By Victor Orandi

On 17th November 2021, the President assented to the Law of Succession (Amendment) Bill, 2019 (the “Act”). The Act sought to streamline the administration of succession matters in Kenya by redefining who can inherit the deceased’s person’s property. 

Introduction

A person’s ownership of property ceases upon his/her (“his”) death. However, the property shall pass to either his heirs or the state, depending on the circumstances. To ensure the former suffices, the property owner shall draft a Will before his demise. 

A Will communicates a person’s last wishes concerning his assets and dependents upon his death. The Will outlines how the person’s property will be distributed after his death, identifying who shall manage the property, including his financial interests, until its final distribution. 

Under his Will, the deceased may wish the property be held in trust for his dependants or distributed to his family, a group, or donated to charity. However, in the absence of a Will, the deceased spouse and children (if any) or next of Kin, i.e. Father, will inherit the property.

However, in some circumstances, a dependant may petition the court if he/she believes that the deceased under his Will did not make reasonable provision for him/her. The court may order that such reasonable provision be made for that dependant out of the deceased’s net estate. Such dependants included the former wife or wives and children of the deceased.

The new developments

Who can inherit the property of the deceased?

The Law of Succession Act, CAP 160 (“Principal Act”) provided for persons that can inherit the deceased’s person’s property under the definition of the word dependant. The Principal Act defined a dependant as;

1. the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately before his death;
2. the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately before his death;
3. Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

However, the Act has redefined the meaning of the word dependant to ‘lock-out’ former wife or wives of the deceased. The meaning of former wife/wives includes divorced wife/wives during the lifetime of the deceased. In this regard, a person cannot inherit the deceased’s property, as a spouse, if such person divorced the deceased or such marriage came to an end by such other valid means during the deceased’s lifetime. 

Therefore, to be considered a spouse, eligible to inherit the deceased property, evidence of marriage ought to be established that pre-existed immediately before the person’s death. Such evidence can be by way of a valid marriage certificate. 

The amendment, however, acknowledged children sired by the deceased, regardless of whether or not they were maintained by the deceased, immediately before his death. Such children can raise a claim on the deceased’s property.

Other persons who are recognized as dependants, eligible to inherit the property of the deceased, are the;

1. deceased’s parents, step-parents, grandparents;
2. grandchildren, step-children, children whom the deceased had taken into his family as his own; and
3. brothers, sisters, half-brothers, and half-sisters.

There is a condition precedent that a person claiming dependency, other than a spouse or child(ren) of the deceased, must establish.  It requires that the person claiming dependency must prove that he/she was being maintained by the deceased immediately before his demise.

The Act, however, allows persons not recognized as dependants under the amendment, such as those who were not married to the deceased, to fight for their rights if they feel aggrieved by the decision to lock them out of the deceased’s property. However, they will require to prove that the deceased was maintaining them within the last two years before the deceased’s death.

Conclusion

To formally become law, the Act will have to be gazetted as an Act of Parliament by 24th November 2021. It will come into force after two weeks (14-days) from the date it was gazetted unless the Act stipulates a different date or time at which it will come into force.

The Act seeks to promote the sanctity of the institution of marriage and reorganize family inheritance. Cohabiting partners will not inherit each other’s property in the event one of the partners dies. Inheritance will now be limited to legally married husbands or wives and their children.

Cohabitation refers to an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. It will now be mandatory for one to provide a valid marriage certificate with the deceased before seeking to claim his or her property.

The amendment was further necessitated by the fact that the amended provision under the Law of Succession Act, CAP 160 discriminated against widowers.