S 26 empowers a person who qualifies under S 29, called dependant, and who considers that a testator did not make reasonable provision for him in his will, to apply to court for an order making such reasonable provision for him as the court thinks fit.
S 29 gives three categories of persons who may take advantage of S 26 of the Act, namely:
- The wife or wives, former wife or wives of the deceased who do not have to prove dependency. All they need to show is that they were legally married to the deceased at some point.
- The children of the deceased who do not have to prove dependency on the deceased prior to his death
- Other relatives of the deceased which includes 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, half-brothers and half-sisters; and the husband, where the deceased is a woman. They have to prove dependency prior to the death of the deceased.
Under the LSA, the persons who can take advantage of the dependency or family provisions should be related to the deceased through either blood or marriage, and are limited to the categories of persons listed in section 29 of the Act. Persons who are not related to the deceased in any way or who are not members of his household cannot benefit under these provisions.
(a) Wife or wives of the deceased
S 29(a) of the LSA caters for wives married either under statute or under systems of marriage that allow polygamy. There is no requirement that the wife or wives prove that they were dependent on the deceased immediately before his death. All they have to do is to prove that they were validly married to the deceased. This category includes a judicially separated wife (S 3(1) of the LSA). These include also wives married under African customary law under the woman-to-woman arrangement: Re Letich (2003 – 2004); In the Matter of the Estate of Naomi Wanjiku Mwangi
The position regarding women married under customary law by a man who had previously or subsequently contracted a statutory marriage initially presented a problem. The LSA specifically sought to address the plight of women who found themselves in the position of the customary law widows in the cases of Re Ruenji’s Estate (1977) KLR 21 and Re Ogola’s Estate (1978) KLR 18. In both matters, the deceased persons had previously contracted marriage under the African Christian Marriage and Divorce Act and subsequently purported to contract marriages to other women under customary law during the subsistence of the statutory marriage. The High Court held, in both cases, that by virtue of S 37 of the Marriage Act the deceased lacked capacity to contract other marriages under any system of law, that the marriages so contracted were null and void, and that the women so married were not wives for any purpose (including succession). The legislature sought to address the problem through an amendment of the LSA, through Act No. 10 of 1981, by introducing section 3(5) which provides as follows:
Notwithstanding the provisions of any other written law, a woman married under a system of law which allows polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of the Act, and in particular sections 29 and 40 thereof, and her children are, accordingly, children within the meaning of the Act. The provision clearly sought to circumvent S 37 of the Marriage Act and to reverse, through legislation, the decisions of the High Court in Re Ruenji’s Estate and Re Ogola’s Estate, by recognising, as wives, women married to or by men who had no capacity to marry them by virtue of S 37 of the Marriage Act. The amendment gives primacy to the polygamous marriage at the expense of the statutory monogamous one and it treats the statutory monogamous marriage as secondary to the subsequent polygamous marriage.
This provision was a stopgap measure awaiting the passage into law of the Matrimony Bill, which would have recognised such a woman married to a man who had contracted a previous statutory marriage. It is, however, not an ideal solution to the problem as it creates an untidy situation where the marriage statutes are in conflict with the LSA. Whereas the woman married in contravention of S 37 of the Marriage Act is not a wife for any purpose, such a woman is recognised under section 3(5) of the LSA as a wife and is entitled to inherit from the estate of the deceased in spite of S 37 of the Marriage Act. Therefore, such a woman can bring herself within the meaning of S 3(5) but she has to show that she was married under a system of law that allows polygamy and therefore a cohabitee is not a wife under S 3(5) but she can bring an application under S 29 if the court presumes from prolonged cohabitation as stated in the case of Hortensiah Wanjiku Yawe vs. Public Trustee CAEA CA No. 13 of 1976. But can the cohabitation occur where the man is already married under statute or where only he is single? Only where he is single. Some cases nevertheless, treat cohabitees as wives stretching 3(5) to cover such cohabitees.
(b) Former wife or wives of the deceased
These fall under S 29(a) of LSA and do not have to establish dependency. A former wife is a person whose marriage to the deceased was dissolved or annulled during the deceased’s lifetime. In the Matter of the Estate of James Ngengi Muigai Nairobi HCSC No. 523 of 1996 one of the claimants under S 26 was the former wife of the deceased. The court held that she was entitled to inherit because she was a dependant. However, if the divorce court had granted an order for alimony or the former wife had obtained a settlement under S 17 of the MWPA 1882, she will not be entitled to relief under S 26 of the LSA.
