Navigating Estate Disputes In Succession

 INTRODUCTION

The ideal outcome in succession matters, whether the deceased died testate (with a will) or intestate (without a will), is for the family to peacefully take care of the liabilities and thereafter distribute the estate to the beneficiaries. The contrary, however, often occurs with several estates falling into dispute. It is worth noting that such disputes are not only amongst family members; we often witness other parties claiming to have a vested interest in the property of the deceased. The court therefore has the responsibility to ascertain if such claims are true (on a balance of probabilities) and thereafter, determine how the estate of the deceased will devolve. Simply put, the Court of Appeal in James Muniu Mucheru v National Bank of Kenya Ltd CA Civil Appeal No 365 of 2017 [2019] eKLR stated that the “Courts will make a finding based on which party’s version of the story is more believable.’’

In this article, we look at some of the disputes that arise and give our opinion on some ways that they can be resolved.

Common disputes in succession

The following are some prevalent estate disputes:

1. Contests of wills: this occurs when questions arise on the validity of will and/or codicil. Allegations of undue influence, lack of mental capacity, fraud, or poor will execution are frequently used as justifications for disputing a will. Some contests also arise on validity of alleged oral wills.
2. Interpretation of the will: When the wording or terms of a will are imprecise, the beneficiaries may approach the court to interpret the provisions of the will to avoid conflicts over the distribution of the estate or the fulfilment of particular requirements or bequests indicated in the will.
3. Breach of fiduciary duties: Those in charge of administering an estate, such as executors, administrators and/or trustees, are required by law to operate in the beneficiaries' best interests. In instances where the beneficiaries allege that there is misappropriation of the estate, the same is being allowed to go to waste or that those in charge are unjustly enriching themselves, they have a right to demand a forensic audit of the estate.
4. Intermeddling: Sometimes, beneficiaries will begin to benefit from the income and/or capital of the estate before the court has confirmed the proposed mode of distribution of the estate as per the will or as agreed by all beneficiaries. This is a punishable offence under the Law of Succession Act (Cap. 160, Laws of Kenya)(the “LSA”). As such, those aggrieved by such matters approach the court for remedy. Notably, criminal matters may arise in some instances as there could be issues regarding forged documents and/or signatures and falsified documents.
5. Lack of provision to creditors: Testators sometimes fail to/neglect to make provision for their liabilities in their wills. Though legally required to do so, administrators of an intestate estate may also fail to make provisions for such debts before distributing the estate. To safeguard their rights, such creditors will be required to prove the liability owing to them and the estate will then be required to pay off such liability, after the beneficiaries benefit from the estate. In instances where there is a Will, the executors will also be required to first settle the expenses before devolving the net estate to the beneficiaries. 
6. Disputes involving dependants of the deceased: A dependant of the deceased may not necessarily be considered an automatic beneficiary as envisioned by the LSA. Persons claiming an interest in the deceased’s estate by virtue of being a beneficiary therefore have to demonstrate their claim on a balance of probabilities. 
7. Disputes involving persons that claim to be a member of the deceased’s family : The process of distributing the estate of the deceased may come to a halt when persons emerge and claim to have been a spouse or child of the deceased. The veracity of such claims needs to be ascertained, possibly by way of DNA testing which may necessitate the exhumation of the deceased’s body. If the deceased was cremated, familial DNA testing may be done instead. If a familial tie to the deceased is established, such persons can inherit from the estate by direction of the court.
8. Disputes involving sharing of an intestate estate: In intestate matters, the mode of distribution of the estate is to be determined by the LSA or by agreement by all the beneficiaries. In some instances, some beneficiaries may lay claim over a larger portion of the deceased’s estate than others. Reasons for this may be because a portion of the estate was gifted to the said beneficiary during the lifetime of the deceased or the said beneficiary bought that portion of the estate before the demise of the deceased etc. Such claims have to be ascertained by the court in order to ensure that the rights of all beneficiaries are justly upheld. It is worth noting however that ‘just’ does not always translate to equal provision of the estate.
9. Disputes involving buyers for value: The deceased may have passed away before completing the sale of their assets. Such buyers for value will therefore want to enforce their rights and ensure the transfer of such assets to their names. This could lead to disputes with beneficiaries of the estate who may feel entitled to inherit such properties.
10. Disputes over property alleged to be part of the estate while the contrary is true: It is generally understood that one cannot will way that which they do not own. However, sometimes testators may will away assets that are not legally theirs. For example, a testator may bequeath a property they hold as a joint tenancy, whereas the law provides that the ownership of jointly owned such assets fall automatically to the joint tenant and therefore cannot be willed away. Additionally, testators may bequeath properties registered in the name of a company of which they are a shareholder instead of bequeathing their shareholding. 
11. Disputes where several family units are involved: This is common in polygamous settings whereby each family will present their claim for what they believe should devolve to them. Such claims may be based on numerous reasons including the time of marriage to the deceased, the number of children, gifts received from the deceased in his lifetime and many more. Often times, these claims will result in conflict and will require the intervention of the court to determine the distribution of the estate amongst the different families.
12. Disputes where parties divorced and either spouse had not received their share of the matrimonial property.

