In Kenya, property ownership and inheritance laws are critical for ensuring justice and clarity, especially concerning matrimonial assets. Advocate Frank Oriku provides essential insights into these matters, addressing common questions and scenarios that arise, particularly when a spouse passes away or when disputes occur among family members.

Joint Property Ownership: Formalizing Ownership

Many Kenyan couples jointly purchase land but fail to formalize the ownership legally. According to Oriku, this can lead to future disputes. Under the Matrimonial Property Act, 2013, a property acquired during a marriage is considered matrimonial property, even if it is registered in only one spouse’s name. To avoid legal battles during divorce or after death, both spouses should ensure their names appear on the title deed or have a clear, documented agreement.

Intestate Succession: Dying Without a Will

When a spouse dies without a will (intestate), the Law of Succession Act applies. The surviving spouse and children are the primary beneficiaries. If there are no children, the spouse inherits the entire estate. If children exist, the spouse receives a life interest in the property, allowing them to use it but not sell it without court approval. If there are no surviving spouse or children, the estate is distributed to other relatives in a specified order.

Inheritance for Stepchildren and Extended Family

For individuals wanting to include stepchildren or extended family members in their inheritance plan, Oriku advises creating a legally binding will. The Law of Succession Act allows individuals to bequeath property to anyone, including non-relatives. Without a will, the legal hierarchy for inheritance is followed, potentially excluding intended beneficiaries.

Disinheritance of Widows and Children

Disinheritance of a surviving spouse or children is unlawful. These individuals have the legal right to claim their inheritance under the Law of Succession Act. If unfairly excluded, they can petition the court for a rightful distribution of the estate. Kenyan courts uphold the rights of spouses and children against unlawful disinheritance.

Validity of Wills After Marriage

In Kenya, a will made before a marriage is not automatically revoked by a subsequent marriage, according to the Law of Succession Act (Cap 160). However, if the will was created with that specific marriage in mind, it might be upheld. If the new spouse is not mentioned in the will, they may still have rights under the Act, entitling them to a portion of the estate unless specifically excluded.

Selling Matrimonial Property Without Consent

The Matrimonial Property Act, 2013, requires both spouses to consent before matrimonial property can be sold, charged, or transferred. If one spouse sells property without the other’s knowledge, the transaction can be challenged in court and potentially nullified.

Inheritance for Minors

If a minor is named as a beneficiary in a will, an executor or trustee manages the inheritance until the child reaches 18. The testator should appoint a responsible executor or guardian to ensure the property is protected and used in the child’s best interests.

Steps to Safeguard Property Legally

To safeguard property legally, Oriku advises:

The Best Time to Draft a Will

Oriku recommends drafting a will early and reviewing it periodically to reflect any changes in assets or family dynamics. Engaging a legal professional can help avoid ambiguities and ensure compliance with the law. Wills are a powerful tool for estate planning, ensuring the protection of loved ones and the smooth administration of the estate.

In conclusion, proper estate planning is essential for peace of mind and legal certainty. By staying informed and taking proactive steps, individuals can protect their assets and ensure their loved ones are taken care of according to their wishes.