It is also referred to as the law of inheritance
i.e. transmission of property rights from the dead to the living. Most of the
dependants are family members but this is not an aspect of family law. This
area of law deals with the transmission of property from the dead to the
living. Inheritance is common in all human societies and is a concept of
universal application. It is driven by the desire to acquire property. It is
one of the ways of acquiring property because when a person dies, the right to
enjoy property dies with him.
Control is another aspect such as giving
instructions on how the property will be divested after their death. Most
people exercise this control. Philosophical decisions behind succession are the
right of the owner to control that property even after death and he can do so
through a will. The main function of succession is to provide mechanisms for
the transmission of property from the deceased to those who survive him. It
involves:
a.
Identifying the legal claimants who can claim the property i.e. who are the
rightful claimants
b.
The procedures of which such rightful claimants or dependants succeed to the
property of the deceased i.e. what steps they need to take so as to acquire the
property of the deceased.
c.
Mechanisms for dispute resolution are provided so as to resolve any conflicts
between persons who claim to be rightful claimants.
Each community or society has its own set of rules
though inheritance is a universal concept. In Kenya, we have the Law of
Succession Act (LSA), which is of general application, but other laws do
apply such as Islamic law and customary law, which have been exempted by the
Act. Although the Hindu law has not been exempted by the Act, it still applies
informally in practice. A uniform law has not been achieved because of the
diversity of Kenyans.
During the colonial period different laws applied.
Various statutes applied to the various communities at that time such as to the
Europeans, Africans, Hindus and Muslims. The advent of independence saw an attempt
at moving towards uniformity i.e. an attempt to consolidate the laws of
succession into one statute catering for the various peoples of Kenya. This
culminated in the enactment of the LSA in 1972. This was an attempt to bring to
an end differential treatment of people carried out during the colonial period.
After independence, emphasis was on equality and enactment of the LSA was an
attempt at this equality. It was brought into effect in 1981. The Marriage Bill
was not accepted.
As for the LSA, the Bill was passed in 1972 but
because some of its provisions were dependent on the Marriage Act it had to
wait until the Marriage Bill was passed e.g. customary law is recognized which
is a concept alien to English Law. The law on the matrimonial bill introduced
concepts that would have harmonized it with the LSA e.g. provisions in the
Matrimonial Bill allowed a statutory monogamous marriage to be converted to a
polygamous marriage. This was not allowed by S 37 of the Marriage Act.
The LSA was intended to protect such wives who were
married under customary law by husbands already married under statutory law
like the cases of Re Ruenji’s Estateand Re Ogola’s Estate.
Section 3(5) of the LSA states that such wives can be said to be wives of
succession irrespective of what section 37 of the Marriage Act states.
The Affiliation Act was repealed in the 1960s as it was to cater for children born out of
wedlock. The failure to pass the law on the Matrimonial Bill has rather caused
an untidy situation as the current Marriage Act and Matrimonial Causes Act are
not in harmony with the LSA i.e. are inconsistent. This is based on the fact
that most dependants are family members, the Act should be in harmony.
Inconsistency is evident in S 3(5) LSA, S 37 Marriage Act, and ACMDA. The
statutes deny men the right to contract other marriages by virtue of the
interpretation in Re Ogolla’s Estate and Re Ruenji’s Estate.
This means that once they marry under the statute, they cannot contract
marriage under customary law.
Under S 3(5) of the LSA, it states that during the
lifetime of the deceased, they are not considered as wives but once he dies
then they are considered as wives for purposes of succession. The statutory
wives are put at a disadvantage because the woman who is not recognized as a
wife during the lifetime of her husband is given recognition as a wife after
his death. This situation would have been avoided had the Matrimonial Bill
passed. The Bill states that before a husband takes a second wife he would need
the consent of the first wife.
See: Muigai v Muigai – S 3(5) LSA was
interpreted as circumventing S 37 Marriage Act and S 4. It was held S. 37
Marriage Act only bars the husband from subsequently contracting other
marriages but does not bar wives subsequently married from inheriting from the
deceased’s estate.
