Not a month goes by without reading about family disputes over inheritance of property. Seemingly close families end up fighting after the death of a patriarch or matriarch. Emotions run high and deep-seated resentments come to the surface. Unfortunately, these fights can drag on for a long time, leading to families losing some of their inheritance to pay for legal fees and often times family relations are severed forever.
Why does this happen?
There are a number of reasons.
- • Lack of Estate Planning
Not having a sufficient estate plan is one of the biggest causes of family disputes today. If one dies without a Will, the state determines who will administer the estate and how distribution will be done. An estranged spouse or child can end up having equal share of the inheritance with a child who took care of the family or the business. Also, one may have a Will, but it may not be valid, or it may not have sufficiently catered for dependents, creating more grounds for disputes.
- • The Secret Family
Too often, we see the emergence of a secret second family after one’s death. The grieving family now has to deal with a sense of betrayal and how to accommodate the ‘new’ family who also want a share of the estate.
- • First-born son syndrome
Then there is the first-born son who believes he’s the rightful person to administer the estate even if he is not the most suitable or responsible, but has a sense of misplaced entitlement. This can end up causing bitter sibling rivalries. It is important to note that a first-born son has the same rights as other children.
- • Dads’ new wife
The new wife who receives a good chunk of the estate much to the chagrin of other family members. Resentment and suspicion takes center stage usually with one side of the family claiming that there was undue influence and coercion or outright forgery.
How do we prevent disputes:
- • Have a Will-
Having a valid Will allows you to choose your executors and to distribute your property the way you would have wanted to. The more specific the Will, the better. Ensure your Will is properly drawn up to avoid unnecessary court battles! It must be reviewed regularly to cater for any changes.
- • Include Everyone
You MUST include your all children, even those you got out of wedlock and you must include your spouse/s. (Other dependents like parents, siblings etc. may be included if you so wish). This will save your family a whole lot of heartache.
- • Have a Trust
Consider having a trust to protect your assets. A properly drawn up trust can prevent unnecessary disputes as the property is transferred to the trust and is managed by the trustees for the benefit of your beneficiaries. You can protect your assets from creditors, in-laws and errant children. The trust can serve as very useful instrument for preservation of wealth for future generations.
- • Be Fair
Be as fair as possible when planning your estate. It does not mean that you have to provide for your dependents equally, but you must be reasonable. For example, a child living with a disability may require more financial care than the others. Everything must be weighed and carefully balanced. Distributions that are done fairly tend to have less disputes than others.
- • Communicate
It is important to communicate as much as you can with your family regarding property, your business and your intentions. Open communication will help to manage expectations and enhance family bonding.
- • Distribute in your lifetime,
As much as possible, consider giving gifts during your lifetime. This prevents challenges later by someone else and the gift goes directly to the person you had intended to give.
What kind of legacy do want to leave?
‘Changing the narrative in Estate Planning, one family at a time’
- Article by Gladys Mboya
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.