If someone asked you how much money is in your bank account at this very moment, the bet is that the reply will not be automatic or honest or that there would be no reply at all. It is not polite to ask such questions, right?
“We talked about it — but only in passing”
Now, at the risk of sounding too grim for a Saturday, think of what would happen if you died today. Would this amount that you guard so closely automatically pass on to the people you wish to leave it to?
It was a sunny October morning in 2016. Dorcas Wangari was expecting her husband home from a night shift. She was having breakfast when a company van pulled into their driveway. At the door were her husband’s workmates and the company’s nurse. They broke the news the best way they could; her husband had collapsed and efforts to resuscitate him had failed. He was 47 and had had no prior serious health issues. The funeral came and went in a blur. Then reality set in.
Earlier in her career, the now 43-year-old had chosen to take a break from her teaching career to raise their three children, now 20, 16 and six. Fifteen years later, the stay-at-home mom would suddenly be cast into a web of financial uncertainty. “It would have been easier on me if we had spoken candidly about these things,” she says, “If we had said; ‘In the event of death, this is what you should do, this is how much you should expect from this and that place’. But it’s very hard to have a conversation because people are not that open to talk about death.”
What has followed is a long period of confusion and fatigue. “There were just so many things I didn’t know,” she sighs. “First of all, the amount I received is about a third of what I expected. Yet nobody tells you how they do the calculations. You ask questions and they take you round in circles. ” To this day, she is of the idea that the insurance, benefits and service computations don’t add up — yet she feels helpless in the face of bureaucracy and polite vagueness. “In the early months following my husband’s passing, when a lot of the money was still held up, there were times I would get so broke that I would have to borrow money!”
Twenty-five years after her husband’s demise, Dorcas and her sons are unsatisfied with the benefits they received. But without a third party who can navigate these corridors with more muscle, they may never know if their suspicions are founded.
“Give me my papers”
Maria Waruinge’s husband had been in and out of hospital. He passed on in 2011, aged 43. Maria, who was 28 at the time, received his benefits without a glitch. But she hadn’t anticipated the battles that would follow.
It all started when her husband’s mother also passed on two months later. Maria’s mother-in-law had a will registered in 1992. In subsequent years, she had made amendments to the will in writing, but none of the amendments had been registered by the time of her passing. So even though there is documentation showing what had been allotted to her husband, all the assets his mother had given him are still in his mother’s name.
“The property I currently live in had been granted to my husband. We have lived here since 2006. But his mother had never got around to transferring ownership. When he passed on, his family informed me that I should vacate the house because my mother-in-law wanted to move back in. I told them that my mother-in-law should evict me in person. She never came. She passed on shortly after.”
Maria has since discovered that a lot is going on behind her back. “Just this Monday I went to six companies and because I have a dividends’ certificate, I found out that cheques amounting to almost a million shillings have been cashed since 2011. The brokers say there is nothing they can do about it, that I need to pursue legal action. None of them (the administrators) are currently returning my calls. I am left to fight this by myself.”
Maria, who works in the informal sector supplying women accessories, says she and her two children, now 14 and 12, continue to live in a house in limbo. “If I got access to what is ours, life would be easier. I wouldn't struggle to provide basic needs. But it is so frustrating to follow up on the transfers as they corner my every move. Nothing is being done as we agreed. All I want is for his mother’s wishes to be respected.”
Putting your affairs in order — having the talk
I put out a question on a WhatsApp group comprising 255 women, founded as a networking platform for professional women: “Quick question,” I wrote, “how young is young to have a will? Who in this group has drawn one?”
The Unclaimed Financial Assets Authority (UFAA) recently announced that it is holding Sh13 billion in unclaimed assets. The institution claimed that this is because couples conceal their worth from each other or because they reckon they still have time to put their affairs in order. Widows are most affected as they languish in poverty while their spouses’ funds lie idle in banks or the authority.
My question to the group garnered immediate interest. Everyone agreed that ‘no one knows the time and therefore one is never too young to prepare a will’. But had anyone taken a conscious step to put their wishes in writing or had the ‘in-the-event-of-death’ talk with their family? “Gosh,” came a reply, “I have investments I haven’t directly told my spouse about. We don’t ask each other about our assets because both of us have been divorced so we respect each other’s independence. Maybe now though we should make a spreadsheet of what is where.”
Someone else wrote, “I have thought about it. It’s on my to-do list along with other life admin items that are easy to procrastinate. When my dad died, my mother suffered so much trying to get the banks to even let her access the accounts. This made grieving so much worse. I don’t want my family to go through that.”
