Prepare a Will and spare your family anguish after you die

By Judy Thongori

Death is part of our daily lives but many of us are still not comfortable planning or discussing what will happen to our properties and our minor children after death.

Inevitably the loved ones bear the burden of the lack of planning.  Some deal with uncertainties of where to bury the deceased and bodies have lain in morgues for years as courts determine the place of burial.

Others have to deal with the question of who the relatives of the deceased were; there have been instances of court orders obtained by those who feel left out of burial arrangements.

For many, the next stage after burial is the filling of the many forms necessary for applying for letters of administration, where there was no Will. The forms require that they list the assets of the deceased person and the debts. For many of us our properties and debts are closely guarded secrets that we die with; and so our relatives struggle to get the information.

Eventually, they will fill a list. It may include all the properties but no one will ever quite  know because the deceased died with that secret. 

Upon filing the Petition for Letters of Administration in court, the   relatives  may be in for a bombshell especially if the deceased was a husband or father.  There may be claimants describing themselves as other relatives of the deceased. There may also be creditors who the relatives have no details about.

As the relatives may not have all the details in respect of the people claiming to be relatives or creditors, a lot of shadow boxing takes place. Imagine having to defend an alleged relationship of a third party with the deceased while the deceased did all within his power to hide the same from you.

How exactly are you supposed to feel when a claimant exhibits an item connecting them to the deceased; it could be photographs of the deceased and the claimant at scenic venues. It could be letters; it could be receipts from landlords or children’s schools showing the deceased was paying rent and school fees.

The battle may manifest at an emotional level first and especially for those who may not have known of the claimant(s).  Then it can become a legal battle to defeat the claim. It could well be that the  claimant  was one that the deceased was living  with and may have been  well known,  but the  relatives , in a monogamous union, may   fight a legal battle  over whether the  claimant  is  entitled to a share of  the  estate of the deceased. After all the Matrimonial causes Act in section (2) provides that “marriage” means the voluntary union of one man and one woman for life to the exclusion of all others.”

 Unfortunately or fortunately, the law sets double standards because section 3(5) of the Law of Succession Act provides “Notwithstanding the provisions of any other written law, a woman married under a system of law that permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes this Act—and her children are accordingly children within the meaning of this Act.”

At section 3(2) of the Law of Succession Act)  “child” or “children” shall include — in relation to a male person, a child whom he has expressly recognised or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility”

Friends living at this moment; could we spare our families the drama by undertaking estate planning?  Estate planning involves making plans for the transfer of your estate after death. Your estate includes land, cash, cars and houses.  Estate planning should be aimed at: identifying your beneficiaries; identifying your properties; making sure most of the estate is transferred to your beneficiaries; assigning guardians for minor children. Some of the steps you could take are as follows:

 Wills: A Will is a legal document that sets out your wishes with respect to your property after your death. 

Trusts: A trust is an arrangement where you entrust property to one person or an organisation to  manage  on behalf of your beneficiaries. May I suggest that the best step to estate planning is to live with the end in mind.