Both the High Court and the resident magistrates, who have been appointed under S 47 of the LSA, deal with non-contentious business. Probate will be granted in common form in non-contentious proceedings where there is no dispute as to the documents that ought to be admitted to probate or over entitlement to a grant. Theoretically, non-contentious probate is a judicial act, but in practice it is granted without a formal hearing or court appearance.
Applying for a Grant - S 51 of the LSA and rule 7-14 of the P&A Rules
A person wishing to apply for a grant must, personally or through an advocate, lodge certain papers with the principal registry or a district registry or a resident magistrate’s registry. The petition for grant should contain the full particulars of the deceased, namely: names, date and place of death, last known place of residence, relationship of the applicant with the deceased, whether or not the deceased left a valid will, and a full inventory of all the assets and liabilities of the deceased. Where the deceased died intestate, whether total or partial, the following particulars should be given: names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any pre-deceased child of the deceased. The registrar or resident magistrate and his staff consider the papers. Where they are satisfied that the documents are in order, a grant would be signed by the relevant judicial officer and sealed with the seal of the court. Sometimes non-contentious probate may involve a hearing before a judge or resident magistrate on some minor issue. Only if the issue develops into a dispute will the proceedings become contentious.
Where it is alleged that the deceased died testate and left a valid written will, the original will should be annexed to the petition and the details of the executors given. If it is alleged the original will is lost or destroyed, then its authenticated copy should be annexed to the petition or, in the alternative, the names or addresses of all persons alleged to be able to prove its contents should be stated in the application. The same condition applies to an oral will. After filing of petition, in cases of testate succession court will allow public to peruse its contents at the registry. Before the application is made, interested parties may file caveats, citations and renunciations.
A caveat is a notice entered at a probate registry to prevent a grant or representation being made or confirmed without first being given to the person who enters the caveat, known as the caveator. Such an application should be filed after petition is made for grant. This filing of the caveat entitles the caveator to notice of any steps applicants makes concerning the matter. The main purpose of a caveat is to enable a person who may be considering opposing a grant to obtain legal advice or evidence on the matter.
A citation is a document issued by the probate registry whereby the person issuing the document (the citor) calls upon the person cited (the citee) to provide a reason why a particular step should not be taken (rule 21 of the P &A Rules). They are normally issued to a person with an inferior right to application e.g. a creditor claiming debts. They are used to speed up the process to issue a grant upon service of citation, the citee should appear and give reasons why they are not taking steps, and where they fail to appear the citer may be directed to take out grant.
a) Citation to accept or refuse grant - This is used where a person who has an entitlement to a grant prior to that of the citor delays or declines to take a grant, but at the same time fails to renounce his or her right to a grant so as to enable persons with inferior right to take out a grant in his or her place
b) Citation to take out probate - This occurs where an executor (as opposed to an administrator) has intermeddled with an estate, and has not taken out a grant. Any person interested in the estate may cite the executor to provide reasons as to why he should not be compelled to take out a grant.
c) Citation to propound a will - It issues where a certain will has not been proved to compel the executors to propound a will, normally issues where the citatory is claiming the will is invalid. Rule 23(1) of the Probate and Administration Rules).
(c) Renunciation (S 59 of the LSA and rule 18(1) of the P&A Rules).
Both executors and an administrator may renounce their right to apply for a grant. The renunciation should be in writing, signed by the person entitled to the grant, or declared orally in court Where a person entitled to a grant wishes to renounce they must, as a rule, renounce as to the whole of the office, rather than with respect only to some of their responsibilities. An infant’s right to probate on attaining majority age, however, may not be renounced on his behalf.
Rather than renouncing probate, a person who is entitled to apply for grant may consent in writing to the grant being made to a person whose right of administration is inferior or equal to his (rule 26(2) of the P&A Rules).
Making of Grants (R 25 & 26 P & A Rules)
Grants are issued through the principal registry, a High Court district registry, or a resident magistrate’s registry, signed by the judge or resident magistrate obligated (as the case may be) and sealed with the seal of the registry. Before issuing the grant the court is to make all the necessary inquiries, including inquiring into proof of the identity of the deceased and of the applicant.
The convention of producing a letter from the locational chief or his assistant has developed from the need for the court to satisfy itself as to proof of identity of the deceased and the applicant. Ringera J pointed out in Musa vs. Musa (2002) 1 EA 182 that the letter from the chief is not an essential aspect of the proceedings as it is not required either by the Act or the P &A Rules. The omission to obtain the letter from the chief is not fatal to the application and it should not be a bar to the making of the grant.
