When a person dies their property is divided and passed on to their beneficiaries through the process of Succession. This can either be done through a will, or without a will. When property is passed on without a will, this process is referred to as intestate succession. This is the most common form of Succession in Kenya. There are multiple factors and rules that the court takes into consideration in intestate succession to ensure a fair and legal distribution of property to the beneficiaries. These rules are provided for in the Law of Succession Act, (LSA) Cap 160, Laws of Kenya.
Who Is Provided For In Intestate Succession
The laws of intestacy in Kenya only account for the spouse(s) and blood relatives of the deceased person, with the children of the deceased taking precedence over all other blood relatives. Intestacy laws however do not confer any benefits on unmarried partners or parents-in-law. It is important to highlight that all children of the deceased, irrespective of gender and age are considered equal before the law. Children who are adopted with valid adoption certificates and children born out of wedlock are also equally catered for in the Law of Succession.
Kenya allows for both monogamous and polygamous marriages, therefore the rules of intestate succession in Kenya provide guidance for families founded on both of these marriage systems.
Succession In Monogamous Unions
In cases where the deceased leaves behind one surviving spouse and a child or children, the surviving spouse is entitled to the personal and household effects of the deceased absolutely, 20% of the residue of the estate of the deceased and a life interest in the remaining estate. This means that the surviving spouse has the right to use and benefit from the estate of the deceased for the course of their lifetime but ownership does not pass to them, and is instead held in trust for the children. Once the remaining spouse dies, the property passes to the children as beneficiaries. However, this life interest immediately comes to an end if the surviving spouse remarries.
During the continuation of this life interest, the surviving spouse has the power to appoint all or any part of the intestate estate by way of an immediate gift to the surviving child or children. If a child feels that the surviving spouse has unreasonably exercised or withheld the power of appointment, they can apply to the court for the appointment of their share.
Upon receiving such an application, the court considers various factors to assess the validity of the Application. These factors include; the nature and amount of the deceased’s property, the financial means and needs of both the applicant and the surviving spouse, any past gifts from the deceased to the applicant, the conduct of the applicant towards the deceased and surviving spouse, and the circumstances of other beneficiaries in order to make its decision.
In the event of the death or remarriage of the surviving spouse, the residue of the estate ultimately devolves upon the surviving child or children after considering any appointments or court awards.
If the deceased has left behind children but no spouse, the entire estate will go to the surviving child, if there is only one, or will be equally divided among the surviving children.
Succession In Polygamous Families
Section 40 of the LSA makes provisions for succession in polygamous unions. Section 40 provides that when a polygamous person dies, their personal and household belongings and remaining estate of the deceased will be divided among each household. The division will be based on the number of children in each household with each child and each ,surviving spouse counted as a unit in their household.
Like in the monogamous union, the surviving spouses in a polygamous union are entitled to their household share of the personal and household effects of the deceased absolutely, as well as a life interest in the entire residue of the net intestate estate which ends upon remarriage.
The power to appoint any or all of the estate as an immediate gift to the surviving children applies the same as in monogamous marriages described above. In both monogamous and polygamous families, if a child feels that the power of appointment has been unreasonably exercised or withheld by the surviving spouse, they may apply to the court for the appointment of their share.
The court, in considering such an application, takes into account the same factors highlighted above to make its determination. The court may then decide to award the applicant a share of the capital of the net intestate estate, with or without varying any appointment already made.
Upon the death or remarriage of the surviving spouse, the entire residue of the net intestate estate shall devolve upon the surviving child, if there is only one, or be equally divided among the surviving children.
What Happens When Property Devolves To Minors Or Children Of A Beneficiary Who Predeceased The Intestate?
In both monogamous and polygamous families, if the property of a deceased person devolves to a child or children below the age of 18 years, the property shall be held in equal share for each child. If a child of the deceased who has their own children passes away before the intestate their share of the property shall pass to their children or be held in trust for them until they turn 18.
Conclusion
Intestate succession is a complex matter influenced by a myriad of social and cultural factors that sometimes conflict with established legal principles. The Law of Succession Act Cap 160 provides concrete rules governing intestacy, designed to protect the interests of all rightful beneficiaries and ensure a fair distribution of property. This legal framework prioritizes the rights of spouses and children, offering clear directives for estate distribution and addressing the intricacies of both monogamous and polygamous inheritance to mitigate potential conflicts. Intestacy laws play a crucial role in reconciling the recognized principles of succession with Kenya’s diverse familial and societal dynamics. They play a crucial role in achieving harmony with the constitution of Kenya, 2010.
DATE: June 4, 2024, BY: ANNE GATHIRWA
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke
