WILLS IN THE KENYAN SETTING

In the African setting, it is considered taboo to talk of death and it is even much more absurd to talk of preparing your own will. This has resulted in very few people actually taking time to draw up their own will or seeking the professional services of a lawyer to do this for them. As a consequence of the same, many cases in the Kenyan courts of law are about a person dying intestate; these cases can take years or decades to close — not only is that expensive it takes a toll on the family, breeds contempt and is very expensive. We might all be familiar with such cases such as the recent Kirima case which has sparked interest in several quarters or the mixed reaction of the public after the late Martin Shikuku pronounced that he had already finalized the planning of his demise prior to his death.

Definitions.

An estate is the net worth of a person at any point in time. It is the sum of a person's assets , legal rights, interests and entitlements to property of any kind less all liabilities at that time. 

A will or testament is defined as a legal declaration by which a person, the testator, names one or more persons to manage his estate and provides for the transfer of his property at death. In the strictest sense, a will has historically been limited to real property (land) while testament applies only to dispositions of personal property thus giving rise to the popular title of the document as the "Last Will and Testament", though this distinction is seldom observed today. A will may also create a testamentary trust that is effective only after the death of the testator.

In modern law, the terms inheritance and heir refer exclusively to the succession of property from a deceased who died intestate (without a will) or whose will was invalid. Alternatively, this may also apply where a will or declaration has been made, but only applies to part of the estate, the remaining part of the estate not covered in the Will forms the “Intestate Estate.” 

Future recipients of property through a will are termed beneficiaries, devisees, or legatees.

Advantages of writing a Will.

Writing a Will is of utmost importance, even if we acknowledge this, it seems to be treated as a daunting task and is more often than not often procrastinated upon. So why do we need to have a written Will? As mentioned above, a Will is a written instrument which we can use to facilitate the distribution of our assets to our loved ones upon our demise. The instrument will clearly state who will inherit our assets, when they can inherit the assets and the conditions that must be met in order for them to receive the said assets. If you do not have a will, your estate will be distributed according to the laws of intestate succession. Those laws may direct that your probate property be distributed to certain close relatives and sometimes to more distant relatives.  The specific relatives and the percentage of your probate property that goes to each relative may not be the same as you would choose if you had a will.  If no relatives are found, which does not happen often, then your probate property may go to the state.  

 A Will therefore ensures that our express wishes and preferences can be tailored with the option to bequeath to desires beneficiaries certain gifts by predetermined proportions and age.

In special circumstances, we might want to leave special instructions or requests to a specific person. This is made possible by use of a Testamentary Trust and is especially ideal if the testator has small children and would like to ensure that they are protected and catered for. If your Will includes a testamentary trust including an estate tax planning, you may save on death taxes.

 

A Will also allow us to appoint our preferred executors and trustees to manage and distribute the estate and also lets us to appoint a preferred guardian to act as a caretaker in cases of minors.

Further a Will, relatively minimizes legal formalities and expenses and sanctions assets administration and distribution to be carried out smoothly upon demise. This will ensure that family disputes will be kept to the minimum and that the grant of probate can be approved by normal procedures of the court. If there is no written will, assets will have to be frozen and will thus cause a delay in the distribution until the legal application for Letters of Administration is complete.

If you have a valid Will, you can change it depending on certain change in circumstances such as a marriage, divorce or following the death of a beneficiary.Amendements to the Will can be made by use of a codicil. If the amendments are too extensive or too numerous, it might be important to prepare a new Will all together and destroy the older one.

Requirements for creation

According to the Chapter 160 of the Law of Succession Act of Kenya, any person over the age of majority and of sound mind (having appropriate mental capacity can draft his own Will with or without the aid of a lawyer. The following requirements also apply: 

·         The testator must clearly identify himself as the maker of the Will, and that a Will is being made; this is commonly called “publication” of the Will, and is typically satisfied by the words ‘last will and testament’ on the face of the document.

·         The testator should declare that he revokes all previous wills and codicil, otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. If a subsequent Will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.

·         The testator may demonstrate that he has the capacity to dispose of his property and that he does so freely and willingly.

·    The testator must sign and date the will, usually in the presence of at least two disinterested witnesses who should ideally be person who are not beneficiaries in the Will. There may be an extra witness; these are called ‘supernumerary witnesses’, if there is a question as to an interested-party conflict.

