Your stepmother has no right to deny you a share of your father's estate
Whether your father died testate (left behind a will) or intestate (without a will), the law allows you a window of redress.
Hello,
I was raised by my mother. When I finished my Kenya Certificate of Primary Education, my biological father reached out and took me to live with him and also paid for my high school education. I stayed with him and his wife (my stepmother) for one year. I was then taken to my grandmother’s (my father's mother) home in Kisumu to continue my secondary education because my stepmother mistreated me. She has four children aged 28, 26, 19, and 13. My father paid my school fees and catered for other personal needs, which included taking me to college. We had a lovely relationship, which unfortunately was cut short by his death in March 2022. My birth certificate lacks his name, and my stepmother has told me that I’m not entitled to my father's properties.
Advise me.
Collins.
Dear Collins,
Whether the deceased left behind a will or not, the administration that leads to the distribution of their estate is a court-sanctioned process. The court often permits two scenarios; first is allowing the family to follow through with the provisions in a will if its legality not challenged; second, sanctioning the family's agreement on sharing the estate if no beneficiary or beneficiaries have objected to any of the allocations. While the process can be frustrating, and at times traumatising, it is out of your control how your stepmother may choose to behave concerning sharing the property belonging to your late father.
Nonetheless, most people die before they organise the management and distribution of their estate or property. If your dad died intestate, the law has provided the process to identify who the bonafide beneficiaries of his estate could be, legally, such are referred to as dependants. The likelihood that a will exists, which speaks to how and with whom the estate must be shared, is remote to give you hope of a structured solution.
The law prohibits discrimination of every form and from anyone. Article 27 (1) of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Besides the Constitution thriving in its supremacy, the statute referred to is the Law of Succession Act. This law guides most matters concerning inheritance, save for where people of the Islamic faith apply the tenets of their religion, but only to the extent that no party's human right is violated.
Section 29 (a) of the Law of Succession Amendment Act recognises you as a dependant of the deceased. It defines dependants as the spouse and children of the deceased, whether or not maintained by the deceased immediately before his death. In Sub-Section (b), it offers you legal sanctuary as it continues to define dependant as the dead's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, as were being maintained by the deceased immediately before his death. Two legal provisions in this section of the law of Succession Act should excite and firm up your optimism. Your step mother’s utterances are arbitrarily irresponsible, as she has no right to deny you part of the estate if there is proof that you are a dependant of the deceased.
Also read: Let’s talk about the law of succession
Whether your father died testate (left behind a will) or intestate (without a will), the law allows you a window of redress. Note that wills can be contested by a person interested in the estate and allege injustice in its framing, allocation, and distribution, which means you have an opportunity to challenge this in court if your father left a will.
That said, it sounds like your father died intestate (without a will). A court process must also be instituted for the beneficiaries to access and distribute the estate. The law allows any person to apply for what is known as a grant of letters of administration intestate, although most preferred are the beneficiaries, especially the remaining spouse, children of the late, and relatives in the order of kinship, legally referred to as consanguinity. In awarding the grant of letters of administration intestate, often confirmed by the court after six months, the family can distribute the estate as a consensus unless someone objects. Such objections must be supported with evidence and then contested in court for determination. The court only applies itself to the objections raised and does not distribute the estate on behalf of the deceased family. I advise you to take interest in the succession process going forward. There are many opportunities, both at home and in court to present your concern, should you be left out.
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]