Therefore, whereas the LSA is ready to
embrace the traditional African principles the Marriage statutes remain as they
were during the colonial period espousing English principles of Marriage and
Divorce. In practice, courts tend to resolve such conflicts in favour
of customary law.
Irene Njeri Macharia v Margaret Wairimu Njogu and
Anor Court of
Appeal held: An earlier decision by the High Court in the case of the estate
of Reuben Nzioka Mutua was bad law.
See: HC Probate & Administration No.
843/1986 The deceased had contracted a statutory marriage in 1961. In
1980, he purported to contract another marriage during the subsistence of an
earlier marriage. He left a will giving his entire estate to his statutory wife
and left out his latter wife. His second wife challenged this under S 3(5) LSA
arguing she was a wife.
Held: By virtue of S 37 Marriage Act and S 4 Cap
151, the deceased had no capacity to marry a second wife under customary law
and therefore she was not a wife, following the decision i.e. for purposes of
succession.
The inconsistency remains because the Marriage
statutes have not been amended to bring them in line with the Succession Act . Areas closely related to Succession Law are Property Law, Family
Law etc. The relationship of the deceased and the person claiming to be a
dependant are relevant e.g. if a wife or a child, you have to look at the
system of Marriage if any or whether the child is a dependant under the Children’s
Act.
Trust law is also
relevant especially when it comes to the Administration/Management of
deceased’s property. It entails 1) the collection of assets 2) settling debts
and 3) settling the estate/distribution to dependants. The administrator stands
in a fiduciary relationship in carrying out his functions therefore he is a
trustee. The Trustee Act covers both administrators and trustees, so does the
Trust for Land Act. Equitable remedies e.g. Tracing are often used by
administrators and beneficiaries to recover property of the estate that may
have been paid out wrongly i.e. to people who are not beneficiaries of the deceased.
TECHNICAL TERMS USED IN SUCCESSION LAW
Succession may be by will or if there is no valid
will under the law of intestacy. The process of disposal of property when there
is a valid will is known as testate succession. The person making the will is
called the testator if male and the testatrix
if female and the instrument called a will is referred to as a testament.
Intestacy refers
to a situation of dying without having made a will or having made a will which
is subsequently rendered void or invalid. Intestacy leads to intestate
succession and the rules of intestacy are intended to determine the relatives
of the deceased who are entitled to inherit his property. Here only blood relatives
inherit apart from the spouse. The person who dies intestate is known as an intestate.
Administration of the estate refers to:
a. collection and presentation of
assets
An administrator is the person appointed by the court in intestacy or in a will to
manage the estate of a deceased person. Representation refers to
the role of a person who is authorized in law to dispose off the property of
the deceased. This is the role of an administrator and the two terms are
used interchangeably.
The administrator is said to represent the
deceased. The assets of the deceased vest in the administrator. He acquires
legal title to the property and can do anything the deceased would have done
e.g. sue, mortgage, sell etc The person who represents the deceased and acts as
the administrator is also referred to as the personal representative of
the deceased. However, the term administrator is usually confined to the
person appointed in the event of intestacy. The administrator appointed
under the terms of the will is referred to as the executor as he
executes the wishes of the deceased as set out in the will.
A beneficiary is the person who is to benefit by receiving a gift
under the will or testament. It is used in connection with testate succession.
A person who inherits in intestacy is known as an heir.
Estate : means the total property both real and personal owned by someone and
therefore, the property available for distribution upon death.
Dependant this is a technical term employed in circumstances where an heir or
beneficiary has not been adequately provided for and makes an application to
court. S 29 defines dependant but does not necessarily mean an heir or
beneficiary it is limited by section 2 of the Act. Only those persons who fall
under this definition can take advantage of this provision.