 Navigating the disputes 

Succession disputes are emotional and taxing in terms of time, funds and sometimes family relations. It is necessary to handle such disputes in a way that preserves the family ties and most importantly, ensures justice is served.  The following options should therefore be undertaken in trying to reach amicable conclusions:

1. Consult a family law advocate: Obtaining legal counsel from a lawyer with experience in estate planning and probate law is critical. They will help you navigate the legal system, clarify your rights and responsibilities, and give you individualized counsel based on the particulars of your case. This is common in Kenya, as seen by many people seeking advocates for counsel. 
2. Mitigate further loss by approaching the court as soon as possible: Some estates have fallen to waste for failure of approaching the court for reliefs that allow the parties to collect and preserve the estate. Examples of issues that would necessitate approaching court would include squatters who have been allowed quiet stay on a deceased’s property for more than twelve (12) years laying claim on the property, other persons encroaching on property boundaries, and some parties gaining from the estate at the expense of others. Making applications for Interim Orders, preferably prohibitive in nature, can be of use even as the parties try and engage out of the court. 
3. Use the best evidence rule: Due to the nature of succession matters, it is common for parties to make several allegations against each other. If a party intends to make an allegation, it is prudent that such allegations are supported by evidence, such as doctor reports (when one alleges that the testator was in no mental state to execute the will), sale agreements (when one alleges that they bought the property from the deceased), proof of receipt of sustenance from the deceased (when one alleges they were a dependant) and other varieties of proof that is required on a case by case basis. 
4. Embrace Mediation and other Alternative Dispute Resolution: If direct negotiations fail, consider alternative dispute resolution methods such as mediation. Mediation involves a neutral third party who facilitates discussions between the parties to help them reach a mutually acceptable resolution. It can be a less adversarial and more cost-effective approach compared to going to court. (Link our article on mediation)
5. Court-annexed mediation: This is also an alternative embraced by the Kenyan judicial system and backed by the Constitution of Kenya 2010. Given the prolonged litigation timelines as a result of the backlog of matters, the courts review and identify specific matters suitable for Court Annexed Mediation, recognizing the potential benefits that could be derived from the process. The objective of Court Annexed Mediation is not only speedy resolution of disputes but also encouraging parties, who would ideally not see eye to eye, to settle their disputes with the aid of a court-appointed mediator.
6. Communicate with other interested parties: Communication maintains an atmosphere of mutual respect and openness with all parties that may be affected by the estate. In turn, mutual respect ensures that the rights of each party are upheld and this saves parties time and funds, whether litigating the matter or mediating the same.

 CONCLUSION

While succession disputes share similarities in nature, the particulars vary specifics vary from family to family. Consequently, a one-size-fits-all solution does not exist. The strategies and approaches employed to resolve such disputes will depend on the unique circumstances of each case. It is crucial to seek expert advice and support from legal professionals experienced in Estate Succession in order to navigate the intricacies of estate disputes successfully. With their guidance, you can work towards achieving a resolution that is fair, equitable, and aligned with the wishes of the deceased, while also taking into account the interests of all parties involved.

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We offer an edge to our clients based on our legacy of having handled various delicate family matters over the years and therefore are well capable of guiding you through any matter dealing with inheritance. Find our full profiles below.

 Contributors

Nelima Walubengo Tindi- Senior Associate

Maureen Njenga

Contact Persons & Contributors

Dianah Gichuru- Partner & Head of Unit

Nelima Walubengo Tindi- Senior Associate

Maureen Njenga