(c) Children of the deceased
These are covered under S 29(a) of the LSA and they do not have to prove dependency. A child of the deceased includes a child en ventre sa mere, a child of a relationship outside marriage, a legitimated child (S 5 of the Legitimacy Act (Cap 145) and an adopted child (Ss 174 and 175 of the Children Act (Act No. 8 of 2001)) who is entitled to a share of the estate of the adopter as if he were a natural child of the adopter. It also includes a child whom the deceased has expressly recognised or accepted as his or for whom he has voluntarily assumed permanent responsibility (section 3(2) of the LSA) An adopted child cannot claim against the estate of their natural parent (S 171(1) of the Children Act). The illegitimate children of a deceased Muslim man cannot rely on S 26 of the Act even if the deceased had recognised and accepted them as his own during his lifetime (Chelang’a vs. Juma (2002) 1 KLR 339). An illegitimate daughter of the deceased whom he recognized and provided for during his lifetime was held not to be a dependant under S 29 because of her illegitimacy on account of the Islamic Law. Step children and children whom the deceased has taken into his family have to prove dependence.
(d) Other persons who were dependent on the deceased
This category falls under S 29(b) of the LSA and they all have to prove that they were being maintained by the deceased immediately before his death. This requires that the relatives establish that they were financially dependent on the deceased.
Grandchildren are put in this category because under normal circumstances the primary responsibility over them falls on their own parents, not on the grandparents. If their own parents survive the grandchildren’s deceased grandparents, the grandchildren would inherit through their own parents. The grandchildren would only be entitled to a share of their deceased grandparents’ estate if their parents are dead or for some reason could not provide for them hence their dependence on the deceased grandparents. The Court of Appeal in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others held that grandchildren are usually not direct dependants of the deceased, they have to prove dependency. So long as their parents are alive and take a benefit under a will or in intestacy, grandchildren are not considered as dependent on the deceased grandfather. They take through their own parents. They only become dependants where their parents predecease the grandfather or for some reason the parents are themselves dependent on the deceased. On the facts of the case, the grandchildren were not dependent on their deceased grandfather but on their uncle, who was one of the respondents in the suit.
In In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi HCSC No. 1099 of 2002 and In the Matter of Nelson Kimotho Mbiti (deceased) Nairobi HCSC No. 169 of 2000 the parents of grandchildren of the deceased persons were themselves dependent on their deceased father, meaning that the grandchildren were directly dependent on the grandfather. The court found that the grandchildren in both matters were dependants for the purpose of section 26 and made provision for them out of the estates.
Jurisdiction and Procedure
A survivor, heir or beneficiary of the deceased who feels inadequately provided for under a will or in intestacy or through a gift in contemplation of death may move the court under S 26 of the Act for reasonable provision from the estate of the deceased. The court can only act on application, no provision for the court can act suo moto unlike S 76 where it can revoke a grant on its own motion. Under S 30 application to be made anytime before confirmation of the grant i.e. before distribution of the estate. It can be brought either in testate or intestate succession. In cases of intestacy instead of seeking for revocation of grant or objection proceedings one can apply directly under S 26 stating that you are not listed as one of the beneficiaries and if you are a dependent thus should be provided for. The test for reasonable provision is set out in S 28 of the LSA. It gives out guidelines that the court should consider in deciding whether or not the deceased made reasonable provisions for the applicant and whether to exercise discretion in favour of the applicant. There are four matters to be considered.
(a) The nature and amount of the deceased’s property.
The court should consider whether the estate has sufficient assets to meet the demands of the applicant. Visram J In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi HCSC No. 2322 of 1995, made the point that only the free estate of the deceased is available for the purposes of S 26 of the Act. In the instant case, the property, which the applicant was claiming, had been transferred to other people before the will was made. In the Matter of James Ngengi Muigai Nairobi HCSC No. 523 of 1996, Koome J, before making the order for reasonable provision, considered the fact that the estate of the deceased was vast thus could make reasonable provision without prejudicing the rights of other beneficiaries. The court would be reluctant to interfere in the case of small estates (Re Fullard (1981) 2 All ER 796.
