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Why simple will saves the family major headaches

Dying intestate leaves the family exposed to rows over property. FILE PHOTO | NMG
Dying intestate leaves the family exposed to rows over property. FILE PHOTO | NMG 

The death of my mother has left the family without a head. We the siblings have begun quarrelling over some rental houses she left us. No one wants to listen to another. Brothers want sisters to get married and out of inheritance but my mother always wanted our sisters to stay at home even if they get children. What are we to do?

A good place to start is the Kenya Constitution, which in Article 60 (f) provides for the elimination of gender discrimination. In this regard, Lady Justice Mary Kasango on February 17,, 2017 ruled: “The marital status of a daughter is not a basis to deny her the right to inherit her father’s estate”.

In a 2005 ruling, Lady Justice Martha Koome held that “Daughters just like sons have equal rights to inherit their parent’s property”.

It is important to point out that customary law holds the opposite view but to the extent it is inconsistent with the Constitution, it has no effect in law.

This layman’s exposition of the law is intended to guide you and your brothers as you go about giving your sisters advice that will clearly not sort out your problems. Married or not, girls have the same rights to property as boys so getting married and getting or not getting children does not change their legal rights.

Your question has a thread that invites itself for further discussion. Indeed there are two threads.

The first is to do with the need to have a written will. The second is to do with the social and medical complications that follow grief.

On the first matter (of the will), many of the problems you now find yourselves in could have been avoided had your mother written a will. Unknown to many, a will does not have to be written by a lawyer. All one needs is to be of sound mind, make his wishes known and have a witness to the will.

This is another example of a matter that might be oversimplified here. The truth is that a lawyer will usually help you put in place a document that will settle issues better than if you do it yourself. Sadly, there are many families (like yours) that find their way to courts for reasons that could have been avoided.

A recent case comes to mind in which the sons of a first wife maintained that their father was not of sound mind when he wrote a second will that provided for the second wife and her children.

The lawyers on both sides did well in fees that were paid by the estate. This, however, is a complicated subject because no two families are the same.

In your case for example, the troubles came following the death of your mother. Where is your father? Is he dead or alive? If alive, what role is he now playing in this saga? If dead, did he leave a will and if he did, what did it say?

As often happens, are there any other parties involved; Uncles, aunts, and other relatives? One could go on. A will helps a great deal.

The second thread that complicates family life is grief. Following the death of her elderly mother, a woman in her 60s was admitted by a colleague to hospital where she underwent treatment for a typical grief reaction.

A few weeks after her mother’s funeral, she moved back to her mother’s house leaving her husband alone in Nairobi. She stated that she needed to look after her mother’s grave as she feared weeds might grow on it. She tended it daily and twice a day prayed at the graveside. In time, the prayer sessions became longer and louder.

By the time she was admitted to hospital, she had lost weight. She looked like a skeleton, on which her dirty clothes hang. She had not had a bath for days and on admission wanted to die so she could be with her mother.

Weeks later, she underwent formal grief therapy and was able to open up to the therapist about many issues very similar to those in your family. The death of their mother had led to frequent heated arguments in the home, the likes of which none of the children had seen while their mother was alive.

In time, she understood that anger, irritability, yearning and extreme sorrow sometimes follow the death of a loved one. In the end, and in family sessions, the matter of grief was dealt with and soon land matters did not seem so big anymore! Seek help is all I can tell you here!

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