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Expert Opinions

WHY SUCCESSION CASES SEEM TO NEVER END

The Solution (Pt 2)

In this sequel, I examine different solutions to the Problem succession disputes pose (Number 3 will shock you!) But first, a proper and exhaustive look at The Last Will with its various scenarios to open our minds to the magnitude of the problem.

The Last Will and Testament – Laws & Case Law:

Form & structure of a Will:

In Kenya there is not a prescribed way of having a will. A will may be made either orally or in writing, in a language that is spoken and understood herein(official,national or local).

Validity of a Will:

Increasingly we are witnessing a growing number of wills being challenged, even successfully overturned.

A good reason could be that some of these wills are made in a state of panic, anxiety, anger or impending death hence irrational decisions can be made. The law provides that a will needs to be made by someone of sound disposing mind and memory. In a landmark ruling made by Justice Lydia Achode in the Big Kev succession case, the audio-visual recording that was submitted in court showed that the testator’s ‘health was deteriorating… and that he could not recall his properties with any degree of specificity.’ Coupled with the fact that the recording surpassed the three-month limit given to oral wills, it was dismissed and the earlier written will was upheld.

These wills also can only be valid if the maker of the will has attained legal majority age and is of sound mind, and the will is signed by at least two competent witnesses.

Does this mean then, that no will is better than having one? If the idea of the court filling in your shoes and supposedly dictating your wishes for you sounds like your favourite cup of tea, then sip it away.

Donatio Mortis Causa:

The law provides for other avenues of passing of the estate apart from the will. One of these avenues include the gift of contemplation upon death. The main battle is proving that the deceased(donor) in fact, was anticipating their death through a proximate cause. It could have been a fatal illness, undertaking a medical operation or setting out on a dangerous expedition. In the case of illness, the person is ailing beyond recovery and is near death.

Typically, this gift is declared orally and can be easily returned to the donor if they survive the peril coming their way, hence they are easily revocable.

Creditors & other liabilities:

Death does not discharge the debts of a debtor…

More often than not, wills are particularly silent on debts accrued and liabilities. However the law makes it clear that before an estate is duly distributed, settlement of debts has to occur (see Section 83 of the Succession Act). It is then, in the power of the administrator of the estate to liaise with creditors who have come forward with these debts and come to an agreement as to how the debt can be settled effectively.

Children, grandchildren & other dependents – Order of inheritance:

In testate succession, the maker of the will has the power to list dependents as per their preference and assign priorities where they deem fit. However in intestate succession, a legal formula is prescribed, with priority assigned to the surviving spouse, the children, the parents(father then mother), siblings and their children, half-siblings and then other relations up to the sixth degree in that particular order. 

Other than the surviving spouse, the other dependents have to establish a direct blood link to ascertain their stake in the claim to the estate.

In the absence of dependents, the estate is then passed to the state bona vacantia(in the absence of an heir).

The Concept of Compromise – Prioritizing & Adopting ADR Mechanisms:

The fight over family wealth over a long period of time (to the extent of the parties dying and passing on to other interested parties), fosters an atmosphere of intolerance and hostility amongst family members and while at it, incurs exorbitant legal costs. That, coupled with the technicality and rigidity of the legal process, has pushed many people away from litigation as the main solution to succession disputes. 

In fact, many courts are now encouraging the pursuit of Alternative Dispute Resolution mechanisms such as Mediation, Negotiation and Arbitration in a bid to reduce the caseload. For this discussion, I will focus on mediation, which caters to the emotional needs of the parties as opposed to the strictures of the law.

Mediation gives the parties a platform to communicate and express themselves freely. In the process the true reasons behind the conflict emerge more quickly because their ‘hard stances’ are let down. This is done in absolute confidentiality (away from the public eye) and it empowers the parties to take charge over how the dispute should be settled. A major win is that many relationships which need to function outside the court are still preserved.

The success of ADR mechanisms rides highly on the flexibility of their procedures, use of simpler language as opposed to legalese, affordability as well as saving time. All these are hinged on ADR’s approach of analyzing the issue with a humane touch.

The only problem associated with ADR, and by extension litigation, is the resulting retaliation that accompanies seeking legal redress. Some parties who eventually reach out end up getting further alienated from their families and the community. Some have even reported cases of violence meted upon them.

When ADR is not an option, get all the facts of your case right – Lawyers, Forensic experts & Private Investigators:

  1. A Good Wakili:

“A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence, integrity, and effectiveness of the profession.”

Here are the green flags to look out for when consulting with your lawyer of choice:

Conduct thorough research and analysis that will inform a proper advice while representing you in court,

Keeping you up to date with the current events pertaining the case, while maintaining communication with other parties involved,(opposing counsel, judge, other parties etc)

Ability to interpret the rulings given in an unbiased manner.

  1. Forensic Experts & Investigators:

“Of Course, in such a case, the views of the expert are entitled to be given great weight, after all, the expert’s training and experience will have equipped him or her to draw these inferences from those facts than a lay witness.”

Often at the heart of most succession cases is the contestation of the will, hence a forensic document examiner is brought on board. The main objectives of forensic document examination in these cases are:

To ascertain whether the will is valid or not,

To ascertain whether the signatures used are valid or not,

To identify who produced the will,

To reveal if there are alterations made to the will, and if so, whether they are genuine or not.

Most forensic document examiners use various techniques to establish the above facts, notably handwriting analysis as well as Electrostatic Detection Apparatus analysis for imprints that have been left on underlying pages when the top sheet of paper is written upon.

Sometimes, forensic DNA analysis is required to establish the biological relationship between the deceased(if samples can be obtained) and the dependent. Other times, private investigators are invoked to determine the extent to which dependency existed i.e. the nature of the relationship and conduct between the deceased and the dependent.

The findings obtained are compiled into a forensic/investigative report whose results bear a huge bearing to the determination of the case.

3. Putting our Houses in Order- The Place of Personal Initiative:

We do not like talking about our estates in an open transparent manner with our loved ones. We are mostly afraid that if we have that conversation, we wish for death upon our loved ones, so we would rather choose silence. This hiding culture coupled with an absence of a will (or if present, a not so detailed one that is verified) and unethical executors of the estate provide the perfect recipe for an undetected inheritance theft. 

To save your family undue stress that comes with succession, here are pro tips you would consider:

Financial Transparency: – Have an open discussion with your loved ones concerning your assets. You can take an inventory of your personal assets and liabilities and share with the people who matter to avoid such assets going back to the state if they go unclaimed.

Keep all your important documents in safe custody and in order. Also, you can document passwords used for your accounts and phone to allow access on a need basis after your death.

Have a well-drafted will. Do not leave out rightful dependents based on gender and origin (out of wedlock) or personal bias for it can be successfully challenged in court. Equally, review the will from time to time.

Consult a legal practitioner who can advise on validity (especially on oral wills) where possible. If you can afford a lawyer to draft the will, that would be even better.

Depending on the size of the estate, appoint more than one executor to manage the estate, with one of them being a non-family member. Two heads are better than one, they said.

You can consider operating a joint bank account with a family member. This will greatly help in accessing funds while undergoing the probate process (whether contested or not).

1 Comments
    • Kennedy Kinyua
      Sep 24, 2021 at 7:50 AM / Reply

      This is very informative Brenda. It’s a good practice when family members discuss about assets and liabilities over dinner. Secondly, involving a legal practitioner in drafting a will saves the beneficiaries the hustle if going to settle disputes after the death if their caregiver.

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