(b) Any past, present or future capital or income from any source of the dependant.
The court should have regard to the earnings or income, earning capacity, pensions and social security benefits of the applicant in ascertaining the applicant’s capital and financial resources. Koome J in In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002, considered the fact that the applicant was a pensioner and was receiving financial support from his other children.
(c) The existing and future means and needs of the dependant.
Account should be given to the present and future needs of the dependant. In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi HCSC No. 1099 of 2002, where the dependant was a four year old grandchild of the deceased, Koome J considered the child’s future needs to be regarding his welfare and education. In the Matter of the Estate of Ashford Njuguna Nduni (deceased) Nairobi HCSC No. 1589 of 1994, with regard to the other applicants, who were the brothers of the deceased, the court considered that they were middle aged, in good health and capable of taking care of themselves. The court was not convinced that these applicants did not have any income from their own pre-occupations or that they were wholly dependent on the deceased.
(d) Any advancements or other gifts made by the deceased to the dependant during the deceased’s lifetime (principle of hotchpot)
Any inter vivos gifts (including gifts in contemplation of death) made to the applicant by the deceased during the applicant’s lifetime should be taken into account. The objective is that none of the survivors receive a larger share than the other. In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002 the court considered that the deceased, shortly before his death, had given a vehicle to the applicant. A nomination made in favour of the mother of the deceased was also considered.
(e) The conduct of the dependant in relation to the deceased
The conduct of the applicant towards the deceased could be positive or negative. The Court of Appeal in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. of 213 of 1997 considered the fact that one of applicants was not in good terms with the deceased. He had emigrated to another country and hardly kept in contact with the deceased. He did not even attend the deceased’s funeral: he apparently came home to present and prosecute the application for reasonable provision out of the estate. The other applicant was found to have also had problems with the deceased. The court declined to make provision for the applicants based on these factors.
In In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi HCSC No. 2322 of 1995, Visram J took into account that the relationship between the applicant and the deceased was less than cordial. The deceased had in fact stated in his will that the applicant had treated him with disrespect. The deceased had even been forced to seek protection of the police from the applicant and two other sons. The applicant and his errant brothers had also written to the deceased’s bankers asking that the deceased be prevented from withdrawing money from his own account. They had also sought to prevent the deceased from dealings with land registered in his name.
(f) The situation and circumstances of the case, including the deceased’s reasons for not providing for the dependant
This is a general or omnibus provision that should cater for all the other reasons and excuses that explain the deceased’s conduct. One such consideration are the deceased preferences. In Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995 the Court of Appeal took into account that appellant was the deceased preferred wife, and in exercising its power under S 26 gave her house a larger share of the deceased estate. In In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002 the court considered the circumstances of the widow of the deceased, the possibility that she had the same condition (AIDS) which led to the deceased’s death, and the fact that she would need funds for medical care.
Forms of Provision
Under S 27 of the LSA the court has discretion to make one or more of the following orders once it is satisfied that reasonable provision has not been made for the applicant.
(a) Transfer of a specific asset
This entails the allocation of a particular asset to the applicant out of the net estate. In In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002, Koome J awarded a particular asset to the applicant: a motor vehicle. In In the Matter of the Estate of James Ngengi Muigai (deceased) Nairobi HCSC No. 523 of 1996 (Koome J), the court after ordering reasonable provision for the dependants out of the estate, directed two particular assets be vested or transmitted to them.
(b) Periodical payments
This is usually of a specified sum, or a sum equal to the whole or to some specific part of the income of the net estate, or periodical payments of the income produced from capital of the estate appropriated for the purpose.
(c) A lump sum paymentThis may be by installments. Such orders are common where the applicant was a spouse of the deceased or where the estate is small so that the amount of income produced for maintenance would be insufficient. In In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi HCSC No. 1099 of 2002 (Koome J), ordered that a sum of Kshs. 400 000.00 be the reasonable provision for the minor applicant. In In the Matter of the Estate of Benson Joseph Omondi Awinyo awarded a lump sum of Kshs. 100 000.00 to the applicant. The lump sum payment may be paid out of money held in the accounts of the deceased or from property sold for this purpose. The court can also make a combination of these orders.