Hundreds of Kenyans leave millions of shillings to the Government when they die without leaving a will. First, it is taboo in the African setting and, most likely, two out of three people reading this article might not have thought of writing a Will. This has resulted in just a few people taking time to draw up their own Will or seeking the professional services of a lawyer to do this for them.
As a consequence, many cases in the Kenyan courts of law are about a person dying intestate; these cases can take years or decades to close. Not only is that expensive but it also takes a toll on the family, breeds contempt and is a very expensive exercise. The recent court battles over property of the late Gerishon Kirima has sparked interest in several quarters.
Remember too the mixed reaction and consternation that greeted the public and family members after the late Martin Shikuku pronounced that he had
already finalised the planning of his demise prior to his death. In Kenya, like many other Commonwealth countries, the property left behind by a person who dies without a Will is automatically taken over by the State.
The inheritance law in Kenya do not make a Will, even though the law permits. It is of practical importance for any foreigner owning property in Kenya to make a will, because a will makes it is easier for the High Court to deal with the disposal of property, particularly for beneficiaries who may not necessarily live in Kenya.
In the case of dying intestate, all beneficiaries are required to sign consents to the High Court approving the application, but this may be a long and complicated process if many beneficiaries are scattered in different countries. The proceduralrequirements in the High Court are less tedious if a Will is in place. Only the namedexecutors are required to sign the application. A will also avoids any potential conflicts between the beneficiaries. It is relatively simple to make a Will in Kenya.
The testator must sign the Will in the presence of two witnesses, who will in turn attest the testator´s signature. Each of the witnesses must sign the Will in the presence of the testator. A foreigner does not have to be in Kenya to make a Will. It can be done through a lawyer. When an estate is intestate, there are set rules on how it is divided up among surviving relations, if there are any. This means if you die without a Will and have no close family, your assets could be passed to distant relations you’ve never even met.
If no relations are found, the estate is declared bona vacantia. All such problems are easily avoided by writing a Will, which allows you to leave your assets to whomever or whatever (such as charities) you like. Only married or civil partners and some other close relatives can inherit under the rules of intestacy. However, millions of people don’t have Wills, never considering the consequences of their actions on the family members and friends who survive them.
Fortunately, getting a Will in place doesn’t have to be complicated; even a simple Will is enough to express your intent for who should receive your assets after your death. Moreover, if you have minor children, Wills allow you to name a guardian for them that will avoid any uncertainty about who you want to care for them if something happens to you. At the same time you get your will done, you should also consider some other valuable estate planning documents.
Living wills and health-care proxies can give doctors and family members more guidance on how you want your medical care handled if you’re incapacitated, while a durable power of attorney allows a trusted person to handle your finances when you can’t. Writing a Will is particularly important if you cohabit outside marriage or a civil partnership, as if you die intestate your estate could go to relatives rather than your bereaved partner.
Most people assume their property, savings and other assets Will automatically go to their nearest and dearest, but they couldn’t be more wrong, says lawyer Eric Adede. “If you die intestate – without a Will – your assets Will be distributed under strict rules laid down by the Government, regardless of your personal wishes.” He cautions that if you’re not married to your partner, you really need to write a Will. “In the eyes of the law, cohabiting couples simply don’t have the same rights as married couples or civil partners, even if they have children together.
Your partner may get nothing at all, no matter how long you have lived together, aside from a share of any assets held in joint names,” warns Mr Adebe. Increasingly complicated families created by second marriages or new relationships mean writing a Will is essential. But you need to get it right as a wrongly worded Will can cause more trouble than it’s worth – and result in a big legal bill to your estate for putting it right. The law firm of Adede and Company Advocates in the city has just opened a department just dealing with Will disputes.
Its workload has increased noticeably over recent years as there has been a particular rise in claims relating to illegitimate children.What happens in many of these cases is that an illegitimate child is not known to the rest of the family. But when the father dies, his Will simply states that everything is left to his children – and that means the “secret” offspring have a claim.
As well as deciding who is going to get your cash, there are other choices one needs to consider before sitting to down to write a Will. “You will have to appointexecutors, typically family member and/or friends, to sort out your affairs after you die. They will need to be named in the Will. Once written, you need to keep your Will safe and secure,” says Adede.
Mr Ambrose Weda, a Wills dispute expert, says the law is simple. If a will says that “I want to leave it to my children” then that means anyone who can prove parenthood will have a claim on the estate. A properly drawn testament will name those who are to inherit rather than be so general. In this way the parent could choose which of his offspring from either side of the blanket inherit.
Another city advocate, Mr Ambrose Rachier says that if the children are named specifically then even if there are other siblings who are not named in the Will their chance of receiving a share of the estate is “slim”. “Such disputes are some of the most bitter we deal with and emotions always run high,” says Mr Rachier. Another growth area in Will disputes centres on second marriages – which is not surprising, given that 40 percent of Kenyan weddings are not between first-timers.
Often when a man remarries he writes his Will in such a way that his new wife can remain in the family home as long as she lives but when she dies, the property goes to his children from previous marriages. However, the wife may find that she is stuck in a huge house with insufficient income to support herself and no way of releasing any cash. This happened recently in Nairobi, where the much younger South American widow of a “well-known media personality” was left a life trust in the Sh25m home they shared. But she had no cash to live on and ended up in dispute with her stepchildren.
They went to mediation and negotiation rather than drag the case through the courts and the wife agreed a settlement of 36 percent of the estate which included the house. The continuing marriage breakdowns, cohabitations and second marriages have also meant Wills are more likely to be contested. There have been cases of families contesting Wills when the deceased has left their estate to charity, but little or nothing to their relations. Charities too, have felt the chill wind of recession on their income and will often fight through the courts to protect their share of legacies.