Succession involves the passing or allocation of assets (referred to as estate) belonging to a deceased person to the rightful recipient(s), either through a will or as dictated by legal statute. The field of succession law deals with the legal ramifications arising from the death of an individual on their estate. The way the estate will be devolved (passed on) is contingent upon whether the deceased left a valid will (testate) or not (intestate). The Law of Succession Act (Cap. 160) (LSA) is the statute that regulates both the substantive and procedural aspects of how the estate of a deceased person should be distributed.
The succession arena in Kenya has seen numerous estates become embroiled in disputes, and it is noteworthy that these disputes extend beyond familial circles; third-party claimants frequently assert interests in the deceased’s assets. Consequently, Courts have assumed the responsibility of adjudicating the veracity of such claims and subsequently determining the mode of devolution for the deceased’s estate. In Re Estate of Marete Mbui alias M’’Marete M’Mbui alias Justus Marete [2017], the Court equitably awarded parts of the estate to the deceased’s daughters who were previously locked out from inheriting the estate as it was stipulated only for the sons. It reinforces the notion that a Court will always find a just determination to attain equity in the sharing of the estate property among the rightful beneficiaries.
The manner in which property will be devolved depends on whether the deceased died testate or intestate.
A. Testate Succession
In a testate succession, the deceased dies having made a will as to the manner of the distribution of their estate. The executor or personal representative is tasked with securing a grant of probate to authenticate the validity of the will. This enables the executor or personal representative to administer the deceased’s estate in accordance with its stipulations. Section 5 of the Law of Succession Act (LSA) provides that any person of sound mind, of the age of majority, male or female, married or unmarried, may dispose of their free property as they wish. This is known as testamentary freedom. The general rule is that the will must speak for itself. Therefore, even in challenging a will, the Court can only construe a will, it does not remake them.
B. Intestate Succession
According to Section 34 of the LSA, a person dies intestate if they die without making a will or attempt to make a will, but the will is later invalidated by a court, or the person revokes a will they had made earlier without making a new one. The purpose of the rules of intestacy is to ensure that the deceased’s property is devolved to the person(s) who is likely to use it in the best interests of the deceased’s heirs and dependents. These persons are majorly the spouse, the children and the kindred relatives of the deceased per the order of consanguinity up to the sixth level. For instance, in the case of Rono v Rono [2005] eKLR, the Court considered each case of the dependents on its facts, including the peculiar needs/positions of each child in each house, e.g., a young or yet-to-be-educated child would probably require a greater share than a child who is well settled in life.
Common disputes that arise in estate succession
Estate disputes encompass a broad spectrum of legal conflicts arising from the administration and distribution of assets following the deceased’s death. These disputes often involve intricate legal questions and complex familial dynamics. From contests over the validity of wills to disagreements regarding the interpretation of testamentary provisions, estate disputes can arise from a multitude of sources, each presenting unique challenges for resolution.
The following is a non-exhaustive list of prevalent estate disputes encountered:
- Will Contests: These disputes arise when questions regarding the validity of a will emerge, often concerning allegations of undue influence, lack of mental capacity, fraud, or improper execution. Notably, Section 5(4) of the LSA places the burden of proof on those contesting the testator’s mental capacity.
- Will Interpretation: Ambiguities in the language or terms of a will prompt beneficiaries to seek court intervention for interpretation. This aims to prevent conflicts over estate distribution or fulfillment of specific bequests. The court’s role is limited to construing the will, not altering its contents.
- Breach of Fiduciary Duties: Estate administrators, including executors and trustees, are legally obligated to act in the best interests of beneficiaries. Disputes may arise if beneficiaries allege mismanagement or misappropriation of estate assets.
- Intermeddling with the estate: At times, beneficiaries’ access to estate assets before the court confirms the distribution method specified in the will or agreed upon by all parties may lead to disputes, remediable through court intervention.
- Lack of Creditor Provision: Testators or estate administrators’ failure to account for outstanding debts in the will or during estate distribution may prompt creditors to seek redress, requiring them to substantiate their claims for payment before estate distribution proceeds.
