THE LAW OF SUCCESSION ACT (CAP 160) NEEDS TO BE UPGRADED

By Pravin Bowry

If we look at the post-independence development of law objectively, one piece of legislation, the Law of Succession Act Chapter 160, stands out as a landmark of indigenous homegrown legislation.

As a result of Contran’s Commission on Law of Succession in Kenya in the late 60’s, the succession laws were harmonized and the fragmented old laws based on ethnicity, religion and colonial history repealed in 1981. Tribal and customary laws, antiquated succession laws of England and India, were abolished. Legal confusion and discrimination (especially against women), time has proved, has led to coherent and largely equitable law applicable universally in the country.

There are, however some aspects of inheritance scenarios which need review and examination and amendments of the Succession Act are now warranted.

The delay in finalizing and obtaining Probate or Letters of Administration and the Confirmation of the process is outrageously cumbersome and long. Some estate matters have taken years, some decades to be finalized. Ways and means must be found where the deceased’s affairs must be finalized with a matter of few months as is the case in the United States of America and the United Kingdom.

Even when the deceased’s estate has one or few assets, the existing process is time consuming and costly. A procedure of summarily obtaining court orders to finalize small estates must be devised.

One area in the law of intestacy has created great controversy and this relates to the matter of “life interest”. Put simply, a spouse of a deceased person who has not made a will only has a life interest, the actual beneficiaries generally being the children. Is this fair?

Yet another unfair position is the one-sided determination of life interest of a widow on remarriage. Scholars have stated that Sections 35(1) and 36(1) of the Succession Act are in contravention to the entitlement of rights under Article 45(3) of the Constitution, guaranteeing equal rights to parties within the marriage.

Perpetual life interest is manifestly unjust in many a situation. Is there room to limit or restrict the duration of life interest?

In Kenya the Estate Duty or Inheritance Tax was abolished in the 70’s ostensibly to protect and exempt rightly placed leaders with massive financial portfolios.

Should the Estate Duty be revived? More so in light of the fact that a privileged class of our political elite are capable of amassing ill-gotten wealth in a matter of a few years.

There is a school of thought which propagates that the taxation of deceased’s estates must be provided for in the Succession Act.

Burial disputes and abnormal costs of burials, retention of deceased in hospitals for months where bills have not been paid, organ harvesting in mortuaries are some of the other aspects which need to be incorporated in the Succession Act.

To sit on the laurels of success of our achievement in practical implementation of the Succession Act is not the way forward. There is room for improvement and a need to upgrade the Succession Act.