Should You Claim Succession and Inheritance or Not?

When a spouse passes away, there are increasing cases of the families of the deceased swindling the bereaved spouse and children of their inheritance. What a sad state of our society when people care more for what they benefit from the death of their loved ones as opposed to trying to protect the spouse and children of their deceased relative. 

In most cases, single moms and dads experience double pain when the relatives of the deceased spouse push or threaten to sell the properties of their deceased brother or sister (in case of siblings) or of their son or daughter (in case of parents). This is unlawful and you need to rise up and fight for the inheritance of your children. Family In-law can and will take advantage of the situation oftentimes and can leave you at a far worse financial position than you ought to be. It is already tragic that you have to bear the responsibilities of two people alone. You do not need the additional emotional and financial hardships in such situations. 

In their frequently asked questions on succession and inheritance, Transparency International Kenya provides a good summary on this topic. Succession is the right and transmission of the rights and obligations of the deceased to his/her heirs.  The Kenya law of succession prescribes the rules which determine what ought to happen to a person’s estate after his/her death. It is also referred to as the law of inheritance, that is, transmission of property rights from the dead to the living.  The rules of succession identify the beneficiaries entitled to succeed to the deceased’s estate and the extent of the benefits they are to receive. The Kenya law of succession determines the different rights and duties that persons (for example, beneficiaries and creditors) may have in a deceased’s estate. 

The main function of succession is to provide mechanisms for the transmission of property from the deceased to those who survive him/her. It involves identifying the legal/rightful claimants of the deceased’s property; The procedures of which are to be taken by the claimants to enable them acquire the property of the deceased; The tools for dispute resolution are provided to resolve any encounters between persons who claim to be rightful claimants.

The Law of Succession Act Cap 160 provides for persons that can inherit the property of a deceased person under section 29 as dependants which include:  the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;  such of the deceased’s parents, step-parents, grand-parents, grandchildren, stepchildren, 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; and where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

Apart from land, one can inherit Mpesa accounts, shares, bank accounts, sacco savings, pension, life insurance among others.

If your spouse had written a will, then the process is much faster and clear as everything is implemented as per the will – this is called testate succession. However, if your spouse passed on without writing a will, then intestate succession is effected. If you were married you shall be entitled to personal and household effects absolutely. Further, to a life interest in the remaining property of the deceased person. You will also have an interest in property which will terminate upon your death. If you were the wife to the deceased, that interest shall come to an end if you marry another person. Then your children will get the entire estate upon the termination of the life interest. 

If you were not married to the deceased but have children, in such a case, your children will receive the proceeds of the entire estate at age 18.

It’s important for you to note that your in-laws interfering with the property of your deceased spouse (whether you had a great marriage together or not) is referred to as intermeddling. To intermeddle means to interfere wrongly with property, or the conduct of business affairs, officiously or without right or title (Black’s Law Dictionary 6th edition).  In law, the intermeddler has no legal authority or power to transfer ownership of the property of a dead person. This is an illegal transaction that can be reversed and set aside. In order to protect the estate and or the property of the deceased, intermeddling is a crime under Kenyan law.  Section 45 (1) of the act provides that any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine not exceeding Ksh 10, 000 or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

On the other hand, if the said relatives deny you rights to access your inherited or to-be inherited property, and if the property in question is land and there is no case that has been filed in court, you can place a caution/caveat at the Land Registrar’s office so as to prevent further dealing on the land.  For any other property, you can go to court to seek an injunction to stop any transfer, sale, lease or any transaction on the property until the dispute is resolved in court. If a succession matter has already been filed in court, you can institute objection proceedings in court to oppose the application and state the grounds of your objection, which in this case include being excluded from the list of beneficiaries. The matter will be heard first by the Judge handling the case.

If your deceased spouse had more than one wife, in determining the shares by each wife, one will need to determine at what point the marital property was acquired. Property acquired before the second marriage is owned equally by the deceased husband and first wife. Property acquired after the second marriage is considered owned by the deceased husband and both wives (taking into account each wife’s contribution). 

If your spouse passed on with a court case relating to the property, you will need to continue the case. The law provides that within ninety days of death, a notice of death and a copy of the death certificate be filed with the court requesting that a successor to the case be appointed. A failure to do so could result in the case being dismissed. The court will grant you or any other suitable person the power to continue with the case. 

It is important to note that the above information is not legal advice for your specific case or situation, you should seek legal assistance from a qualified lawyer or advocate of the court. The organization Transparency International Kenya has assisted in this area in the past through their Advocacy and Legal Advice Centres in various parts of Kenya. As you go through this painful process of grieving your loved one, know that God promises that He is near to the brokenhearted and saves the crushed in spirit (Psalms 34:18) and that you should fear not, for He is with you; be not dismayed, for He is your God; He will strengthen you, He will help you, He will uphold you with His righteous right hand. Yes it is a time of mourning, but as we reviewed before from Ecclesiastes 3, a time of joy and laughing will surely come. Hang in there and see God’s salvation for you in this season.

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