Bequest: gift of personal property in a will. The gift is named i.e. ‘specific
bequest’. It can also be residual if it refers to the estate of the giver. It
is not specific, it is a general gift of what remains. Legacy: another
term that refers to a bequest. The beneficiary of a legacy normally called a legatee.
Grants of Representation: Issued by the courts to the administrator or
personal representative of deceased. Take form of an order that a particular
person is to act as the personal representative of the dead person.
In testate succession it is called a Grant of
probate. In Intestacy there are Letters of Administration (grant of
letters of administration)
The distinction is that in testate succession, the
executor derives his authority from the will. Grant Of Probate is not
the source of the Executor’s authority. It merely confers or authenticates the
authority of the executor, thus it is merely evidence. In intestacy: the Grant
of letters of administration is the source of the administrator’s authority.
The “administrator” is appointed by the grant. His power to act derives from
the grant itself, without which there would be no power for him to represent
the deceased.
Executors can take up their responsibilities
immediately after death of the deceased BUT in intestacy the
administrator cannot act till he acquires a Grant of Letters of Administration
(disadvantage since process of obtaining Grant of Letters of Administration
takes about two months). The terms probate refers to the process through
which a will is proved to be genuine and by which the executors are authorized
to dispose off the estate of the deceased.
HISTORICAL ACCOUNT OF THE LAW OF SUCCESSION IN
KENYA
History of law of succession in Kenya
Law of succession before 1981
Appling to Africans
The 1897 Order-in-Council provided under article
52 that African customary law was to apply to Africans as long as it was
not repugnant to justice or morality. Matters of succession were
therefore to be governed by African customary law. The above legislation did
not, however, provide for the law applicable to the so called ‘westernized’
Africans who had converted to Christianity, got western way of life, seeking to
divorce themselves from the operation of African customary law. Such
converts felt that western law should govern their personal matters such as
marriage and succession.
An attempt to address the problem presented by
these Africans was made through the passing of the 1897 Native Courts
Regulations, Article 64 of which provided that the African
Christians were governed by the law that governed Indian Christians.
Interestingly, the regulations did not say what law this was i.e. whether it
was the Indian law of succession or the English Law of succession since both of
these two laws applied to Christians in India. The position was clarified in
1902 with the passing of the African Christian Marriage and Divorce
Ordinance, section 39 of which provided that the English law of succession
would apply to Christian Africans because after contracting a statutory
marriage, the African was presumed to have discarded the African way of life
and thereby ceased being governed by African customary law.
The ‘up-grading’ of the African by the above
legislation was short lived for in 1904, the Native Christian Marriage and
Divorce Act Order No. 9 was passed, providing that the African customary
law of succession applied to all Africans irrespective of their religion. The
argument being that land tenure is still communal and since the Act envisaged
individual land ownership it cannot apply in such places. The matter of these
Africans with regard to the applicable personal law came up for judicial
determination in the case of Benjawa Jembe vs. Priscilla Nyondo 4 EALR
160 (1912) where Barth J held that succession of a native Christian’s estate
followed the law of the tribe to which such Christian native belonged.
The judge said: “The fact that the deceased married a wife according to the
rules of the Anglican Church does not affect the succession to his
property. Such succession must be regulated by native law or custom”
This remained the position until 1961 when the African
Wills Ordinance was passed to enable the Africans to make written wills.
Testate succession became subject to this statute while intestate succession
continued being governed by the respective customary law of the deceased. The
African Wills Act originated from the recommendations made by one Dr. Arthur
Phillips in his Report on Native Tribunals. In the chapter dealing with
succession, Phillips underscored the then urgent need to provide the
African with suitable legal machinery through which he could dispose of his
modern property, which may not be adequately disposed of under customary law.
He argued that colonialism had brought with it new forms of market economy and
property ownership modes which were unknown to African customary law and which
that law could not be adjusted to deal with e.g. shares in companies, insurance
policies, premium bonds, bank accounts etc. He recommended that a law
similar to the English Inheritance (Family Provisions) Act of 1938 be
passed to enable the westernized African to deal with such property.
