Whenever a person dies, people are fond of dealing with the deceased person’s property, either distributing it, using it for their own benefit or for any other task, without legal authority, oblivious of the fact that it is a criminal offence.
Relatives and other family members will move into the deceased person’s estate and start distributing the deceased person’s property among themselves. In this process, some legitimate claimants may be denied their right to the estate. These acts also lead to the wastage of the estate, as relatives may wrangle on who is to be given what. Some do this pursuant to customs of their communities, which could be repugnant and inconsistent with statutes and the constitution. The Law of Succession Act has empowered the courts to distribute deceased person’s estates, and beneficiaries should use the courts to distribute the property fairly.
The act of dealing with a deceased person’s property without legal authority from the courts is known as intermeddling. It is a criminal offence under Section 45 of the Law Of Succession Act, which provides that no person shall take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. Any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine not exceeding Sh10,000 or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
The Law of Succession Act provides for protective powers to be exercised against wrongful disposal and intermeddling with any free property of the deceased except in accordance with the Act. The law of succession has vested the provincial administration with the duty and responsibility of preserving estates of deceased persons from intermeddling, before the beneficiaries take out letters of administration or grant of probate.
Section 46 provides that whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the death to the assistant chief of the sub-location or to the chief or administrative officer of the area where the deceased had his last known place of residence. It further provides that the administrative officer shall forthwith proceed to the last known place of residence of the deceased and take all necessary steps for the protection of his free property found there, for ascertainment of his other free properties (if any), for ascertainment of all persons appearing to have any legitimate interest in succession to or administration of his estate, and for the guidance of prospective executors or administrators as to formalities and duties. This provision allows for the protection, collection and preservation of the deceased person’s estate before the beneficiaries take out proper authority to enable them deal with the property.
The Law of Succession Act provides that before a person deals with the estate of a deceased person, they should first have the legal authority. If a deceased person dies intestate (without leaving a will), any beneficiary can apply for grant of letters of administration. If a deceased person dies leaving behind a will but without naming an executor, any of the beneficiaries can apply for letters of administration with the will annexed, for the court to appoint an administrator. If a deceased person died leaving behind a valid will, the executor can apply to the court for the grant of probate.
It is only when any of the above mentioned authority has been granted by the court, that a person can validly deal with a deceased person’s property. Any acts without proper authority amounts to intermeddling, punishable as a criminal offence. If a person believes that a deceased estate is wasting away and there is need to preserve the estate before grant of letters of administration or grant of probate, one can make a proper application to the court, for orders to allow him/her to validly collect and preserve the deceased person’s estate. Any act of dealing with the deceased person’s property without proper authority is illegal and attracts penal consequences.