Battles for ailing parents’ properties show the need to write ‘living wills’

Under the law, once an individual is appointed a manager of an estate, he or she is not allowed to transfer, gift, sale or mortgage immovable properties which form part of the estate without express permission of the court.
Under the law, once an individual is appointed a manager of an estate, he or she is not allowed to transfer, gift, sale or mortgage immovable properties which form part of the estate without express permission of the court.

Although the question of mental health is not openly debated in Kenya, families of people incapacitated by age and disease are slowly accepting it and finding a way to care for their loved ones and their estates.

Children in such cases use section 26 of Mental Health Act, which allows the court to make orders for management of persons suffering from mental disorders.

The law allows the guardian to also take care of the well-being of the person with mental disorder.

Under the law, once an individual is appointed a manager of the estate, he or she is not allowed to transfer, gift, sale or mortgage immovable properties which form part of the estate without express permission of the court.

Family lawyer Judy Thongori says for a court to be convinced to give guardianship orders, there has to be a medical report showing the parents in question, though sometimes physically fit, are mentally unsound, hence the need for a guardian.

Trouble comes when children fail to agree among themselves who can be the guardian, or when the family is polygamous, as objection is bound to be raised, Thongori says.

In such a case, she said, the parent who is suffering mental disorder becomes what in law is known as a ward, and the court has to act in their best interest to ensure that the person receives care and his or her estate is not wasted.


To solve the trouble that comes with seeking guardianship order, there is a deliberate move towards writing what is called a living will.

Thongori says this is arising from precedent decisions from different Commonwealth jurisdictions.

A living will is where a parent, while in good physical and mental health, draws a will and states who should be the guardian should he or she suffer any mental disorder in future.

The advantage of having a living will is first, you as a parent decide who is best suited to take care of you and your wealth. Secondly, it saves the family from unending legal battles, which sometimes lead to bad blood.

In such case which was determined on May 31 last year, a man sought to be appointed guardian to manage the estate of his father.

The father is elderly, his age being stated as 96 years, and sickly, which has rendered him incapable of taking care of himself and his personal affairs.

Medical reports tabled in court indicate that the patient has been receiving treatment over several years for hypertension with bronchospasm and prostate cancer.

As a result of the illness, his advanced age and the advanced stage of the prostate cancer, the patient’s memory has been affected, and he now has episodic confusion and memory lapse. The old man is not mentally and physically able to transact any business.

Judge William Musyoka agreed with the man and granted him guardianship order.

“I am satisfied from the material before me that the patient is no longer able to manage himself and his affairs on account of mental disorder arising from the conditions that are documented in the medical report by Dr Omondi that I have referred to above,” the judge said.

“I am also satisfied that a case has been made out for the appointment of the petitioner, as manager of the estate of the patient, who I have found to be suffering from mental disorder, and to act too as his guardian.”


In another case determined in 2017, two children filed seeking orders for guardianship and powers to access bank account to pay their mother’s medical bills.

Their mother had been unwell since April 2017 and was receiving treatment for cancer of the oesophagus.

At the initial stage of her hospitalisation in May 2017, the patient was able to independently transfer money to her daughter’s account to be used for meeting her medical expenses and incidentals.

However, doctors confirmed that as a result of her illness, the patient is no longer able to make any decision regarding her affairs, or to sign any documents.

She required travel to India for specialised treatment and further care. It is estimated that the total cost of her care both at the Nairobi Hospital and in India will be Sh9,000,000 for an initial period of eight weeks.

Judge Rose Ougo granted the two powers of guardianship.

In another case, two siblings sought to be given powers to manage their mother’s estate, saying she is suffering from dementia and was not in a position to care for herself.

The two children lived and worked in Nairobi, whereas their mother lived in Murang’a. The woman has five children.

The two siblings told the court their other siblings have consented to them being appointed managers of their mother’s estate, but the judge noted that there was no consent tabled before her.

Though they also said their father died, they did not provide date of death, and the death certificate they tabled in court was illegible.


Judge Farah Amin, who heard the matter, had this to say: “The applicants appear to be making an application for an order for management of the subject’s property and guardianship over her. However, the powers they seek includes the power to sell her assets, without providing any proposals at all about where she will live and continue to be cared for. “

The judge faulted the two children for not producing their mother before court for an inquiry into her status, or making any suggestion as to how the court could see her.

“The application is not even filed in the same county as her residence. The court is then presented with a document that purports to be a medical report. The document has been photocopied in a way that obliterates part of the text of the notepaper. It is addressed ‘To whom it may concern’,” judge Amin said.

“In the circumstances, it is unclear if the author knows or intends it to be used in court proceedings. The author did not attend to introduce it into evidence and therefore its contents are not evidence that is properly before the court. In any event, its content is singularly lacking in any detail that could be of any assistance to the court in conducting an inquiry.”

She declined to give the two children powers of a guardian over their mother and her estate, saying they are only interested in the property.

“Those statements demonstrate very clearly that what concerns the applicants most is their management of the assets of the subject and not the care and maintenance of the subject,” she said.

“In the circumstances, the applicants have placed before the court a scenario where their own interests are at odds with the interests of the subject. In the circumstances, they have failed to demonstrate to the court that they are fit and proper people to manage their mother's assets were she to be in a situation to need them to do so.”

Another such case is one where a father was diagnosed with chronic schizophrenia.

A doctor’s report tabled in court in April 2015 showed that the man suffered a relapse and wandered away from home. He lost interest in himself and his duties, social withdrawal and depression.

He was thereafter seen and recommended to stay off duty at home for one month and on treatment.

And judge W Muigai granted one of the children the powers to manage the father and his estate.

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