My father passed on in 2009. Unfortunately, he died without having written a proper will. Since then, my mother and sisters have ganged up to side-line me on the distribution of dad’s property. In 2011, my mother and I were named administrators of my late father’s estate. However, she claims that the property belongs solely to her. She even attempted to have the letters of administration changed to omit my name. I don’t have the financial muscle to fight her in court. At the moment, I am recovering from a back injury I sustained at work. I fear my vulnerability can lead to me being disinherited. What are my options in handling this issue? Are there lawyers who help people like me?
People find death cruel because it destabilises families and shakes their ways of life. It reduces the number of those we associate, live, and work with. The ones we claim to love.
However, the certainty that death will visit and raid a family is never in doubt, but the unpredictability of the exact moment torments.
While there is nothing good that most people find and see about death, its certainty tends to hasten in us the urgency to put records straight on how to govern property should one depart.
Various disputes and experiences of how people fight over deceased persons' property and consequent, unfortunate results create room for people to treat or look at death as motivation to organise their property to help reduce unnecessary family fights and competition.
Most people who appreciate death tend to prepare a will. Where the will is valid and uncontested, though rarely, the court, upon being moved, allows for the process of probate. This is provided for in the Law of Succession Act.
However, without a valid will, the deceased person's property is handled through intestate estate administration. The intestate estate administration begins with the court being requested through a petition to choose an administrator to oversee the management and distribution of the estate.
Therefore, letters of Administration are court-issued instruments that give a person authority to act as the administrator of a deceased property or estate. Such authority may require an administrator to access and understand the status of a deceased's financial and asset portfolio to draw or design the most efficient and representative use and distribution.
Can letters of Administration be revoked, and if so, what would the ground be? Section 76 of the Law of Succession Act provides several grounds for revoking letters of Administration.
This Section of the law begins by stating that a grant of representation, whether confirmed or not, may be revoked or annulled at any time if the court decides, either on application by an interested party or of its own motion. Subsection (d-i) of Section (76) indicates that a court can annul a grant if the person to whom the grant was made has failed to apply for its confirmation within one year or a period in the lens of the court that continues to threaten justice.
Further, in sub-section (d-ii), the court may revoke the grant because the administrator still needs to proceed diligently with the estate administration. The law additionally provides that the grant can be revoked should the administrator fail to furnish the court with the inventory or account of Administration as is required by Sub-Section 83 (e) and (g).
Lastly, should the court be convinced that other issues or circumstances have emerged that reduce the efficacy of the administrator, including his ability to objectively deliver the assignment attendant to the letters of Administration, an annulment is likely.
Your circumstances are not unique and can be addressed by the court. While it is appreciated that your condition may not allow you the privilege to access and work with a lawyer, either because of inability to afford the fees, or curtailed physical movement, the law and the court may favour an appeal from you.
There are many ways you can seek legal help. The Law Society of Kenya has opportunities through which you can access pro-bono legal services in pursuit of justice.
The National Legal Aid Service (NLAS), through Section 37 of the Legal Aid Act, has a mandate, if approached to help for as long as the civil matter being pursued is not sought by a legal person such as companies, trusts, and civil society institution, and similarly does not concern taxes, recovery of debts, bankruptcy and insolvency proceedings.
There are also legal aid institutions, such as Legal Resources Foundation, Kituo Cha Sheria, and Paralegal Society of Kenya, which, if approached, can link you to some of the lawyers who undertake their pro-bono legal assignments.
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]
