Resolving property disputes in marriage

By Harold Ayodo

Fighting over property of the deceased amongst relatives and friends before and after burial is a common phenomenon.

In extreme cases, relatives even exchange blows over property when the owner is on his/her death bed.

It is worse if the owner dies intestate; that is without leaving a Will detailing how his/her estate should be shared among the dependants.

Numerous stories have made it to the headlines on how siblings fight over property of their parents after death. Currently, there are cases pending in courts of children fighting over their parents’ property citing old age, senility or insanity.

However, fights over property of someone who dies without leaving a Will are a waste of time. First, anyone who intends to take over management of the estate of the deceased must apply in court for letters of administration.

And in order of preference, the courts often give priority to spouses, adult children of the deceased, other legal beneficiaries, the public trustee or creditors of the deceased.

It is the judges who decide whom to give the letters of administration.

Legally, persons aged less than 18 years, a company or organisation other than the public trustee or more than four persons cannot apply for the letters. For starters, in cases where the owner left a Will, it must be attached to the application seeking letters of administration.

The required forms for application of the letters can be obtained at any court of law or the office of the District Commissioner.

The forms are filled, signed and returned to court where they are stamped and filed at a prescribed fee. Furthermore, an original death certificate and title documents for the immovable property must be attached. Two sureties are required before filing in court.

The forms must be filled with sincerity, all beneficiaries should be named and, where there is a Will, the executor makes the application. In other cases, the application is made in order of legal seniority — the widow or widower, surviving children, father, mother, siblings, cousins, public trustee or creditors.

Furthermore, if there is more than one person who can apply for the letters of administration, he/she must do it with the consent of the other. In instances where there are a number of surviving spouses and adult children, the consent of the children and co-spouses is important.

If the value of the property does not exceed Sh500,000, the forms are submitted at the Magistrate’s Court. If it exceeds this amount, the application must be advertised in the Kenya Gazette. Those objecting the same must do so within 30 days after the notice appears.

The writer is a lawyer and journalist.