Under R 26 of the P&A Rules a grant of letters of administration is not to be made without a notice being given to every other person entitled in the same degree as or in priority to the applicant. Notice should be given for not less than 30 days which notice shall be exhibited at the court house or any other manner directed by the court. You can put it in the newspapers. Usually it is gazetted. S 66 of the LSA lists in hierarchical order the persons to whom a grant of representation in intestacy may be made.
Under rule 29 of the P&A Rules, the court may before making the grant require to be satisfied as to the solvency of the administrator i.e. by production of sureties. However, it is not a mandatory request. In Musa vs., Musa (2002) 1 EA 182, stated that there is no requirement in the Act or the rules that an application for a grant of letters of administration must be accompanied by more than one surety. Indeed there is not even a requirement for one surety.
Under S 66 of the LSA, rule 27 of the P&A Rules and clause 16 of the 5th Schedule, the court has a power to pass over a person entitled to a grant of letters of administration if, by reason of special circumstances, it appears necessary or expedient to appoint as administrator some person other than the person entitled to the grant. In Muigai vs. Muigai and another, Amin J passed over the wives of the deceased, who were feuding over the estate and made the grant to the Kenya Commercial Limited.
In the Matter of the Estate of Charles Muigai Ndung’u (deceased) of Karinde Kiambu District Nairobi HCP&A No. 2398 of 2002 the deceased was survived by a minor son and a widow who remarried. The court pronounced the minor to be the sole heir of the deceased. It was directed that the grant be made to the Public Trustee, in keeping with S 66 of the LSA and S 7 of the Public Trustee Act, because of the remarriage of the widow, the minority of the child of the deceased and the fact that the widow and father of the deceased were not on good terms. The court in Swaboa Nassor Salim Hadi vs. Swaleh Salim Hadi HCP&A No. 52 of 1990 passed over the daughter and brother of the deceased and made the same to the Public Trustee.
Confirmation of Grant
The personal representative is obliged by S 71(1) to apply for confirmation of the grant after the expiration of six months from the date of the grant. The confirmation:
- confirms that the personal representatives have been administering the estate. They would be required to file an affidavit showing how the estate is being managed. Confirmation is a monitoring mechanism of the court. May be required to render account
- entitles or empowers the personal representative to distribute any capital assets i.e. between the making of the grant and date of confirmation administrators should be collecting the assets.
Under S 73 the court is obligated to give notice to the holder of a grant to apply for confirmation in cases where the holder has failed to comply with S 71. The application for confirmation takes the form of a summons for confirmation (rule 40 P&A Rules) supported by an affidavit giving details of the persons who have survived the deceased. The application is basically non-contentious, but it becomes contentious if a protest is lodged against the confirmation by either a caveatee or the beneficiaries notified of the application. Where the court is satisfied of the distribution, the grant would be confirmed and a certificate of confirmation is issued bearing the identities of persons confirmed and the proposed distribution document taken to registry.
The court upon the application for confirmation being made may confirm the grant or, if not satisfied that the applicant will properly administer the estate, issue a confirmed grant to another person or persons or order the postponement of the confirmation. It may require further disclosure. In the Matter of the Estate of Wanjihia Njuguna the court declined to grant confirmation because the daughters had not been included in the list of beneficiaries. It was held that section 35 of the LSA had been not complied with. A similar finding was made in In the Matter of the Estate of Benjamin Mugunyu Kiyo Nairobi HCSC No. 2678 of 2001
Where court is not satisfied that estate has been administered properly it may revoke the grant and issue it to someone else. Note confirmation should not be made where there is a pending application for reasonable provision under S 26. S 30 application for reasonable provision should be made prior to confirmation of grant.
Where the beneficiaries file rival proposals on the distribution of the estate, the court has to determine the matter by adjudicating the conflicting claims. In the Matter of the Estate of Mwangi Giture the co-administrators of a polygamist’s estate represented the two houses. They put in conflicting proposals for confirmation. One house proposed the division of the estate equally between the houses in accord with Kikuyu customary law, while the other house suggested a division in accord with Ss 35 and 40 of the LSA. The court, although sympathetic to the plight of the first widow who claimed to have a bigger stake in the estate having helped the deceased acquire most of the assets before the second widow was married twenty-one years later, applied Ss 35 and 40 of the LSA on the basis that it is the law applicable in the circumstances the deceased having died after the Act came into force.
Alteration or Rectification of Grants
Errors which are not of a material nature, such as those relating to names and descriptions or the setting and place of the deceased’s death or the purpose in a limited grant, may be rectified by the court under of S 74 of the LSA and rule 43 of the P&A Rules. Thereafter the grant of representation, whether before or after confirmation, may be accordingly altered and amended. If the error is fundamental as to interfere with the rights of parties then rectification is not appropriate and parties should apply for a revocation of grant.