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  • Richard Kioko

An outlook on succession in Kenya (Estate Planning)

Updated: Feb 16

In life one acquires property for his own use and for others as he may be related therewith and as he may wish. The craving to acquire in a capitalist world is a fairly universal concept and quite often questions arise on how one would wish to have his property used whether alive or dead. Many times one wishes to control his “sweat” when alive as well as when deceased.





We shall discuss the question of control of investments/property both in ones lifetime and in death;


In life, 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.


It is our argument that one can pass over his free property absolutely to whoever he wishes while alive (inter vivos Gifts). This could be the surest way to control ones property and may be the most stress free way to do so.


However, often the knowledge that, as long as one lives, he may need his 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.


While Deceased

It is possible to control investments and property even in death. If indeed one does not provide for the manner in which his property is to be controlled in death, then the law of succession sets in and the property is henceforth administered in accordance with the Law relating to intestate succession.

Ways of Passing on Property while alive but effective on death

a. Nomination

In some of the investments, e.g. in co-operative Societies, one is 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. NOTE; the property remains under the control of the person nominating and can deal with it the way he deems fit. It only becomes the nominee’s property upon death of the nominator

b. Survivorship

Where property is jointly owned, (as in the separate and distinct shares of the persons owing 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.

c. Gifts in contemplation of death

One can bequeath a gift to another if contemplating death. This could be out of a situation or illness.


There are condition tough that control such a gift namely; the gift must be made by the donor in the contemplation of death; the gift must be conditional on the donor’s death; the subject matter of the gift must be declared to the done and indeed delivered; and the property must be capable of forming the subject-matter of a he gift.


It must also be clear that if the Donor survives the contemplated death, he can reclaim the gift.


If the donor commits suicide, the gift cannot pass to the done.


d. Testate Succession (Will)

In the above three scenarios, the property is already passed thus does not form part of what is called Estate; which is the free property of a deceased person. It is our position that one cannot purport to will out a property that has been given out either by nomination, survivorship or as a gift in contemplation of death.


A will is basically the reflection of the wishes of the testator on how is property is to be dealt with upon his death.

Requirements for a will ; one must be of sound mind and not a minor; must be made of free will, the maker must have approved every content thereof; must be signed and witnessed by at least two witnesses. Any will that is made without the makers freedom of choice and either controlled by fraud, forgery, mistake or undue influence will be invalid.

It is important that one is 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 requirement are similar only that in the vent of oral will the makes must die within three months from the date of the oral will.

Please Note;

• 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 instrument to pass property but not a place for emotional expression

• The testator must signed or affix his mark to the Will or it be signed by some other person in the presence and by the direction of the testator.

• The attesting witnesses should be competent and preferably independent.

• A will should be simple and clear, avoid ambiguities


Advantages of making a will

• Freedom to dispose.

• Avoid squabbles upon death

• Wishes are well preserved

• You can bequeath property to even friends/ others

• You can choose trusted people to execute your wishes

• There is no uncertainty or time wastage upon death

• You can provide for wishes of your interment (?)

• You take care of all your property, many times people have lost properties because the heirs are not aware of them.


e. Intestate Succession

Intestacy is the state of dying without having made a valid will or without having disposed by will a segment of one’s property or due to the revocation of one’s will and consequent failure to make another. Provisions relating to intestacy are Apart from spouses, the rules of intestacy only benefit people who have a direct blood link with the intestate.

The first priority to the deceased’s spouses and children and it is only upon their absence that the estate devolves to other blood relatives.


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 residue of the net intestate estate. The life interest will terminate upon remarriage and the subject of the life interest is then equally divided amongst his children


A divorced wife can be classified as a former wife. The definition of a dependant for the purpose of section 26 of the LOSA includes a former wife or former wives.


The only caveat is when 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 case a man who was married under statute had a mistress in Nyeri. Before his death, he had made a will disposing his entire estate to his first wife. The mistress appeared before the court, requesting the court to give her a share of the estate. It was held that she was ineligible to benefit from his estate but that her children were considered as proper heirs.


It is important to note that all children of a deceased whether born during the existence of marriage or note are eligible heirs.


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 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 period, letters of administration are issued to the applicants (personal representatives).


These letters of administration remain in force for a period of six (6) months after which the personal representatives can apply for an order of Confirmation of Grant


Confirmation of Grant

The personal representative has a duty to account and to inform both the court and beneficiaries on the administration of the estate.


He/she has to produce to 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 marital status ae entitled to equal share of the estate. While the wife has what is called life interest in the residual of the estate until re-marriage.


It therefore be discerned that failure to make a will or make viable arrangements on ones property while still alive leaves it for distribution in accordance with the law, which may not necessarily reflect the wishes and intentions of the deceased investor.


f. Questions Of Dependants

The law recognises persons (relatives) who 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 court to have 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 LOSA.


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 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 the customary law woman-to-woman arrangement is a wife for the purpose of the law of succession


G. Allaying Some Fears

Property is yours

It is important to note that matters relating to succession or inheritance generally come to play when one dies. It is only in cases of absolute gift in life that the property passes 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.

If you disinherit give reasons

It is important that one gives 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 not reasons are attached thereto.


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 actually enforced customary law in distribution of the estate but with doubtful legality. Unless the Minister 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.


Conclusion

As we make investments, acquire property, we should address the question of what would happen to all “my” efforts if I exited the scene. It is disheartening to see squabbles over what one acquired painstakingly in her life time, at times denying herself many a things.


You have the power to dictate the way your property is to go now and even thereafter!


Musyoki Kioko

Advocate.


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