A: It simply fails.

A Will only takes effect upon death. Until then, the testator retains full control over their assets and may sell or transfer them at any time. In other words, a bequest is not a guarantee, it is an intention that can change through actions, not just words.

Imagine this🤔: a father leaves his car to his son in his will. A year later, he sells the car but fails to update his Will. When he eventually passes on, what does the son receive under that clause?
Nothing.

Under the Law of Succession, if a specifically gifted asset is no longer part of the estate at the time of death or has been substantially changed, the gift is extinguished. The law treats it as though the bequest was withdrawn.

This concept, known as ademption, means the asset is gone and therefore the gift fails. The son loses out on that inheritance. It is a powerful reminder that estate planning is not a one-time event. Circumstances change, assets are bought or sold and your Will should evolve accordingly.

What happens, then, when a Dependant feels excluded because they receive nothing.
They may apply to court for reasonable provision. A Dependant is entitled to such provision, and the court has discretion to award a share of the estate.

Takeaway: If it’s no longer in your estate, it cannot be inherited. Regularly
review and update your will to ensure your intentions remain aligned with reality.

Now you know- Plan wisely
This is general information only- contact us for legal advice.

Linus

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Linus

The post How Can Families Prevent Sibling Rivalry From Destroying Family Business appeared first on Mboya Wangongu & Waiyaki.

In many family businesses, the founder is the everything, the CEO, Chairman, Director and principal shareholder, with only nominal shares held by the spouse or children.

They are often the sole bank signatory, the ultimate decision-maker, the face of the company to suppliers and contractors and the person everyone turns to when something goes wrong.

But what happens if that person is suddenly not there❓
🔸What happens to cashflow?
🔸Who pays salaries?
🔸Who has authority to bind the company?
🔸Who can engage the bank?
🔸Who reassures employees and clients that operations will continue?

And the obvious question emerges: Who Is In Charge?

This scenario is more common than we admit. When governance structures are weak, valuable time is lost. Family members with little operational experience step in under pressure, Employees grow uncertain, Conflict brews. Clients quietly begin to look elsewhere and business is disrupted.

The solution? Build a business that does not depend on one individual.
Put proper Governance and Ownership structures in place: ensure

🔹there is a business continuity plan for such eventualities
🔹Clearly documented levels of authority
🔹Multiple authorised signatories
🔹Defined operational leadership &
🔹A well-documented succession plan

Succession planning is not about replacing you.
It is about protecting what you have built and ensuring continuity beyond you.

Now you know- Plan wisely
This is general information only- contact us for legal advice

Linus

The post Would Your Business Survive Without You Tomorrow? appeared first on Mboya Wangongu & Waiyaki.

One may assume that divorce permanently severs all financial ties between former spouses; but under the Succession Act that is not entirely accurate.
The Act defines a “dependant” to include:
… “the wife or wives, former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.”

This means that a former wife qualifies as a dependant and may apply to court for reasonable provision from the estate.

In determining whether to award provision, the court has discretion to consider:

💠Her financial position and earning capacity
💠Whether there was a divorce settlement
💠The length and economic interdependence of the marriage
💠The size of the estate
💠The needs of other beneficiaries
💠Whether reasonable provision has already been made

Note: A separated wife continues to qualify as a wife for succession purposes and is therefore a dependant. The same position applies to a separated husband.

Where there is a valid Will, these issues can be addressed deliberately rather than left to litigation.
A carefully drafted Will can:

🔹Clarify your position regarding a former spouse
🔹Confirm that adequate provision was made during divorce
🔹Make express provision if appropriate
🔹Reduce ambiguity that fuels estate disputes
🔹Divorce ends the marriage; Failure to update your estate plan keeps the issue alive.

Now you know- Plan wisely…
This is general information only- contact us for legal advice.

Linus

The post Does an Ex-Wife Have a Claim Against Her Former Husband’s Estate appeared first on Mboya Wangongu & Waiyaki.

In many cultural settings in Kenya, the firstborn son is expected to assume leadership of the family. By virtue of that role, he is often perceived as deserving a larger share of the family estate. These cultural expectations continue to influence succession matters today.

In reality, traditional expectations and legal entitlement are not always the same.

Under the Law of Succession Act, where a person dies without a Will, children are generally entitled to inherit equally. The law does not recognise birth order or gender as a basis for preferential treatment.

Where a valid will exists, a parent may distribute their assets as they wish, including allocating a larger share to the eldest son, provided reasonable provision is made for other dependants. In some cases, a larger allocation may be justified. For example, where the eldest son has actively contributed to building the family assets and has shown strong leadership, a parent may consider him better positioned to manage assets.

However, if the eldest son lacks discipline or competence, granting him a larger share could jeopardise the estate and create division within the family.
Inheritance should be based on fairness, contribution and structured planning. Birth order and gender alone does not create legal entitlement.

