Kenyan families risk property disputes over unclear wills and succession planning, a lawyer warns.
She worked alongside her husband for decades, helped build their home and raised their children. When he died without a will, she found herself fighting relatives for property she believed was hers.
That scenario, once permitted under parts of Kenya’s Law of Succession Act, continues to shape court decisions on inheritance, even as the statute itself remains largely unchanged since 1981.
“Where there is no will, that is where the doors are open to all,” says Advocate Cecil Miller, a senior counsel with three decades of estate planning experience, during a webinar on wills, trusts and beneficiary nominations.
Miller says many Kenyan families remain exposed under intestate succession, where a person dies without a valid will.
“If you die intestate, as long as they can prove you took care of them, they can come and claim your estate,” he notes.
He warns that dependants who prove maintenance by the deceased may legally claim part of an estate even when they are not formally named as beneficiaries.
“It is better to put your house in order than leave your beneficiaries at risk,” Miller adds.
The consequences of dying without a will can be severe. Section 35 of the Law of Succession Act once provided that a widow receives only a life interest in her husband’s property and loses that right if she remarries. Section 36 further limits a childless spouse to household items and a capped portion of the estate, with the remainder devolving to relatives.
Courts later declared those provisions unconstitutional.
“A woman’s rights cannot be taken away if she remarries,” Miller observes, referring to the ruling in Ripples versus the Attorney General.
The gender disparities also affect men. Section 29C of the Act requires a surviving husband to prove he was financially maintained by his wife before inheriting her estate, a burden not imposed on widows.
In a ruling delivered in 2025, the High Court declared the provision unconstitutional.
“It imposes an unfair gender-based hurdle exclusively on men, creating a presumption that a widower is incapable of inheriting his deceased wife’s estate unless he was financially dependent on her,” Miller explains, paraphrasing the court’s finding.
He notes that courts continue to reshape succession law through precedent even as Parliament has yet to formally amend several sections of the statute.
Miller also cautions against poorly understood property ownership arrangements, particularly joint tenancy.
Under joint tenancy, surviving owners automatically inherit the entire property after the death of a co-owner, leaving the deceased’s family without inheritance rights over the asset.
“Over the years I’ve found issues where people registered as friends, went into business and did not know the legal meaning of the title they were registering,” Miller says. “Then they leave their families in a lot of mess.”
He explains that tenancy in common offers greater protection because each owner’s share passes to dependents through succession proceedings.
The webinar also examines succession disputes arising from polygamous unions and long-term relationships without formal marriage certificates.
Miller refers to the 2023 Supreme Court case of MNK versus POM, which outlines conditions under which courts may presume the existence of a marriage. These include long-term cohabitation, intention to marry and presenting themselves publicly as a married couple.
“Just write a will,” Miller advises. “That becomes an easier thing than leaving the presumption to be proven by someone who was not party to the first marriage.”
For more complex estates, Miller recommends trusts as an alternative to wills, saying they allow continuity after death because trustees or corporate structures continue managing assets.
“A trust supersedes a will, but you can have both,” he notes. “The trust gives you more freedom.”
He also warns Sacco members and account holders to regularly update nominee forms and next-of-kin records, saying outdated nominations can override family expectations after death.
“If you nominate someone and then marry someone else, the person listed in the nominee form takes priority,” Miller cautions.
The webinar is organised for Sacco members, many of whom hold savings, shares and benefits tied to nomination forms signed years earlier without fully understanding their legal effect.
Without updated wills, trusts and nominee records, Miller warns, many Kenyan families remain one death away from prolonged succession battles.
