Married women and men have equal rights to acquire, administer, hold, control, use, and dispose of property, whether movable or immovable.
My spouse of 20 years passed on a few months ago. We met as a family to read her will, and to my shock, she left all her properties and investments to our children. Do I have legal grounds to challenge this will?
Article 22 of the Constitution states that each person in this country holds the right and prerogative to challenge anything that sounds, creates, upholds, promotes, protects, supports, or reinforces injustice in whatever form and order.
It reads that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or even threatened. It strengthens provisions of Article 20, that awards each person right to enjoy all their rights and freedoms.
Therefore, legal grounds are plenty for you to seek redress of the current impasse regarding the estate of your late spouse. However, a few questions may arise that may require answers not provided in your text.
Does the term spouse connote and address itself to the legal definition of marriage as regarded by the Marriage Act that operationalizes Article 45 of the Constitution? As described in Clause (1), the family is viewed as the natural and fundamental unit of society and the necessary basis of social order and shall enjoy the recognition and protection of the state. In our context, this sets the first stage of allowing you to cause doubt and interrogate whether your union qualified to be family.
The Law of Succession Amendment Act of 2021 provided room for either spouse, whether husband or wife, to lay claim of a dependent to a deceased partner in the context of a marriage.
Clause (2), digs deeper to create the right and definition of the parties to constitute a marriage as adults of the opposite sex commencing and facilitating their staying together on the strength of their consent. If these two factors are a reality, Clause (3) kicks in, offering the entitlement acquired by the parties who proclaim to befit and enliven its definition and character. It states that parties to a marriage are entitled to equal rights at the time of formation, life, and dissolution, if at all.
In summing up the grounds for commencing a redress mechanism, the Law of Succession Act in Sections 5 and 6 provides the tenets that make a will valid. The testator (the writer or originator of the will) must be of sound mind (without insanity as defined in law) at the point of developing it and old enough to be a legal adult, which makes a testamentary capacity.
The testator must also understand the intention of making the will, especially the desire to prevent and reduce the chances of fraud. Similarly, such an originator must not have been coerced to write the will.
To conclude, the court must be reminded that equality rights within the institution of marriage must reflect and adhere to Article 27 Clause (1) and (5) that abhors discrimination of any kind before the law.
Married women and men have equal rights to acquire, administer, hold, control, use, and dispose of property, whether movable or immovable.
The recourse you seek is addressed in the confluence of the Marriage Act, Matrimonial Property Act, Law of Succession Act, and Evidence Act, coupled with precedence-setting family court decisions which separately but mutually address the question of whether any given person should be left out of a will, and so the distribution of a deceased person’s estate.
The Marriage Act may help you define whether you had a Christian, Islamic, Hindu, Civil, or customary marriage. Affirmation to either of these, as provided for and elaborately described in Sections 24 to 49, maybe the foundational ground for which you raise an objection(s) to term the will as incompetent. This is buttressed by Section 3 Paragraph (2) provisions, which entitles the parties in a marriage to equal rights.
However, should you lack and fall outside the limits of this definition and character, the family court, which holds the prerogative of dealing with succession matters, would first seek to establish if your union with the deceased, for which you claim fidelity, qualified as a marriage through the concept of presumption. The Evidence Act in Section 109 gives a court of competent jurisdiction reason to determine whether there was a marriage presented as a fact before admitting it as a ground to disqualify what is considered a valid will.
In furthering your claim, the Law of Succession Amendment Act of 2021 provided room for either spouse, whether husband or wife, to lay claim of a dependent to a deceased partner in the context of a marriage. Therefore, the court establishing your spousal position gives you the locus standi to challenge the will in its form and intention. This may add value if, for instance, part of the Matrimonial property has also been distributed by the said will.
It takes you back to Section 4, which affirms or asserts that married women and men acquire, demonstrate, and share equal rights regarding matrimonial property. It states explicitly that married women and men have equal rights to acquire, administer, hold, control, use, and dispose of property, whether movable or immovable.
