Courts’ role in succession


By Musyoki Kimanthi

Q: My father passed on last year leaving some money in the bank. My mother has on several occasions tried accessing it to help pay my school fees but the bank won’t release it despite my mother’s explanation of my dad’s death and even producing the death certificate, her identity card and a letter from our chief to prove she is the wife. We are told we have to report the death in court. What is this all about?

Former Embakasi MP David Mwenje’s son and daughter with their lawyer when they moved to court to secure their father’s estate. Courts can grant powers of administration of a deceased property. Photo: Boniface Okendo/Standard

A: One of the human instincts is to acquire property for one’s own sustenance and to satisfy the desire to lead a good life and that of his generation. It is, therefore, a fact of life that when a man dies and he leaves behind some property, however little, that should continue to be used and owned by others. I believe that man instinctively wishes to have some control over his property even after he dies.

Traditionally, each society had its own laws and guidelines on how to deal with the issue of devolution of property from a deceased person to his descendants. In most cases men would share out their deceased father’s land to the exclusion of women.

Today, there is more than just land that can be devolved. For example there are shares in companies or money in bank accounts among others and the institutions where such property is divested are under an obligation to ensure that only the rightful claimants inherit the property of a deceased person. The Law of Succession provides the mechanism and procedure through which such property devolves from its deceased owner to the rightful beneficiaries.

Inheritance procedure

The Law of Succession envisages two scenarios: Testate and intestate succession. Testate succession refers to dealing in and disposing of a person’s property after his death according to his will or testament. Ordinarily, the testator (person who has written a will) appoints a person, referred to as an executor to manage and eventually distribute the testator’s property upon death to the persons entitled to it under the terms of the will.

Although the executor derives his authority to deal with the property of the deceased from the will, such authority must be evidenced by a grant of probate. This refers to the process by which a will is proved genuine and the executors are authorised to dispose off the estate of the deceased person. The court undertakes such process of proving the genuineness of a will.

On the other hand, intestate succession occurs when a person dies without a will. This constitutes the majority of the cases.

Courts’ functions

The rules of intestacy apply in these cases and it also usually involves a court process. Usually the deceased’s immediate family — the spouse and the children — are entitled to accede his property. If these are dead or non-existent, then a consideration is given to relatives such as parents, brothers and sisters, cousins, nephews and nieces among others.

Where no relatives can be traced, the property devolves to the State. The person who is appointed by the court to manage the property of the intestate becomes the administrator and she derives his authority from grant of letters of administration.

To go back to the question, what the bank is doing is to merely fulfil the above legal requirements by advising that the matter ‘be reported in court’.

This is one of the ‘administrative’ functions of the court, quite far from the common man’s understanding of the court as a place of war and disagreements.