Understanding Limited Grants And Their Applicability.

Introduction

The Law of Succession Act of Kenya provides for issuance of letters of administration or probate to qualified persons to undertake settling the estate of a deceased person. Undertaking acts on the estate of a deceased person even for the benefit of the dependants where such authority to administer the estate is yet to be confirmed by the Honourable Court is considered intermeddling. Where there is urgent need of the dependants of the deceased, pending case by/against the deceased or the need to collect and preserve the estate of the deceased before the letters of administration are granted/confirmed, one can apply to the court for a limited grant to allow them undertake the specified tasks. The word grant in simple terms can be defined as a confirmation of authority issued by the court to a person to act in respect of the estate of a deceased person. We shall look at some of the common limited grants and their applicability.

Limited Grants

Can be described as a grant that does not give the personal representative authority or confirm the authority, in the case of a grant of probate, to act with respect to the whole estate in all respects until the administration is completed. A grant may be limited as to special purpose, property, time or other of the various special types as set out in Schedule 5 of the Law of Succession Act.

• Grants Limited as to Purpose

• Grant ad colligenda bona

This is a grant issued to ensure an estate does not go to waste or there is a pending case required to be filed. This grant is intended to give the administrator power only to get in the estate of the deceased, and to do such acts as are necessary in order to preserve it, and it is usually limited in this way. A grant in these terms does not give a power to invest money collected in, nor to sell the assets even where a sale is necessary because the assets are wasting. It is anticipated that powers in this nature will be required, they maybe expressly included in the grant upon application being made to the court. In Re Estate of Mary Syokwia Kyalili Eklr and Mary Waithera V Ann Ndegwa & Another eKLR the court held as follows; “…where owing to special circumstances the urgency of the matter is so great that it would not be possible for the court to make a full grant of representation to the person who would by law be entitled thereto in sufficient time to meet the necessities of the case, any person may apply to the court for the making of a grant of administration ad colligenda bona defunct of the estate of the deceased…” An example of a special circumstance is where it is necessary to pay school fees for the children of the deceased and administration has not been completed. In re Estate of Daniel A. Korir Kipkurui (Deceased) eKLR, the court issued a Grant of Letters of Administration Ad Colligenda Bona to the petitioner for purposes of making withdrawal and payment of school fees and related expenses. The Court reasoned; “………. I note from the application and the affidavit in support that the applicant primarily seeks grant of letters ad colligenda bona in order to access funds from the deceased’s account held at KCB for purposes of paying school fees for her children together with upkeep/maintenance. There is no doubt that issues pertaining to the education of children especially minors is an issue that requires the attention and urgency of court, considering that it pertains to the rights of children especially the right to education. This is a right entrenched under our Constitution and in particular Article 53(1) underlines the fact that children are entitled to compulsory basic education and thus, this Court appreciates that the payment of school fees and related expenses is an urgent matter which may necessitate the filing of an application as presently before the court in terms of Rule 36 (1) of the Probate and Administration.” The deceased might also have rental properties and it might be necessary to ensure the rental income is collected and not wasted by third parties. In re Estate of Mary Wanja Wairimu (Deceased) eKLR, the Court considered an Application for application for Letters of Administration Ad Colligenda Bona under section 67 of the Law of Succession Act (Cap 60) and one of the issues for determination was particulars of the rent the deceased collected which was being wasted by the respondent. The Court applied its inherent jurisdiction to order,” That pending the process of making of the grant in favour of the administrators the following order as to the preservation of the estate shall abide: (a) That a joint account in the names of both counsels to this succession cause with the respective parties Peter Kaniaru Wanja and Mathew Angira Ondego as joint signatories be opened in a bank acceptable to both parties within thirty (30) days from today’s date to be used for the tenants to deposit rent collectable till the final/or other directions from this court.”

• Grant ad colligenda bona defunct

This is a grant that allows for collection and preservation of the estate of the deceased person where the estate consists of perishables, or assets which require quick action or attention. It is provided for under rule 36(1) of the Probate and Administration Rules and is specifically on the collection of the deceased’s goods and preserving the same.

• Grant for Special purposes- Probate limited for purposes specified in the will

If a will specifies that the probate is for a specified purpose, a grant is limited to what is specified. In the event an individual is desirous of suing on behalf of the estate, then that person can be issued with a grant limited to representing the deceased in a suit. It is also known as Grant Ad Litem. In Re Estate of Jennifer Kusuro Musiwa (Deceased) eKLR the court held as follows; “… This form is clear on the purpose for which the grant is limited -  filing suit. It is envisaged that there is a cause of action for which the deceased has standing and having passed on, his/her personal representatives steps in order to pursue that claim on behalf of the estate of the deceased. By extension, to defend an existing or suit against a deceased person.  Once granted, the administrator has no power to distribute the estate if successful in his/her claim on behalf of the deceased…” In Re the estate of Helena Wangechi Njoroge (Deceased) (2015) Eklr, the Court held the following concerning letters of administration ‘ad litem’; “……. It was limited to the purpose of filing suit to preserve the three assets of the estate.  It is what is called a grant of letters of administration ad litem.  The suit envisaged to be filed on the strength of a grant ad litem is not a probate or succession case, or an interlocutory application within a probate or succession cause, but rather a civil suit.  Indeed, one need not obtain a grant of any sort to enable him file a succession cause.  A grant of representation is only necessary where one intends to file a civil suit to protect or defence the estate against third parties.”

• Grants Limited as to Property

• Administration pendete lite

This is a grant given to a person appointed by the court simply to administer the estate during litigation. It is normally issued when parties are disputing over the estate and it ensures the estate is not left un-administered thus being wasted. No division or apportionment of property can be done with this grant. Such administrator is always under the immediate control of the court and acts under the court’s direction.

• Grant of letters of administration de Bonis non

This is applied for where the executor or administrator are deceased before they can fully undertake their duties as charged in the estate. One applies for this type of grant to complete the administration of the estate. In the case of Faith Wanjiku Maganjo v Rebean Muriithi Maganjo eKLR, the court stated as follows; “…Letters of administration, ‘grant de bonis non’ are issued where the administrator dies and leaves behind an estate which has not been administered.  The second administrator is called the ‘administrator de bonis non’ and distributes the remaining assets…”

• Grant Limited as to time

• Probate of copy or draft of lost will

When a will has been lost mislaid, destroyed by accident and not by any act of the testator and a copy or the draft of the will has been preserved, probate may be granted, limited until the original or a properly authenticated copy of the will is produced.

• Probate of copy where original exists

When a will is in the possession of a person residing out of Kenya, who has refused or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that probate should be granted without waiting for the arrival of the original, probate may be granted of the copy so transmitted, limited until the will or an authenticated copy of it be produced.

• Administration until will is produced

Where no will of a deceased is forthcoming, but there is reason to believe that there is a will in existence, letters of administration may be granted, limited until the will or an authenticated copy of it be produced.

Conclusion

It is imperative that you have good legal representation to protect the estate of the deceased from wastage or intermeddling (where third parties seek to reap where they did not sow). The issuance of a full grant may take some time and depending on the needs of the deceased family, it may be necessary to obtain a limited grant as a matter of urgency. Some urgent circumstances include paying school fees for the children and collecting rental income from the deceased estate. Further it is appropriate to have a lawyer keep your will in safe custody for reliability and to avoid delays where the one who you trusted is not forthcoming upon your demise. It is therefore important to give your lawyer the contact information of your executors and family members for reachability.Please click here to download the article

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This article is for informational purposes only and should not be construed as legal advice.