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

There are different types of wills, namely oral, holographic (written but without witnesses), mutual (by two people, mostly couples, naming each other as the beneficiary) and written wills, he says, adding that anyone above 18 years and of sound mind can have a will.  But the ideal is  a written will  signed by at least witnesses in the presence of the testator (the person making the will),” he notes.

He says that an oral will is enforceable as long as it is made in the presence of two or more competent witnesses, and the maker dies within three months of issuing the instructions.

“The Law of Succession Act says that a will refers to all that a person wishes to happen upon his or her death. However, the contents of a written will prevail when there is a conflict between its contents and the contents of an oral will,” notes Mr Makori. Wills are relatively simple to make because  oral and holographic wills can be made without involving a lawyer. However, Mr Makori points out that it is always safe to involve one to ensure that the will is valid and meets the legal provisions.

There are two conditions a will must meet to be considered valid:The testator must have the capacity to make a will, and the will “must have been made voluntarily without any duress, undue influence or by mistake”. “A legal expert would make your work easier by giving advice on what to do should you wish to change your will, comply with tax considerations and other complex issues to do with estate planning,” says Mr Makori.

While wills cover most assets, items such as community property and life-insurance policy payouts are exempted, as are livestock and crops in predominantly pastoralist areas.

If a person dies intestate in these areas, customary law automatically applies with respect to livestock and agricultural land. Mr Adams says this is because livestock and crops can easily change in quality and quantity.

“For example, if the testator had 10 children and 10 cows which he bequeathed to each child and suddenly an epidemic or drought kills eight cows, how will the beneficiaries divide the remaining two? This poses a big challenge,” he says.

Mr Makori notes that as a result, property owners in these areas have put in place arrangements to ensure the smooth transition of their assets when they die.

“For instance, polygamous men allocate some livestock and land to each wife or the eldest son of each wife, who later divides the them among his brothers. This is to minimise potential disputes over inheritance,” he says.