In life, one acquires property for their own use, and possibly for others. The acquisition is usually for enjoyment and wealth accumulation, and may also be for purposes of leaving it behind for children and other dependents as an inheritance, or for other purposes as you may wish.
The craving to acquire property in a capitalist world is a fairly universal concept. Quite often, questions arise on how someone would wish to utilise their property, whether alive or deceased.
It’s therefore obvious that someone would wish to control his “sweat” in both instances. However, how you choose to leave behind your properties in Kenya is guided by the Law of Succession Act.
Let’s discuss the question of control of investments/property both during life and in death.
1. Dispositions During One’s Lifetime
The law recognises the right to dispose of property when one is living, in the manner one may wish. There are also situations imposed by law that would determine the way property is passed on to other people in the event of death.
Generally, one can pass their free property, absolutely, to whomever they wish while alive. In law, such a scenario would result in Gifts Inter Vivos (gifts between the living). This could be the surest way to control property and may be the most stress-free way to do so.
However, the knowledge that one may need to have control of their property, coupled with the uncertainty of how long one lives, makes it hard to dispose of one’s property fully during his life. It is a natural instinct to want to retain control.
Here are a few ways to pass property to your heirs while you’re still alive.
1.1. Nomination
In some of the investments and financial instruments, e.g. in cooperative societies, the account holder will be asked to name a nominee who is to benefit in the event of death. Such nomination is valid and the nominee is entitled to benefit from the investment upon the death of the nominator and as long as the nominee does not die before the nominator.
You should note, however, that the property remains under the control of the person nominating and can deal with it the way they deem fit. It only becomes the nominee’s property upon the death of the nominator.
1.2. Survivorship
Where property is jointly owned, (as in the separate and distinct shares of the persons owning is not defined) then the property passes on to the survivor of the joint owners in the event of death of either.
This can be a definite way one can confer rights to property while still alive, and is mostly limited to matrimonial property.
1.3. Gifts in contemplation of death
A person can hand over a gift to another if they are contemplating death. This could be out of a situation or illness.
There are strict conditions that control such a gift namely;
a. The gift must be made by the donor in the contemplation of death;
b. The gift must be conditional on the donor’s death, for the cause of death contemplated, whether directly or as an underlying factor;
c. The subject matter of the gift must be declared to the done and indeed delivered (or a means of control over the gift delivered to the recipient);
d. The property must be capable of forming the subject matter of a gift.
It must also be clear that should the Donor survive the contemplated death, they can reclaim the gift. If the donor commits suicide, the gift cannot pass to the donee (the person receiving the gift).
2. Inheritance through a Will (Testate Succession)
Property already passed to beneficiaries via the three previous scenarios does not form part of what is called an Estate, which is the free property of a deceased person. Attempt to will out a property that has been given out either by nomination, survivorship or as a gift in contemplation of death is void in law.
You can think of a will on three levels, which are;
The reflection of the wishes of the testator (the person making the will) on how their property is to be dealt with upon death.
The document(s) through which the testator has expressed their wishes
The legal declaration by a testator in regards to what happens to their property upon their death.
2.1. Requirements for Making a Valid Will:
There are various requirements a testator must fulfil for their will to be valid under the law. They generally are;
One must have attained the age of majority.
One must be of sound mind.
One must be free of insane delusions.
One must have knowledge of the will in preparation, and approve its contents
They must have made it of their own volition (devoid of influence or coercion)
It must be signed by two competent witnesses
Where someone’s mental capacity comes into question, five requirements would determine whether the testator crafted the will while having all their mental faculties intact. These are;
A sound mind AND memory
The testator is capable of attesting to a will
They should clearly understand what they are doing.
They have accurate recollections of the properties they are disposing of
They have a recollection of the persons to whom the testator is willing property.
Any will that is made without the testator’s freedom of choice, and either controlled by fraud, forgery, mistake or undue influence will be invalid.
2.2. Forms of Wills
One must be very careful in the manner the will is done; otherwise, it can easily be treated as invalid and your wishes will not be taken care of.
A will can be oral or written. The requirements are similar only that for an oral will the maker must die within three months from the date of the oral will.
Oral wills can persist for longer than three months for someone in active service in the armed forces. This oral will, however, should be crafted during a period of operations, whether on land or at sea and persists for the period of the operation.
2.3. General Rules for Drafting Wills
A will can be revoked or interfered with for example if a beneficiary/dependant has been left out of the inheritance without a proper reason. (freedom taken away?)
A will is an instrument to pass property, not for emotional expression. You can draft a separate letter that can be read alongside the will to express your sentiments.
The testator must sign or affix his mark to the Will or it must be signed by some other person in the presence and at the direction of the testator.
The attesting witnesses should be competent and preferably independent.
A will should be simple and clear, avoid ambiguities
2.4. Advantages of Making a Will
Freedom to dispose of your property as you wish
Avoid squabbles upon death
Wishes are well-preserved
You can pass property to friends, charitable entities, acquaintances and others
It helps you choose trusted people to execute your wishes, and also nominate guardians for your underage children
There is no uncertainty or time wastage upon death
You can provide for wishes on how to handle your last rites
All in all, a will allows you to list all your properties; those known to your beneficiaries and those they may not have been aware of. Often, the property has been lost, grabbed or landed in the hands of the Unclaimed Financial Assets Authority because no discernible owner came forward to claim it.
3. Intestate Succession
Intestacy is the state of dying without having made a valid will, or without having disposed of by will a segment of one’s property. This failure can be due to the revocation of the will and consequent failure to make another, or invalidation by a court of law.
