Introduction

Generally, Africans consider contemplating their mortality extremely distasteful and, for some, it borders on taboo. Many of us shun any conversation around ‘death’. Whether we are talking about wills or purchasing insurance products like life and last expense, it is discomfiting to think about preparing for your death. Some common phrases you will hear are “bad omen”, “kuchokoza Mungu”, or “inviting death”. The reality is that death is inevitable! It is unfortunate that many of us ignore this vital aspect of life and fail to plan for this outcome. As we grapple with the effects of the COVID-19 pandemic, we have had to face up to our mortality. Many have sought to put their houses in order, given the sudden and multiple deaths caused by the virus.

Indisputably, death is a very stressful moment for the deceased’s family. The situation is exacerbated when the deceased’s affairs are not in order and beneficiaries contest the estate’s administration. We have all heard stories of in-laws and the deceased’s spouse fighting over property or siblings taking each other to court to determine how to split up their parents’ estate. In some cases, no one knew what the deceased’s estate comprised of, and it reverted to the government or other unscrupulous people.

If a person dies without a will, the intestacy rules apply, and the State determines how to distribute the deceased’s estate. The State will share out the estate between all legally recognized beneficiaries. Unfortunately, by leaving the decision to the State, there’s a likelihood that even the snotty and unworthy beneficiaries may get a share of your hard-earned assets, and people you intended to cater for may be left out. Further, this process takes a bit of time, and your loved ones could be suffering as they await the conclusion of the court process. So why not write a personalized Will documenting your intentions so that your loved ones can benefit and enjoy the fruits of your labour and sacrifice? Undoubtedly, a Will is one of the greatest ‘ gifts’ one can leave for the family at a time of great loss. Save your family from the hassle of going to court to establish their rights to your estate.

What is a Will?

A Will, or Testament, is a legal declaration by a person of her wishes or intentions regarding her property’s disposition after her death, duly made and executed. A maker of a Will is also known as a Testator or Testatrix. A Will may further stipulate, among other things, how the deceased wishes to be buried, as well as any other wishes he/she may want to be fulfilled upon his/her demise.

Which laws govern inheritance in Kenya?

In Kenya, The Law of Succession Act, Chapter 160, is the governing statute that provides substantive laws on succession matters. At the same time, the Probate and Administration Rules Chapter 160 stipulate the procedure to be taken by the legal/rightful beneficiaries to acquire the deceased’s property.

The Family and Probate Division of the High Court of Kenya hears all proceedings relating to the deceased’s estate. It follows the procedures and provisions of the Law of Succession Act concerning the inheritance of property in Kenya. If the Testator is Muslim, then Islamic law is likely to apply, with proceedings before the Kadhi’s Court, which has jurisdiction in such cases.

Conditions of a valid Will

Wills can be oral or written provided an individual has the capacity, that is, has attained the age of majority and is of sound mind. An individual may dispose of all or any of her property by Will referring to any secular or religious law of his own choice. Worth noting is that we make Wills in contemplation of death. Thus, it only takes effect upon the death of the Testator.

The Law of Succession Act also states that a Will ought to be made by free will, with the Testator having full knowledge and approval of all the contents therein. If there is any form of coercion or threat of violence, it negates the Will, rendering it void. A valid Will must have two or more competent witnesses, and a Testator must sign or affix a mark onto the Will.

What is the validity of oral Wills?

Sections 9 and 10 of the Law of Succession Act focus on oral wills. Oral Wills are valid, provided the Testator dies within three months from the Will’s inception date and if it is made before two or more competent witnesses. However, a written will supersedes any oral will. In case of a conflict as to the exact wishes made by the deceased, a competent, independent witness shall be called to prove contents of the evidence given by the witnesses failure to which it invalidates the oral Will.

Where the oral Will is made by a member of the Armed Forces or Merchant Marine during his subsisting service in the Force, such a Will remains in effect whether the Testator dies beyond the stipulated three months. These Wills are also commonly known as privileged Wills.

What are the benefits of having a Will?

1. Decide how to administer your estate in the event of your demise
2. Appoint an Executor of your choice to fulfil your wishes in the Will
3. To avoid rules of intestacy
4. Opportunity to appoint guardians where one is a single parent
5. There’s full disclosure of your list of properties
6. The opportunity to distribute your property to people outside your family
7. To determine your last rites
8. Ultimately, to avoid disputes among the beneficiaries

What happens upon your death?

Testate

Where the deceased left behind a Will, then the Executor reads out the contents to the family members and proceeds to honour the deceased’s wishes. The Executor then proceeds to make an application to court to obtain a grant of probate. once the court issues a confirmation of the grant of probate then the executor has authority to administer the estate of the deceased according to the contents of the will and as per the provisions of the law of succession act.

Intestate

The Law of Succession Act (LSA) deems a person with a valid Will to have died testate and elaborates on the rules to follow if a person dies without a Will (intestacy). Section 36 to 40 of the LSA sets out the intestacy rules to distribute the intestate’s estate in different scenarios. For example,

• Distribution where there is a spouse and children,
• Distribution where there is no spouse, but there are children,
• Distribution where there is a spouse but no children, and,
• Distribution where there is neither a surviving spouse nor children.

The problems of intestacy become evident when there’s a dispute. If there’s no dispute, the family identifies an Administrator who files a Petition with the accompanying documents to the court. A gazette notice is published in the Kenya Gazette for thirty days to that effect to allow any person who feels aggrieved for any reason by the Petition ample time to lodge any objections. If no one raises a complaint within thirty days, then the person who made the application is granted Letters of Administration by the court. With the Letters, the Administrator can only collect and preserve the deceased’s assets but not distribute them. The Administrator can petition the court to confirm the grant of Letters of Administration only six months after the letters are issued. The process of distribution of the deceased estate can then begin.

If there was a dispute, you are likely to have more than one Administrator filing for petitions or numerous claims arising during the thirty days. Protracted conflicts and court cases cause rifts between beneficiaries and result in your intended beneficiaries’ suffering.

To conclude

As scary as it is to contemplate a world where you no longer exist, you need to provide direction on your estate’s distribution. It is such an unpleasant process for your beneficiaries who are already grieving your loss. The wise and loving thing to do is to prepare a Will. It is a relatively easy thing to do, but as with all legal issues, we advise seeking legal assistance to ensure that your document is following the law.