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As modern relationships evolve and inheritance wars intensify a number are wondering how to leave their estates to those who mattered to them when they were alive
Over the past several months, David Thuku has been stuck in a depressing quagmire. He holds a substantial amount of wealth that he would love to leave to his partner. From the face of it, all he needs to do is hire a lawyer and write a Will declaring his partner as his sole beneficiary.
“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,” David, whose second name we have changed, recently wrote to our sister publication, Parenting.
He was hoping the lawyer can offer him a solution as to how he would go about leaving his property not to his family but to a friend.
It becomes clear why it is difficult for David to leave his wealth to his partner when he discloses that he is a member of the LGBTQ community.
The 50-year-old has a gay partner with whom he has been engaged for six years. As any other ordinary spouse would desire, his wishes are to enlist his gay partner as his ‘spouse’ and sole beneficiary in his legal estate distribution. But with his sexual orientation aggregating as queer and illegal in Kenya, writing a Will declaring his gay lover as his sole beneficiary might very well be hot air.
“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 relative (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,” shared David, while indicating marriage is out of the question for him.
David fears that greed will set in after he departs, and his family will begin plotting to disregard or overturn his will.
David says that his family is unaware of his sexual orientation. But knows they would not stomach the thought of him bequeathing his assets to anyone outside of the family, let alone a caregiver, best friend or gay lover.
“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 will not be a female). I know they will contest the will, and my lover may lose out as he is not a blood relation. What can I do without also transferring the property before my death?” David poses.
As modern relationships continue to evolve the new order has come with diminishing social ties. Today, a number of people are grappling with whether to go with societal expectations and leave their estate to their family, or defy these beliefs by dishing their wealth to those they think are more important to them in life. Apart from same-sex lovers, other beneficiaries could be a caregiver, friend, pet(s), church, trust and charitable foundations.
Sociologist Nathan Gachoka, says families are struggling to reconcile modern cultural and behavioural practices adopted by some of their relatives. “The subsequent action taken by the larger family comes in as a form of defense mechanism aimed at restoring cultural, behavioural and sexual order within the family to preserve continuity,” he says.
His sentiments are echoed by David who confides that his family has forced him to treat his late brothers’ children as his own. “In any other circumstances, this is not a responsibility that I would run away from. But I feel offended that the arrangement is not made out of love, willingness and compassion, but to guarantee that my wealth is retained within the family precinct,” he says.
Gachoka says that this phenomenon is not just restricted to persons in the queer community. “What we are witnessing is a trend where people are making very bold and sometimes radical wealth distribution decisions that are going as far as leaving their family members out,” he says.
Entitled wasteful children
This includes parents who are conflicted on whether to leave their hard-earned wealth to their children or to charity. Florence Wangeci is one of these. She is aged 75 and has a net worth of approximately Sh190 million. This includes prime plots in Naivasha and Nakuru towns, and farms in Narok County. She also has rental properties in Kiambu County where she resides. The mother of two boys laments that her sons will waste everything she has worked so hard for.
“My sons have refused to find jobs or even get married. They have gotten themselves trapped in a web of laziness and alcoholism,” she says. Florence adds that she fears that her sons have brought their lives down on purpose. “They know that I have wealth and I feel like they decided to get lazy as they wait to take over what I have worked so hard to build,” she says.
Florence shares that she has previously tried to set up businesses for her sons but they brought them down. Their behaviour has deteriorated since June 2021 when Florence was diagnosed with third-stage colon cancer.
“They see my death as imminent. It’s like they’re waiting for my death so that they can take over. But I know they will just waste everything,” she says with a lump of bitterness. To protect her wealth, Florence is toying with the idea of donating it to a cancer facility.
“At least this way, I will die knowing that my wealth will not go to waste and will instead benefit millions of patients like me,” she says.
What about other relatives or even grandchildren? “My sons claim they have sired children out there. But I am not interested in finding them,” she says. “I had a sister and brother but they died some years back. And I am not leaving my extended step-family squat,” she declares. She however says that she will leave the house and land where she and her adult sons live to her boys. “Even in the worst of cases, I still want them to have shelter. One day when they come to their senses, they will have a ground to spring up from,” she says. She adds that she might also leave small gifts to her two late siblings’ children.
Her fears are shared by many other parents who are seriously considering leaving their children and family members out of their Will. According to the 2019 Attitudes to Inheritance in Kenya report by financial services firm Enwealth Financial Services Limited, three out of 10 Kenyan parents do not believe that their children will properly manage any property they are bequeathed through a Will.
At the same time, one in six parents do not see the need to leave their wealth to their children. The report also established that one out of three wealthy parents are considering leaving their wealth and assets to others outside the family.
Pets as beneficiaries
In previous years, these unconventional estate distribution decisions have been happening in the Western world. In 2007 for instance, the world went into shock when popular New York hotelier Leona Helmsley’s Will was opened following her death. In the Will, Leona had left over Sh1.1 billion for her Maltese dog. This amount was contested in court and reduced by a judge to Sh207 million, an amount that still made the dog called Trouble the richest dog in the world. Trouble later died in 2012 aged 12.
A couple of years later, in 2015, a mother of four sons made global headlines after she left her sons out of her Will and instead declared that all her wealth amounting to over Sh138 million would go to her pet. Ms. Rose Ann Bolsany said that she was so in love with her dog called Bella Mia that she had decided the dog would inherit everything under her name including jewellery, a trust fund and even a holiday home.
