Legacies: Executorship

LEGACIES

A legacy is a gift by will and may be of two kinds as follows.

(i)                 Bequest

This is a gift which relates to movable property.

(ii)               Devise

This is a gift which relates to immovable property.

TYPES OF LEGACY

Various legacies have been defined in the Law of Succession Act (Cap 160) as follows;

(i)                 Special Legacy

It is a testamentary gift of a particular part of the property of the testator, which identifies that part by a sufficient description whether in specific or in general term e.g. a gift of National T.V.

(ii)               General Legacy

It is a testamatory gift whether specific or general of property described in general terms to be provided out of the general estate of the testator e.g. gift of Subaru car to James.

(iii)             Demonstrative Legacy

It is a testamentary gift which is in its nature general but which manifest as intuition that the gift shall be primarily satisfied out of the specified fund.

(iv)             Pecuniary Legacy

Pecuniary legacy include an anmity, a general legacy, a demonstrative legacy so far as it is not discharged out of the specified or property and any other general direction by the testator for the payment of money e.g. shs.10,000 to my niece Angie.

(v)               Residual Gift

It is a gift which consists of the surplus or residue of the testator’s estate after all debts and other liabilities have been paid.

(vi)             Conditional Bequest

It is a gift whose vesting or enjoyment is made subject to some conditions imposed by the testator.

(vii)           Vested Legacy

It is a gift in respect of which the legacy is entitled to be paid and has a right to enforce immediate payment.

FAILURE OF TESTAMENTARY DISPOSITIONS

The reasons for failure of testamentary gifts are:-

1. Disclaimer

A beneficiary can refuse to take the gift bequeathed to him due to any potential liabilities or any unfavourable conditions.

2. Lapses

A legacy can only vest if the legatee is proved to have survived the testator. Therefore a legacy lapse where the legatee predeceases the testator.

3. Ademptions

If anything which has been specifically bequeathed does not belong to the testator at the time of his death the legacy is deemed i.e it cannot take effect by the reason of the subject matter having been withdrawn from the operation of the subject.

4. Abatement

If after payment of all debts and other liabilities, the testator’s estate is inefficient to pay legacies in full, legacies will abate i.e. legacy will terminate.

5. Uncertainty

A gift or disposition can fail if it does not satisfy the certainty of legatee or legacy.

SATISFACTION

If a debtor bequeaths a gift to his creditor and the gift is equal to or greater than debt, then if is assumed that this gift is intended to satisfy the debt.

POWERS AND DUTIES OF PERSONAL REPRESENTATIVES

An Executor derives his powers from the will and the deceased property comes under his control on the death of the testator. An administrator gets power from the court and deceased property comes under his control from the date of the grant of letter of administration.

The powers and duties of personal representatives are:

Powers of Personal Representatives

(i)                 To enforce all causes of action which survive the deceased or arise out of his death for his estate.

(ii)               To sell all or any of the assets at best possible price.

(iii)             To assent to the vesting of specific legacy in the legatee at any time after the confirmation of the grant.

(iv)             To appropriate the assets in the satisfaction of the legacies bequeathed by the deceased in just and reasonable manner.

Duties of Personal Representatives.

According to the Law of Succession Act (Cap 160) the following are the duties of the personal representative.

(a)    To provide and pay the reasonable funeral expenses for the deceased out of his estate.

(b)   To get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by the reason of his death.

(c)    To pay all expenses of obtaining the grant of representation or administration, out of the estate of the deceased.

(d)   To ascertain and pay all the debts of the deceased out of the estate of the deceased.

(e)    To produce to the court a full and accurate inventory of the assets and liabilities of the deceased and full and accurate account within six months from the date of the grant.

(f)    To distribute or retain on trust all assets remaining after the above payments according to the respective beneficiary, interests under the will or on intestacy.

(g)   To complete the administration of the estate in respect of all matters. Other than continuing trust and to produce to the court a full account of the completed administration within six months from the date of the grant or any longer period as allowed by the court.