·         If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either

(i)                disallowing them to receive under the will, or

(ii)              Invalidating their status as a witness. An interested party is only an improper witness as to the clauses that benefit him or her

   The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.

·         One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.

There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain his intentions in case of dispute, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.

In Kenya as with many other jurisdictions, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman's will. A minority of jurisdictions even recognize the validity of nuncupative wills (oral wills), particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used.

A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. A will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate.

After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfy the legal requirements, and to appoint an executor. In most cases, during probate, at least one witness is called upon to testify or sign a "proof of witness" affidavit. In some jurisdictions, however, statutes may provide requirements for a "self-proving" will (must be met during the execution of the will); in which case witness testimony may be forgone during probate. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions – even the most accurate photocopy will not suffice.

It is a good idea that the testator gives his executor the power to pay debts, taxes, and administration expense and other cost that might be incurred in the division of assets.

The MDGs Score Card.

It would be fallacious to imply that Kenya and her people have not attempted to achieve the Millennium Development Goals (MDGs). It would be prudent however to note that some goals have come quite a long way while others still remain seen more on paper than is  actually desired.

This essay will attempt to establish the obstacles Kenya faces in regard to each MDG and a possible suggestion on how each of them can be overcome.

Goal 1-Eradicate extreme poverty and hunger.

Africa is considered as one of the major food baskets, yet it remains ironically as one of the hardest hit continents in terms of poverty and hunger eradication. The same is true in Kenya. There have been instances where farmers in some agricultural regions in the country have to pour milk and dispose of produce after a bumper harvest while in other regions in the same country citizens are starving to death! This scenario has been witnessed time and time again in Central province and in the North Eastern and Eastern provinces respectively. Casing point in Kinangop in 2009-2010; farmers had to throw away cabbage and let potatoes rot and in Kiambu farmers had to pour fresh milk as they had excess of the same. In Pokot, Mandera and Machakos, during the same time-span, locals of these areas were in dire need of relief food! It is interesting to note that the Government sought relief food from other countries yet Kenya is quite capable to produce food enough for herself as well as for export.

 It is further paradoxical that Africa is rich in oil and other valuable stones and minerals yet the wealth of these natural occurrences is hardly ever felt by Africans themselves. The rate of poverty in many African states is deplorable. In Kenya according to statistics by the “index mundi”and other government agencies, 50% of Kenya’s total population live below the poverty line.

For Kenya to effectively achieve this goal of eradicating poverty and hunger by the desired deadline of 2015, it is my opinion that the road networks should be enhanced to ensure that agricultural produce areas and other areas are easily linked. This means that after a successful harvest the benefits will be felt not only in the burdened land but all over the country. The process of revamping the road networks is currently ongoing but focus should also be emphasized on ensuring that feeder roads and other road networks other than highways are also given priority. Further pastoralists and nomads should be encouraged to adapt to a new way of life to help eradicate poverty and hunger within the region. This should however still enable them to keep their cultural and somewhat indigenous way of life. For examples they can be encouraged to grow drought resistant crops and start entrepreneurial activities. The Government should be tasked to increase storages and silos for food crops to help in those rainy days. In addition, the Government should make plans to subsidize basic food and foster agricultural research projects to establish all seasonal crops that can be grown throughout the country.

To effectively deal with the poverty menace, education should be made of paramount importance to all citizens. Though we acknowledge free primary education within Kenya this needs to be pushed further to secondary education such that all people are said to have attained the minimal basic education. Education and poverty are obviously inversely related.

Kenyans should further be encouraged to embrace entrepreneurial ship as a means of generating income other than relying on the conventional white collar jobs. The Government of the day should also ensure that all international contracts are not disadvantageous to its people and should not be seen as merely selling her resources and land which will be detrimental to the present generation and others to come. It is my belief that if all this is done there would be a reduction of half the population living on less than a dollar a day, we would have effectively achieved full and productive employment and decent work for all, including women and young people and also reduced by half the portion of people who suffer from hunger.

Goal 2- Achieve universal primary education.