Provisions relating to intestacy are, apart from spouses, only meant to benefit people who have a direct blood link with the deceased. The priority is given to the deceased’s spouses and children and it is only upon their absence that the estate devolves to other blood relatives.
3.1. The Issue of Spouses
A Wife/Husband will benefit from the deceased’s estate as a spouse, thereby being entitled to the personal and household effects of the deceased, and a life interest on the remainder of the estate which can typically include land, houses, businesses and other financial instruments.
Life interest simply means the surviving spouse has a right to utilise the remaining property during their lifetime. The life interest will terminate should the surviving spouse remarry or when the subject of the life interest is then equally divided amongst the children.
Divorced spouses can also be heirs as they are classified as former spouses. The definition of a dependant, as defined in section 29 of the Law of Succession Act, includes a former wife or former wives. The only caveat is when the marriage was settled by the court after the dissolution of the same.
A mistress is not recognised as a spouse by law and therefore, cannot benefit from the estate of the deceased.
In Reuben Nzioka Mutua's case, a man who was married under statute had a mistress in Nyeri. Before his death, he had made a will disposing of his entire estate to his first wife. The mistress appeared before the court, requesting the court to give her a share of the estate. The Court held that she was ineligible to benefit from his estate but that her children were considered as proper heirs. However, if one is capable of showing that he was “married” as opposed to merely cohabiting, then that would be a wife for purposes of succession (Irene Njeri Macharia Case)
3.2. The Issue of Children
It is important to note that all children of a deceased whether born during the existence of marriage or not are eligible heirs.
3.3. Procedure of Applying for a Grant of Letters of Administration
The heirs agree on an administrator and if there are minors, there has to be at least two administrators. The priority is given to the surviving spouse.
The application is made in court, and there has to be a letter from the local administration identifying the heirs as much as they are ascertainable.
A notice of the application must be published in the Kenya Gazette for 30 days, during which objections may be heard. After the lapse of the 30 days, letters of administration are issued to the applicants (personal representatives).
These letters of administration remain in force for six (6) months after which the personal representatives can apply for an order of Confirmation of Grant
3.4. Confirmation of Grant
The personal representative has a duty to account for and inform both the court and beneficiaries on the administration of the estate.
He/she has to produce to the court a full inventory of assets and liabilities of the deceased and an accurate account of the administration of the estate up to that date, within 6 months from the date of the grant.
The spouse and children are given priority in the distribution. It is important to note that all children regardless of sex or marital status are entitled to an equal share of the estate. While the wife has what is called life interest in the residual of the estate until re-marriage.
It is therefore discernible that failure to make a will or make viable arrangements on one's property while still alive leaves it for distribution per the law, which may not necessarily reflect the wishes and intentions of the deceased investor.
3.5. Questions About Dependants
The law recognises persons (relatives) could be reliant on a deceased person for their survival and may not necessarily have been provided for in a will or factored in the intestate succession. They are allowed to apply to the court to have a determination of their share.
It is advisable therefore to provide “reasonable provision” for all dependants unless there is good reason why they cannot be provided for.
Under the Law of Succession Act, the persons who can take advantage of the dependency or family provisions should be related to the deceased through either blood or marriage and are limited to the categories of persons listed in section 29 of the Law of Succession Act.
The dependants in the first category, that is spouses and children, do not have to prove dependency. It would suffice for them to prove that they were either spouses or children of the deceased.
The other categories of dependants have to prove dependency, which is that the deceased was maintaining them immediately prior to his or her demise.
The Law of Succession Act caters for wives married either under statute or under systems of marriage that allow polygamy. There is no requirement that the wife or wives prove that they were dependent on the deceased immediately before his death. All they have to do is to prove that they were validly married to the deceased. This category includes a judicially separated wife (Section 3(1) of the Law of Succession Act).
A party to a voidable marriage, which has not been annulled prior to the deceased’s death, should also benefit as a dependant. Such a party falls under the category of wife or wives of the deceased so long as she entered into the marriage in good faith, and during the deceased’s lifetime, the marriage was neither annulled nor dissolved, nor did she enter into a later marriage.
A woman married to another in a customary law woman-to-woman arrangement is a wife under the law of succession.
4. Allaying Your Fears
4.1. Property Is Yours
It is important to note that matters relating to succession or inheritance generally come into play when one dies. Only in cases of absolute gift during the donor’s life can the property be passed on to the beneficiary.
In all other cases, you are free to deal with the property in any way you may wish as long as you are alive.
4.2. If You Disinherit, Give Reasons
One must give a reason when an apparent heir is disinherited in a will. The court can interfere with the freedom to dispose if there is no reasonable provision for the dependants and no reasons are attached.
4.3. Customary law is Limited in application
At times there has been a lot of confusion, especially in intestate succession on how to share the estate. At times courts have enforced customary law in the distribution of the estate but with doubtful legality.
Unless the Cabinet Secretary has specifically gazetted a given area to oust the application of the Law of Succession (Which was only done for some pastoralist areas) then the law applicable is Cap 160. This law has even provided for how polygamous families are to be handled in succession.
As we make investments to acquire property, we should address what would happen to all your efforts should you exit the scene. It is disheartening to see squabbles over what one acquired painstakingly in her lifetime, at times denying oneself many a thing.
You have the power to dictate the way your property is to go now and even thereafter!
Our Opinion
As we have seen, inheritance according to Kenyan law can be a nuanced subject. It would be best to have an advocate of the High Court of Kenya guide you through to your intended outcome.
What’s more, you are not limited to subdivision of the property after inheritance. You can instead choose to have a Family Trust manage all your inheritance.
If you’d like to know more about how to begin the inheritance process through a court of law, please get in touch with us. We’d love to be of service to you.