How do I ensure my family respects my will upon my demise?

Worried man

There is one sure way of addressing the issue of your property should you depart, either with or without a will. The law demands that a valid will meets specific standards, including attestation and execution, besides the testator's (the will's writer) demonstrated capacity. 

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Greetings Wakili,

I enjoy reading your advice on Daily Nation. It is the one piece I read religiously; you will see why below.

Now, I have a unique problem. I am in my early 50s, never married, and do not have any children. As is often the case, with age, we acquire some property over the years, and your extended family one day wakes up to realise it's worth a sizable sum. Then greed sets in, and people begin planning for it even behind your back.

Recently, my family called a group of wazees, and without involving me, they did a ceremony (slaughtered a goat) and then claimed that they had handed over the wife of my late brother to me as a form of customary marriage.

First, I wonder if this has any legal consequences (I suspect not); more importantly, I guess they did this to influence the distribution of my property in the event of my demise.

I want to leave a significant portion of it to my best friend or anyone who will take care of me in my sunset years (and this may not be a female because I am gay). I know they will contest the will, and he may lose out not being a blood relation. What can I do without also transferring the property before my death?

I hope this does not raise religious objections for you and you can advise me and others in my predicament.

Dear reader,

As I consistently mention, inheritance discourse in Kenya is an emotional and disturbing subject, just as it may be elsewhere. There are three things we may seek to contextualise and speak to in this conversation.

First, the readers may wish to understand whether the traditional ceremony your people performed stands for the sense of reason and that of law. Secondly, is whether the law provides for the bequeathment of property to someone who is not necessarily a blood relative or recognised by known family members.

Third is for our readers to appreciate the circumstances which may lead to the disinheritance of any person, who may legally be right to benefit from another's estate upon demise.

Marriage Act, in pursuance to Article 45 (3) of the Constitution, does describe what constitutes marriage as a legal concept and social practice. It states that marriage is a voluntary union recognised in Section Clause (1) of the Marriage Act between a man and a woman who has consented to enter into this arrangement of wife and husband. It is important to underscore the terms voluntary and consent.

It is a willing parties' arrangement that is legitimised by law. The Act in Section 6, clause (1) at paragraph (c), further recognises the several forms of marriage, particularly the union established under customary law in Kenya. It states, "A marriage may be registered under this Act if it is celebrated in accordance with the customary rites relating to any of the communities in Kenya.

The result of the ceremony carried out by your people, where your sister-in-law allegedly got married to you, does not have any legal backing in this country, whether considered under the legal principles that constitute it or the human reasonableness.

There is one sure way of addressing the issue of your property should you depart, either with or without a will. A will can indeed be contested by anyone in the family who feels aggrieved by its content and sometimes form. The law demands that a valid will meets specific standards, including attestation and execution, besides the testator's (the will's writer) demonstrated capacity. This is provided for in several Sections from 5 to 20 in the Law of Succession Act.

Family Trust

You have in confidence said your significant other is a man. There is an opportunity to establish a Family Trust under the Trustee (Perpetual Succession) Amendment Act by provisions in section 3 (1) of the Trustee (perpetual Succession) Amendment Act. Further in Section 4, clause 3D at paragraph (1). It defines family trust as a trust, whether living or testamentary, partly charitable or non-charitable, registered or incorporated by any person or persons, whether jointly or as an individual, to plan or manage their estate.

Further, in paragraph 2 (a) of the same section, it is provided that such Family trust shall be made in contemplation of other beneficiaries, whether such intended beneficiaries are directly related to the settlor or not, or whether alive or dead. This gives you the first cover you need for your partner. It also protects you from distributing your property before death.

It further offers you a safer landing to be part of the trust as a beneficiary. This is found in Section 3D, paragraph 3, which states that notwithstanding sub-section (2), a family trust shall not be invalid because the Settlor or joint Settlors are also beneficiaries of the trust.

However, there are basics that the Family trust must fulfil for it not to become invalid. It must be formed and operate as a nontrading entity.

In addition, it must also be faithful to its terms, besides being able to identify the beneficiaries for whom it was created. The trust must also not contain terms that are impossible to execute, while the settlor must have established it without coercion.

The beauty of the family trust is that trustees continue to administer it without needing to go to court, as it is the usual succession under the Law of Succession Act. 

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]