Robert was the son of the late Charles and Julia. He was the husband to Stella and dedicated partner to Susan and Olive. In the unfortunate event of death, would Susan and Olive be entitled to a share of his matrimonial property?
We asked Esther Masanyangila, an Advocate of the High Court and the founding and managing partner of Masanyangila & Associates Advocates, this question and she answered us as follows:
Legally, where do these women stand? If these men had left a will giving them a portion of their estate, can such a will stand before the law?
A will is a legal document made by a natural person stating how his property should be managed or disposed off upon death. For a will to be valid the testator must be an adult of 18 years and above, must be of sound mind, must be witnessed by at least two competent witnesses and for written wills they must be signed or the testator should affix a mark on the will. If the deceased left a valid will providing for these women then they stand to benefit from the deceased’s estate.
If the “dedicated partner” had been together with the deceased men for say five years, during which they contributed financially, can they contest division of matrimonial property or will everything end up with the “first, lawful” wife?
Matrimonial property is governed by the Matrimonial Properties Act of 2013 which is a different regime from the deceased’s estate which is governed by the Law of Succession Act. If the testator who is the maker of the will includes the “dedicated partner” in his will for her to benefit from his assets then she stands to benefit from that will.
Why Kenya’s working women leave their husbands out of their Will
In the event that the man dies intestate that is without a will and there is presumption of marriage then the partner is entitled to some inheritance. There is a long line of authorities in which Kenyan courts have presumed the existence of marriage due to long cohabitation.
What does the law currently say about polygamy & division of property within a polygamous family.
Distribution of an estate in a polygamous family is governed by S.40 of the Law of Succession Act. The distribution is not necessarily equal but equitable as per the unit. Each child is considered as a unit and the wives are considered as additional units.
Section 40 (1) of the Law of Succession Act provides that where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net estate shall, in the first instance be divided among the houses according to the number of children in each house, and also adding any wife surviving him as an additional unit to the number of children.
