Most of the succession battles pending in courts arise out of intestacy. FILE PHOTO | NMG
Whenever a prominent Kenyan dies, especially if he was rich, his immediate family suffers a double portion of grief.
In
the first instance, because of the loss of the family patriarch and
provider but more poignantly, the fear of the unwelcome but almost
certain emergence from the woodworks of a swarm of claimants seeking a
share of the estate.
Some of us are so steeped in
superstition that we believe writing a will is like taunting death.
Unfortunately, by failing to plan, we leave our immediate families with a
myriad of problems that deny them the chance to enjoy the fruits of our
labour.
Intestacy is the legal term for the situation
that arises when one dies without leaving a will. Intestacy may also
occur where a person made a will, which is later invalidated by the
court or he revoked the will but died before replacing it.
One
may also die partially testate and partially intestate. This happens
where a person’s will covers some but not all of his assets, for
example, those situated abroad where for legal reasons a Kenyan will may
not take effect.
It can also arise where the will
lacks the omnibus clause ‘all the assets of which I die possessed,
wherever situate, anywhere in the world’ to cover property acquired
subsequent to the date of the will. In both cases, the assets falling
outside the scope of the will are dealt with as if the owner died
intestate.
When one dies intestate, the Law of
Succession Act dictates how his property is to be distributed amongst
his descendants including those who may be unknown to the immediate
family.
The law is clear that all the children of the deceased, whether
male or female, legitimate or illegitimate, regardless of age, are
entitled to a share of his estate.
In this context,
marriage is irrelevant. Indeed, contrary to common misconception, the
beneficiary does not even need to be the biological child of the
deceased in order to inherit.
Any person acknowledged
by the deceased as his child or dependant during his lifetime, whether
sired by him or not, is entitled to inheritance.
Most
of the succession battles pending in courts arise out of intestacy. The
economic and social impact of succession litigation is huge. Such
litigation paralyses the estate and leads to disintegration of family
relationships.
Usually, while the litigation is
ongoing, all dealings in the estate are suspended to avoid what the Law
of Succession Act calls the offence of ‘intermeddling with the estate of
a deceased person’.
This is the story behind the many
vacant plots and dilapidated buildings on prime locations in our towns
and cities worth billions of shillings which have remained undeveloped
for decades as the families engage in internecine wars over inheritance.
While
estate planning does not guarantee the absence of family feuds over
inheritance, it can, if done well, significantly reduce the possibility
of their occurrence, foster harmony in the family, preserve the estate
and unlock the value of the assets left behind.
The key
to achieving stability in estate management is to ensure that everyone
who by law is entitled to inherit, whether known or unknown to the
immediate family, is adequately provided for.
Section
26 of the Succession Act empowers any dependant who has not been
provided for in the distribution of an estate to challenge such
distribution in court. Many wills have been invalidated by the courts on
this ground.
It should, however, be noted that adequate provision does not mean an equal share of the estate among all beneficiaries.
There
is no such requirement under the law and courts have affirmed that
children who maintain a good relationship with their parents are
justified to receive a greater share of the inheritance than those who
do not.
Estate planning is broader than merely having
or not having a will. It is a complex legal process which, in certain
cases involves the expertise of various professionals such as lawyers,
accountants, investment advisers, actuaries and even counsellors
depending on the complexity of one’s personal life and the vastness of
the estate.
Various legal instruments have been devised
over the centuries to help in estate planning. The will is the best
known although it is not the only one.
The Law of
Succession Act confers upon any person of sound mind aged at least 18 to
dispose of his property by will as he deems fit, subject only to making
a reasonable provision for his dependants.
One is thus free to dispose of property to any person, cause or charity as one wishes.
Trusts
are another vehicle used in estate planning. Provided that the trust is
well set up, the property transferred to it is automatically removed
from the estate and can only be distributed to the beneficiaries named
in the Trust Deed.
Unfortunately, trusts are not very well understood in Kenya and the law on the subject is largely undeveloped.
Hopefully,
the courts will seize the opportunity presented by the case of Albert
Kigera Karume and two others versus the trustees of the Njenga Karume
Trust and five others (2015) to definitively pronounce the efficacy and
legal effect of trusts as viable instruments of estate planning in
Kenya. Suffice to say that this is a very effective tool of estate
planning, especially in the UK where Kenya has derived most of her laws.
Transfer
of property inter-vivos (during one’s lifetime) is another mechanism
for estate planning. This may sound like free legal advice to those with
dependants who, for any number of reasons, may not be named in a will.
The
downside, however, is that the process is irreversible and may lead to
regrets if the beneficiary subsequently turns rogue or becomes greedy
and starts demanding more.
In conclusion, the
uncomfortable truth is that as Kenyan law stands today, children,
whether born within or out of wedlock, are an integral part of their
father’s life and cannot be wished away either by him or his immediate
family.
No comments :
Post a Comment