The 72-hour wish: Why your burial Will may not go as you planned

They are typically opened and read a week or more after death, once family members have gathered and funeral arrangements are underway, or even taken place. By the time the executor retrieves the will and reads the 72-hour instruction, many days or weeks have already passed.

The wish, however sincere, becomes impossible to honour. The deceased may have preferred cremation. Families, even courts, are reluctant to undo burials that have already occurred.

Families are left with guilt and regret, knowing they failed to respect their loved one’s clearly stated desire, not through malice, but through a simple failure of logistics.

This represents one of the most common problems in body disposal planning: the gap between what someone wants and what family members can practically implement.

Burial wishes may not be obeyed

Many Kenyans believe that writing burial wishes in a will makes them legally enforceable. This understanding is incorrect.

Under Kenyan law, there is no property right in a dead body. You cannot bequeath your body as you would land or shares. A burial direction in a will is therefore not a binding testamentary disposition that must be obeyed.

However, burial wishes in a will do carry legal weight. Courts treat them as strong evidence of the deceased’s intentions and will give them significant consideration. Judges will strive to honour clear, unambiguous burial instructions where they are practicable to implement.

The Law of Succession Act requires the personal representative (administrator or executor) to pay for a reasonable funeral from the estate, but it does not grant the executor absolute power to override family claims or deceased’s wishes about where or how the disposal should occur.

Oral declarations about burial preferences face even greater obstacles. The Law of Succession Act allows oral wills under narrow circumstances - they must be made before two competent witnesses, and the person must die within three months of making the statement. In practice, these are extremely difficult to prove.

When one family member claims the deceased expressed a deathbed wish for cremation, and another insists they wanted traditional burial, the resulting dispute can tear families apart.

Who has the right to decide?

For decades, the defining law on who makes the final disposal decision came from the 1987 case of S.M. Otieno. When the prominent Nairobi lawyer died, his widow, Wambui wanted to bury him at their farm near Nairobi. His Luo clan insisted on ancestral burial in Siaya.

The Court of Appeal (which was the highest court then) ruled in favour of the clan, establishing that customary law could override the nuclear family’s wishes.

That precedent held for nearly three decades. But the Constitution of 2010 fundamentally changed the legal landscape. The Constitution is the supreme law, and any law - including customary law - that contradicts it is void. Article 27 guarantees equality, and Article 44 states that no person shall be compelled to observe any cultural practice against their will.

Courts now apply the doctrine of legal proximity, which prioritises those who were closest to the deceased in life: First, the surviving spouse. Second, the children. Third, the parents. Fourth, siblings and extended family.

This represents a significant shift from the Otieno precedent. In 2024, the Court of Appeal ruled in a case that the widow had the primary right to bury her husband as the person closest to him. In the recent Mburu Kinani burial dispute, the High Court ruled that the 92-year-old tycoon should be buried in Gilgil next to his second wife, where he had lived and built his life for decades, rather than in his ancestral village in Murang’a.

The judge emphasised that his "lived reality" mattered more than rigid adherence to custom.

When families cannot agree

The practical consequences of burial disputes begin at the mortuary. Releasing a body requires a burial permit from the Registrar of Births and Deaths and identification by the next of kin.

When two parties both claim the right to collect the body - a widow and a brother, or children from different families - hospitals and mortuaries face potential legal liability.

Most institutions will refuse to release the body to anyone until a court order settles the dispute. The mortuary bills alone can reach hundreds of thousands of shillings. The emotional trauma compounds with each passing week.

The business dimension

The impact on family businesses is often overlooked but can be devastating. In many family businesses, the disputing parties are the only authorised bank signatories or company directors.

When the widow and the deceased's brother are engaged in court proceedings against each other, normal business operations become impossible.

Payroll cannot be processed in time. Supplier payments are delayed. Contracts cannot be executed. Critical business decisions remain unmade. Employee morale deteriorates as uncertainty spreads.

A profitable business can collapse within months - not because of poor management or market conditions, but because a burial dispute has paralysed the decision-making structure.

The tragedy is compounded by a legal fact that many families don’t understand: winning burial rights has no effect on inheritance. The judge in the Mburu Kinani case had to explicitly remind the disputing family members that "a burial dispute has no bearing whatsoever on rights under the law of succession."

The estate will be distributed according to the will or intestacy laws, entirely separate from who conducted the funeral. Families sacrifice businesses and relationships fighting over something that doesn't affect who inherits what.

Legacy and remembrance

How death is handled shapes what people remember. S.M. Otieno was an accomplished lawyer with a distinguished career. But today, most Kenyans remember him primarily for the burial dispute that followed his death, not for his professional achievements. The court case has effectively become his legacy.

In contrast, Wangari Maathai, Charles Njonjo, and Kenneth Matiba all made clear - somewhat unconventional - choices about their disposal.

Their families honoured those wishes without protracted disputes. Their legacies remain focused on their actual accomplishments and contributions, not on family disputes. The difference largely lies in planning and family communication.

Practical steps to prevent disputes

The most effective protection against burial disputes is clear communication and accessible documentation during life.

Create a separate final wishes document. Do not rely solely on your will for burial instructions.

Draft a clear, one-page statement that includes; your preference for burial or cremation, the specific location, any time constraints, and your reasoning. Give copies to your spouse, adult children, executor, and lawyer. Keep it where it can be accessed immediately upon death, not locked away with your formal will.

Have direct conversations with family. Discuss your wishes with your spouse, children, and executor while you are healthy. Explain what you want and why. These conversations manage expectations and reduce the shock that fuels disputes.

For business owners, register and incorporate your business so it has perpetual succession, independent of any individual, not as a sole proprietorship that dies with you.

Draft a shareholders' agreement that addresses business continuity, interim management, and emergency bank signing authority.
Ensure that business operations can continue even if key individuals are in dispute.

If a dispute arises after death, pursue mediation before litigation. Give family mediation 48 to 72 hours before filing court papers.

Professional mediators or respected family elders can often facilitate compromise. Mediation is faster, less expensive, and far more likely to preserve family relationships. Court proceedings often cause permanent damage to family bonds and can take months or years to resolve.

The writer is an Advocate and a partner in Muri Mwaniki Thige & Kageni LLP advocates. Email: [email protected]