I have a few question on the law of succession; Is it necessary to write a will? What does dying 'testate' and intestate mean? In absence of a valid will, does the property revert to the state? Can a will (enacted in law) be altered viz - a - viz codicil? Please enlighten on the above.
Justice can be a reflection or refraction of truth. It is credited with beautiful outcomes in dispute situations where fairness is highly regarded as the end feeling of the parties.
The construction of justice is to spread opportunities of rewards and risks within the parameters of the accepted law of operation when problems must be solved owing to a misunderstanding.
Such a situation responseslaw may be written or unwritten. Fairness is a relatively fluid concept whose manifestations are highly interpretive. Often, objectivity is blinded by people’s past experiences, upbringing, attitudes and situation-responses besides their world views.
The merit and credit of the Law of Succession are derived from its capacity to ensure that people’s estates upon their demise get to the rightful deserving hands or custody. In particular, the law provides the mechanisms for the transmission of property from the deceased person to the heirs.
In doing so, it determines the legal or rightful claimants of the property of the deceased.
It also spells out the procedures expected of the claimants to enable them to acquire the property of the deceased. Similarly, it opens the parties in the specific succession to instruments of dispute resolution to address any encounters between persons claiming to be the rightful claimants.
Testate is the situation where the property or assets, often referred to as estate is passed on to successors through a will written by the departed. Intestacy as described in Section 34 of the Law of Succession Act is a scenario where the deceased person is deemed to die intestate in respect of all his free property of which he has not made a will capable of taking effect.
This is part of the interpretation section of the Act, where the “will” is defined as the legal declaration by a person of his/her wishes or intentions regarding the disposition of his/her property after his/her death, duly made and executed according to the provisions of Part II, and includes a codicil.
The absence of a valid will is a situation that can be occasioned by two scenarios, of which only one qualifies the path of property reverting to the state. First, is that the deceased had a will that was contestable to the point of being referred to as invalid. Section 11 of the Law of Succession Act provides situations when a written will is considered invalid, while Section 9 addresses itself to the oral will.
Given, such contestations are an indication of heirs, only doubtful of the will. The second scenario is where the person dies intestate, and no one, nor any form of action from the relevant public trustee reveals no existence of possible heirs, as defined in Section 39 (1) of the Law of Succession Act, which probes the availability of the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in the absence of father, mother, brothers, sisters, children of deceased brothers and sisters, including half brothers and sisters in the same context of identifying and assigning a relationship to the deceased.
Section 39 (2) then awards the state an opportunity to devolve such estate to itself. It is stated “...failing survival by any persons mentioned in paragraph (a) to (e) of 39 (1), the net intestate estate shall devolve upon the state and be paid into the Consolidated Fund.
Codicil as described in Section 3 of the Law of Succession Act is the testamentary instrument made in relation to a will, explaining, altering or adding to its dispositions or appointments, and duly made and executed as required by the provisions of the Act for the making and execution of a will.
Section 12 of the Act, asserts that if a testator refers to another document than actually written and expresses any part of his intentions, that document, where it is clearly identified as the document to which a will refers, shall be considered as forming part of the said will or codicil.
The codicil can be used to amend or alter a Will, for as long it can be established that the discovery of its presence had the intention of such amendment or alteration. What must be remembered is that intestate or testate business of any kind is a court-brokered process and no single person, however legitimate they deem themselves to be, has express rights to administer the estate of a deceased person.
Lastly, the law is often facilitative and it is never constructed nor operated to create obstacles that could injure the course of justice irrespective of the world views held by the users. However, this doesn’t mean that the opposite is true.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
