Inheritance disputes continue to clog Kenyan courts, tearing families apart and sometimes even result in killings as relatives fight for properties left behind by their departed kin. Cases of freezing of estates worth millions of shillings over differences on sharing criteria are not new.
We dive into steps that beneficiaries should follow to access an estate, considerations in writing a will and outline some of the gray areas that often expose families to untold suffering.
The Law of Succession Act guides inheritance in Kenya and is applicable whether a person dies with a written will or not. After death, beneficiaries don’t automatically access properties left behind, even if they are named in a will.
Beneficiaries should follow these steps after their loved one dies.
- Establish if there is a valid written will, detailing how the estate should be distributed. In its absence, the estate is shared according to the law- starting with spouse, children, parents and siblings in that hierarchy.
- The beneficiaries should apply in court for grant of probate (if a will is available) or grant of letters of administration in its absence to legally deal with the deceased estate.
Without the grant, bank accounts remain frozen, land cannot be transferred and neither can shares and pensions be accessed by the beneficiaries.
- Once an application for grant is filed, the court will then publish a gazette notice for 30 days, allowing anyone with an objection including siblings, spouses or dependants an opportunity to challenge the process. This is where many inheritance battles begin.
- After 6 months, the court confirms the grant and approves who gets what and in what proportions, allowing legal distribution of the properties.
Some of the gray areas that result in family disputes include:
- Leaving assets in another person’s name- it could be a property or even a bank account in the name of a trusted friend, sibling or relative.
After their death, beneficiaries can only benefit if they are able to prove those assets belonged to the deceased which often leads to court battles. Key evidence in such a matter includes documents, witnesses and contribution records.
- Exclusion of dependents without explanation- The beneficiaries are allowed to challenge a will if they financially dependent on the deceased and were not awarded a reasonable provision.
This provision allows parents, siblings living with disabilities or children born outside marriage to claim a share of the estate.
- Vague will- it should be clear, have specific names, properties and shares. Generalizations such as “My family should share equally” or “My wife knows what is the best thing to do” mostly create confusion and attract litigation.
- Lack of witnesses- A will must be signed, witnessed by at least two competent witnesses who should not be beneficiaries.
When writing a will plainly list all the assets, name specific beneficiaries, explain reasons for exclusions if any, appoint a neutral executor, update it after major life events and store it in a safe place.
