You advised us to update our will. I was wondering, can I indicate custody of children in the event of my passing? I have heard horror stories of step-parents, and I would prefer my children to be cared for by my parents or sister in my absence.
Children are the darlings of the law. The law recognises children as among the most vulnerable members of society and provides deliberate protection for them. Your concern about your children’s safety in the event of your passing highlights four critical considerations:
First, it reflects the acceptance that every human life ends at some point, and we cannot control or predict when it will. Second, it underscores the importance of planning for a clean, less stressful estate management process with minimal controversy.
Third, it addresses the well-being of minors in inheritance matters, especially when uncertainty creates genuine fear. Fourth, it raises the question of what relationship would exist between the chosen guardian and the surviving parent of the child, unless both parents are deceased.
Your concern for your child’s well-being reflects a fundamental question: Will their rights be protected after your passing? The Constitution, Kenya’s supreme law, aligns with international legal instruments and, through Articles 2(5) and 2(6), and, in addition to Article 48, mandates that human rights principles be applied to all matters of justice. Child custody is therefore both a human rights issue and a matter of justice, guided by the best-interest principle enshrined in Article 53(2) of the Constitution.
Testamentary Guardianship: Yes, the law allows you to designate a guardian for your child upon your death. This is called testamentary guardianship. Legally, Section 122(1) of the Children’s Act defines a guardian as “a person appointed by will or deed by a parent of a child or by an order of Court to assume parental responsibility over a child on the death of the parent of the child either alone or jointly with the surviving parent of the child in accordance with the provisions of this Act.”
Section 123(1) specifies that upon a parent’s death, the surviving parent automatically remains the guardian, either alone or jointly with another person appointed by the deceased. The appointment of the guardian must not be read as a father’s only role, but that of both parents, since Article 53 Clause 1 paragraph (e) requires both to be equal, even though this may be differentiated responsibilities, and the same applies to their rights over the child. Guardianship is often accompanied by conditions that must be observed at all times.
According to the Law of Succession Act, a will is a legal declaration of a person’s wishes regarding the distribution of their property after death. It must be properly made and executed in accordance with Part II of the Act, and includes any codicils (amendments to the will). While the law allows one to appoint a guardian in a will or deed, the document must be valid to be legally enforceable. An invalid will or deed can be challenged in court by surviving family members. A deed appointing a guardian must include: a clear date: the signature of the appointing parent: signatures of two witnesses who confirm the document is authentic, and the parent’s intention is genuine.
If the guardianship appointment is made through a will, the will must be properly executed and attested to in accordance with Section 11 of the Law of Succession Act. The procedural requirements must be followed precisely.
Both parents can independently appoint guardians. If both parents pass away, the appointed guardians will assume joint responsibility for the children. Guardians are guided by specific provisions in the will or deed.
Three provisions are critical to a well-drafted guardianship appointment: Duration of guardianship: Typically, guardianship continues until the child reaches the age of majority (18 years): Fiduciary duties: The guardian’s responsibilities should be clearly stated and generally include providing the child’s basic needs—food, shelter, education, and healthcare: Estate management: Guardians must manage the child’s share of the estate in an accountable and transparent manner. There are consequences of non-compliance by guardians, including the removal as a guardian.
