Why disputes over wills can take long to resolve

For the Umira Kager clan, interring Mr Otieno’s remains in some “urban” land, as his wife Wambui wished, could spell a curse on the community.

The clan moved to court, and the result? A lost quest by Wambui who wished to bury husband’s remains at their Upper Matasia home.

But in mid 2009, the Umira clan lost a similar battle. This time round the courts granted the wife of a former sports administrator, Joshua Okuthe, burial rights that saw his body cremated contrary to the Luo culture.

“Since our brother died, we have not seen his body yet a clique involving a prominent medical practitioner, a lawyer, and a friend were busy arranging for the cremation,” said Willis Ochieng, a brother to the deceased, in protest.

While Mr Okuthe’s wife argued that the deceased had left a will stating his wish to be cremated, the clan dismissed the claims on cultural grounds, arguing that the late Okuthe had established a home as per the Luo traditions, an indication that he wished it to be his final resting place.

Though not a legal requirement, one can state where they wish to be buried in the will so as to avert burial conflicts.

But what happens when an estate owner dies having left no will?

Last week, a heated property dispute among members of a Nairobi-based millionaire came to an unexpected anti-climax.

The millionaire, Gerrishon Kirima, made his last bow in a South Africa hospital after months of illness.

Left behind is a divided family. Simply put, inheritance of the Kirima estate is surrounded by numerous disputes which, hopefully, the courts will find a lasting solution to.

But according to legal practitioners, such disputes are not new in Kenya.

“Cases of disputed inheritance are common especially when prominent people die,” said Amos Kathuri of Kathuri Mugambi & Co Advocates.

Mr Kathuri recalled a long existing inheritance dispute case that he took up midway and presided over to completion in 2002 — after more than two decades of court battles.

“The case started in 1978. I had just started going to school then. I finished my training in law and took it up until 2002 when it was settled,” he said.

Clearly, inheritance disputes can stretch for years. This does not only result in additional expenses for the people involved, but also withdrawal of the right to administration of the deceased’s estate by any of the warring parties.

Succession disputes normally originate from the fact that some estate owners die without leaving behind a will, or having left a will that was unfairly distributed among beneficiaries.

In Kenya, two wills are recognised by law; written and oral. However, in many cases the former is given priority.

“Oral wills, just as written ones, are recognised in at least all Commonwealth countries. However, in many cases oral wills end up as intestate succession since they often fail to prove what the deceased actually said,” said Mr Kathuri.

In Kenya, succession issues are referred to the Succession Act which provides regulations governing administration and distribution of an estate.

“If parents die leaving behind children who have not attained the age of 18 years at least two people, preferably relatives, should apply to be granted permission to administer the estate pending distribution. If all children are above 18 years, a minimum of one such administrator can be allowed,” said Judy Thongori, a family lawyer.

Once the court has cleared the list of beneficiaries, the property is held in trust for children until they attain the age of 18.

During this time, funds for their education and upkeep can be obtained through sale of the property in trust or accessing the deceased’s bank accounts, under authorisation from the courts.

“Parents or guardians should state at least two people to execute administration of their estate in case they die before their children attain mature age,” Ms Thongori said, adding that often parents fail to name such executors because of ignorance which slows down distribution of the property.

In the case of families that lack the capacity to submit applications to court for administration of the property, the state, through the Office of the Public Trustee in the Attorney General’s Chambers, is expected to administer the estate until distribution is effected.

The Succession Act does not discriminate against polygamous marriages.

In such cases, the estate is distributed equally among all households. During distribution, the first priority is given to the spouse.

In the second category are children and those who directly depend on the deceased for their survival.

Where these are absent, a third category of dependants that includes the deceased’s extended family comes in.

It is therefore important that anyone staging a complain clearly identifies the position they fall under in the line of distribution.

Succession disputes can take long to resolve depending on the issues at hand. Where one dies without having written a will, the process could take longer than where a will exists.

In an intestate case, upon receipt of a death certificate, dependants are supposed to make application for an intestate succession witnessed by at least two people having no interest in the estate. This costs averagely Sh5,000.

Next, the application is published in the Kenya Gazette for a period of 30 days upon which any other party with valid interest in the estate can raise a complain. Publishing costs about Sh2,200.

After the lapse of 30 days, settling of the intestate dispute begins.

The process takes a minimum of six months while the same can go on for years, depending on the emerging issues.

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