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Introduction

The administration of an intestate estate is done by an executor or an administrator representing

the deceased.1 Section 6 of the Law of Succession Act allows for the express appointment of an
executor by will.2 The Probate and Administration Rules Cap 168 provides for an implied
appointment of an executor in Rule 28(d)(i). While Rule 25(6) allows for the appointment of
executors not exceeding statutory number of four. Section 59 of the Law of Succession Act
provides for the renunciation of executorship either through oral pronouncements before the
court or written declarations.

a. Administration of an estate in the case of intestacy. (3Marks)

Intestacy is where an individual dies with partially or wholly undisposed of testamentary

interests. Intestacy warrants a grant of letters of administration of the intestate estate. Section
53(b) allows for a grant of letters of administration in respect to intestate estates. Section 56(1)
provides on who may take a grant of letters of administration, these persons should have legal
capacity. The grant is also only restricted to four representatives when dealing with a specified
property.

In Section 56(2) the grant of letters of administration where the executor has not been
determined should not be made to a body corporate other than the Public Trustee or a trust
corporation.

Grant of letters of administration in intestacy

Section 66 dictates that in such an instance the court has final discretion as to the persons to
whom a grant of letters of administration may be given. The court shall factor in the best
interests of all concerned and impartially appoint an individual in the order of; surviving spouses,

1
TI-Kenya’s Advocacy & Legal Advice Centres, “Frequently asked questions on succession and inheritance”
(2018) pg. 3
2
‘CAP. 160’ <[Link] accessed 29 March 2021.
beneficiaries entitled on intestacy with respect to beneficial interest, the public trustee and
creditors.

The grant confers authority to act on the deceased’s property as an administrator and it only deals
with property disclosed in the succession cause. The authority of the administrator is drawn from
the court and not from the will.

In conclusion, administration in intestacy is characterized by a grant of letters of administration

where the court has statutory guidance on a list of persons to appoint from. Otherwise it bears
final discretion as to whom the person receiving the grant of letters of administration should be
upon exhaustion of the list provided in Section 66.

b. Administration of an estates in the case of testacy. (3Marks)

Testacy is where the testator has left behind a valid testamentary disposition of wealth allowing
proper devolution of the estate to beneficiaries. Under Section 53(a) testacy warrants a grant of
probate along with a grant of letters of administration where the executor is already determined.

Section 56(1) clarifies that a grant of representations shall only be allowed to persons bearing
legal capacity. Similarly, the limitation of a grant of representation in respect to the same
property is four individuals. The letters of administration with or without the will annexed shall
only take effect from the date of the grant by a court of competent jurisdiction.

Section 56(2) under grant of letters of administration with the will annexed disallows a grant
made to corporate bodies other than the Public Trustee or a trust corporation. Section 57 further
disallows a grant of representation made to a nominee on behalf of a body corporate. In instances
where the body corporate applies for a grant of probate or letters of administration, the
application may be signed, and any necessary affidavits may be sworn, by an officer authorized
in that behalf of the body corporate or its directors.

Grant of Probate

Generally, it is made regarding the parts of the estate that the testator stated in the will. Section 2
defines probate as the certificate of a court that a will with an attached certified copy has been
proved as a valid will, with a grant of representation to the executor of the estate.3

3
‘CAP. 160’ <[Link] accessed 29 March 2021.
Section 80 renders all intermediate acts of the executor to whom the grant is made consistent
with any duties they have been given. In Kothari v. Qureshi and Another the court held that it
was unnecessary that probate of the will by granted before the executor is made a privy to the
suit as a representative of the deceased.4

Section 60 allows for the granting of probate to simultaneously appointed executors. A grant of
probate exhibits the delegation of authority to an executor and should be obtained as evidence of
devolved authority but regardless of this assertation the executor draws authority from the will
itself. In Lalitaben Kantilal Shah v. Southern Credit Banking Corporation Ltd it was held that,

“Since the executor derives his title from the Will and all the estate and interest in the testator’s
property vests in him on the testator’s death he can do any act before probate, which is a mere
authentication of his title”.5

Grant of letters of administration with will annexed

Under Section 63(a) and (b) it occurs where the will fails to recognize an executor or where the
executor has died before the execution of the will and where the executor has renounced
executorship. It can also be evident where the executor lacks legal capacity or has failed to file
for a grant of probate within the time frame provided.

The effect caused forces the court to appoint an executor, the will should resume conclusive
operation to ensure proper execution in its terms.

In conclusion, administration in testacy is characterized by a grant of probate and the grant of

letters of administration with the will annexed. Grant of probate serves as evidence of the
validity of the authority of the executor served by a court of competent jurisdiction. It relies on
the principle of ‘relation back’ since the executor draws power from the will itself and the grant
from the court serves merely an evidential purpose.

A grant of letters of administration draws authority from the grant issued by the court to the
administrator. The executorship is powered by a grant from the court and does not rely on the
principle of ‘relation back’.

4
‘Civil Case 1821 of 1999 - Kenya Law’ <[Link] accessed 29 March
2021.
5
‘Civil Suit 543 Of 2005 - Kenya Law’ <[Link] accessed 29 March 2021.
References
Statute
Law of Succession Act Cap 160
Probate & Administration Act

Online Journals
TI-Kenya’s Advocacy & Legal Advice Centres, “Frequently asked questions on succession and
inheritance” (2018)
Websites
[Link] accessed 29 March
2021.
[Link] accessed 29 March
2021.
[Link] accessed 29 March 2021.
[Link] accessed 29 March 2021.