The injustice of property transmission under the law of succession

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BY SHADRACK MUYESU

The law of Succession Act no 14 of 1972 contemplates three ways by which the property of a deceased person may pass to their beneficiaries. Property may pass by dint of a will, Survivorship or otherwise, under rules of intestacy- where the deceased left no will or the will left was improper. 

From the foregoing, a beneficiary is only entitled to what the deceased transmits to them or what the law allows them never mind in the case of a surviving spouse, their contribution to the acquisition of the property in question. In my view, this position is not only outdated, it is also unconstitutional.

Where the deceased died without leaving a will, the Law of Succession Act provides that a surviving spouse shall be entitled to their personal and household effects, absolutely (meaning that they enjoy full ownership rights that allows them to sell or otherwise dispose of the property) and the first Sh10, 00 out of whatever remains, or 20% thereof, whichever is greater; and a life interest in the whole of the remainder (meaning that they are merely the trustees of the beneficiaries and cannot use the property in a manner contrary to their best interest without their consent) on condition that the surviving spouse, if a widow, does not remarry.  In other words, a widow loses the life interest she enjoys in the residue of the net intestate of her deceased husband if she remarries. Curiously the Act allows widowers to remarry without losing a life interest.

Compare this to how property passes in divorce. Courts have interpreted article 45(3) of the Constitution of Kenya 2010 (which states that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage) to mean that parties are entitled to a share of the property depending on their contribution during the marriage. The contribution may be monetary or non-monetary-which is a great victory for equity and constitutionalism.

Death as dissolution of a marriage

The question therefore begs, is death a mode of dissolution of a marriage? If it is, why should property pass differently in succession matters?

I posed this question to Ms. Mary Muthoni Kimari, an Advocate of the High Court of Kenya and adjunct Lecturer of Probate and Administration at the Kenya School of Law. Her response fell just short of affirming that death is not a mode of dissolution of marriage, not in succession matters. If so, should the right that widows and widowers have to remarry, where they had been in a civil or Christian marriage with deceased, not amount to bigamy and therefore constitute an offense?

It is a view I retain, that death, just like divorce leads to dissolution of a marriage. By dint of this, spouses should benefit from the equitable distribution of property in the same manner they would in the latter. Indeed, it is not just that a surviving spouse be only entitled to a life interest in property whose acquisition they contributed to. Neither is it just that, where a will is involved, their contribution be negated by the mere fact that the property was registered in the name of the deceased and is therefore the deceased’s to distribute.

Curiously, the good Ms. Kimari accepts this position. In her opinion however, consolidating property for one’s children made a much greater concern for a surviving spouse than the selfish concern of obtaining an absolute interest in the deceased’s property. I could identify with her argument. Unfortunately, it seemingly ignored the presence of surviving spouses who have no issues (children) whose interests need protecting. It also ignored the plight of wives in polygamous marriages and worse (if I may) interpreted the law from an idealist position, that the well being of their issues is the primary concern of all human beings.

As it is, where the deceased was polygamous, the law contemplates that his property shall be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. This means that a widow who was ever present during the marriage and contributed so much towards its success and wealth but had no issues or had only one issue will receive much less than a later co-wife who had an issue or multiple issues. It’s a travesty.