Now you know- Plan wisely.
This is general information only- contact us for legal advice.

Linus

The post Is the Firstborn Son Entitled to a Larger Inheritance? appeared first on Mboya Wangongu & Waiyaki.

Leaving equal shares to your children often feels like the fairest choice, and in many cases it may be. However, equal does not always mean fair.

Consider this: if one child is still in school and another is already working and financially stable, should they receive the same share when the younger child may still need support for education? Or if one child has special needs and requires lifelong care, would equal distribution really meet their needs?

Kenyan courts have affirmed this position and have recognized that in some situations, equal distribution could actually result in injustice.

That said, when a person dies without a will, the intestacy rules under the Law of Succession Act apply, and the estate of the deceased person is typically shared equally among the children. This may not reflect the true intentions of the deceased.

A good estate plan gives you the flexibility to provide for your loved ones according to their specific needs. When your wishes are clearly set out and communicated to your family, it reduces uncertainty and conflicts.

Now you know—plan wisely.

This is general information only. Contact us for legal advice.

Linus

The post Is equal inheritance for your children really fair? appeared first on Mboya Wangongu & Waiyaki.

A. Too often we’ve seen children inherit significant wealth and it disappears seemingly overnight. How can parents use Trusts to protect and preserve wealth?

A well-structured Trust allows parents to appoint responsible trustees to manage assets and make decisions in the child’s best interest. For larger or more complex estates, a corporate trustee can add professionalism and continuity.

The mode of income and asset distribution is just as critical. Rather than a lump-sum inheritance, parents can choose:
·       Staggered or periodic payouts
·       Funds earmarked for education, healthcare, and maintenance
·       Age or milestone-based distributions &
·       Duration of the Trust
to control when and how the children benefit.

Trusts are powerful tools, but only when they are properly structured to reflect a family’s needs and values.

A well-designed plan ensures wealth is preserved to support the family for the long term, not just the moment inheritance is received.

Now you know- Plan wisely.

This is general information only- contact us for legal advice.

Linus

The post How can you protect a child from mismanaging their inheritance? appeared first on Mboya Wangongu & Waiyaki.

A. No it does not.

Many people still believe that once a daughter gets married, she loses the right to inherit from her parents with the assumption that she will inherit from her husband instead. The Kenyan courts have consistently held that customs that exclude daughters from inheritance are discriminatory and unlawful.

Under the Law of Succession Act, where there is no Will, all children are entitled to an equal share of a parent’s estate, regardless of gender or marital status.

This is backed by Article 27 of the Constitution which guarantees equality and freedom from discrimination. Therefore marriage does not cancel the right to inheritance and  a son will not have priority over a daughter whether she is married or not.

On the other hand, if there is a valid Will, then a parent can determine how property will distributed as long as they leave reasonable provision for all their children.

Now you know- Plan wisely.

This is general information only- contact us for legal advice

Linus

The post Does Marriage disinherit a daughter? appeared first on Mboya Wangongu & Waiyaki.

Understanding the term “Estate”

One’s “Estate” is simply everything you own. This includes your home, land, car, bank accounts, shares, business interests, mobile money, household belongings, digital assets like cryptocurrency, livestock, and even sentimental items. If you have dependants, obligations or property, no matter how modest, you already have an Estate. Where there is an Estate, there is need for planning.

What does Estate Planning involve?

Estate Planning is the process of arranging how your affairs will be managed both during your lifetime (in the event of incapacity) and after your death. Estate planning includes but is not limited to the following:

1. Writing a valid will – To specify how one’s assets should be distributed and who should oversee the process of distribution.
2. Appointing guardians – To care for one’s children who are minors or those who live with special needs.
3. Creating trusts – To manage assets on behalf of one’s beneficiaries, whether to protect vulnerable dependants or to manage complex family dynamics.
4. Assigning powers of attorney – To allow someone one trusts to make financial or health related decisions on one’s behalf if they become unable to do so.
5. Business succession planning – This is important for entrepreneurs and family-owned businesses. It involves identifying the right person to carry out one’s wishes for their business.

Why Estate Planning matters

Estate Planning provides clarity, prevents conflict, and safeguards your interests and those of your loved ones. Without proper Estate Planning:

1. Families may face lengthy court processes or legal disputes over property/assets.
2. Minors (below 18 years) or dependants with special needs could be left without designated guardians, thus their standard of care is at the risk of deteriorating.
3. Assets might not go to the people that one would have preferred.
4. Critical decisions could fall into the hands of individuals that one would not have trusted with those decisions.

Who needs Estate Planning?

