A woman is not entitled to inherit properties or a share of properties owned by the parents of her husband, the High Court has declared while ruling on a decade-old succession dispute in which a widow was staking a claim to a share of her father-in-law’s estate.
The court, however, held that grandchildren whose parents are dead have a right to inherit the assets owned by their grandparents. “In intestacy (where a property owner dies without a will), whether under the Law of Succession Act or customary law, daughters-in-law are not entitled to a share in the estate of their dead parents-in-law,” said Justice William Musyoka.
The judgment also applies to sons-in-law. They cannot inherit the estates of their parents-in-law. Mr Musyoka explained that the Law of Succession Act does not even talk “about children-in-law and parents-in-law”. What the law recognises are the “children of such children-in-law”. They are entitled to the share that should have gone to their dead parents.
“Their children have direct access to their grandparents’ estate, not so the children-in-law. This is provided for in Section 41 of the Law of Succession Act. The children step into the shoes of their dead parents, the children-in-law do not,” said Mr Musyoka.
“Since the children-in-law have no right or entitlement to a share in the estate of their late parent-in-law, they cannot stake any claim as in-laws.”
In cases where a person died without a will, the court said the estate passes to their kindred—“the blood relatives, except for the surviving spouse”.
“In-laws, be they parents-in-law or children-in-law, are not blood relatives of their children-in-law or father-in-law. They have no right or entitlement to the intestate estate of their dead in-law. The Law of Succession Act does not recognise them or their rights. Indeed, the Law of Succession Act does not even mention them,” said Mr Musyoka.
He made the declaration when ruling on a protest lodged by a widow, Ms Praxides Shimulo Makotsi, who sought to inherit a share that her husband, Henry Lisansa, would have received from his father, Francis Andachila Luta, who died in 2010.
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He was survived by two widows and 11 children and died without a will on how his estate, comprising three parcels of land in Idakho/Shivakala and Eldoret Municipality, would be distributed. Dismissing her protest, the court held that Lisansa was survived by children, who are the grandchildren of Luta – the owner of the estate under distribution. Therefore, the court said, such grandchildren would step into the shoes of their father and inherit his share and share it out.
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“When a child of the estate owner dies, and is survived by offspring, their entitlement is not extinguished or diminished. It should go to their offspring or to his/her estate. Section 41 says that the offspring step into the shoes of their dead parent, and take the share that is due to such dead parent. That share should be equal to the share taken by the surviving children of the deceased,” said Mr Musyoka.
“More importantly, Section 41 talks of the offspring of the dead child of the deceased and not the spouse of the dead child.”
Being a daughter-in-law, Ms Makotsi has no right, the judge said.
Letters of administration
He said Ms Makotsi can only claim the share due to her husband by obtaining representation to his estate first, by way of a grant of letters of administration intestate. “Pursuing the interest due to her late husband without first obtaining the grant in his estate would amount to intermeddling, and her activities would run afoul of Section 45 of the Act,” he said.
The widow had not provided any proof that she holds such a grant concerning the estate of her husband. She and her witnesses had implied to court that the daughters of Luta had a lesser entitlement to the estate than the sons. They implied that the daughters were intruders, claiming rights over the estate where they did not have similar rights. Her brother-in-law, Andrew Muchenditsi, suggested that it was up to the sons to share the estate with the daughters.
They asserted that the estate belonged to them, and the daughters should only access the estate out of their kindness. Mr Muchenditsi and the widow took that position on the grounds that his sisters were married. But the judge rejected the argument and ruled that the Act provides for equal distribution among the children. “The language of Section 38 is gender-neutral. It does not classify children into male and female, or sons and daughters, or men and women.
Who can inherit properties of a diceased person?
There is no discrimination or differentiation or classification or categorisation along gender lines. That would mean that sons and daughters of a dead person are entitled on an equal basis to a share in the estate of their dead parent,” said Justice Musyoka
On those entitled to share the estate, the judge said there are three categories—creditors, survivors and dependants. Creditors are those owed by the estate and have priority over the survivors during distribution. Survivors are the immediate members of the family of the deceased, as set out in sections 35, 36, 38 and 39 of the Act, being spouses, children, parents, siblings, and others up to the sixth degree of consanguinity.
Dependants are individuals who were being maintained by the departed. They include the wife or wives, or former wife or wives, and the children, whether or not maintained by the deceased immediately prior to his death.
The others are parents, step-parents, grandparents, grandchildren, stepchildren, 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 just before his death.
The Act says where the deceased was a woman, her widower, if he was being maintained by her immediately before her death, is also a dependant.
Justice Musyoka directed that Luta’s estate be distributed to his children. In the event that an asset cannot be subdivided and shared, he directed that the same be valued, sold and the proceeds distributed equally.