Girl power in action at court

Three daughters have gone to court to fight for their right to inherit from their father. This, after their brothers had divided the estate among themselves, deliberately withholding from Kenya's high court the fact that the sisters even existed.

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As one of four daughters myself, I always enjoy a story where sisters stand up together against injustice aimed at any (or all) of them. This is just such a matter, involving the estate of Daniel Kamau who died in 2001. He left six sons and six daughters – but no will.

After their father’s death, some of the sons went to court and in June 2003, won an order that the estate should be distributed among the six sons.

During November 2017, the three girls decided to take action and they asked the court to revoke or annul the grant that had been issued and confirmed to the sons. Their grounds were these: ‘they were daughters of the deceased and therefore beneficiaries of his estate, and yet this fact had been concealed to the court by the (sons) … they were not involved in … all subsequent proceedings and had been consequently disinherited and therefore the entire process had been fraudulent on the part of the (sons).’

Very late

The sons were not short of words in reply. They said that before their father died he had decreed that all his property would go to his sons. The daughters were present at the time, said the sons, and thus they knew about their father’s ‘decree’. This was why they sons did not see ‘the need’ to include the daughters in the legal process of winding up the estate. They also questioned why it had taken 15 years for the daughters to act. The sons said was very late for the daughters to approach the court since, at this stage, the estate had been shared out and the sons had ‘developed their portions substantially’.

Judge Aggrey Muchelule said no one disputed that the three sisters who brought the application were daughters of the deceased. Yet when the sons had filed their initial petition ‘there was no indication that the deceased had any daughters.’ The three sisters who now applied to court had not signed the petition brought by the sons. The three sisters had also not renounced their right to petition for the grant. The Law of Succession Act was clear: it was mandatory for any application to wind up an estate to have the names and addresses of all the children, both sons and daughters, of the deceased. There was therefore ‘material non-disclosure’ of the fact that the deceased had any daughters.

Excuse

The judge continued: ‘The deceased may have decreed that the daughters should not benefit in his estate upon death. But that did not excuse the (sons) from following the law regarded the information required in a petition for grant of letter of administration intestate.’

It was true that, where possible, the wishes of a deceased person regarding how his or her estate should be divided on his or her death, should be respected. ‘However, it is also true that a deceased should not express a wish whose effect would be to disinherit children who would ordinarily be expected to benefit from the estate.’

Even if it were assumed to be correct that the father in this case had left a will stipulating that ‘all his estate should go to his sons and that the daughters should not inherit anything, the daughters, or any of them, would be entitled to contest that will in subsequent succession proceedings.’

Defective

The only conclusion the court could thus reach was that the proceedings that had led to the earlier decisions were ‘materially and substantially defective’ because the daughters had been left out. It was also defective as the sons had failed to disclose that the daughters even existed, particularly since the daughters had not renounced their right to petition for the grant, nor their claim on the estate.

The judge thus revoked the earlier grant to the sons and all the consequent court certification. He issued a fresh grant in the names of the sons as well as the three sisters who had brought the new application. All or any of them now have 60 days to file a new proposal for how the estate should be distributed. Those proposals should then be served on ‘all the children of the deceased’ who had a further 30 days to respond.

In the meantime, the estate of the deceased – now already in the names of the brothers – had to be preserved ‘until there is final distribution or until further orders’.

Winding up

Judge Muchelule, who is the presiding judge of the family division, sounded as though it was a scenario all too familiar to him. He didn’t even begin to get into the truth or otherwise of the father’s ‘declaration’ that only the sons would inherit. Instead, he focused on the fact that the sons had not told the truth when they left off the daughters’ names (and even the fact of their existence) in the applications to the court, and that this was illegal. Clearly, the problem of daughters being left out of consideration and legal proceedings in the winding of up of estates is not new, at least not in Kenya.