Can My Parent Disinherit Me In His Will?

Testamentary freedom means that every person who is of sound mind and not a minor may dispose of all or any of their free property by will. In any discussion on wills, the question of the heirs arises. Have they been provided for in the will? Have they been left out? Do they deem their share in the will as adequate? Due to testamentary freedom, the Courts try as much as possible not to interfere with the intentions of the testator.

Basic tenets of Testamentary freedom

Section 5 of the Law of Succession Act provides that any person of sound mind, of age of majority, male or female, married or unmarried may dispose of their free property as they wish. The law also provides that such a person may dispose of his/her property with reference to any secular or religious law that they choose to. When making a will, a person (the testator) is presumed to be of sound mind. This presumption can be rebutted by evidence showing that the person lacked sound mind due to mental or physical illness, drunkenness or from any other cause as not to know what they were doing. It is important to note that a will shall be revoked by the marriage of the maker; but where a will is expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated.

Testamentary freedom vs Family obligations.

Family obligations allude to the dependants of the testator. Section 29 of the Law for succession Act defines a Dependant to mean;

1. The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
2. The deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
3. Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

Testamentary freedom is tempered by a few salient matters which include;

• Dependants who feel they have not been adequately provided for- Section 26 of the Law of Succession Act.
• Creditors to the deceased who have not been provided for in the will. This will be addressed in detail at a later article.

It is important to note that where a court is forced to interfere with the testamentary freedom is different from when the court has to invalidate a will as it does not meet the threshold of a valid will in law. The courts have long since opined that it is necessary for a testator to balance their testamentary freedom vs. the responsibility they bear. In the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo (1996) eKLR, the court stated as follows; “…despite the freedom enjoyed under Section 5 of the Act, such freedom must be exercised with responsibility and that such a testator exercising that freedom must bear in mind that in the enjoyment of that freedom, he or she is not entitled to hurt those for whom he was responsible during his or her lifetime…” The court went ahead to state that it will interfere with such freedom where a testator disinherits their dependants. That testator should not leave their dependants without reasonable provision for their maintenance…” The courts have emphasized that they will interfere with such testamentary freedom where the testator disinherits those who depended on them during their lifetime. Did you Know: Reasonable provision does not mean equal provision to those excluded or those who were not adequately provided for. In the case of Re Estate of Gurdip Kaur Sagoo (2021) eKLR, the court stated as follows;                “…The provisions of Section 28 of the Act and Rule 45 of the P & A Rules make it clear that the intention of Parliament was not to give a share or equal share to every excluded dependant. Had this been so, the Court would have been stripped of discretion and the law regarding provision for an excluded dependent would have been couched in mandatory terms…”  “…It is not for the court to step into the shoes of the testator and substitute for the will what it thinks the testator should have done…” Justice William Musyoka  In the matter of Re Estate of Nditu Kihaguru (Deceased) eKLR, the court stated as follows;  “…The court can intervene and make reasonable provisions for dependants recognized under Section 29 of the Law of Succession Act. The Court is also clothed with discretion under Section 28 in considering whether or not to allow provision for dependants left out of will…” In some cases, the courts have upheld the testamentary freedom of the deceased despite the inadequate provision for some dependants. In Re Estate of Nditu Kihaguru (Deceased) eKLR, The applicants were the wife, daughters and a son to the deceased. The deceased left a will but did not adequately provide for them. The court noted that they were dependants under section 5 of the Law of Succession Act, but put into consideration provisions of section 28 of the Act. The court noted as follows; “I have particularly considered the general circumstances of this case to wit that the 1^st house did not live or utilize the land in issue in the four and a half decades leading up to the death of the Deceased nor did they lay claim on any part thereof. further that the Deceased considered the circumstances of the two houses in making his will from the foregoing it is my considered view that the deceased’s will should be respected and upheld…”

Is there a distinction between a Dependant and a Beneficiary for purposes of Succession in Kenya?

Dependant- an individual who relies on support from another. Beneficiary- an individual named in a will, revocable or irrevocable trust to receive property from a testator or grantor. From the above simple definitions, it is clear that while dependants can be beneficiaries, beneficiaries in a will do not have to be dependants of the testator. It is prejudicial for a testator to leave out their life dependants in their will. On the other hand, they have the freedom to will their assets to any person they would desire to benefit from their estate e.g. a caregiver or a charity they have been affiliated to.

1. Can a testator disinherit his daughters by virtue of their gender or Marital status?

The reading of section 29 of the Law of succession Act does not separate between male and female or based on their marital status. It alludes to the term children. “For the purposes of this Part, "dependant" means- (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;”. The disinheriting of daughters by virtue of their gender is contrary to the Constitutional provisions on equality and freedom from discrimination as provided for under Article 27 of the Constitution. In re Estate of Gichuhi Wakano alias Wilfred Wakano Gichuhi (Deceased) eKLR, the court stated as follows; “…This is because it is clearly evident that the only reason the protesters were not provided for is because they are daughters and most probably were married at the time of the Will. The Law of Succession Act frowns upon such discrimination as it regards the children of a deceased person. There is no distinction between boys and girls or females and males. The law provided for children…”

Conclusion

For high and ultra-high net worth individuals, the preparation of wills is akin to a surgeon preparing a delicate brain surgery as there are several factors to consider to make sure that the will covers the intention of the testator to share the estate and also to prevent the estate from going through lengthy litigation where validity of the will is challenged. It is therefore necessary to have the guidance of a qualified advocate in preparing the will to cater for the various circumstances.Please click here to download the alert.

How can we help?

We can help you advance your rights in intestate succession proceedings. Our Wealth and Private Client team understands the legal provisions that ensures the net intestate’s estate is distributed to the rightful beneficiaries. We are equally equipped to handle other matters such as estate planning, drafting of wills, setting up and managing a trust and business succession planning. Suffice to say, it is important to ensure one has a plan on how his or her wealth ought to be distributed in the event of demise.  We can also partner with Gabael Trust to provide you with various estate planning options depending on your needs. We offer quick turnaround timelines and will be delighted to receive your feedback, and inquiries and offer our services on this and any other of our practice areas. Should you have any questions regarding the subject of establishing a blind trust or a family trust, or related topic, please do not hesitate to contact  us on law@cmadvocates.com or dgichuru@cmadvocates.com

Contact Persons & Contributors

Dianah M. Gichuru –Partner & Head of Unit Nelima Walubengo- Senior Associate Gideon Letaya-Legal Assistant

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