All you need to know on property ownership

All you need to know on property ownership (Photo: iStock)

There have been many incidents where women have found themselves on the wrong side of the law when it comes to property ownership and inheritance. Here is, for example, a case of a spouse dying and leaving behind matrimonial property that requires key decisions. Or, you might get involved in a land tussle with relatives over what you and your husband rightfully owned or over will issues. And one may ask, now that my husband has died and I have no child, who should inherit my property?

Advocate Frank Oriku sheds light on some of the most critical questions asked when it comes to property ownership and inheritance in Kenya.

MANY KENYANS PURCHASE LAND JOINTLY WITH THEIR SPOUSES BUT NEVER FORMALISE OWNERSHIP. WHAT LEGAL IMPLICATIONS DOES THIS HAVE?

Oriku: Joint property ownership must be legally documented to avoid future disputes. Under Kenyan law, if a property is registered in one spouse’s name but acquired during the marriage, it is considered matrimonial property under the Matrimonial Property Act, 2013. Spouses should ensure that both names appear on the title deed or have a clear agreement to avoid potential legal battles in case of divorce or death.

WHAT HAPPENS WHEN A SPOUSE WHO OWNS PROPERTY PASSES AWAY WITHOUT A WILL?

When a person dies intestate (without a will), the Law of Succession Act applies. The surviving spouse and children are the primary beneficiaries. If there are no children, the spouse inherits the entire estate. In cases where there are children, the spouse gets a life interest in the property, which means they can use it but cannot sell it without court approval. If there is no spouse or children, the estate is distributed to other relatives in a specified order.

SOME INDIVIDUALS HAVE STEPCHILDREN OR EXTENDED FAMILY MEMBERS THEY WANT TO INHERIT PROPERTY. HOW CAN THEY ENSURE THIS HAPPENS?

The best way to ensure a specific distribution of assets is to write a legally binding will. The Law of Succession Act allows a person to bequeath property to anyone they choose, including stepchildren or non-relatives. Without a will, inheritance follows the legal hierarchy, and some intended beneficiaries might be left out.

IN SOME CASES, A DECEASED PERSON’S RELATIVES ATTEMPT TO DISINHERIT A WIDOW OR CHILDREN. WHAT RECOURSE DO THE AFFECTED PARTIES HAVE?

Disinheritance is unlawful. The surviving spouse and children have the legal right to claim their inheritance under the Law of Succession Act. If a widow or children are unfairly excluded, they can file a petition in court for the rightful distribution of the estate. Courts have been clear in upholding the rights of spouses and children against unlawful disinheritance. As I have said before, in Kenya, under the Law of Succession Act (Cap 160), a will made before a marriage isn’t automatically revoked by a subsequent marriage. However, if the will was created with that particular marriage in mind, it might be upheld. That said, if the new spouse is not mentioned, they may have rights under the Act that entitle them to a portion of the estate unless specifically excluded.

CAN A SPOUSE SECRETLY SELL MATRIMONIAL PROPERTY WITHOUT THE OTHER’S CONSENT?

No. Under the Matrimonial Property Act, 2013, both spouses must give consent before matrimonial property is sold, charged, or transferred. If one spouse sells property without the other’s knowledge, the transaction can be challenged in court and potentially nullified.

WHAT HAPPENS WHEN A PERSON INCLUDES A MINOR IN THEIR WILL? HOW IS THE PROPERTY MANAGED?

If a minor is named as a beneficiary, an executor or trustee manages the inheritance until the child reaches 18. The testator (person making the will) should appoint a responsible executor or guardian to ensure the property is protected and used in the child’s best interests.

LASTLY, WHAT STEPS SHOULD INDIVIDUALS TAKE TO SAFEGUARD THEIR PROPERTY LEGALLY?

First, ensure proper registration of all properties. Second, if married, document property ownership with clarity. Third, draft a will to control the distribution of assets. Lastly, in case of disputes, seek legal guidance promptly to prevent complications.

WHAT IS THE BEST TIME FOR ONE TO DRAFT A WILL ON THEIR PROPERTY AND WHO IS LIKELY TO BE THE IDEAL PERSON TO HELP ACHIEVE THIS?

Draft a will early and review it periodically to reflect any changes in assets or family dynamics. Engaging a legal professional can help avoid ambiguities and ensure compliance with the law. Wills are a powerful tool for estate planning. Proper planning ensures the protection of your loved ones and the smooth administration of your estate. I encourage everyone to take this step for peace of mind and legal certainty.

- Advocate Frank Oriku is a family lawyer.