LEGAL HELP

Action for Children in Conflict has a program, the Kenya Children’s Legal Aid Work (KCLAW), that seeks to promote access to justice, strengthen the rule of law, promote human rights and significantly reduce all forms of violence in the society.

SUCCESSION

Click through the topics listed below to find answers to your questions.

Before you take any steps to challenge a Will, you should get legal advice as the procedures are complicated, expensive and time-consuming. Please feel free to contact us for help.

Who can challenge a Will:

  • Generally, you must be closely related to the person who died to challenge a will. For example, a spouse, parent, child or stepchild or adopted child, or someone treated as a child by the maker of the will.
  • A registered carer, member of the household or grandchildren may also be eligible if they can show that they were dependent or partly dependent on the Will-maker.

You can challenge a will if the person who died:

  • Did not have the ability to make a Will when they signed it.
  • Made the Will under the influence of others.
  • Did not adequately provide for a person they had a responsibility to provide for, or did not leave that person a fair share of the assets.

A Will may also be challenged is it was incorrectly executed, administered or has been tampered with.

Making a Will can be difficult depending on the size of your estate and the number of people involved. You should consider talking to a lawyer when making your Will.

Minimum requirements:

  • You must be of sound mind, memory and understanding to make a will.
  • You must sign the Will in front of two or more witnesses and they must also sign the Will in your presence.
  • You and the witnesses must sign the Will at the foot of each page, if there are multiple pages, and use the same pen.

Changing a Will: 
You can change your Will as often as you like. The best way to change your Will is to make a new one, revoking earlier Wills. You should change your Will when you;

  • get married,
  • divorce or separate,
  • buy a significant asset or investment,
  • get involved in a new business, company or trust.

You may also want to think about:

  • Making your powers of attorney. These are legal documents that allow you to choose who will make decisions about things like your finances and personal matters if you are not able to make these decisions yourself

When a person dies leaving assets in Kenya, somebody, usually the executor of the deceased’s will, has to manage the estate.

Who is the executor? 
The executor is the legal personal representative (sometimes more than one person) nominated/named in a will to carry out the wishes of the will-maker after their death. The person does not have authority to deal with the estate of the deceased until the court issues a Grant of Representation.

What if no executor is named? 
If the will-maker failed to appoint an executor, usually the court needs to appoint someone to manage the estate. A person appointed by the court is called an administrator. Often this is the beneficiary of the largest portion of the estate. An administrator has the same responsibilities as the executor.

What does the executor do?

  • Collects or gathers all of the deceased’s assets.
  • Pays any debts.
  • Distributes the assets to the persons entitled.
  •  

If a person dies without a valid will the law decides who gets the assets. This is called ‘dying intestate’. These rules apply to everyone and do not take into account an individual’s wishes or situation.

Who gets the estate? 
If a person dies without a will or the will is not valid, an application for a Grant of Letters of Administration will need to be made to the Court. In most instances, the grant is made to the next of kin of the deceased. For example, the spouse, domestic partner or a child of the deceased.

The estate does not pass to the government unless there are no living relatives.

You don’t have to be represented by a lawyer. However, preparing and presenting your own case can be complicated, especially if the court is being asked to remove your child from your care. You can get help. A lawyer can give you advice about your choices, and speak for you. What you tell your lawyer is confidential.

Before the hearing date, contact the court to see what time you need to be there. It’s best to get there about half an hour before the court sessions start. Usually the first court hearing starts at 8am. If you need an interpreter contact the Children’s Court you are attending to let them know before your court date. The court will pay for the interpreter. Only qualified interpreters can work at court.

At court the registrar sorts out the order of the hearings on the day. Your case may not be heard straight away, therefore plan to be there for the whole day and do not go too far away for you will need to be able to hear your name/case number being called when the court is ready for you.

Going into the courtroom when your name is called. The when your name is called. The court will wait until everyone has entered, and will then ask what stage your case is up to. The National council for children services’ or whoever has brought the case to court lawyer will briefly explain what the department is asking for and tell the court if the case can go ahead. The court may give everyone time to talk, or may set aside time to listen to each side before making a decision. If you have a lawyer, your lawyer will speak for you. Sometimes you may go into and out of court several times on one day. You may have to come back on another day, as courts often do not make a final decision on the first day you go to court.

court’s decision The court can make different court orders, depending on the case and what stage it is at.

Glossary

Assets: Things you own, such as property, land, shares, bank deposits, jewellery, clothes, and so on

Administrator (of a Will): A person appointed by the court to deal with a deceased estate where there is no Will or where the Will does not name a suitable executor

Beneficiary: A person who is given something in a Will

Power of attorney: Powers of attorney are legal documents that allow you to choose who will make decisions about financial and personal matters, if you are not able to make these decisions yourself. At some time in your life you may be faced with changes – such as an accident or illness – that might take away your capacity to make your own decisions about things like: where you live how you spend your money how your health care and medical treatment are managed.

 DISCLAIMER this  is meant to be for information resource only. None of the material on this site is expressly or impliedly meant to provide legal advice to you. Since the material on this site is provided as information only, and laws continuously change from time to time, the author of this website neither expressly nor impliedly warrants that any of the material provided on this website is accurate. If you are in need of a solution to a legal problem, the author advises that you should contact a advocate for legal advice.feel free to contact us for more help.

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Tel: +254 714 038 285/+254 722 753 137 Email:info@actionchildren.or.ke Kenyadirector@actionchildren.or.ke

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Action for Children in Conflict,Section 9, off Mgoko Road,P.O.Box, 6439-01000,Thika, Kenya.

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