Dealing with the estate of a deceased person is an emotive and complex matter; yet persons going through this process are expected to engage with the legal system from a point of understanding of the law and court procedures despite the raw emotions of having lost a loved one.
To help Kenyans understand matters pertaining to inheritance, the Family Division of the High Court of Kenya, under the leadership of Justice Aggrey Muchelule, has come up with a booklet. Simplified Resource Tool on Inheritance and Related Family Law Practice in Kenya answers frequently asked questions on inheritance while giving step by step guidelines on the execution of succession cases.
Inheritance is deemed to be significant means of transferring, or excluding from transfer, wealth from one generation to the next. And as such, it can have positive or negative effects on family or individual fortunes.
An already complex and emotive process, inheritance is becoming more intricate with emergent forms of property such as intellectual property, digital property and other intangible but high-value assets. The development of family law and the pluralism of laws in the family sector as a result of the application of religious and customary laws further complicate inheritance processes, often intimidating many court users.
The booklet focuses on issues such as gender, current legal and policy framework, jurisdiction of courts, procedures and current practice for various court engagements on inheritance and succession matters.
Long family feuds over inheritance are not new in Kenya. A case in point, which has protracted for over 35 years, is that of the Mbiyu Koinange family that has been battling over the vast wealth left behind by the deceased. Regrettably, the long-drawn-out dispute has even dragged in the grandchildren and great-grandchildren of the deceased, thereby demonstrating how protracted inheritance matters can get.
Some of these cases of inheritance would be executed swiftly and peacefully if a will was left on how the deceased's property should be distributed, hence preventing prolonged court disputes.
The book defines a will as a legal expression by a person outlining how they wish to distribute their property after death. The will may be oral or written.
An oral will is valid if it is made in the presence of two or more witnesses and is only valid for three months from the date of making the will. A written will needs to have been validly signed by the deceased or by some other person in the presence of and by the direction of the testator (the person who makes the will).
When someone dies, there are rules on who inherits the assets he or she leaves. Here you will learn the essentials on inheritance, who you can contact for more information and what you have to bear in mind.
The administration of the estate of the deceased undergoes probate, which is the process of proving the validity of the will. Under Kenyan law, no specific form of a will is required. You can write your will on any type of material and it shall be considered valid as long as it has your signature and it is duly confirmed by two competent witnesses.
Court regards a will as valid irrespective of the material used so long as the will is clear and legible. The guide also uses various real-life cases of family fights to explain how succession cases are directed. The booklet cites some cases that border on the hilarious. One such case happened in the Commonwealth jurisdiction where a court ruled as valid a will that was written on an eggshell!
When it comes to signing the will, the guide explains that a thumb print, initials, assumed name, or mark by a rubber stamp with the testator’s name are valid signatures
A signature need not even consist of a name at all; the words “your loving mother” placed at the end of the document were held to be a valid signature by one court
Part of a signature may in some cases be sufficient to validate a signature. In one case, a woman at the point of death started to sign her normal signature “E. Chalcraft” but after writing “E. Chal” she became too weak to continue. It was held that the signature was valid.
The signature can also be placed anywhere on the document so long as it is apparent from the position that it is intended to give effect to the will.
Where a person dies without making a will, the court has wide discretion in appointing an administrator but is guided by order of preference of surviving spouse(s) and children, public trustees and even creditors.
These simplified and standardised procedures increase efficiency and at the same time guide members of the bar-bench and court users in matters regarding succession. The easily adaptable and systematic guidelines which had input from lawyers shall also be an excellent guiding tool to assist laymen pursue their claims in court.
The entire process is clearly laid down from filing to the final distribution of the estate, including laid out formats of how the originating court document looks like and at what point they are issued.
The booklet helps Family Court registries realign their operations to the aspirations of the Sustaining Judiciary Transformation in enhancing access to justice and improve services to all court users while reducing knowledge barriers.
The booklet also contains a list of cases on inheritance and related family law matters from both local and comparable Commonwealth jurisdictions, besides a bibliography of articles on the law of inheritance, succession and contemporary issues in inheritance. The best of all is that the booklet and forms can be found on the Judiciary website: judiciary.go.ke
Assistant director, Public Affairs and Communication