Property rights of dependents at inheritance

By Harold Ayodo

Lisa Wamboi wants her two daughters to inherit the property of their father, a petroleum dealer, who provided for them before he died in a road accident in June.

"We were not married as he had a wife with six children. Nonetheless, he also provided for my daughters and I over the past 15 years," Wamboi says.

Although he did not leave a Will, she has legal documents to prove that some of the flats he bought were owned jointly with her.

Wamboi has now moved to the High Court to prove paternity of the children before laying claim to the investments.

"My fear is that the children were born out of wedlock and my suit to demand a share of the property will be dismissed," says Wamboi.

She is also concerned that the man is from a community whose customary law favours sons when it comes to inheritance.

Many wealthy families are divided down the middle battling over properties worth millions of shillings in court after the death of a loved one.

Law Society of Kenya (LSK) vice-chairman James Mwamu says 95 per cent of men and women die intestate — without writing Wills.

"Women and daughters who do not know their property rights are often disinherited or caught up in protracted legal battles," says Mwamu.

The fight over property is worse in polygamous families where the first wife often demands the lion’s share.

Federation of Women Lawyers (Fida) senior counsel, Judith Okal says courts have of late come to the rescue of daughters.

"Children, including daughters born out of wedlock, have rights over property of their father as long as paternity is proved," explains Okal.

She cites a recent ruling where Justice GBM Kariuki trashed a Will where a father left out his daughters in line with Luhya customs.

Kariuki declared as unconstitutional the customary law and practice of excluding women from inheriting their father’s property.

Lady Justice Martha Koome also said in a recent judgment that the role of courts is to give reasonable provisions to dependants left out in Wills.

"A Judge is expected to give reasonable provisions to the dependants after it is shown by way of irrefutable evidence that such persons are left out in the Will," Justice Koome ruled.

Lawyer Cleveland Ayayo says courts have in the past set aside Wills giving mistresses and their children property while leaving out the legal family.

"There are landmark decisions to show that property cannot be disposed off by leaving out family and other dependants," Ayayo says.

Ayayo explains that Wills only take effect after the testator (writer) is dead, arguing the document has several advantages.

"Wills enable the property of the deceased to be distributed according to his wish…it helps avoid fights over property by relatives and dependants," Ayayo says.

A testator must sign the Will in the presence of two witnesses who are not among the beneficiaries. The witnesses must attest that they saw the document being drafted.

Born out of wedlock

Wills can also be oral, which applies mostly to persons in the military who may die in war.

Okal admits that Fida handles several cases of disinherited women and says bodies have been exhumed for DNA tests over property battles.

The Law of Succession Act (LSA) Chapter 160, however, has provisions that even conceived children in the womb have rights to property, says Okal.

She argues that parental responsibility can also be acknowledged by taking care of a child born out of wedlock.

"Children born out of wedlock are dependants as long as the man provided for their upkeep and welcomed them to his home," Okal explains.

Women, however, are not out of the woods yet as Sections 35(1)(b) and 36(1)(c) of the Law of Succession Act remain discriminatory. The controversial sections state that widows lose their interest in matrimonial homes once they remarry. This, however, does not affect the widower.

"Section 32 of the Statute is discriminatory to women with provisions that agricultural land be registered in the names of male relatives," Okal says.

Mwamu concurs with Fida that elbowing co-wives and daughters from the estate of their father is illegal.

"The law not only guarantees several wives and daughters a share in the property but former wives as detailed in Section 29 of the LSA," explains Mwamu.

Letters of administration

Further, children born out of wedlock have a right to the father’s property whether he provided for them in life or not.

Says Okal: "Wives and children in polygamous families must share property according to the number of children per house."

She explains, further that the Law states property of a wife who either dies or re-marries is distributed among her children.

Property battles of people who die intestate start with the management of the property even before inheritance.

"People move to court to apply for letters of administration of the estate. Where the heirs are adults they give consent to those who wish to be administrators," she says.

Letters of administration require information on the heirs, description and value of property, debts of the deceased and a death certificate. The documents are filed in court and Gazetted before a period of 30 days is issued for any objections. Lawyers concur that Wills can be contested in court by aggrieved parties like dependants who were left out.

"A Will can be challenged by rightful beneficiaries that feel the document was not made voluntarily," says Okal.

She says that several Wills are disputed when the author was either drunk, insane, did not list all his property or left out some beneficiaries.

"The Will becomes invalid if challenged successfully in court and the property re-distributed as if there was no will," Okal says.