Estate Planning is not reserved for the elderly, the wealthy or the terminally ill. It is important for everybody to create an estate plan, including the following categories of people:

1. Young professionals with savings or digital assets.
2. Parents and guardians, especially those with minor children or dependants with special needs.
3. Entrepreneurs and business owners who want to protect the continuity of their businesses.
4. Individuals with blended families.
5. Anyone who wishes to have a say in how their affairs are managed, rather than leaving it to chance or the law of succession.

Conclusion: It is not about wealth, health or age. It is about intention and legacy

The misconception that Estate Planning is only for the rich, old and the sick often leads people to postpone or ignore it altogether. However, Estate Planning is less about how much or how long you have and more about ensuring what you do have is well cared for, and that the people who matter most to you are well protected.

Think of Estate Planning as an act of love and care. It gives you control over your legacy, reflects your values, protects those who mean the world to you, and provides certainty in times of great uncertainty.

~By Sheila Mutiga & Fridah Gatwiri

admin

lexgroupafrica.com

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However, this is not always the case. There are instances where the rights of other individuals,  who are not necessarily wives or children of the deceased, may override the rights of the  deceased’s heirs. These include persons such as: joint land owners and nominees, among others.

This article focuses on the rights of nominees and it explains why their rights over the estate of a  deceased override those of heirs.

Nominees are third parties who are selected by the deceased during their lifetime to receive their  benefits in various entities upon their death. These include benefits held in insurance policies,  SACCOs, retirement benefit schemes, bank accounts, company shares, chamas, among other  entities. Such entities usually require a member to nominate persons who would receive the  benefits held by them upon their demise. Once the nomination is done by the deceased, the  benefits held no longer form part of the ‘free property’ that is the subject of probate and  administration proceedings, neither can they be bequeathed by the deceased under a will.

The nominated benefits will be subject to the laws that govern the various entities such as the  Insurance Act, the Retirement Benefits Act, the Co-operative Society Act and the Sacco Societies  Act. These laws recognize nominations and they provide that property which has been duly  nominated should go to the nominee. For example, Section 36A of the Retirement Benefits Act  provides that, “Upon the death of a member of a scheme, the benefit payable from the scheme shall not  form part of the estate of the member for the purpose of administration and shall be paid out by the trustees  in accordance with the scheme rules.” Its Regulations require the Scheme Rules to provide for the  benefits of a deceased member to be paid to a nominated beneficiary.

This is a position that has been affirmed by the Kenyan courts on various occasions. An example  is the case of In re Estate of Carolyne Achieng’ Wagah (Deceased) [2015] eKLR which was decided  by Hon. Justice Musyoka. In this case, the administrator of the estate of the deceased sought to  have the benefits of the deceased, such as terminal benefits upon death, pension, group life  insurance and shares in a co-operative society be considered as part of the deceased’s estate and  distributed among the beneficiaries according to the laws of succession. The deceased had made  a will which only included assets that were subject to statutory nomination. The court dismissed  the administrator’s application and held that funds which were subject to nomination did not  form part of the deceased’s estate and could not pass under a will. The court also held that despite  the fact that there was a will, all the deceased’s assets under the will had been nominated by the  deceased and could only be given to the nominees and not to any other beneficiaries. Thus, the  grant issued to the administrator was worthless since it sought to distribute property that the  probate court had no jurisdiction to distribute in the first place.

In view of the foregoing, it is clear that the right of a nominee will override the right of an heir in  instances where nomination is allowed by law. It is therefore important for one to understand the  impact of nominating the funds they hold in various schemes to their preferred kin. When making  a will, a person needs to be aware of the assets they have already nominated which will usually  be funds held in the entities discussed above. The will should not include these funds otherwise  it will be in vain because the funds will be paid to the nominee.

Since it is usually a requirement for one to make a nomination in the entities mentioned above, it  is crucial for a person to keenly consider who their preferred nominees will be and the allocation  of the share of the funds that they will give each of their nominees. Any person qualifies to be a  nominee including one’s husband, wife, children, siblings, parents, friend, and so on.  Consequently, one’s heirs can also be their nominees.

Thus, nomination is another way in which a person can bequeath their assets. In fact, one of the  main advantages of nomination is that a nominee will directly receive the nominated funds upon  the demise of the nominator and will not need to go through any court processes for the  nomination to take effect. The other major advantage is that a nomination is not likely to be  contested and will therefore pass as indicated by the nominator without objection from other  parties. Therefore, it is advisable for one to take advantage of the option of nomination if  available.

Article by Ivyn Makena 

This article is intended for general knowledge only. It does not create an advocate-client  relationship between any reader and Mboya Wangong’u & Waiyaki Advocates. For particular  expert advice on any matter dealt with above, please contact us through

gmboya@lexgroupafrica.com or imakena@lexgroupafrica.com.

admin

lexgroupafrica.com

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