Further down the chat, a message came in that floored all of us, “I talk with my husband about this often,” she wrote, “we started a Google drive doc where we input our passwords and pins and we are open about our investments. He knows the insurance policies I have and where the documents are. All important documents are in one place and backed up to a Google drive.” Wow! Many of us exclaimed. To which she responded, “Tomorrow is not guaranteed.”
“I am not as organised as her,” someone else said, “but I have a dedicated email that I keep ‘replying to’ and adding instructions and I share with people I trust would settle my affairs. I never like to think of it, but I also don’t like to think that my children would be left in limbo or sent to live with someone I don’t like (face cringe emoji) or would struggle to access life insurance policies or small savings accounts. It’s good to be proactive and hope you never need to use it.” By the end of this discussion, a lawyer on the group had volunteered to organise a meet-up to advise us on the ins and outs of estate planning.
Daniel Yates* gets fired up at the mention of estate planning. A banker with 30 years’ experience, Yates has worked in finance across Europe, Africa and more specifically, in the banking haven of Switzerland. He is now retired and residing in Kenya, where he on occasion, advises some super-wealthy and powerful individuals. “ … you publish my name and I’m dead,” he jokes during our interview. But he is not joking. A Swiss banker’s first code is quite simple, ‘keep your mouth shut’. “Here’s what I’ll tell you on this subject though; a lot of the older tycoons in Kenya either think they are immortal or that their partners would kill them because of a will.”
The point he underscores through the interview is that a will is a private document whose existence, let alone the content, no one has to know. “There is, therefore, no reason not to have one. But in Kenya, it’s almost a cultural taboo. Additionally, I could list people who registered assets worth billions under a third party because of this ‘concealing wealth’ trend. When they died, the third parties, mainly business partners, automatically acquired the assets. Talk about your life’s work going up in smoke!”
Discussing our culture’s reluctance to discuss death, Yates shakes his head and says, “I don’t get it. I wrote my first will when I was 30. As soon as you have a kid and serious assets, write that document! Having money and a family calls for responsibility. What will happen to them if you got hit by a bus?”
How to claim your loved one’s assets after their demise
My relatives want to lay claim and sell my late spouse’s/father’s property. Is this lawful?
This is unlawful. Interfering with the property (or the conduct of affairs) of a deceased person is referred to as Intermeddling. An intermeddler has no legal authority or power to transfer ownership of the property of a dead person. This is a transaction that can be reversed. Any person found guilty is liable to a fine not exceeding Sh10, 000 or to a term of imprisonment not exceeding one year or to both.
What can I do if our relatives deny us the right to inherit our parents/ spouse’s property?
There are three ways to handle this;
If the property in question is land and there is no case that has been filed in court, you can place a caution/caveat at the Land Registrar’s office so as to prevent further dealing on the land.
For any other property, you can go to court to seek for an injunction to stop any transfer, sale, lease or any transaction on the property until the dispute is resolved in court.
If a succession matter has already been filed in court, you can institute objection proceedings in court to oppose the application and state the grounds of your objection, which in this case include being excluded from the list of beneficiaries. You need to file P & A Form 61 in the High Court registry.
How do I start the succession process?
Starting the succession process depends on whether there is a valid will or no valid will.
If valid will exists, you need to file the following documents
Form P.A 78 (petition
Form P & A 3 (affidavit)
The original will plus 2 photocopies of the will &Original death certificate
If no valid will, there are various things that should be considered (guided by the Kenyan Law of Inheritance). This depends on whether there are beneficiaries and the value of the deceased’s property.
For property less than Sh300,000, file the matter in the magistrate court. If more than Sh300,000, file the matter in the high court. You need to file the following documents
A search on the property
A letter from the chief stating the surviving beneficiaries
The death certificate (original)
After obtaining the above documents, the applicant is to file four forms in the court:
One, to identify proposed administrators and at least three witnesses;
Two, to list of the deceased person’s property (shares in a company, money held in account, movable property and immovable property (land), liability);
Three, list of beneficiaries and dependents;
P & A 80 — The main petition that is accompanied by the above stated forms.
The cost of filing the succession petition is three to four thousand. After filing, the petition will be gazetted (at a fee of Sh2700). Thereafter, you wait until it is printed in the gazette (within three months of filing date). Once printed, you will need to have a copy of the gazette notice. You can print or buy it at Sh50. You are then required to attach the gazette notice to an application for a hearing date of the petition.
For the full PDF document, Google search ‘FREQUENTLY ASKED QUESTIONS ON SUCCESSION AND INHERITANCE, Transparency International Kenya