The Law of Succession (Amendment) Bill, 2020

The Law of Succession (Amendment) Bill 2020 seeks to introduce certain changes to the Law of Succession Act.

Perhaps the rationale behind the proposed changes is the perceived bias where women are deemed to have exclusive right to inherit their husband’s property. The Bill is therefore, seen as seeking to remove gender inequality and accord both genders equal treatment at the time of inheritance.

The Bill seeks to bring changes to Section 29 of the Law of Succession Act which encapsulates what amounts to a dependant for purposes of succession.

The section provides as follows;

“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;

(b) Such of 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;

It can be construed from the foregoing provision of law that the word “wife” applies mutatis mutandis to husband or spouse. However, the proposed amendment seeks to have paragraphs (a) and (b) deleted and replaced with the following, spouse or spouses and the children of the deceased whether or not maintained by the deceased immediately prior to the deceased death. The rationale behind the amendments is that the law as is currently formulated places the husband in the category of dependents only when he is able to prove that he was maintained by the wife prior to her demise.

The Bill also seeks to amend Section 39 of the Law of Succession Act by introduction of a subsection which proposes that in the event a spouse remarries they automatically lose their life interest in the residuary estate of the deceased.

The Bill further seeks to amend Section 39 of the Law of Succession Act which provides “Where an intestate (deceased) has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority— (a) father; or if dead (b) mother.”  The Bill provides that in case the deceased has no surviving spouse or children, his or her parents inherit the property in equal share as opposed to the current Act, which gives the father priority.

It will be interesting to see how the amendments play out in the wake of a recent court decision In re Estate of Jecinter Njoki Okoth (Deceased) [2020] eKLR where the objector described himself as the deceased’s husband having been married under customary law but later separated but never divorced. The objector contended that he was the lawful beneficiary of the deceased despite the fact that the deceased had subsequently established a union with the Petitioner.

The Judge was of the view that for all intents and purposes, the marriage between the objector and the deceased had been overtaken by events. The Petitioner must have reasonably believed that the deceased was a single person with capacity to marry and such a marriage entered by two adults, voluntarily could not be said to be invalid. Therefore, the objector had not satisfied neither the parameters set out in terms of Section 76 nor Section 29 of the Law of Succession Act. He was therefore neither a spouse nor a dependent of the deceased.