Most of the above provisions were incorporated in
the 1961 Act that remained in force until 1981 when it was repealed upon the
coming into operation of the LSA. Intestate succession continued being
governed by African customary law provided it was not inconsistent with
justice, morality, and the statutes of general application e.g. the Probate
and Administration of Estates Act of 1898 as in Re Maangi (1968) E.A
337. In the 1960’s the High Court held that even where Africans died intestate,
customary law could be avoided if it was inconsistent with justice and
morality. In Re Kibiego (1977) E.A 129 an estate was contested between
deceased’s widows and his brothers. The brothers said women had no right in
administration of estate. It was held that customary law denying women rights
to administer the property of the deceased husband was repugnant to justice and
morality and found that the Probate and Administration Act was to apply.
Applying to Muslims
There was no specific mention of the Muslims in the
1897 Order in Council and it was assumed that reference to ‘natives’
also included the Muslims. The problem was that many Muslims were Arabs
who did not consider themselves as ‘natives’. The position was clarified in the
1897 Native Courts Regulations Ordinance. Article 57 of this
ordinance provided that the law of succession for Muslims was the law contained
in the Quran. These regulations were re-enacted in the 1907 Native Courts
Ordinance, which established the liwali courts. These had
jurisdiction to hear and determine matters arising out of Islamic law,
including succession.
This remained the position until independence when
the government reaffirmed the position to the Muslims as part of a
constitutional bargain to counter their threat to break away or secede from the
rest of Kenya. The government assured them that under the new
constitutional order, they would be allowed to keep their own personal
law. This guarantee was given constitutional backing by section 66 of
the Constitution, which provided for the establishment of the Kadhi’s
courts. These courts were mandated to decide matters arising out of
Islamic law where such matters related to personal law.
That remained the position until 1981 when the Law
of Succession Act became operational. This Act repealed all the then
existing laws on succession and became applicable to all persons domiciled in
Kenya regardless of their religion. Section 99 of the Act repealed, among
other laws, the Mohammedan Marriage, Divorce and Succession Act (Cap.156) section
4 that dealt with succession. Note: Not the whole Act was repealed, only
sec. 4 which dealt with succession.
Between 1981 and 1990, there was intense agitation
by the Muslims who regarded the government’s act of passing the Law of
Succession Act as a repudiation of the assurance given at independence.
Their case was that the Quran or a statute embodying the provisions of the
Quran must govern matters of personal law for Muslims. They sought to be
exempted from the LSA which conflicted with the Koranic principles e.g.
~ S 5 of the LSA on Freedom of Testation
i.e. discretion of Testator to dispose off property as one wishes to persons he
wishes. No obligation to provide for dependants BUT under Islam, only 1/3
of the Muslim’s estate can be disposed off by will. 2/3
should be dealt with according to Koranic principles i.e. shares were fixed for
particular heirs.
~ S 3(2), which defines children, and S 29, which
defines dependants, were contentious. S 3(2) defines a child to include adopted
and illegitimate children. Also S 29 includes adopted and illegitimate
children, also step children BUT under Islam, stepchildren have no right of
inheritance from their deceased father. They can only inherit through their
mothers. Illegitimate children cannot inherit through their biological fathers.
The government gave in to the pressure mounted by
the Muslims in 1990 when government keen to have the Muslim support in view of
the clamour for multi-partyism and the Law of Succession Act was amended by
Statute Law (Misc. Amendment) Act No. 2 of 1990, which disapplied the Act to
persons who, at the time of their death were Muslims. Instead, Islamic
law as contained in the Quran would govern such persons and it introduced S
2(3) and (4) & S 48(2)
S 2(3)
disapplies the substantive provisions of the Act to the estate of a deceased
Muslim (both testate and intestate). The estate of a deceased Muslim is
exclusively subject to Muslim law. S 2(4) applies the procedural aspects
of the Act, i.e. the provisions relating to the administration of the estate of
a deceased Muslim as long as the provisions are not inconsistent with Islamic
law.
