Family disputes over inheritance are increasingly common, particularly when questions arise over who qualifies as a rightful beneficiary of a deceased person’s estate.
As adoption gains wider acceptance in Kenya as a legitimate path to parenthood, a critical question emerges: can adopted children be disinherited, or do they enjoy equal rights to their parents’ wealth?
Legal experts say that once an adoption is formally completed, the law places adopted children on the same legal footing as biological children in matters of inheritance.
Anitah Masaki, managing partner at Masaki & Omayio Advocates LLP, explains that Kenyan law makes no distinction between the two.
“Under Section 202 of the Children Act, once a child is formally adopted, their biological parents lose all parental rights and responsibilities. These are transferred to the adoptive parents. The effect of an adoption order is that the child is regarded as a biological child of the adoptive parents,” she says.
This status extends to inheritance. “These rights include the right to inherit, as provided under Section 17 of the Act, subject to the Law of Succession Act.”
In practice, this means adopted children are treated in the same way as biological children under Kenyan succession law.
However, complications may arise where an adoption was never legally formalised. In such cases, the child bears the burden of proof.
“For children who have not been legally adopted, the onus is on them to demonstrate, on a balance of probabilities, that they were adopted by the deceased during their lifetime,” Ms Masaki says.
Limits of testamentary freedom
Kenyan law allows individuals to distribute their property as they wish through a will, a principle known as freedom of testation, provided for under Section 5(1) of the Law of Succession Act.
“Section 5(1) gives a testator the freedom to dispose of their property as they wish,” says Ms Masaki.
But this freedom is not absolute. Section 26 of the Act allows dependants who have been inadequately provided for to apply to court for reasonable provision from the estate.
“That provision acts as a safeguard for dependants, including adopted children, who may have been disinherited or insufficiently provided for.”
Excluding an adopted child
While the law permits a parent to exclude an adopted child from a will, certain precautions are necessary to ensure the will remains enforceable.
A testator intending to do so should ensure the child was reasonably provided for during their lifetime.
“This is because courts can only make an order for reasonable provision where they find that a dependant was not adequately provided for during the deceased’s lifetime,” Ms Masaki explains.
Additionally, the will must comply fully with the formal requirements of the Law of Succession Act.
“The testator should clearly state the reasons for excluding the adopted child and outline any gifts made to them during their lifetime.”
Can a will be overturned?
Courts are generally reluctant to interfere with a properly executed will, as doing so may undermine testamentary freedom.
However, a will may be invalidated on grounds such as fraud, coercion, undue influence, or mistake, as provided under Section 7 of the Law of Succession Act.
“If an adopted child can also demonstrate that the testator lacked testamentary capacity at the time of making the will, it may be set aside,” Ms Masaki says.
Where these grounds are absent, the recourse is an application under Section 26 for reasonable provision.
Protection of dependants
Kenyan succession law seeks to balance testamentary freedom with the need to protect dependants.
While Section 5 safeguards a testator’s right to distribute their estate freely, Section 26 empowers courts to intervene where a dependant has not been adequately provided for.
Under Section 29 of the Act, dependants include spouses and children of the deceased, regardless of whether they were being maintained immediately before death.
“Adopted children have the same legal status as biological children and therefore fall within the category of ‘children of the deceased’ under Section 29(a),” Ms Masaki says.
She also cites Section 205 (1) of the Children Act, which affirms that an adopted child inherits from the adoptive parent in the same manner as a biological child.
Unlike other categories of dependants, children, including adopted children, do not need to prove dependency when applying for reasonable provision.
Where there is no will
In cases of intestacy, adopted children are treated no differently from biological children.
“Under Section 205(1) of the Children Act, adopted children inherit in the same manner as biological children. The rules of intestacy under the Law of Succession Act therefore apply equally,” Ms Masaki says.
They may also challenge a will on the same grounds available to other beneficiaries, including lack of testamentary capacity, improper execution, fraud, coercion, undue influence, or mistake.
“Even where a will is valid, an adopted child may still apply for reasonable provision under Section 26 if they believe they were inadequately provided for.”
Does age or relationship matter?
The age at which adoption occurs, or the nature of the relationship prior to adoption, does not affect a child’s legal inheritance rights.
However, when determining applications for reasonable provision under Section 26, courts may consider factors outlined in Section 28. These include the size of the estate, the financial needs of the dependant, any lifetime gifts, the conduct of the dependant, and the circumstances of other beneficiaries.
For parents reviewing their estate plans, Ms Masaki cautions that excluding an adopted child may trigger legal disputes. Ultimately, she advises, adoptive parents should approach estate planning with adopted children in the same way they would with their biological children.
