

(1) Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the…

Section 3 of Law of Succession Act CAP 160: Interpretation

(1) In this Act, except where the context otherwise requires— “active service” means service with the armed forces or merchant marine on a field of military operations or at sea, or proceeding to or from or such field or sea, or under orders to proceed to such field or sea, or in being in some place…

Section 4 of Law of Succession Act CAP 160: Law applicable to succession

(1) Except as otherwise expressly provided in this Act or by any other written law— (a) succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicile of that person at the time of his death; (b) succession to the movable property of a de…

Section 5 of Law of Succession Act CAP 160: Persons capable of making wills and freedom of testation

(1) Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses. (2) A female person, whether married o…

Section 6 of Law of Succession Act CAP 160: Appointment by will or executor

A person may, by will, appoint an executor or executors.

Section 7 of Law of Succession Act CAP 160: Wills caused by fraud, coercion, importunity or mistake

A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.

Section 8 of Law of Succession Act CAP 160: Form of wills

A will may be made either orally or in writing.

Section 9 of Law of Succession Act CAP 160: Oral wills

(1) No oral will shall be valid unless— (a) it is made before two or more competent witnesses; and (b) the testator dies within a period of three months from the date of making the will: Provided that an oral will made by a member of the armed forces or merchant marine during a period of active serv…

Section 10 of Law of Succession Act CAP 160: Proof of oral wills

If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except so far as its contents are proved by a competent independent witness.

Section 11 of Law of Succession Act CAP 160: Written wills

No written will shall be valid unless— (a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator; (b) the signature or mark of the testator, or the signature of the person signing for him, is so placed…

Section 12 of Law of Succession Act CAP 160: Incorporation of papers by reference

If a testator, in a will or codicil, refers to another document then actually written, and expressing any part of his intentions, that document, where it is clearly identified as the document to which the will refers, shall be considered as forming part of the will or codicil in which it is referred…

Section 13 of Law of Succession Act CAP 160: Effect of gift to attesting witness

(1) A will shall not be considered as insufficiently attested by reason of any benefit thereby given, either by way of bequest or by way of appointment to any person attesting it, or to his or her spouse. (2) A bequest to an attesting witness (including any direction as to payment of costs or charge…

Section 14 of Law of Succession Act CAP 160: Witness not disqualified by being executor

No person, by reason of his being an executor of a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.

Section 15 of Law of Succession Act CAP 160: Existing wills

Notwithstanding the provisions of this Part, any written will executed before the commencement of this Act shall, whether the testator dies before or after the commencement of this Act, be treated as properly executed if it was executed according to the requirements of the law in force at the date o…

Section 16 of Law of Succession Act CAP 160: Formal validity of other wills

Notwithstanding the provisions of this Part, every will, whether of movable or immovable property, and whether executed before or after the commencement of this Act, shall be treated as properly executed if its execution conformed, either at the time of execution or at the time of the testator’s dea…

Section 17 of Law of Succession Act CAP 160: Will may be revoked or altered

A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will.

Section 18 of Law of Succession Act CAP 160: Revocation of will

(1) Save as provided by section 19, no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it, or by the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some ot…

Section 19 of Law of Succession Act CAP 160: Revocation of will by testator’s marriage

A will shall be revoked by the marriage of the maker; but where a will expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated.

Section 20 of Law of Succession Act CAP 160: Effect of obliteration, interlineation or alteration in will

(1) No obliteration, interlineation or other alteration made in a written will after the execution thereof shall have any effect unless the alteration is signed and attested as a written will is required to be under section 11: Provided that a will as so altered shall be deemed to be duly executed i…

Section 21 of Law of Succession Act CAP 160: Revival of will

(1) No will which has been in any manner wholly revoked shall be revived otherwise than by the re-execution thereof. (2) Where only part of a will has been revoked that part shall not be revived otherwise than by the re-execution thereof or by a subsequent will or codicil showing an intention to rev…

Section 22 of Law of Succession Act CAP 160: Construction of wills

Wills shall be construed in accordance with the provisions of the First Schedule to this Act.

Section 23 of Law of Succession Act CAP 160: Failure of testamentary dispositions

Testamentary gifts and dispositions shall fail by way of lapse or ademption in the circumstances and manner and to the extent provided by the Second Schedule.

Section 24 of Law of Succession Act CAP 160: Election

Beneficiaries under testamentary gifts or dispositions shall be put to election in the circumstances and manner and to the extent provided by the Third Schedule.

Section 26 of Law of Succession Act CAP 160: Provisions for dependants not adequately provided for by will or on intestacy

Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his wil…

Section 27 of Law of Succession Act CAP 160: Discretion of court in making order

In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.

Section 28 of Law of Succession Act CAP 160: Circumstances to be taken into account by court in making order

In considering whether any order should be made under this Part, and if so what order, the court shall have regard to— (a) the nature and amount of the deceased’s property; (b) any past, present or future capital or income from any source of the defendant; (c) the existing and future means and needs…

Section 29 of Law of Succession Act CAP 160: Meaning of dependant

For the purposes of this Part, “dependant” means— (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; (b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children,…

Section 30 of Law of Succession Act CAP 160: Limitation of time

No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.

Section 31 of Law of Succession Act CAP 160: Characteristics

A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if— (a) the person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or im…