Introduction
On 17th November 2021, the President signed into law the law of succession (Amendment) Bill, 2019 (Now the Law of Succession (Amendment) Act 2021. The new Act amends certain provisions of the Law of Succession Act, 1981 CAP 160 and introduce new amendments as discussed below.
The intention of the amendment is to avoid situations where opportunistic schemers successfully claim a stake in a deceased person’s estate hence disenfranchising the legitimate heirs of the deceased. Equally, the amendment seeks to provide clarity on who a dependant of a deceased person is and gives stronger protection to the spouse, children and extended family of a deceased person in succession matters. To this end, the following amendments have been made:
The Amendment
Firstly, the Amendment Act has amended Section 3 of the Law of Succession Act, 1981 by introducing a new definition of the term “spouse.” It defines a spouse to mean a husband or a wife or wives recognized under the Marriage Act, 2014. The Marriage Act under section 6 recognizes 5 types of marriages which are Christian marriage, Civil marriage, Customary marriage, Islamic marriage and Hindu marriage. In these 5 types of marriages; Christian marriage, Civil marriage and Hindu marriage are monogamous in nature while Customary marriage and Islamic marriage are polygamous or potentially polygamous in nature.
Secondly, Section 29 of the Law of Succession Act, 1981 is also amended by deleting the previous section and substituting it with a new section 29 which provides the meaning of Dependant. In this regard, the new amendment provides that Dependant means-
- 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 parents, step parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, as were being maintained by the deceased immediately prior to his death.
The amendment also provides that a person not named in the new section 29 shall not be a dependant for the purpose of the Act unless the person proves he/she was maintained by the deceased for a period of two years prior to the deceased’s death.
The effect of the Amendment of Section 29 which has dropped the phrase ‘Former wife/wives’ is that divorcees will no longer be objectors in succession disputes of their former spouses. Notably, the husband of the deceased will now be considered as a dependent whether or not he was being maintained by the deceased immediately prior to her demise. This is a shift from the previous position where, a man would only be considered a dependant where the deceased woman, was maintaining him prior her death.
Conclusion
In conclusion, we note that this is a brief amendment but has a far-reaching consequence in succession law. It is our considered view that it is debatable whether parties in ‘come we stay relationships’ will continue to be automatically recognized as ‘dependants’ unless when claiming to have been maintained by the deceased at least 2 years before his/her death under the new section 29(2). Additionally, this new provision appears not cure the problem created by Section 3(5) of the Law of Succession Act CAP 160 which provides that: Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.
For any inquiries relating to the Law of Succession (Amendment) Act, 2021, contact us on info@mmsadvocates.co.ke or kachero@mmsadvocsates.co.ke