WIDOWERS NO LONGER HAVE TO PROVE MAINTAINANCE BY THEIR SPOUSE 

 

THE LAW OF SUCCESSION (AMENDMENT) ACT, 2021

The Law of succession (Amendment) Act, 2021 (The Amendment Act ) - was assented on the 17th November, 2021.

PREDOMINANT OBJECT

To give legitimate dependants of a deceased person a claim and a right in the deceased intestate estate.

Amendments.

This Act introduces the term spouse. According to clause 2 of the Amended Act defined spouse as a husband or a wife or wives recognized under the marriage Act.

The Amendment Act under clause 3 has amended section 29 of the Principal Act by providing the following definition of dependants. The following persons are recognized as dependants under the Amendment Act. 

  • The spouse and children of the deceased whether or not maintained by the deceased immediately prior to his death; and
  • Such of the deceased's parent step parents, grandparents, grandchildren, step children, children whom the deceased had taken into his family as his own brother and sisters and half brothers, half sisters as were being maintained by the deceased immediately before his death.
Clause 3 also introduces section 29 (2) which provides as follows:

A person not in this section shall not be a dependant for the purposes of this Act unless the person proves maintained by the deceased for a period of two years prior to the deceased's death.

IMPUTATION OF THE AMENDMENTS.

a. Former wives no longer recognized.

    Former wives are no longer as persons entitled to deceased's Estate for purposes of succession.                Recognition of former wives as dependants under section 29 (a) of the principal Act has been                 abolished

Section 29 (a) in the principal Act states the wife or wives or former wife or wives and the children of the deceased immediately prior to his death. This has since been amended to reflect as follows: The spouse and children of the deceased whether or not maintained by the deceased immediately  prior to his death; and that being so means that; only a spouse i.e a husband or a wife or wives recognized under the marriage Act is recognized as a dependant for purposes of succession.    

Under section 29 of the Act, by the interpretation of the  marriage Act , then the term  Spouse  refers to one that has registered their marriage. Precedence has been set on the matter. In the case of Mary Wanjohi Mungai ~VS ~Attorney General & Another (2015), the court held that ;`` In the circumstances it is my finding that the present petition is merited to the extent that is detailed above my responses to the two issues that arises are as follows;`` 

    That section 6 of the marriage Act must be read as including all marriages celebrated under all                 religious faiths duly recognized and registered in Kenya.

    That  the practice of polygamy and registration of polygamous marriages without the consent of the         previous wife or wives is inconsistent with the equality provisions of the constitution.

    It is mandatory that the recognition of a Spouse in this respect be subject to having a registered            marriage.''

b. Widowers Need Not Prove Maintenance for purposes of succession.

        In the Amendment Act sec 29c of the principal Act which states; where the deceased was a                    woman, her husband if he was being maintained by her immediately prior to the date of her death.

        Widowers now fall under section 29(a) and need not prove maintenance for purposes of succession

 The Amendment introduces a gender neutral approach and the interest of a spouse shall fall under section 35 of the Law of succession Act. This section enumerates thus;

        35. Where intestate has left one surviving Spouse and child or children.

                    1. The personal and household effects of the deceased absolutely and;

                    2. A life interest in the whole residue of the net intestate estate, 

provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person subject to the provision of section 40 where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-

A surviving Spouse shall during the continuation of the life interest provided by subsection(1) have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will or in such manner as to take effect at any future date.

(c) Persons  not within the Degrees of Consanguinity qualify as dependants upon proof of maintenance by the deceased two years before death.

Section 29(2) of the Amendment Act provides:-

A person not named in this section shall not be a dependant for the purposes of this Act unless the person proves being maintained by the deceased for a period of two years prior to the deceased's death.

This section brings forth provision for people not falling within the prescribed degree of consanguinity. All they have to do is prove they were being maintained by the deceased two years before the death of the deceased.

Formerly, the Law of Succession recognized dependants as falling within the following groups:

  •   The wife or wives, or former wife or wives and children of the deceased whether or not  maintained by the deceased immediately prior to his death.
  •  Such of the deceased's parents, stepparents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters and half brothers and half sisters, as were being maintained by the deceased immediately prior to his death and;
  • Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
Lets get an insight on who a dependant is. According to the Black's Law dictionary, 

A dependant is one who relieves on another for support, one not able to exist or sustain oneself without the power or aid of someone else.

Lawful dependant is defined as one who receives am allowance or benefit from the public such as social security; one who qualifies to receive a benefit from private funds as determined within the terms of the Law governing distribution.

Legal dependant; Is a person who is dependent according to the law; a person who derives principal support from another and usually may invoke laws to enforce that support.

This Amendment Act has provided  a leeway for persons who do not fall within the series  of consanguinity to assert to be dependants. Thus cohabitees, ``sides chicks,  and the likes that the deceased maintained prior to death would therefore be embraced so long as they prove being maintained two years before the demise of the deceased.

Disclaimer:

This information is only meant for educational purposes only.  Always consult a qualified lawyer for legal advice in case of any legal issues.



_________________________________________________________________________________
      Wangu kimure Advocate of the High Court of Kenya; 0716912966 kellenkimure@gmail.com:NKR

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