The reality of free primary education was realized by the Kenyan Government in 2002.This saw thousands if not millions of school going children enrolled in Government schools for this first step in attaining an education. Some of these children would previously not have been able to access education and viewed it as a luxury rather than a necessity as many parents and guardians are unable to pay fees. However it is still a fact that not all boys and girls complete the full course of primary schooling. Another issue that encumbers this area is the quality of education actually provided.

For Kenya to successfully accomplish this goal, the Government needs to invest in building more schools all over the country and advance in the training of more teachers to fill the much needed void that currently exists. The teacher-student ratio should therefore conform to a reasonable quotient and will thus ensure that all students get quality education as they will be able to get adequate audience with their teachers. Strict laws should be enforced to ensure that all students attend school and strict penalties in place for perpetrators of harmful cultural practices that hinder children from accessing education. This may include early marriages, female genital mutilation and gender imparity which all lead to children mostly the girl child not being able to complete primary education. The Government should also put harsh penalties for teachers who molest and take advantage of their student’s .The quality of education in public and private schools should be at par to ensure that the former are not underprivileged in any way. However it is my view that the target of education should not end after the successful completion of the primary level of education. The Government should actively pursue the path of achieving universal secondary and tertiary education to ensure that the literacy rate of the 15-24 year old men and women are also catered for as in compliance with the target of the MDGs.

Goal 3-Promote gender equality and empower women

The new Kenyan Constitution promulgated on 27^th August 2010 has made key changes in the advancement and promotion of gender equality and allowed for the empowerment of women especially. Gains for Kenyan women in the new constitution include the following.

•         Kenyan women are now able to pass on citizenship to their children regardless of whether or not they are married to Kenyans. Article 14(1).

• ·        Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at its dissolution. Article 45(3).
•   The new Constitution assures that parental responsibility shall be shared between parents regardless of marital status. Article 53(1) (e). 
•  The newly promulgated Constitution provides for the enactment of legislation for the protection of matrimonial property with special interest on the matrimonial home, during and upon the termination of the marriage. Article 68(c) (iii). This also includes the right to inheritance. 
•  The Kenyan Constitution maintains a one third requirement for either gender in elective bodies giving women of Kenya at least 1/3 minimum in elective public bodies. Article 81(b) 
• The Constitution ensures that gender equality is maintained in political parties providing a basic requirement for political parties as amongst others to respect and promote gender equality. Article 91(f). 
•  The Constitution of Kenya provides that Parliament shall formulate laws to promote the representation of women, persons of disabilities, ethnic and other minorities and marginalized communities in Parliament.Article 100. 
• Women and men will have the right to equal treatment and opportunities in political, economic, cultural and social spheres without discrimination. Article 27(3). 
• The new Kenyan Constitution accords the right to health including reproductive health to all. Article 43(1) (a). 
• The values and principle of the Public Service Commission under the Constitution accords adequate and equal opportunities for appointment, training and advancement for women and men at all levels within the Public Service Commission. Article 232(i).

 A further indication of progress of this goal includes the elimination of gender disparity in primary, secondary and tertiary institutions. .In Kenya, the Government has put in place an affirmative action through reducing the entry points required for girls to enroll in public universities. The same should be replicated in other institutions of learning including primary, secondary schools and colleges. There has been a further increment of women in wage employment and in the non-agricultural sector. A lot still remains to be seen in the proportion of seats held by women in national parliament especially in regard to the next general elections scheduled for later in 2012.Kenya has indeed made significant steps to achieve this objective with the framework of the Constitution and other legislation in place to allow for equal playing field for both genders and allow for the empowerment of women.

It is important to recognize that the African culture has always tended to be oppressive towards women and the girl child. For the past fifteen years or so focus has shifted to uplift and empower this gender to the some what detriment and neglect of the male gender. This has resulted in the boy child and the male youth engaging in unbecoming behaviour as they lack role models and mentors. This group is often used to cause political unrest and comprise the majority composition of gangs and terrorist groups. I therefore feel that despite the third MDG goal focusing on the empowerment of women, the male gender should not be overlooked and should have their issues adequately addressed. Empowering one group to the detriment of another seems counter productive as the disadvantageous group will always seem as a threat to the empowered group.

Goal 4-Reduce child mortality.

