Land feud: There is a strong case for your mother and her sisters

Hello Eric,

My grandfather died nine years ago. After his death, the family agreed to transfer his land to my grandmother. A few years ago, mum and her sisters found out that she had gone to a lawyer and written a Will that didn’t bequeath them anything, instead, she had divided the farm among their brothers. My mum lived with my grandmother until she chased her away. Is it legal for my grandmother to divide the farm to her sons only?

Dear Concerned,

Even though it is clear that your concerns are mirrored within the realm of rightful inheritance, upon the demise of an estate owner, several questions emerge regarding the attendant process leading to an acceptable roadmap of distributing (sharing) such an estate.

It is not clear how your grandfather’s land was transferred to your grandmother’s name without due process. The situation you explain becomes even more confusing, when you indicate that she, with the help of an advocate, wrote a will that excluded your mother and her sisters from claiming their fair share of the inheritance. Something is legally and likely socially not right from that short explanation.

Constitutionally, the law treats all people equally before it. Article 27 (1) provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. On matters of land and property, the provisions of Article 40 of the Constitution indicate that each person has the right, either individually or in association with others, to acquire and own property of any descriptions and in any part of the country.

 Read: Can the owner of a will leave property to only sons and not wife, daughters?

Therefore, based on the aforementioned provisions, it is right to say that your grandmother does not have powers to deny her daughters their rightful inheritance due in the land that belonged to your grandfather.

Having said that, it is important to note that the Law of Succession Act provides for the legally acceptable process of distributing an estate of a deceased person. Such land, which belonged to your grandfather, since he must have died without writing a will, is required to have been first distributed at the point at which the purported transfer to your grandmother happened.

The Law of Succession Act, at Section 29 (1) describes the primary dependents considered rightful accessors to the estate. This category of dependents does not prove that they were being maintained by the deceased immediately prior to their death. Should this grandfather mentioned be the biological father to your mother, then she needed to be part of the original transfer when the land purportedly changed hands to your grandmother.

Read: Dad gave us land verbally, is that legally binding?

The other issue you raise is whether your grandmother’s will which excludes the daughters can be challenged. In reference to the rules of validity, a will can be challenged through a petition seeking revocation and setting aside.

Some of the grounds that the court can take into consideration include fraud or undue influence exercised upon the will writer (testator) by anyone including a beneficiary, instances where it is alleged that the person raising objection, who is legally entitled to the inheritance is inadequately provided for in the will, scenarios when there is failure to include a person who should be under the will, this could be a minor and other children; when the person making the will is deemed not to have been in a state of sound mind at the point of writing the will; in situations where it is alleged that the will was witnessed adequately, putting into question the validity of the signature appended on it; and the presence, emergence or presentation of a codicil (being another written document by the deceased indicating the revocation of the original will).

Read: Is inheritance based on the number of wives or children?

Your grandmother, looking at all the provisions cited in this writing does not have powers, nor hold any rights to deny any of her children their fair share of the property in land. The Constitution has opened the regime of land law and provides for every child to enjoy the property of their parents.

 Importantly, the law discourages gender discrimination, which is one reason that the court will quash the will by your grandmother that disinherits the daughters.

 In the case filed by the Ntutu sons over their father’s estate of Lerionka Ole Ntutu, the High court determined that daughters had a right to inherit their father’s land, citing that the any customary law, including that of the Maa community which offended the Constitution was void to the extent of that particular instance. There is a strong case for your mother and her sisters, since the alternative justice system may not seem the right pathway to take, unless there is guarantee of the rule of law in the proceedings that will be held.

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]