- Deceased Dependents’ Claims: Dependency on the deceased does not automatically confer beneficiary status as per the LSA. Claimants must substantiate their entitlement to the estate. This was established in cases that serve as legal precedents, such as in Re Estate of Joshua Orwa Ojodehh [2014] eKLR.
- Intestate Distribution Disputes: In intestate matters, estate distribution follows provisions outlined in the LSA or agreements among beneficiaries. Conflicts may arise when beneficiaries dispute the allocation of shares, often due to pre-death gifts or purchases. It is worth noting that the division is not always strictly in equal shares.
- Property Ownership Disputes: It is an understood principle that one cannot bequeath (give away) that which one does not own. For example, testators may bequeath properties registered in the name of a company of which they are shareholders instead of bequeathing their shareholding. In such instances, the relevant stakeholders may raise objections.
- Polygamous Family Disputes: Polygamous settings often entail conflicts among family units regarding estate distribution, influenced by factors such as marriage timing, offspring count, and gifts received. Court intervention, guided by relevant legal provisions such as sections 35-40 of the LSA, may be necessary to resolve these disputes.
Advice for owners of the estate on avoiding disputes over their estates.
One sure way of avoiding long winded disputes over your estate is by way of making a will. This is a freedom guaranteed by Section 5 of the LSA, which provides that any person of sound mind and having attained age of majority may dispose of their free property as they wish. However, this testamentary freedom can, in some cases, be limited. A court of law may be forced to interfere in certain cases where the devolution of the estate from a will is repugnant to justice. The courts have averred that it is necessary for a testator to balance their testamentary freedom with the responsibility they bear to their dependents.
Dependents who feel they may not have been adequately provided for in the deceased’s testamentary will can challenge the will in court. This is underpinned by Section 26 of the LSA. In Elizabeth Kamene Ndolo vs George Matata Ndolo (1996) eKLR, the court averred that “…despite the freedom granted under Section 5 of the LSA, this freedom must be exercised judiciously, recognizing that a testator exercising such freedom must bear in mind their responsibilities towards those they were obligated to support during their lifetime…” Therefore, even in exercising your right to make a will, you may not unjustly disinherit your dependents. It is advisable to make reasonable provision for them. However, reasonable provision does not mean equal provision to those excluded or those who were not adequately provided for.
Further, Section 29 of the LSA is clear in its non-discrimination of possible dependents of the deceased. It does not separate between male and female, their marital status and in fact is neutral in its allusion children. This means that the testator cannot lock out dependents based on their gender or marital status or any other reason. In Re The Estate of Lerionka Ole Ntutu [2008] eKLR, the dispute was between Maasai siblings of whom the men contended that the customary law of the tribe did not recognise the rights of daughters. The Court averred that any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied.
Below is a brief guide on how one can avoid such disputes:
- Draft a clear and comprehensive will: Ensure that your will is meticulously drafted, clearly outlining your wishes regarding the distribution of your estate. In the case of making a will, a competent advocate would ensure that the will accurately captures the instructions of the client, the testator has capacity to make the will as well as that the will meets all the requirements of the law. Seek professional, competent legal assistance from advocates such as Njaga & Co. Advocates to ensure all necessary legal formalities are met.
- Regularly update your will: Life circumstances and asset holdings may change over time. Regularly review and update your will to reflect any changes in your assets, family structure, or wishes.
- Communicate openly: Discuss your estate plans with your family members and beneficiaries. Open communication can help manage expectations and reduce the likelihood of misunderstandings or disputes later on.
- Consider using Trusts: Trusts can provide greater flexibility and control over the distribution of assets while also offering privacy and asset protection benefits.
- Appoint competent executors and trustees: Select individuals or professionals who are trustworthy, competent, and capable of fulfilling their fiduciary duties as executors or trustees.