 Over recent years, there has been significant reduction in the rate of child mortality in Kenya. This has been made possible by the increment of antenatal clinics within the country. The number of home deliveries has therefore significantly reduced as it was one of the major contributors of the high child mortality rate. The Government has also subsidized the rates of visiting the clinics hence encouraging more pregnant women to attend regular check ups during their pregnancy term. Post natal clinics and free jabs have also greatly added to the decline of child mortality within the country. The Government has allocated adequate funds in Government hospitals to cater for the free immunization of all babies for polio, vitamin K, and measles among others. There has been great sensitization of the public of the importance of the vaccinations and the need to attend both antenatal and post natal clinics. The media has also been very influential in advocating the same.

There is still a need to increase the number of health facilities and provide for more trained doctors and nurses all over the country. The Government should also ensure that the free Government jabs and the baby friendly vaccines offered at private institutions are of the same quality and standard to encourage more parents and guardians to take their children to be vaccinated without the fear of grave side effects.

Goal 5-Improve maternal health.

Granted there has been a significant reduction in the maternal mortality rate as a result of more pregnant mothers attending antenatal clinics during their pregnancy term and the fact that more births are actually attended by skilled health personnel. A lot still remains to be seen in regard to achieving the universal access to reproductive health. Contraceptives and family planning methods still remain inaccessible to the ordinary Kenyan. The adolescent birth rate seems to be at an all time high as opposed to the reduction of the same. More is needed to be seen in the construction of more health facilities that are easily accessible and sufficiently manned with capable staff to handle deliveries. Contraceptives should be available to all sexually active ladies despite their age. The Government should take more stern action against backstreet quacks who procure illegal abortions.

Goal 6-Combat HIV/AIDS malaria and other diseases

The aim of this goal has been to halt and reverse the spread of HIV/AIDS, other sexually transmitted infections and to fight malaria and other preventable diseases that plague our land. Kenya has made great progress in relation to both objectives. In regard to HIV/AIDS, the prevalence of new infections within population aged between 15-24 years has significantly reduced over the years. Condom use previously uncommon has been well embraced and accepted within society. The portion of population aged between 15-24 years with comprehensive and correct knowledge of HIV/AIDS has also improved tremendously with the assistance of the media and drives organized to raise awareness on the same. The Government recently sent a directive to all public hospitals to test patients for HIV/AIDS if and when the need arises. This should be pushed to all other health clinics so that patients can be put on medication as soon as is practically possible.

Challenges that still remain to be addressed in regard to the HIV/AIDS pandemic include the inclusion of orphan children as a result of the disease being able to access schools and medication. A limited number of the populations infected are able to access antiretroviral drugs. The Government needs to ensure that all infected person are able to access ARVs free of charge to ensure that infected persons are able to live a productive and healthy lifestyle.

More health facilities and health personnel are still needed to address the epidemic effectively. New infections now seem to be streaming from marriage unions. Despite campaigns such as “Acha mpango wakando” been initiated, married couples and other unions need to be sensitized more on the need to be faithful to one sexual partner as a sure way to prevent infection.VCT centers need to be located in more remote areas to ensure that people in rural areas can also know their status.

Malaria and other disease still remain part and parcel of our lifestyle. However the Government has taken major strides to mitigate the same.Campaigns,drives and the media have raised awareness to members of the public on the need for children especially under the age of five years to sleep  under insecticide-treated bednets.This has resulted in the reduction of malaria infections. The few instances of fevers reported are adequately treated with the correct dosage and appropriate anti-malarial drugs. Campaigns have also been effective to discourage the trend of purchasing medication over the counter without a prescription from a licensed medical practitioner.

Incidence, prevalence and death rates associated with tuberculosis have also reduced as more people are aware that the condition is easily treatable and the media has sensitized the public on the need to seek medical attention if a cough persists. However obviously more health structures manned with adequate staff need to be constructed all over the country to bring health facilities to the people. This will ensure that people don’t have to travel vastly areas before they get to a hospital. More referral hospitals need to build to avoid congestion at the Kenyatta National Hospital. It is important to note that not all people can afford cost of travel and medical assistance once they have been refereed there. Ideally each province (now counties) should have a referral hospital with all specialists readily available.

