Can a good neighbour inherit you

Q: What happens in a scenario where a propertied person dies without leaving a will and has no known relatives who can take over his property? I had one such neighbour and I am interested in taking over his land, which is adjacent to mine. I fear it will go to grabbers.

: The law on intestate succession is very elaborate on who should inherit property of a deceased person. The undoubted successors to an estate where there was no valid Will are the spouse and children. But it is also likely that the deceased did not have a family or that his spouse and children had died. In this scenario, Section 39 (1) of the Law of Succession Act, Cap 160 Laws of Kenya provide that where an intestate has left no surviving spouse or children, the estate shall devolve upon the kindred in the following order of priority.

The law clearly stipulates which relatives can inherit a deceased person when one dies before writing a Will. Photo/ Martin Mukangu/ Standard

List of beneficiaries

The first is the father or if dead, the mother or if dead, brothers and sisters and any child or children of the deceased’s brothers and sisters. If none, half-brothers and half-sisters and any child or children of the deceased’s half-brothers and half-sisters, or if none, the relatives who are in the nearest degree of consanguinity up to and including the sixth degree.

With such a wide netting of a deceased’s relatives provided for in law, it is unlikely that there will lack at least one person in that category to lay a claim on the estate.

The intestacy rules are calculated to benefit only those with direct blood link with the intestate apart from spouses. No benefit is conferred upon unmarried partners or parents-in-law or indeed good neighbours. Such people can only benefit where the deceased had made a Will in their favour.

Any person who believes they are entitled to the estate — in this case the good neighbour — and considers that the rules of intestacy do not make reasonable provision for them may make a claim under Section 26 of Succession Act. If convinced, the court may vary the rules to make adequate provision for that person.

Because most properties in the country are not demarcated and registered, when an ‘owner’ dies and no one lays a claim to it, the neighbours annex it and wait for the registration officials to claim it as their own.

But let us assume that the deceased person has no known relatives under the above listed categories and the land in question is registered so that neighbours cannot annex it without having to encounter the difficulties of making it their own. What happens to the land?

Role of the state

Section 39(2) of the Law of Succession Act, states that failing survival by any of the persons mentioned in subsection (1), the net intestate shall devolve upon the State and be paid into the Consolidated Fund. In the absence of blood relatives, the estate passes to the State bona vacantia — for lack of heir — under the doctrine of escheat.

This is a common law doctrine that ensures property is not left in limbo and ownerless. It originally referred to a number of situations where a legal interest in land was destroyed by operation of the law, so that the ownership of the land reverted to the immediate superior feudal lord, in our case, the State.

So can the neighbour take over the land? It is clear there are many considerations to make. Is it likely that there can be no single, (even if very distant) relative of the deceased? Is it confirmed with certainty that there is no valid Will? Is the land registered? Once these questions are answered, he can always make a decision.