ADVOKS GLOBAL · KENYA
The Children (Guardianship) (Practice and Procedure) Rules, 2024
19. Revocation of appointment of a testamentary guardian
Edition: 2024-10-18 · In force
19. Revocation of appointment of a testamentary guardian
(1)The appointment of a guardian by the Court under section 122 of the Act shall revoke any earlier appointment including an appointment made in an unrevoked testamentary instrument, unless, either by express provision or by necessary implication, it can be construed that the purpose of the latter appointment was to appoint an additional guardian.(2)The appointment of a testamentary guardian shall, subject to the provisions of the law relating to testamentary instruments, be deemed revoked where the parent or guardian makes a subsequent instrument appointing a different person as guardian, unless the subsequent instrument contains an express provision to the effect that the purpose of the latter appointment was to appoint an additional guardian; or unless the Court upon application determines that by necessary implication, the latter appointment was to appoint an additional guardian.(3)A deed appointing a testamentary guardian may be revoked by an instrument of revocation made in accordance with the provisions of section 128(2) of the Act.(4)A will or codicil, or a clause in a will or codicil, appointing a testamentary guardian may be revoked in accordance with the provisions of the Law of Succession Act (Cap. 160) relating to revocation of testamentary instruments, and pursuant thereto, the appointment made thereunder shall stand revoked.(5)Notwithstanding the foregoing provisions, the appointment of a testamentary guardian shall stand revoked where the testamentary, instrument by which the appointment was made is otherwise revoked or becomes invalidated by operation of the law, or where it becomes inoperative for the reason that the appointed guardian or child has pre-deceased the appointing guardian or parent.(6)A testamentary instrument may, upon application be revoked by the Court where—(a)the validity of the instrument is brought to question;(b)the testamentary guardian appointed under the instrument is dead or has refused to act, or has become incapable of assuming the role of a guardian of the child; or(c)any other sufficient cause exists.(7)An application such as is envisaged under subrule (6) may only be filed in Court where the invalidity arises after assumption of testamentary guardianship; or if the appointing parent or guardian is still alive, by the other parent or guardian (if any) not being the one making the appointment.(8)A parent or guardian who has appointed a testamentary guardian under these Rules may, subject to the provisions of the law relating to testamentary instruments and without recourse to Court, revoke the testamentary instrument if—(a)the appointed testamentary guardian—(i)has indicated his or her unwillingness to assume the responsibility of guardian upon the death of the appointing guardian or parent; or(ii)has become incapable or is unlikely to effectively discharge the responsibilities of a testamentary guardian; or(b)any other sufficient reason exists.(9)The provisions of rule 22(1), (2) and (3) shall apply where the revocation envisaged under subrule (8) hereof is made after the registration of the testamentary instrument.