Succession

Judge says the law does not recognise daughters- or sons-in-law

Widows have no stake in

in-laws’ estate, says court

Their children are, however, entitled to the share their father would have received

08/01/2023 08:39 – Screen Clipping

woman is not entitled to

inherit a share of proper-

ties owned by the parents

of her husband, the High

Court has declared while ruling

on a decade-old succession dis.

pute in which a widow was stak-

ing a claim to a share Of her fa-

ther-in-law’s estate.

The court, however, held that

grandchildren whose parents are

dead have a right to inherit the

assets owned by their grandpar-

ents. “In intestacy (where a pmp-

erty owner dies without a will),

whether under the Law of Suc-

cession Act or customary law,

daughters-in-law are not entitled

to a share in the estate of their

dead parents-in-law,” said Justice

%älliam Musyoka.

The judgment also applies to

sons-in-law. They cannot inher-

it 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 ac-

cess to their grandparents’ estate,

not so the children-in-law. This is

provided for in Section 41 of the

Law of Succession Act. The chil-

dren step into the shoes of their

d ead parents, the childmn-in-law

do not,” said Mr Musyoka.

“Since the childa-in-law have

no right or entitlement to a shale

in the estate oftheir 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 kin-

dred—“the blood relatives, ex-

cept 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 in-

testate estate of their dead in-

law. The Law of Succession Act

does not recognise them or their

rights. Indeed, the Law Of Succes-

sion Act does not even mention

them,” said Mr Musyoka.

He made the declaration when

ruling on a protest lodged by

a widow, Ms Praxides Shimu-

10 Makotsi, who sought to inher-

it a share that her husband, Hen-

ry Lisansa, would have received

from his father, Francis Andachi-

la Luta,who died in 2010.

He was survived by two widows

and 11 children and died with.

Out a will on how his estate,com-

prising three parcels of land in

Idakho/Shivakala and Eldoret

Municipality, would be distrib-

uted. Dismissing her protest, the

court held that Lisansa was sur-

vived by children, who are the

grandchildren of Luta — the own-

er of the estate under distribu-

tion. Therefore, the court said,

such grandchildren would step

into the shoes of their father and

inherit his share and share it out.

“When a child ofthe estate own-

er dies, and is survived by off-

spring, 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 de-

ceased,” said Mr Musyoka.

“More importantly, Section 41

talks of the offspring of the dead

child of the deceased and not the

spouse ofthe dead child.”

Being a daughter-in-law, Ms Ma-

kotsi has no right, thejudge said.

Letters of administration

He said Ms Makotsi can only

claim the share due to her hus-

band by obtaining representa-

tion to his estate first, by way of a

grant ofletters of administration

intestate. “Pursuing the interest

due to her late husband without

first obtaining the grant in his es-

tate would amount to intermed-

dling, 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 with respect to the estate

ofher husband. She and her wit.

nesses had implied to court that

the daughters of Luta had a less-

er entitlement to the estate than

the sons. They implied that the

daughters wet? intruders, claim-

ing rights over the estate where

they did not have similar rights.

Her broth&in-law, Andrew

Muchenditsi, suggested that it

was up to the sons to share the es-

tate with the daughters.

They asserted that the es-

tate belonged to them, and the

daughters should only access the

estate out of their kindness. Mr

Much enditsi 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 Sec-

tion 38 is gender-neutral.lt does

not classify children into male

and female, or sons and daugh-

ters, or men and women. There

is no discrimination or differen-

tiation or classification or cat-

egorisation 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, sur-

vivors 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 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, wheth-

er or not maintained by the de-

ceased immediately prior to

his death. The others are par-

ents, 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

deceasedjust prior to his death.

The Act says where the de-

ceased was a woman, her wid-

Ower, if he was being maintained

by her immediately prior to her

death, is also a dependant.

The Act says where the de-

ceased was a woman, her wid-

Ower, if he was being maintained

by her immediately prior to her

death, is also a dependant.

Justice Musyoka directed that

Luta’s estate be distributed to his

children. In the event that an as-

set cannot be subdivided and

shared, he directed that the same

be valued, sold and the proceeds

distributed equally.