Review: What happens when one adminstrator dies? what happens when both administrators of an estate die?

Guiding case law: In re Estate of Joel Rukwaro Thuku (Deceased) [2018] eKLR

Detailed analysis of the case is available here   

Summary Analysis/Case Overview:

5. The law regarding the status of a grant where deceased administrators or executors have died is well settled under Section 81 of the Law of Succession in case one or more of several executors or administrators dies.  For clarity purposes, I wish to reproduce Section 81 which provides as follows:

“Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them”.

 

6. From the wording of this section, there is nothing like substitution unless there is a continuing trust and there is only one surviving executor or administrator in which case the court shall appoint additional executor or administrator.  Section 81 refers to a situation where there are more than one executor or administrator.  This provision is therefore not applicable as all the administrators have died.

 

7. What happens where a sole executor or administrator or where more than one, all have died?  The law of succession does not provide for substitution of a single administrator or executor (see in the matter of the estate of Mwangi Mugure alias Elieza Ngware (deceased) and in the matter of the estate of Mary Wairimu Ngware (deceased) Nairobi HCC Succession Cause No. 2018 of 2001.

 

8. In such a scenario, Section 76 (e) of the Law of Succession comes to play on account that following the death of the sole administrator/executor or all administrators or executors, the grant becomes inoperative through subsequent circumstances.  Subsequently, a limited grant of letters of administration de bonis non would then issue to any of the heirs or beneficiaries with the consent of the rest.  In that regard I am guided by the reasoning in the case of (In the matter of the estate of Hannah Njuki (deceased) Nairobi High Court Succession Cause No. 463 of 1997) where Ang’awa J held that:

“where an administrator dies before completion of administration, the next cause of action should be to apply for a grant of letters of administration de bonis non, which is limited to the completion of the administration of the estate”.

 

In the case where both administrators have dies, such a case is presented to court through an application filed under Section 76 (e) of the Law of Succession and paragraph 16 of the 5^th Schedule.

 TBC...