- Consider passing property through gifts: Passing property through succession via inter vivos gift (a gift made during one’s lifetime) is another way to avoid possible disputes. The donor (the person making the gift) must have the legal capacity to give the property and must do so willingly and intentionally. The recipient (the donee) must accept the gift for it to be valid. This acceptance can be explicit or implied, depending on the circumstances. A written document, often called a deed or a gift instrument, should be drafted to clearly state the donor’s intention to gift the property to the recipient. Consult a qualified advocate to ensure compliance.
- Seek Mediation or Alternative Dispute Resolution: Include provisions in your estate plan for mediation or alternative dispute resolution methods to resolve any conflicts that may arise among beneficiaries.
Navigating disputes as the beneficiaries and dependents
Succession disputes are emotionally charged and can be resource-intensive in terms of time, finances, and familial dynamics. Even in the absence of ugly legal disputes among heirs to vindicate their entitlements, testamentary dispositions and succession arrangements can still be burdensome on familial relations. Although heirs may respect the wishes the deceased made in their will, they often experience a sense of deprivation, particularly when lacking comprehension regarding the rationale underlying the testator’s distributive decisions.
The following options can be explored to ensure the beneficiaries and dependents not only secure their rights but do so while maintaining cordial relations:
- Consulting competent advocates: Securing a competent advocate for your succession case is paramount to navigating the complex legal terrain effectively. A competent advocate can meticulously assess your case, identify pertinent issues, and devise a strategic approach tailored to your objectives. Additionally, a competent advocate will ensure that your interests are safeguarded throughout the legal process. At Njaga & Co. Advocates, we will help you navigate the legal system, clarify your rights and responsibilities, and provide you with individualized counsel tailored to your case’s specific circumstances.
- Approaching the Court: It is paramount that through your advocates, you endeavor to approach the Court as early as practically possible to avoid the contested estate either going to ruin or being of benefit to third parties that may not be direct beneficiaries. It is crucial that all parties involved are enjoined in the proceedings before the Court. Issues tend to emerge primarily within intestate succession scenarios, as beneficiaries frequently encounter challenges in reaching a consensus regarding the allocation of the deceased’s estate. However, testate succession encounters similar challenges, as evidenced by the escalating prevalence of successful court challenges against wills in recent times. While successful challenges are not inherently problematic, the heightened frequency raises concerns regarding the extent to which the wishes of the deceased are being upheld. It is worth noting that the measures implemented by courts to mitigate ongoing conflict, even throughout the duration of hearings and pending judgments, most times may yield limited success when family members fail to reach a consensus. Thus, mediation is recommended.
- Embracing mediation: In instances where relationships demonstrate intricate dynamics, emotions manifest strongly, or individuals encounter difficulty in understanding their own interests, it is prudent to engage a neutral third party, such as a mediator, in discussions. Mediation facilitates discussions between the parties to help them reach a mutually acceptable resolution. It can be a more constructive and cost-effective approach compared to going to court. It is often more important to pay attention to the manner of communication than to the substance of the division. It is a good idea to first establish what each individual’s interests are and how the descendants envisage their lives, and then work together to find an appropriate way of sharing. The involvement of a mediator thus serves to facilitate structured dialogue and exert a constructive influence on the discussions pertaining to the distribution of succession assets, thereby maintaining cordial relations even after the estate has been devolved.
- Conversations with affected parties: Succession is a difficult topic, and many people tend to avoid it, but talking about it is important. Effective communication fosters an environment characterized by mutual respect and transparency among all stakeholders potentially impacted by the estate. Consequently, the cultivation of mutual respect serves to uphold the rights of each party involved, thereby resulting in time savings for all parties concerned.
Conclusion
In conclusion, navigating succession issues requires a proactive approach from both testators (the people making wills) and beneficiaries alike. By fostering open communication, clarifying intentions through comprehensive estate planning, and seeking professional guidance, when necessary, individuals can mitigate the likelihood of succession disputes arising. Recognising the nuances of each family’s dynamics and tailoring solutions accordingly is paramount. Ultimately, by prioritizing transparency, mutual respect, and careful consideration of familial relationships, individuals can pave the way for a smoother transition of assets and, most importantly, uphold the integrity of familial ties for generations to come.
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