Why having a next of kin is not enough in determining succession

The death of KCB’s Head of Data Protection Rosemary Chemutai Kimwatu raised many societal issues including questions of mental health and the evolving roles of friends, family and even employers in the life of those we interact with daily.

Our hearts go to her family and particularly her four children who will grow up without experiencing the love of their mother. One issue that arose in court pleadings regarding the burial place of the deceased was the rights of the parties where it appears that the deceased had expressed some intention about their succession but had not written a proper will.

In Rosemary’s case it was alleged that she had nominated her sister of a “next of kin” but had not written a will from which her intentions could otherwise be deduced. It was also alleged that she had left a diary in which she had also expressed several intentions. This case raises questions about the place of such nomination and diary notations in the succession process.

Many Kenyans assume that nomination as next of kin automatically converts one into an administrator of the deceased’s estate or even a beneficiary. They therefore believe they have concluded their testamentary disposition when they have appointed a next of kin in their employment or insurance documents. But being nominated as “next of kin” does not automatically translate to one being an heir or beneficiary of the deceased. A person can be nominated as next of kin without being entitled to inherit any asset, and one can inherit from a deceased without being named as “next of kin”.

At best, a next-of-kin nomination provides contextual evidence of the deceased’s relationships and their intentions. It does not substitute for a properly written and executed will. As far as the law is concerned, that person died intestate.

In other circumstances, a person dies without leaving a will but instead leaves diaries, personal journals, letters, audio and video recordings, handwritten instructions in which they repeatedly express what should happen to them and their assets upon death. While important, all these documents do not comprise a conclusive testamentary disposition.

Under Kenyan law, a written will must satisfy specific statutory requirements, including execution by the testator and attestation by at least two competent and independent witnesses. Independence includes not being beneficiaries of the estate. An oral will must also comply with similar requirements but is only valid for three months.

Journal entries, diaries and similar documents lack these requirements and do not therefore translate into a valid will. The succession process in such an estate will be treated as an intestate succession. These entries, journals and diaries are important evidence in the court determining the deceased’s state of mind, consistency of intention, relationships with beneficiaries and the circumstances surrounding alleged testamentary dispositions.

They can, however, be countered by evidence that shows a contrary intention or shows that the “bequest” was merely indicating a preference not a final decision, or that it was made under undue influence.

Kenyan courts have on numerous occasions distinguished between a person’s wish regarding distribution of property and a legally effective will. Courts have, on occasions, found that discussions concerning the intended distribution of property were merely preparatory and tentative.

They did not crystallise into a valid oral or written will. Ultimately, the safest route to an uncontested expression of one’s intentions is to leave a properly executed will. Many Kenyans, however, have an aversion to writing wills, even those who know they live in complicated circumstances and will leave their kin in difficult and costly contestations upon their demise.

A critical consideration in whether to write a will is that, beyond expressing one’s intentions definitively, a will allows one to exercise testamentary discretion outside the traditional rules of inheritance. A will, for instance, allows one to support a cause or a non-relative, unlike in an intestate succession where the persons who can inherit from a deceased are provided for in the law: solely relatives and dependants.

Granted, wills are also contested, especially where they seek to disinherit dependants unreasonably. However, rarely do courts interfere with one’s clear intentions. One therefore owes it to their successors to leave their intentions known. Go, leave your intentions known this week.

-The writer is an advocate of the High Court