Their influence has spread to a point where ordinary Kenyans are also including their pets in their Will. When pet lover Naomi Mutua spoke to the Saturday Magazine in a previous interview, she revealed that her cats were part of her Will. She had laid out plans for them in the event of her death. “My five cats are part of my Will and I have already identified one of my sisters and my best friend to take care of them after my death,” she said. She also revealed that if she had the wherewithal, she would donate all her wealth to pets. “If I were filthy rich, I would leave all my money to animal welfare institutions,” she said.
Leaving wealth behind in an unconventional way is not where the crux of the matter is. Many of those who want to take this path are afraid that their wishes might not be honoured. “I sometimes wonder if my sons will fight over the Will and how they will react,” says Florence. Her sentiments are echoed by David, who acknowledges that his family will definitely contest his wishes before the courts. “It makes me feel as if I don’t have any power over what I own,” he says.
According to Sheila Sabaya, an Advocate of the High Court who specialises in family law, the person giving the Will who is also known as a Testator has absolute freedom to bequeath absolutely anyone. The only challenge is when he leaves out his legally accepted dependents.
“A dependent is defined under the Act as a wife or wives, former wife or wives, the children of the deceased whether or not maintained by the deceased immediately prior to his death; the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death, in that Order,” Sheila explains.
There are also legal limitations on the circumstances within which wealth can be distributed outside the normal family structure. For instance, in the case of a member of the LGBTQ community who seeks to leave their wealth to their partner, Sheila says that they can only bequeath their property to their partners without calling them spouses.
“This is because the Law of Succession Act defines a spouse to mean husband or wife as defined under the Marriage Act. The Marriage Act then limits husband and wife to those in a voluntary union of an adult man and woman. This means that same-sex partners are locked out from using the term spouse and are precluded from claiming as spouses under the Law of Succession Act,” she says.
In the same breath, people who wish to leave their wealth to their pets should only do so through a trust since their pets have no legal capacity to hold wealth. “They lack legal capacity to own property so an individual or entity can receive and hold inheritance in trust for the pets. Churches, charitable organizations and other entities are also eligible to receive a share of inheritance under this,” says Sheila.
In such instances, you should go beyond the distribution of wealth and state what will happen to allocated property should the pet you’ve left behind die. “Well-written Wills usually state what will happen if a beneficiary predeceases him/her. If not, then the gift will fail,” says Sheila.
When going the unconventional way, it is important to bear in mind the absolute power you will give the beneficiary. “If you give an absolute gift to a beneficiary without putting conditions, then the beneficiary inherits the property absolutely and is free to deal with it however they want and even Will it to their beneficiaries as well,” says Sheila.
Writing a Will does not guarantee that it will not be contested in court. According to Gachoka, the African family setting is such that when one member is well off, their parents and siblings feel entitled to a portion of their wealth.
“The sense of entitlement is partially due to blood relations and partly due to poverty. This also explains why black tax is a common feature in personal budgetary allocations,” he says. “For instance, if one sibling has a net worth of Sh10 million and decides to leave it all to a pet or their church pastor, a contestation in court will be inevitable.”
The chances of a legal contest are more likely where the Will has gone out of the common scope and benefitted pets, organisations or even a secret member of the queer community.
Contesting the Will
According to Sheila, contesting a Will is in two forms. The first is the legitimacy question. Is the will Valid? Was it witnessed as provided for in the Law and did the Testator have requisite testamentary capacity? If yes, then the Will stands and all gifts will be honoured by the court.
Sheila says that the second line of the contest is where legitimate dependents have been left out. In that case, the order of dependents will determine who is a legitimate dependent and who is not.
“An interested party can also contest and prove their dependency by showing the deceased supported them. The court will then make an order that they be provided for, in addition to those in the Will, without taking away gifts bequeathed upon those in the Will,” says Sheila. “It is now settled that dependents need not be related to the deceased by blood or marriage. They only need to prove dependency.”
At the same time, the Will could be a double-edged sword. For instance, whereas you may write a Will, your wishes might be dissolved when rightfully contested in court. In the same vein, contesting a Will on the basis of missing out on the Will alone is not a guarantee that the Will shall be revoked.
“The courts have consistently held that failure to make provision for a dependent by a deceased person in their Will does not necessarily invalidate the Will as the court is empowered under Section 26 of the Law of Succession Act to make reasonable provision for such dependents upon proof,” says Sheila.
How a Will can be revoked
According to Sheila Sabaya, an Advocate of the High Court specialising in family law:
- A Will can fail if it is revoked or declared invalid. Revocation arises when the testator totally destroys the written document or expressly instructs another person to destroy it; prepares a subsequent Will.
- A Will can be declared invalid if it is proved that it was caused by fraud or coercion, or by such importunity as taking away the free agency of the testator, or has been induced by mistake.
Threshold of a Will
Sheila further explains that:
- A Will must be witnessed by at least two adults of sound mind.
- If the Will is Oral, it must be made before two or more competent witnesses; and the testator ought to have died within a period of three months from the date of making the Will. The three months’ duration is not applicable to members of the armed forces or merchant marine during a period of active service.
- Any person who proves a lack of testamentary capacity, or that the Will has failed to meet the formalities as to signature and Witnesses is free to move the Court to have the will invalidated.
- It is only when there is no Will that the court will follow the beneficiaries’ priority list provided under Sections 35 to 40 of the Act which gives priority to spouses and surviving children then blood relatives and relatives by marriage.