Understanding legal aspects can make succession matters easy

Dealing with the estate of a deceased person is an emotive and complex matter, yet persons going through this process are expected to engage with the legal system from a point of understanding of the law and court procedures despite the raw emotions of having lost a loved one.
To help Kenyans understand matters pertaining to inheritance, the Family Division of the High Court of Kenya, under Justice Aggrey Muchelule, has published a booklet which answers frequently asked questions on inheritance.
The booklet, Simplified Resource Tool on Inheritance and Related Family Law Practice in Kenya, gives step-by-step guidelines on the handling of succession cases.

GENERATION
It also focuses on issues such as gender, current legal and policy framework, jurisdiction of courts, procedures and current practice for various court engagements on inheritance and succession matters.
Inheritance is a means of transferring - or excluding from transfer - wealth from one generation to the next. As such, it can have positive or negative effects on family or individual fortunes.
An already complex and emotive process, inheritance is becoming more intricate with emergent forms of property such as intellectual property, digital property and other intangible but high-value assets.
The development of family law and the pluralism of laws in the family sector as a result of the application of religious and customary laws further complicates inheritance processes, often intimidating many court users.
Prolonged family feuds over inheritance are not new in Kenya. Some of these cases could have been executed swiftly and peacefully were there was a will specifying how the property of the deceased should be distributed.

WITNESSES
A Will is a legal expression by a person outlining how they wish to distribute their property after death. It may be oral or written.
An oral Will is valid if it is made in the presence of two or more witnesses.
However, it is only valid for three months from the date it is made. A written Will needs to have been validly signed by the deceased or it has been signed by some other person in the presence of and by the direction of the person who makes the Will, also called testator.
Under Kenyan law, no specific form of a Will is required. You can write your Will on any type of material and it will be considered valid as long as it has your signature and it is duly confirmed by two competent witnesses.
Courts regard a Will as valid irrespective of the material used so long as the Will is clear and legible. The booklet sites one extreme example in the Commonwealth where a court ruled as valid a Will that was written on an eggshell!

SIGNATURE
When it comes to signing the Will, the booklet explains that a thumb print, initials, assumed name, or mark by a rubber stamp with the testator’s name are valid signatures.
A signature need not even consist of a name at all; the words “your loving mother” placed at the end of the document were held to be a valid signature by one court.
Part of a signature may in some cases be sufficient to validate a signature. In one case, when on the point of death, a woman started to sign her normal signature “E. Chalcraft” but after writing “E. Chal”, she became too weak to continue.
It was held that the signature was valid. The signature can also be placed anywhere on the document so long as it is apparent from the position that it was intended to give effect to the Will.
Where a person dies without making a Will, the court has wide discretion in appointing an administrator but is guided by the order of preference of surviving spouse(s) and children, public trustees and even creditors.

DISTRIBUTION
These simplified and standard procedures increase efficiency and at the same time guide members of the and bench and court users in matters regarding succession.
The entire process of executing a Will is clearly laid down -- from filing to the final distribution of the estate, including laid out formats of how the originating court document look like and at what point they are issued.
The booklet also contains a list of cases on inheritance and related family law matters from both local and comparable Commonwealth jurisdictions, besides a bibliography of articles on the law of inheritance, succession and contemporary issues in inheritance.
The best of all is that the booklet and forms can be found on the Judiciary website: judiciary.go.ke
Ms Gichohi is the Assistant Director, Public Affairs and Communication, at the Judiciary. [email protected]