By AMOS MUOKI

Death is inevitable, and when it strikes, many Kenyans find themselves at a loss on how to handle a loved one’s estate. The Grant of Probate is a vital legal instrument that every citizen should understand, whether you are planning your own succession or have been named as an executor. Drawing from the Law of Succession Act and decades of judicial wisdom, we break down its essentials in plain language.

Issues in respect of testacy

Under section 53(a) of the Law of Succession Act, a Grant of Probate is issued where the deceased left a valid will, whether oral or written. The grant covers all property that the will effectively disposes of, and it is usually made to the executor or executors named in that will. 

However, a common complication arises where the will does not dispose of all the deceased's property. In such a case, the deceased is deemed partially intestate, and probate will only cover what the will specifically addresses; the residue will then pass under the default rules of intestacy to the deceased's statutory heirs. This distinction is important because it determines which assets are distributed according to the deceased's wishes and which are distributed by operation of law.

Effect of a grant of probate

A grant produces two principal effects. First, it serves as conclusive proof of the terms and due execution of the will. Second, it confirms the executor's authority to act. Critically, however, that authority derives from the will itself, not from the grant, as the court firmly stated in Lalitaben Kantilal Shah v Southern Credit Banking Corp Ltd [2005]. Thus, an executor can, in theory, act before obtaining probate: collecting assets, suing on behalf of the estate, releasing debts, and exercising administrative powers. In practice, though, the grant is indispensable as evidence of title when dealing with banks, land registries, and other third parties.

Our courts have consistently upheld this position. In Kothari v Qureshi [1967] EA 564, Rudd J held that an executor's title dates from the testator's death and springs from the will; acts performed before probate are valid if the will is ultimately proved, and probate is merely authentication. An executor can sue before grant and only needs to produce the grant when required to prove title, and if he has intermeddled in the estate, he cannot later renounce. The Court of Appeal in Otieno v Ougo [1987] KLR 407 added that under section 80(1), a grant establishes the will from the date of death and validates all intermediate acts consistent with the executor's duties. This protection ensures that executors who act in good faith before the formal grant are not penalised for the inevitable delay between death and the court process.

Persons entitled to the grant

Only an executor appointed by the will may apply for probate. Under section 60, where multiple executors are named, probate may be granted to them all simultaneously or at different times; those who choose not to take out a grant must formally renounce their right. Importantly, under rule 19(1), executors who do not initially apply or renounce may later be joined to the grant by endorsement, offering flexibility. 

Furthermore, rule 33 provides that if one or more executors is a minor, probate may be granted to the remaining executors not under disability, with power reserved to grant to the minor upon attaining majority, preventing the estate from being stalled by the minority of one appointee.

Application of the principle of relation back

The doctrine of relation back is a cornerstone of probate practice. It operates to protect the estate from harm during the interval between death and the grant. As stated in Whitehead v Taylor (1839), there is no gap between the testator's death and the vesting of the representative's right; once probate is obtained, the right is deemed to have accrued from the moment of death. Consequently, all intermediate acts are validated. Kasango J in Lalitaben confirmed that under section 80(1), acts done before grant are validated because the executor's title vests on death, and probate is merely authentication of that title. It is worth noting, however, that this principle does not permit an administrator to commence suit before grant; that special protection applies only to executors, who derive their authority directly from the will.

Conclusion 

If you are named as an executor, remember: your authority exists from the moment of death, but you will need the grant to deal effectively with third parties and to prove your title when challenged. You may take many steps before probate, but be cautious; not all acts are safe, and intermeddling without proper authority can lead to personal liability. The law and the courts robustly protect pre-probate acts performed in good faith, but for complex estates, seeking legal advice early is always wise. Understanding these rules is not just for lawyers; it is essential knowledge for every Kenyan who may one day be called upon to administer a loved one's legacy.

This column is for informational purposes only and does not constitute legal advice. Consult a qualified professional for guidance specific to your circumstances.