Syovata Ndambuki

Is there a single person who does not like the idea of inheriting a free piece of land, an apartment or even a whole mansion? Succession is one of the most emotive issues when it comes to property. Often, when a person dies leaving behind a portfolio of investments, many interested parties emerge. This is why lawmakers are constantly working on tightening succession laws to seal any loopholes. In Kenya the Law of Succession Act was amended in 2021, when the then president Uhuru Kenyatta signed the Law of Succession (Amendment) Bill (2019) into law, introducing a few significant changes. Though the law is very clear when it comes to the succession schedule and procedures, the country still struggles with a myriad of legal issues- such as land fraud stemming from delayed succession, succession cases backlog and murders or crimes related to inheritance wrangles. Perhaps you landed here because you’re wondering what you are supposed to get or who, in your family should get what? Let’s look at what the law says.

Testate vs Intestate Succession

First, we need to understand the two main types of succession. Testate succession is a scenario where the deceased, who is the initial property owner had drafted a will when alive. In this this case, property is normally distributed according to the contents of the will. Courts around the world respect wishes of the dead and whoever is stated as a beneficiary in a will inherits. A will can save a family from unnecessary procedures or succession chaos. In addition, it gives power to the dead as they can leave their wealth to whoever they think deserves it the most. It is not uncommon for famous or wealthy people to leave their wealth to pets or charities, as is within their rights. The beneficiaries or other parties can contest a will in a law court if they are dissatisfied with the will’s contents. Intestate succession applies to cases where the deceased did not leave a will or any other succession tool. Therefore, succession law is used to transfer property to the next beneficiary.

Order of succession

The main beneficiaries in succession as identified by the law (referred to as dependents) include the spouse or spouses, the deceased’s children, parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death. Previously, before the act was amended, former wives were included in the list of dependents, while widowers were required to prove that they were “maintained” by their wives prior to death in order to be counted as dependents. Changes to the law excluded former wives from the list and the words “wife or wives” were changed to “spouse” to cater to all genders.

When it comes to inheriting someone’s property, these dependents cannot, however inherit everything at the same time, as this would complicate succession and possibly lead to conflict. There is a priority order and the spouse or spouses are at the top of the list.

One spouse and children

According to section 35 of the Law of Succession Act, if someone had one surviving spouse and child or children by the time of their death, the spouse is entitled to “the personal and household effects of the deceased absolutely; and a life interest in the whole residue of the net intestate estate”. Residue of the net interstate estate simply means what is left of the deceased’s properties after all debts and liabilities are paid off. Life interest means the surviving spouse will own what they inherit for as long as they are alive.

Once the surviving spouse has inherited the property, they have the power to appoint or gift the deceased’s surviving children a fair portion of the estate, personal or household goods if they so wish. They are however not allowed to create a will distributing what they inherited or appoint properties to be owned in the future. This right only applies to the original owner.

In a scenario where a child of the deceased (including children born outside the marriage) feels like the power of appointment has been used unreasonably or unfairly, they are free to apply to the court seeking a fairer share.

One spouse and no children

In a case where the deceased only had one spouse but no children, succession is a little bit different. The surviving spouse gets all the personal and household effects, but only 20% of the residue of the net intestate. If the deceased did not leave any surviving spouse, his or her property should be shared among all the children equally.

It is important to remember that the term spouse has a legal definition as covered in the Marriage Act (2014). The act outlines different types of marriages recognized by the law and marriages that would be considered void. There are five types of marriages, all of which must be legally registered. Living with someone and having children with them does not qualify as marriage, regardless of the timeframe of that union. Both succession is strongly tied to the marriage act and everyone should familiarize themselves with the laws within that act to avoid unnecessary blunders.

Extended family

The extended family outlined above in the list of dependents can only inherit someone’s property when their are no children or spouse(s) to take over the estate. It could be the deceased had no spouse of children or they have passed on before or after inheriting the property. In any case, members of the extended family may inherit the property, following the legal succession procedure. There is however a order of succession outlined by the law. The deceased’s parents come first in this order but if they are not alive or they die later, siblings and their children come in next. They are blood brothers and sisters and the deceased nephews and nieces. If these are absent, step brothers and step sisters and their children come into the picture, followed by the relatives who are in the nearest degree of consanguinity up to and including the sixth degree. Consanguinity simply means having shared ancestry or kinship and such relatives could be cousins, aunts or uncles. If a property owner is not survived by any know or traceable relatives outlined above, their estate devolves to the state.

Disclaimer: This article does not amount to legal counsel. If you have a succession matter, kindly get in touch with the relevant professionals to provide assistance and guidance.