Breaking the chains of tradition: an argument for the introduction of a dispensing power in Kenya’s Law of Succession

Abstract

This research project aims to critically examine Kenya’s succession system, with a specific focus on the formalities within its legal framework. The study explores these formalities in the contemporary context and seeks to understand the historical evolution, emphasising the need for amendments to the Law of Succession Act. The Law of Succession governs the intricate process of property devolution after ones demise. Focused on the mechanisms outlined in the Law of Succession Act, this paper delves into the complexities of testate and intestate succession. It goes ahead to argue that the current legislation and its interpretation which prioritises formalities over substance, frustrates the deceased’s intention, creating injustice. Exploring Kenyan precedent on the same, the paper highlights cases where well intentioned wills are deemed invalid due to procedural missteps, frustrating the testator’s intention and well as the beneficiaries of the same. Courts, mandated to interpret rather than remake wills, face challenges in ensuring fairness amidst rigid adherence to formalities. Drawing from Kenyan and international case law, this paper underscores instances where the insistence on formalities undermines the very purpose of succession law: ensuring rightful distribution of property according to the deceased’s desires. This paper examines the tension between strict adherence to formal will requirements and respecting the testator’s true testamentary intentions in Kenya’s law of succession. As a solution, the paper proposes introducing a "dispensing power" in Kenyan courts. This power would allow judges to disregard minor, harmless errors in will formalities while upholding the testator's true testamentary intentions. The study concludes with a proposed framework for incorporating dispensing authority within Kenya's Law of Succession Act. This framework calls for defined criteria, anti-misuse measures, an equitable approach, strong authentication, virtual witnessing norms, and specified technical requirements. The goal is to provide a nuanced method that adheres to testamentary formality while allowing those suffering compliance issues.