In Summary

  • A widow is entitled to her husband’s personal and household effects and can distribute the property among her children, but only if she does not remarry or go back to her parents.
  • Where there is no prenuptial agreement, matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition and shall be divided (not equally) between the spouses.
  • Sharing out property under intestacy can be lengthy and tiresome. In contrast, a will makes it easier for the court to  dispose of the deceased’s assets and avoid problems.

Every once in a while, the public is treated to bitter inheritance battles in the media. This happens mostly because people die intestate (without leaving a will) says advocate Oreko Makori, adding that a will is one of the formal means of estate planning, the other being trusts.

“This leaves your property in a precarious position. In some instances, it gives room for the application of customary law, which is not only susceptible to gross manipulation, but is also sometimes biased against women,” he says.When a person dies intestate, or if his/her will is invalidated, the Law of Succession Act stipulates how his/her property should be shared out.

A widow is entitled to her husband’s personal and household effects and can distribute the property among her children, but only if she does not remarry or go back to her parents. Mr Lei Adams, an advocate, notes that in contrast, a widower does not lose his interest in his wife’s property upon marrying another wife. This is because it is assumed that she will take care of his children, who are deemed to lose if their father dies and  mother remarries.

This is one of the areas in which the law of succession law favours men, but Mr Adams says  the Matrimonial Property Act of 2013, which came into force in January 2014, is a  boon to women  since it gives them the right to acquire, administer, hold, control, use and dispose of property.

“Where there is no prenuptial agreement, matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition and shall be divided (not equally) between the spouses,” says the Act.

Article 45(3) also says that parties  are entitled to equal rights at the time of,  during, and at the dissolution of the marriage.If only the children are left behind, the estate is distributed equally among them. But where there is no surviving spouse, children or other blood relatives, the estate passes on to the State.

“Sharing out property under intestacy can be lengthy and tiresome. In contrast, a will makes it easier for the court to  dispose of the deceased’s assets and avoid problems,” says Mr Makori.

TYPES OF WILLS

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