Naming your child in a Will

By Harold Ayodo

Nairobi, Kenya: A section of readers sent emails inquiring whether they could write Wills in favour of their children following an article in this column last week.

The column indicated that property investors are at liberty to change content and heirs in their Wills severally, as long as they have the mental capacity to do so.

Many readers who sent emails were concerned whether they could name children as heirs.

Take the case of Betty Wambui who says she is a single mother of two with plots in Kitengela and Syokimau. “My children are below the age 12...can I write a Will naming them as my sole heirs?” she asks.

Patricia Mumbi, on the other hand, sought to know how property left in charge of children in Wills can be managed before they become adults. “Many investors die without writing Wills because their children are too young to inherit and manage property,” Mumbi says.

Many other parents assume that children cannot be entrusted with property before they reach 18 years of age. It is for this reason that some children whose parents died intestate (without writing a Will) often spend years in court battling over their share of the inheritance.

Legally, parent(s) can appoint testamentary guardians to take over parental responsibility of their children should they die before the children attain adulthood.

The guardian would not only administer the investments, but ensure the children get their rightful shares after turning 18 years.

The decision to make, change or revoke a Will, gives the investor an opportunity to decide with a sober mind on how the estate would be split among heirs.

Disposal of property

A Will is chiefly concerned with the disposal of property upon death, but can also be used to appoint administrators of the estate or trustees. The document can also issue directions on payment of taxes and other liabilities like debts of the dead person and general administration of the estate.

However, parents who die intestate invite the court to follow the Laws of Succession in splitting investments, which, could be arbitrary and unsuitable.

Making of a Will also enables the parent to make a full disclosure of all the property owned when alive, which is not possible in cases of intestacy.

Failure to make a Will often leaves a lot of property undisclosed, leading to loss of assets.

Furthermore, the investor may have wished to bequeath a portion of his property to non-family members, which cannot be done intestate. Generally, only the next of kin — who are often close family members — are entitled to inherit, but a Will may ensure persons outside the immediate family benefit too.

Consequently, the Will would avoid fights between heirs and survivors over the estate, following the written wishes of the deceased property owner.

There are those who believe writing a Will may curtail their control of investments while alive. Wills only take effect upon death and cannot limit rights of ownership nor confer benefits to anyone as long as the investor is alive.

Furthermore, before death, the document is a mere declaration of intention with no legal effect whatsoever. Wills of parents can also be contested in the High Court like the one that involved the family of the late former Starehe MP Gerishon Kirima.

High Court judge Justice Isaac Lenaola invalidated the Will of the late legislator and ordered that two trustees be appointed to manage his estate. Justice Lenaola ruled that Kirima’s estate would be distributed under intestacy rules.     

— The writer is an advocate of the High Court.