S 48(2) confers
the Kadhi’s Court with jurisdiction to determine questions relating to
succession in accordance with Islamic law. In effect, S 5 of the LSA no longer
applied to Islam BUT the act applies with respect to management of the estate
i.e. a Muslim can take out letters of administration.
Applying to Hindus
The 1897 Order-In-Council was silent on which law
applied to the estate of deceased Hindus. Order No. 22 of 1898 that
applied to Kenya the Hindu Wills Act that was a mere adaptation of the
1865 Indian Succession Act clarified the position. The Hindu Wills
Act was applied to Kenya to provide for testate succession for the Hindus
living in Kenya. With regard to intestate succession, no law had been specified
as being applicable to the Kenyan Hindus. The Hindu customary law that
governed the subject until 1946 automatically filled this vacuum.
In 1946 the Hindu Marriage, Divorce and
Succession Ordinance No. 43 was passed. Its effect was to confirm the
matters of intestate succession for the Kenyan Hindus were to be governed by
the Hindu customary law. The 1946 legislation applied to those Hindus who had
died domiciled in Kenya but was silent on what law applied to those who died in
Kenya but domiciled elsewhere. Another restriction in the scope of the
ordinance was that it only applied to the Hindus whose marriages had been
contracted in the colony as in Bessan Kaur v. Rattan Singh 25 KLR 24. In
1961, the 1946 ordinance was amended by being split into two statutes – the
Hindu Succession Ordinance and the Hindu Marriage and Divorce Ordinance.
The Hindu Succession Ordinance provided for
intestate succession while the Hindu Wills Act provided in testate succession.
These two statutes remained in force until 1981 when the LSA repealed them
making Hindus in Kenya exclusively subject to LSA.
Applying to Europeans
Article 11 (b) of the 1897
Order in Council provided that for the European settlers in Kenya, the law
to govern the succession to their estates was the Indian Succession Act,
1865. This statute was primarily passed in India to govern succession
matters for British settlers in India. It provided for both testate and
intestate succession and dealt with substantive matters. It also introduced the
Probate Administration Act in Kenya. The 1865 Act reflected the position
of succession laws in England at that time. It provided for both testate
and intestate succession. The Act was amended several times in Kenya. The
first such amendment was through Order No. 12 of 1932 that repealed section 105
of the Act restricting testamentary freedom but this was re-amended. A
testator was then enabled to leave his estate to whomever he felt like without
limitation on time.
The other major amendment to the 1865 Act was
through Order No. 48 of 1956, which resulted in the present day Law Reform Act
Cap 26. With respect to succession, this amendment provided that where a
person died leaving a cause of action in existence at the time of his death,
the cause of action survived his death and could proceed against or on behalf
of his estate.
Law of succession after 1 July 1981
Until 1st July 1981, there were four
systems of law of succession in Kenya applying to the four different
socio-ethnic groups of people in Kenya. The Law of Succession Act was
passed with the intention of merging and consolidating all the four systems of
law of succession and their support legislation into one comprehensive statute
in order to give the country a uniform law of succession applicable to all
sections of the Kenyan population.
The Law of Succession Act came about because of a
report compiled by a commission appointed by the late President Kenyatta in
1967, to look into the problems concerning the succession regime in Kenya. The
purpose and scope of the Act is stated in its preamble. It is an Act of
parliament to define and consolidate the law relating to intestate and
testamentary succession and the administration of estates of persons and for
connected purposes.
S 2(1) of the
Act states that the Act constitutes 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 commencement of the Act. S
2(1) however also allows for application of other laws (Except as otherwise
expressly provided in this Act or any other written law)
S 99 of the
Act repeals all the then existing statutes on the law of succession and these
are listed in the 8th schedules. They are as follows:-
1. The Indian
Succession Act of India 1865.
