The High Court of Kenya recently ruled that certain sections of the Children Act and the Law of Succession Act are not in line with the spirit of the Constitution of Kenya and declared them to be void and directed the Attorney-General to make appropriate amendments to the relevant legislation. Pursuant to the Constitution, both parents are equally responsible to provide for their children, whether or not the children have been born out of wedlock and whether or not the parents acknowledge them as their own. Currently, the Children Act and the Law of Succession Act (the LSA) do not hold a man responsible for a child he has fathered out of wedlock and whom he refuses to accept as his own or does not take on parental responsibility for (the Unaccepted Child).
The ruling of the court case has widened the definition of a 'child' to include an Unaccepted Child. The impact of the ruling from a succession point of view is that, subject to statutory amendments being made to the definition of 'child' in the LSA, an Unaccepted Child would be able to bring a claim in court against his deceased birth father's estate for adequate financial provision to be made.
Generally, through a will, a person has freedom to leave his assets to whomsoever he wishes subject to making adequate provision for his dependants, including children. Where a person dies and a dependant is of the view that the deceased's will has not made adequate provision for him or that intestacy rules will not adequately provide for him, he may make a claim against the estate. It would therefore be important to carefully consider that one has provided for all his dependants, including children, so that no challenge is made against his estate upon his death.
Take, for example, a scenario where a testator leaves his entire Kenyan estate to a trust established pursuant to his will. This would mean that all the testator's Kenyan assets would vest in the trustees who would then manage the assets and distribute income and/or capital to the beneficiaries in accordance with his wishes. The testator's intention is that, on his death, only his spouse and children of their marriage would benefit under the trust from his Kenyan assets.
Consider another example where, during his lifetime, a settlor sets up an offshore trust to move his Kenyan assets into the trust such that they do not form part of his Kenyan estate. Similar to the above scenario, the settlor's intention is that only his spouse and children of their marriage who are named as beneficiaries in the trust deed would benefit from his Kenyan assets. In the event that, for whatever reason, the offshore trust is deemed to be a sham trust, the entire trust structure would collapse resulting in the Kenyan assets falling under part of the settlor's estate, which on death would be subject to the succession laws of Kenya.
In the above two scenarios, pursuant to the wider definition of a 'child' as per the court's recent ruling, the Unaccepted Child may make a claim for a share from the estate of his deceased father (the Deceased) notwithstanding that he/she is not a named beneficiary in the will (if there is a will). When a claim is made, the court would need to establish if the Deceased was indeed the father of the Unaccepted Child and if so, then the Unaccepted Child is a 'dependant' of the Deceased. Thereafter the court would consider a number of factors when arriving at its decision on whether to make an order for financial provision to be made from the Deceased's estate. The court would take into account the relationship between the Unaccepted Child and the Deceased, the age and requirements of the Unaccepted Child, whether the Unaccepted Child has other sufficient financial means and any other relevant factors.
It would thus be prudent for a father to make adequate financial arrangements for an Unaccepted Child so as to avoid any potential claim against his estate. The widened scope aims to protect an Unaccepted Child's rights. The ruling may have a significant impact on a person's succession planning. It is therefore crucial that succession planning is based on careful considerations to reach an effective solution that caters for loved ones as well as those for whom the law imposes a responsibility on you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.