Mum didn’t leave a will, how do we handle inheritance dispute?

Hi,

I’m from a family of five, all grown-ups, all female. My mother passed away during the Covid-19 period and she had no will. She had buildings in Nairobi and land in prime areas. My father is alive, old and has his properties.

How do we share out my mother’s properties? This has brought a lot of wrangles among my sisters and my father. The argument is my father is not necessarily the sole beneficiary of my mother’s properties because she had separate wealth.

Dear reader,

Harriet Beecher-Stowe once said, "The bitterest tears shed over graves are for words left unsaid and deeds undone." Death has never been a welcome visitor amidst society, even when its passing may create some level of rest and, if not, reduce suffering. Covid-19-related complications surprised and scared the people of the world to an almost equal degree. Many families were caught unawares by consequential deaths and injuries. It is, therefore, understandable that your mother passed on without a will, despite having so much property. Let us revisit the Constitution in Article 40, which gives everyone a right in this country to own property in any location, alone or in association with others. Your mother did precisely that.

Further, in Article 45, every party to a marriage has equal rights when the union is living, dying, or dead. For Christians, the wedding adage is often "till death do us part." Your father's right doesn't diminish since the union terminated.

Your father, as indicated, had his properties, yet the daughters find it problematic that he could be part of the inheritance regarding the wife's properties. In this context, we will refer to the Law of Succession Act, Cap 250, the Marriage Act of 2014, and the Matrimonial Property Act of 2013, the laws of Kenya. Your father's right to be part of the inheritance train on the wife's property is first recognised by the Law of Succession Amendment Act of 2021 which amended Section 3 of the original law by inserting the term spouse. This amendment clarifies a spouse as a husband, wife, or wives recognised under the Marriage Act. It recognises wife in plurality because Kenya is not a polyandrous but polygamous society in law and some cultures.

This matter will also be canvassed through the provisions of the Marriage Act, which qualifies your father to have been a husband to the deceased. In section 6, the law recognises several types of marriages registered and practiced in Kenya: Christian, Islamic, Hindu, Customary, and civil. The union whose loins brought forth several children must have been one of these.

Section 6 of the Matrimonial Property Act defines what may constitute marital property, and it states matrimonial means matrimonial home or homes; household goods and effects in the matrimonial home or homes; or any other movable and immovable property jointly owned and acquired during the subsistence of the marriage.

It should be recognised that the Law of Succession Act provides for an inheritance process for people who die intestate, where such reference points to the absence of a will or whose will is invalidated by a credible court process. Section 35 of the Act provides a remedy in such circumstances in Subsection (1) it states Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to— (a) the personal and household effects of the deceased absolutely; and (b) a life interest in the whole residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person. Additionally, Subsection (2) says that a surviving spouse shall, during the continuation of the life interest provided by Subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift-taking immediate effect among the surviving child or children. Still, that power shall not be exercised by will nor in such manner as to take effect at any future date.

However, the intestate process is court driven. The dependants of the deceased person are required to get letters of Administration from the court for them to be able to deal with the property. The letters of Administration cannot distribute the deceased's estate but are to collect and preserve the deceased's assets. Six months after that, the holder of the letters of Administration should petition the court to confirm the grant of letters, giving them authority or powers to distribute the deceased's estate to the bonafide beneficiaries.

If your siblings feel aggrieved by your father's handling of the deceased's property, they have two options. One is to sit with their father and agree on the how and what regarding the property. Two is employing Section 35 Subsection (3), which gives room to them as follows: "Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative, may apply to the court for the appointment of his share, with or without variation of any appointment already made.

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