Consultant in the Real Estate and Finance Practice Group
DLA Piper Africa
It is often said that “the true measure of any society can be found in how it treats its most vulnerable members”. In Kenya, we have approximately eight million widows, comprising 12 percent of the local population.
Sadly, the country is also ranked among the top 40 nations with the harshest environment for widows. Widows are likely to experience discrimination, violence, exposure to retrogressive cultural practices and are often disenfranchised from inheriting property.
Recognising their plight, the UN passed a resolution to observe June 23 as the International Widow’s Day.
This day highlights discrimination, poverty, and social isolation that many widows endure. It also calls for stronger legal protections and social support systems to ensure that this class can live with dignity and security.
To address the plight of widows in succession matters, it is important to first understand the law on probate.
Succession matters are categorised into two: testate succession (where there exists a valid will) and intestate succession (where a will does not exist). There is merit in ensuring that spouses prepare wills expressly setting out their wishes upon demise.
This protects a widow and the children. Not to do so leaves a lot to chance and deprives those they love and care for in a vulnerable position. It is also crucial for widows to understand what protective steps to take. The first step is to preserve the estate of the deceased from wastage, interference, or theft.
During the lifetime of a partner, it is vital that spouses are aware of the assets and investments each contributes. Disclosure eases identification and prevents wastage. Courts do allow beneficiaries to petition for limited grants to preserve assets pending the conclusion of the succession proceedings.
A limited grant also allows beneficiaries to represent the deceased in any suits filed, and gain access to funds for immediate funeral expenses, medical bills and school fees.
Attending to the estate of a deceased person without express authority from the court is a crime under the law of succession, punishable by a fine or imprisonment.
The overarching principle for widows and beneficiaries is awareness. They need to be aware of the assets and the affairs of the deceased during their lifetime, the beneficiaries to the estate, the succession process in Kenya, available estate planning options and the organisations who can assist them to navigate the succession process.
The role of lawyers is paramount in the process but there are organisations that may assist such as FIDA, CWTOO, Rona Foundation, and Katiba Institute.
The easiest estate planning option is the preparation of a valid will. Under Kenyan law any adult of sound mind can create a valid will.
Wills have the advantage of giving effect to the deceased’s wishes on how their estate should be distributed and hastens the court process.
An alternative is to create a trust in favour of the beneficiaries during one’s lifetime. A trust is a legal arrangement in which the settlor gives fiduciary control of property and assets to another person or institution (trustee) for the benefit of the beneficiaries. Through a trust one can transfer ownership of properties and assets to the beneficiaries while maintaining control.
Nominations are another option, particularly for savings and investments in cooperatives, retirement and provident schemes as well as insurances. The nominator directs who the funds shall be transferred to upon death.
These benefits do not form part of the deceased’s estate. During the nominator’s lifetime, they are free to deal with the funds as they wish but upon demise, these pass onto the widow and the beneficiaries nominated. One rider is to ensure that the nominees are constantly updated to align to changing circumstances.
How spouses hold real estate property also acts as a useful estate planning tool. Survivorship is ideal between spouses where property is held jointly. In the event of the death of a joint owner, the property passes to the surviving joint owner without having to go through the long court process. The property does not form part of the deceased’s estate and can not be distributed through a will.
Gifts to loved ones during one’s lifetime prevents disputes after the death of the donor and aims for certainty. Gifting, however, deny the donor enjoyment of the asset as they relinquish all control over the asset. Although uncommon in the Kenya, gifts are a simple method of transferring assets to heirs during one’s lifetime.
Estate planning is not a solitary activity. It involves several steps undertaken by spouses during their lifetime which ensures that the remaining partner and children do not struggle to access their hard-earned wealth and allows their loved ones to peacefully enjoy their legacy.
“If you're going to live, leave behind a legacy. Make an impact on the world that can never be erased.
Joint article by Amrit Soar, Consultant, Real Estate and Finance Practice Group at DLA Piper Africa, Kenya (IKM Advocates) and Jimmy Ng'arua, a trainee lawyer at DLA Piper Africa (IKM Advocates)
