Heritage

When women leave wealth to children...not husbands

inheritance

Fighting couples are dragging children into their wars, even after death. Increasingly, Kenyan women are leaving their husbands out of their wills, forcing the men to turn to courts to get a share of the wealth from the children.

In a frivolous conversation, ask your spouse, female friend, or sister who their next of kin is. A spot check by BDLife shows that a substantial number of working-class women or entrepreneurs automatically write their children, siblings, or mothers as their legal representatives in case of death. Yet the men indicate their wives as their beneficiaries.

“My Sacco savings will go to my children, mother and sister,” says *Sylvia* who has been married for 16 years.

“My husband is likely to remarry after my death. What will happen to my children?” she posed.

This is the reality most Kenyan married men are now facing. Increased wealth among women and financial independence have encouraged couples to play dirty in property wars. More women are now big-time entrepreneurs or holding well-paying jobs, meaning that they can easily invest millions of shillings.

Some have taken over as the sole breadwinners in homes and they make key investment decisions without the knowledge of their husbands.

A look at some of the succession cases before the High Court shows a vicious fight over property, involving husbands and their children or some instances, the husband and in-laws.

Danstan Omari, a lawyer explains that things have changed and women no longer wait for the husband to invest for their future, and in most cases, the woman are secretly buying shares in the stock market, saving lots of money in bank accounts and acquiring property.

With the huge investments, he says, the women are apprehensive with the thought of another woman coming to enjoy her wealth at the cost of her children.

“Every woman fears the possibility of the husband marrying another wife, and who might mistreat her children,” he said.

The lawyer adds the law at the moment also favours the woman because the man cannot claim the property the wife has acquired during the marriage and written in her name.

“He has no claim whatsoever unless she says so,” he said.

Dominating remote controls

This has forced some men to go to court. Two years ago, in a case pitting MNK versus POM, the Court of Appeal ruled that for one to claim part of the spouse’s property, he has to prove contribution— which is not necessarily monetary.

“A man who cohabits with a woman in a property held in the woman’s name also needs to prove contributions that he made because merely lounging in a woman’s house while dominating the remote control for the television channels cannot entitle a man to a share of the woman’s property,” said Chief Justice Martha Koome in the case, when she sat in a bench of three judges of the Court of Appeal.

The matter has since moved to the Supreme Court.

In a case filed in 2011, which is yet to be concluded, a man identified as Jacob O is fighting with his two children over the property left behind by his wife who died on September 15, 2011.

The couple had four children and in an oral will, she left most of the properties to the children. They include money in bank accounts, and houses— including their matrimonial home in Nairobi’s Kilimani, an upmarket estate and flats.

She did the same with her shares at Housing Finance and the only thing the husband was to get equally with the children, are shares at Mwalimu Sacco.

Two children successfully petitioned to be given letters to administer the estate but the husband moved to court, seeking the review of the decision.

His case is that as the widower, he was the one entitled to the grant and secondly, some of the properties in the will were jointly registered in his name and that of his wife and as the surviving spouse, the property could not be disposed of by a will.

Mr O further said that because he was living with his wife, there was no way she could have left a will without his knowledge.

In a ruling in 2019, Justice Farah Amin noted that there was bad blood between the father and his children and that none of them could administer the estate. The judge ordered that the estate be administered by the public trustee.

In January, Justice Aggrey Muchelule dismissed an application by Mr O, seeking a review of the earlier decision. The judge wondered why it took the man more than six months to seek for a review.

Another row

In yet another case, Benjamin K is fighting with his sister-in-law, mother-in-law and a friend of his late wife over properties in Nairobi and Nakuru.

His wife died in 2016 and Mr K filed a succession case before a magistrate in Ngong, but was shocked to learn of another case, which bequeathed the property to the three, leaving him out.

His in-laws have a written will made three months before the death of his wife, signed before two advocates.

In the will, his late wife who was a banker acknowledged that she was married to Mr K but indicated that they were separated. She named her minor children in the will and proceeded to distribute the property.

All was well until about nine months later when Mr K discovered that the land where he resides in Ngong was in the process of being compulsorily acquired by the National Land Commission. It was then that he discovered another grant issued by the High Court, to the three.

He filed a complaint with the police accusing his in-laws of forgery, claims dismissed by the wife’s sister, saying that she was aware that Mr K had abandoned the wife and cohabited with another woman.

She said her sister moved to another house where she and her other siblings took care of her until her death and that Mr K could not be aware of the will because they were not living together.

The in-law claims that Mr K’s wife was apprehensive that the husband would spend her wealth with the new woman, hence she entrusted it to her sister, mother, and friend. The Ngong succession case has since been transferred to Nakuru to be handled by Justice Teresia Matheka.

A different case is pending the High Court in Nairobi pitting Charles M and his children, who wanted to sell a parcel in Mavoko, left behind by his late wife. The woman died in December 2009 and left the husband and four children, who are adults.

The man got what is termed in law as a life interest in all the immovable properties, meaning that he can enjoy the property as the owner but he cannot transfer it to someone else.

The wife directed the shares in companies, the money in the various companies and the car be shared equally among the four children.

The children wanted to sell the property in Mavoko valued at Sh10 million in 2018, a move their father objected. The court agreed with him.

In his ruling, Justice Muchelule noted that the man has a life interest over the property, which means that as long as he lives, he has exclusive rights over the property.

“It is only when he eventually passes on that the deceased’s children’s rights can begin to actualize. His rights over the property will pass over to the children, including the applicant. As of now, the children of the deceased have no claim or right to the property that they can seek to pass on by sale or otherwise,” the Judge said, adding that the property does not belong to the children, at least not for now.

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