Property disputes in families

Harold Ayodo

Family disputes over property that end up in prolonged ownership battles in court are not new. A parent may have invested in real estate or at the stock exchange and at old age, his or her adult children may demand a share.

The plot usually thickens when a family is polygamous and every child insists on a share of the investment. Some of the battles turn physical before police officers step in to calm tempers before tragedy occurs. Most of such circus attract media attention before the family runs to court either seeking to protect or seize the investment.

It is not strange for children to fight over collection of rent from tenants living in the residential units belonging to their parents. Furthermore, gender rights occasionally play out when brothers elbow out their sisters from ownership arguing they lack property rights.

Property rights

Interestingly, most children fight over ownership of family property unaware that their parents might be hugely in debt.

In the event of the parent’s death, the battle takes a new twist especially when it emerges the deceased had no written Will, or creditors step in to recover debts. As family members pounce on each other over property of their parents’, the law spells how property disputes can be avoided.

For instance, should a father die without writing a Will, then every child is entitled to a share of the family investment. For those who may have died intestate, their property should be distributed to their wives and children first. Where an investor was a polygamist his property is divided among the households according to the number of children in each.

However, dying in debt changes the fortunes for the surviving relatives as courts ensure creditors are paid before inheritance.

There is usually a personal representative of the deceased investor who takes account of the property. The representative may even use his powers to sell some property of the deceased to settle debts.

The personal representative, not necessarily a family member, caters for the funeral expenses from funds of the investor then deals with debtors.

Debtors

Interestingly, even children born out of wedlock will benefit as long as it is proved that the deceased fathered them. Most Judges who listen to such cases rely on a precedent set by The Court of Appeal in the case of John Mubea vs Milka Nyambura of 1990. The Appellate Judges ruled that children of an adulterous union are recognised for the purposes of succession -— inheritance of property.

Mothers of children born out of wedlock can, therefore, contest the Wills written by their former lovers if they exclude their children. But the woman must prove beyond reasonable doubt the deceased fathered her child. The court mainly relies on the Law of Succession Act, which recognises inheritance rights of children born out of wedlock.

- The writer is a lawyer and journalist