2. The Hindu Wills
Act of India, 1870.
3. The Probate and
Administration Act,1888.
4. The Hindu
Succession Act.
5. The African Wills
Act, 1961.
6. The Administration
of Estates by Corporations Act.
7. The Commonwealth
Probate Act.
8. The Colonial
Probate Act, 1892.
Section 100
provides for the amendment of the other existing statutes, among them being the
Mohammedan Marriage, Divorce and Succession Act, which was harmonized
with the LSA by the deletion of its S 4, which dealt with matters of
succession.
With respect to African customary law, the Act
allows its application in sections 2(2), 5(1) and 33. S 2(2)
applies customary law to persons dying before commencement of the Act i.e.
before 1981. Applicable law is the law that was in force at the time of
death.
S 5(1) allows
a testator to dispose of his property by reference to any secular or religious
law. This would allow the testator to provide that his estate should devolve in
accordance with a particular law in which event the requirements of that
customary law will be determined. This is a general law and the testator has
not specifically divided his property but directs an administrator to do so. S
32 exempts certain classes of property from intestacy provisions of the Act
e.g. agricultural land, crops on such land and livestock as per gazette notice
specified by the Minister. The following areas were specified by the gazette
notice No.94/1981 Marsabit, Narok, Tana River, Samburu, West Pokot, Turkana,
Isiolo, Mandera, Wajir and Kajiado The property listed in those
areas was exempted from the intestacy provisions pursuant to S 32 where the
property owners died intestate. S 32 only covers land in the designated areas.
S 33 applies customary law to such property. The administration of such estates
does not fall under LSA. Since S 44(1) of the Act provides that part 7 of the
Act does not apply to the intestate estate subject to S32 of the Act. Such estates
are to be administered in accordance with the provisions of the Magistrates
Courts Act (Cap 10). S 5& 9 of this Act give power to the court to exercise
jurisdiction in proceedings of a civil nature where the proceedings are of a
claim under customary law. S 2 of this Act defines a claim under customary law
to include a claim concerning intestate succession and a claim for
administration of intestate estates.
Sections 32 and 33 do not provide a blanket
exemption covering all African intestates. However, the CA has interpreted
sections 32 and 33 to mean that all Africans intestates are exempt from the
intestacy provisions of the LSA. In Mwathi vs. Mwathi and another
(1995-1998) 1 EA 229, the deceased died in 1987 and was unmarried. A
brother (the appellant) and two sisters (the respondents) survived him.
He hailed from Kiambu District. His will was declared invalid by the High
Court, which ordered the estate to be shared equally between the appellant and
the respondents in terms of Part V of the Act. The appellant aggrieved
by the order appealed to the Court of Appeal, which upheld the High Court
decision with respect to the invalidity of the will and confirmed that the
appellant had died intestate. It, however, differed with the High Court
by holding that the applicable law was customary law and not the intestacy
provisions in Part V of the Act. A portion of the Court of Appeal
judgement asserts- “….the intestate succession of a deceased Kikuyu is
governed by the Kikuyu Customary Law. The asset involved is a piece of
land and the matter must therefore be determined by Kikuyu Customary Law
relating to land inheritance…..”
There is no basis at all in law for the CAs
decision in Mwathi vs. Mwathi. The deceased died after the Act came into
force and customary law was not applicable since it was excluded from operation
by S 2(1) of the LSA, unless allowed by the minister through sections 32 and 33
of the LSA. Besides, the property in question was situate in Kiambu district,
which is not one of the districts specified in Legal Notice No. 94 of
1981. It is regrettable that such an erroneous decision came from the
highest court in the land. It is binding on the High Court and the subordinate
co’urts: it has not been overruled to date.
The Court of Appeal’s decision in Mary Rono vs.
Jane Rono and another Nairobi CACA No. 66 of 2002 is the first by that
court where Ss 32 and 33 of the Act were correctly applied and interpreted. The
land in dispute was situated in Uasin Gishu district in the Rift Valley province.
