In recent years, there has been a push for more people to draw up wills to determine the distribution of their assets upon their deaths. But what happens to people who die without having written a will? This guide explains how intestacy succession comes into play and the processes involved in it.
What is Intestacy Succession?
Intestacy is the state referred to in succession proceedings where someone dies without leaving a valid will. This is a common phenomenon in Kenya, but it is becoming less common as most people are writing formal wills to ensure their wishes are followed and their properties and possessions are divided according to their wishes.
At the same time, where a Will is presented to court and the same is determined to be invalid, this renders the deceased’s status to be intestate. A will may be invalidated for several reasons, including the following:
- Where there is evidence that the creator of that will lacked the mental capacity to create the same or
- Where there is evidence of the use and or influence on the creator of that will at the time that the same was done.
- Where there is evidence that the will document is a forgery.
Once the will is invalidated, the deceased’s status is said to be intestate, and his estate is determined and or distributed according to the evidence presented to the court in the succession process, thus paving the way for intestacy succession.
The Rules Governing Intestacy Succession
The rules of intestacy and how they apply to the deceased’s estate are provided under the Law of Succession Act. The law states that a person who dies without having written a will or who has his or her will invalidated by the courts is deemed to have died intestate. Once it is proved that the deceased died without leaving a will or the will left behind is invalidated by the courts, the rules of intestacy kick in.
The intestacy succession rules distribute the properties of the deceased amongst the beneficiaries of the deceased’s estate. These beneficiaries may include the deceased’s spouse or spouses, children, parents, siblings, dependents, and any other persons who may lay claim to the estate. This state of affairs, which involves so many claimants to the estate, may result, as it so happens in many cases, in a succession matter that may take years to resolve.
The Importance of Valid Wills
To avoid a scenario of long, drawn-out court battles and to control how your estate will be managed upon your death, it is important to write a will.
In writing a will, one also clearly spells out their wishes on the distribution of the estate and lays down all the conditions that one may wish the beneficiaries of the estate to observe.
A will generally gives the estate owner all the freedom to deal with their estate as they wish. A properly done will will always carry the day, and no challenges will successively defeat its wishes.
On the contrary, failure to do one leaves the estate at the mercy of the beneficiaries and their battles, wishes, etc., and the court’s determination.
At the same time, if there are no known relatives or claimants at all to the deceased’s estate, the same reverts to the State.
What Is The Relationship Between Intestacy Succession Laws And Customary Law In Kenya?
Different communities have different customs on how properties should be distributed. It is worth it to note that this happens mostly in rural areas, and in modern times, the law of succession sometimes supersedes these customary laws to ensure that there is equity in the division of the property of a deceased person. This has been occasioned by many reasons, including the fact that most customs usually discriminate against certain classes of persons in society, such as women and children.
The legal position in succession matters holds that women and children, too, deserve to inherit and should inherit just as any other person. In this regard, the customary laws have been overridden by the current Law of Succession in Kenya.
Moving Forward with Intestacy Succession
From the foregoing, it is clear that having a valid written will is very important as it helps to prevent numerous never-ending court cases, amongst other advantages, including helping one to have peace of mind. This peaceful existence extends to the will maker’s family members as the estate lays down all that will happen upon the will maker’s death. This sets in upon the deceased’s death and, in a way, also psychologically assists the family members to more smoothly move on with life upon the deceased’s death.
And taking all the above into consideration, have a properly done will that will not be invalidated on probate, therein breaking and rendering all your wishes and plans to naught.
Get Legal Help
Given the complexities of intestacy succession, including the probability of long court battles, writing a valid will is in your best interests, as well as those of your beneficiaries. Our legal team is here to help you avoid these challenges by walking you through how to draft a valid will. Simply fill out the form below, and we will be in touch!