Goal 7-Ensure environment sustainability

The Constitution of Kenya calls for the integration of the principles of sustainable development into country policies and programmes and reverse loss of environmental resources. The late Nobel Peace Prize laureate Wangari Mathai made momentous contribution to the environment policies formation and the protection of the same from degradation. A great deal still remains undone in light of the proportion of land in Kenya covered by forest. The Government still needs to address the deforestation and occupation of the Mau and Mt Elgon forests among other forests in the country. More is still desired in regard to the reduction of CO2 emissions and other ozone depleting substances. The number of fish stocks within safe biological limits and the total water resources still remain wanting. More remains to be seen in the needed protection of terrestrial and marine areas and other species threatened with extinction.

The Government is still tasked to reduce the number of people without sustainable access to safe drinking water and basic sanitation. Significant improvement of lives of slum dwellers still remains to be seen in Kenya. 

The Government needs to enforce legislation to protect and conserve the environment. Kenyans should be encouraged to be more cautious and sentient to their environmemt.The Government and the City Councils should effectively deal with the garbage and drainage in the city and especially within residential area. The City Council should adopt best practices of other countries for instance having bottle depositories where all glass bottles and other recyclable materials can be dropped off. Each county should also have a well organized dump where waste materials such as electronics, furniture, oils etc can be effectively destroyed with proper care. Vehicles on the roads should also be required to be serviced regularly to avoid pollution. The game reserves and national parks should also be well protected to avoid poaching, gaming and logging off trees. More sanctuaries should be created to protect endangered species which are threatened with extinction. The Ministry of Energy should consider other methods of generating electricity such as geothermal, wind and solar energy as opposed to majorly relying on water for the same. Kenya has the capabilities to generate energy for herself and for export.

Goal 8-A global partnership for development

A global partnership for development includes the development of an open, rule-based, predictable, non-discriminatory trading and financial system. This includes a commitment to good governance, development and poverty reduction both nationally and internationally.

With the election period fast approaching, Kenyans should aim to elect leaders of virtue and integrity who are committed to good governance and development of the country. These leaders should also not be quick to indebt the nation in the name of progressive realization. It should not be our leader’s goals to get us to the quota of heavily indebted countries (HIPC) to get cancellation of debts as this thinking is wrong and counter productive.

The Government should consider renegotiating the tariffs imposed on agricultural produce and on texting and clothing from the Export Processing Zone. Imports by value excluding firearms should also be renegotiated and admitted free of duty. Credit should be acknowledge for the fiber optic cables which were successfully placed in the Indian Ocean in 2010.The Government through relevant agency has controlled cell phone providers tariffs within the region enabling more customers to own and use cell phones as a medium of communication.Interenet usage and access has improved significantly but a lot still needs to be seen in rural and remote areas of Kenya.

The Government should subsidize rates on all electronic equipment used for communication such as laptops and cellphones.This should be effected in all counties within the country. Service providers should ensure that they do not grossly over charge and the Government should effectively control these rates.

It is important to note that all the goals should be achieved simultaneously as they are inextricably linked to each other. The MDGs are implicitly intergenerational with a timeline of 25 years from 1990-2015.Their also seems to be an interconnectedness of policy intervention. There is limited success in health if there is poor nutrition and water, and sending poor, malnourished children to school will not achieve too much either. Challenges such as the global finance, food and fuel crises threaten to further slow progress in some areas or even undo success achieved so far. The Government should effectively introduce gender sensitive budgeting and enforce land reforms issues to address inequalities in access to land and other productive resources.

Tackling the goals holistically would make it easier and more systematic to accomplish all goals within the desired timeframe. It seems that Kenya has opted to tackle each MDG separately instead of focusing on addressing all eight of them concurrently. As a result, it seems unrealistic for all goals to be effectively accomplished by 2015.Statistics will show that even the ones commenced would not have been completely achieved come 2015 as they might overlap with others that have not already been actioned on. With this in mind however and with prompt action taken Kenya can indeed cover most of the MDGs and surpass targets. Action needs to be taken today as much time seems to have been lost in addressing individual goals. I am therefore of the opinion that with the current trend the MDGs would not have been effectively achieved by 2015.However if all goals are addressed concurrently the same will not be true. All goals would still not be covered in totality but Kenya would be well on her way to the desired destination...