If a will is ignored, who really inherits? Understanding intestacy in Kenya

When a loved one passes away, their final wishes are often expected to guide how their estate is distributed.

But what happens if a will is ignored, disputed, or deemed invalid? The recent case of the late High Court judge David Majanja illustrates the importance of understanding intestacy versus testamentary succession under Kenyan law.

Testamentary succession occurs when a person dies leaving a valid will. The will dictates how assets, including bank accounts, shares, and insurance payouts, are distributed.

In Majanja’s case, his will heavily favoured his youngest brother, including over Sh22million , a decision that has sparked a dispute among his siblings.

Under Kenyan law, testamentary freedom allows an individual to decide how their estate is distributed, provided the will is legally valid and executed according to statutory requirements.

However, disputes can arise if other family members feel unfairly disinherited or if there are concerns about the testator’s capacity or undue influence.

Intestacy laws apply when a person dies without a valid will or when the will is ignored or declared invalid.

Kenya’s Law of Succession Act clearly outlines who inherits under such circumstances. Section 39 of the Act prioritises the closest relatives:

• If the deceased leaves no spouse or children, the estate passes to the parents.

• If the parents are deceased, siblings or other relatives inherit next in line.

In practical terms, if Majanja’s will were invalidated, his parents would be the first beneficiaries.

This legal framework ensures that estates do not remain unclaimed and that dependents, particularly vulnerable family members, have legal protection.

The exact share of the estate depends on the composition of surviving family members. In Majanja’s situation:

• As he left no spouse or children, both his father and mother would inherit equally under intestacy.

• Any remaining assets would then be distributed to siblings or other relatives if parents are deceased.

This differs from testamentary succession, where the deceased can leave most or all of their estate to a chosen individual, even if it excludes parents or siblings.