The court found that section 2(1) LSA excludes the application of African
customary law unless the Act makes provision for it. It does so under
sections 32 and 33, but the exclusion is limited to property exempted for Part
V of the Act by virtue of S 32. LN No. 94 of 1981 does not exclude property in
Uasin Gishu district and therefore Keiyo customary law could not apply to the
intestate of a resident of Uasin Gishu district.
Unfortunately, some of the male members of the High
Court bench still apply customary law in determining questions of distribution
of estates as between male and female children, in spite of the very clear
provisions in sections 35 and 38 of the Act. In In the Matter of the Estate
of Mutio Ikonyo (deceased) Machakos HCP&A No. 203 of 1996, the deceased
had died in 1988, and the court held that a married daughter of the deceased
was not entitled to a share of the estate. According to Mwera J the
married daughter, being a Mkamba, ought to have known that under Kamba customary
law only unmarried daughters or those divorced (and dowry returned) can claim
to inherit. With respect, customary law is of no application at all; its
application having been ousted by sections 2(1), 35 and 38 of the Act.
With respect to Islam, S 2(3) and 2(4) allows the
application of Islamic law to the estate of a deceased Muslim i.e. it
effectively disapplies the LSA to the estate of a Muslim. The only applicable
provisions are those in Part 7 dealing with administration of the estate. In Chelang’a
vs. Juma (2002) 1 KLR 339 (Etyang J) it was held that under Islamic law a
non-Muslim cannot inherit the estate of Muslim. In that matter a daughter and
siblings of the deceased Muslim, who confessed to be Christians, were excluded
from benefit by reason of their being non-Muslims. It was, however, held that
the mother of the deceased who was a non-Muslim was nevertheless entitled to a
share of the estate under Islamic law as a dependant. It is, however,
permissible for a Muslim to benefit a non-Muslim by will.
Other statutes apart from African customary law and
Islam are applied to succession matters. S 101 refers to statutes in force
before 1981 that are applicable:
2. Public Trustee Act
3. Trust of Land Act
Cap 290
4. S.218 – 222 Armed
Forces Act Cap 199
The Trustees Act deals
with powers and duties of a Trustee. The Personal representative defined in the
LSA includes a Trustee. Part 7 of the LSA deals with the powers and duties of
personal representatives i.e. S 82 & 83 of the LSA. These provisions are
not exhaustive because there are other provisions that deal with these duties
extensively. A personal representative exercises powers under Cap 160 and 167
and therefore should read the LSA in conjunction with the Trustees Act. So
where the LSA is silent on a matter, The Trustees Act will apply e.g. Cap 160
does not deal with investments of funds as extensively as Cap 167.
The Public Trustee Act on the other hand deals with the administration of estates by the
Public Trustee. The Public Trustee is an office in the AG’s office to deal with
administration of estates. The Public Trustee acts as a personal representative
in cases where he has been appointed by the court as such OR where the deceased
does not have relatives OR where no one has applied for administration of the
estate, OR where the will does not appoint an Executor OR where the executor
appointed under will is unwilling to act OR where the court feels that the
appointed executor is not suitable.
The Public Trustee is usually appointed where a family cannot agree on who to apply to be
administrator. Under this Act, the Public Trustee may apply for representation
in respect of any estate brought to his attention e.g. traditionally he
administers estates of deceased civil servants i.e. if government notifies the
public trustee that they had the deceased civil servants terminal benefits and
no grant of letters of administration has been taken out.
Trust of Land Act has
similar provisions to the Trustee Act. It deals with powers and duties of a
Trustee. It gives powers relating to investments and related matters.
Ss 218 – 222 of the Armed Forces Act deals
with estates of deceased soldiers i.e. who is to be paid, how a soldier should
make his will e.g. a will made by a soldier in the presence of one witness
(instead of 2) who is an officer is a valid will.
Knowledge Tree Law Notes