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RENUNCIATION OF THE RIGHT TO INHERITANCE: A COMPARATIVE STUDY OF KENYAN AND FOREIGN JURISPRUDENCE

Babu Law Firm > Uncategorized  > RENUNCIATION OF THE RIGHT TO INHERITANCE: A COMPARATIVE STUDY OF KENYAN AND FOREIGN JURISPRUDENCE

RENUNCIATION OF THE RIGHT TO INHERITANCE: A COMPARATIVE STUDY OF KENYAN AND FOREIGN JURISPRUDENCE

By Samuel Wahome Kimani, Advocate of the High Court of Kenya

Kenyan succession law is governed under the Law of Succession Act[1] which provides inter alia for the definition and consolidation of the law relating to intestate and testamentary succession and the administration of estates of deceased persons.

The Act is further anchored on the Constitution of Kenya 2010 right to property [2] which protects against the deprivation or limiting of enjoyment of the right by the state or any person.

Other statutes that regulate and define property ownership in Kenya include, but are not limited to, the Matrimonial Property Act [3], Land Act [4]and Land Registration Act[5].

This article, however, seeks to interrogate the right to inheritance in Kenya with a specific emphasis on renunciation of inheritance from which the study will attempt to answer the following questions through keen scrutiny of both Kenyan and English case law as developed over the years and any statutory provisions:

  • Can the right to inheritance be waived and/or renounced?
  • How can such waiver/renunciation be legally effected?
  • What is the effect of waiver and renunciation of the right to inheritance?

Right to Inheritance

In Kenya there are two regimes under which a person may inherit property: through testamentary disposition or intestate.

Whilst the former involves the use of an oral[6] or written will[7] the latter entails where the deceased dies without having left any valid will on how his or her estate will be passed on to the beneficiaries[8].

Under testate succession the beneficiaries (also termed as dependants) include:[9]

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers; and half-sisters, as were being maintained by the deceased immediately prior to his death; and

 (c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

Whereas the deceased’s spouse and children (whether biological or adopted) are automatically considered as dependents, the court may allow other relatives or persons to be considered as such subject to the applicant demonstrating the same in court.[10]

With regard to intestate succession the law provides for all circumstances through which the beneficiaries can be identified as follows:

  • Where intestate has left one surviving spouse and child or children[11]
  • Where intestate has left one surviving spouse but no child or children[12]
  • Where intestate has left a surviving child or children but no spouse[13]

However, despite the right to inheritance through either testate or intestate succession the Kenyan law is largely silent on situations where a beneficiary or dependent could elect to renounce/waiver and/or disclaim such right.

Common reasons for renunciation of inheritance

This may seem extremely mind puzzling to many as to how a person may even consider such however, upon examination of English common law there exists several circumstances under which a person may choose to waive such right. These includes:

  1. Avoiding to pay taxes-In as much as some jurisdictions including Kenya, may not impose estate or inheritance tax on inheritance, for instance in terms of stamp duty on the transfer[14], a person is still liable as a beneficiary, whether testate or intestate, to some form of property taxes or levy upon completion of transfer and acquisition of the property (e.g. payment of government rates & rent, rental income tax [15], etc. On some occasions one may find that the value of the bequest is not too far apart from the tax imposed and it, therefore, stands that the said beneficiary finding the tax burden or inconvenience as too much may simply elect to renounce the inheritance altogether.

Kenyans may however, breathe easy with the realization that the Capital Gains Tax [16]which was purportedly introduced by the Kenya Revenue Authority[17] categorically exempts properties disposed for purpose of administration of the estate of a deceased person whether testate or intestate.[18]

Such disclaimers are however, highly regulated in other jurisdictions (which impose hefty estate and inheritance tax also known as death tax) to generate revenue and avoid fraud. For instance, tax authorities like the American Internal Revenue Service (IRS) require the disclaimer to be in writing, irrevocable, barring future benefit from the proceeds as well as to be made within nine (9) months from the death of the testator.[19]

  1. Bankruptcy-In situations where a beneficiary is an adjudged bankrupt any asset under their ownership including any inherited property may be subject to be recovered for the benefit of creditors. The Insolvency Act, 2015 [20]is explicit in noting that until the bankrupt is discharged any property that he acquires or that passes through him vests in the bankruptcy trustee and any rights of the bankrupt over the property are extinguished[21]. The bankrupt is further duty-bound to inform the Bankruptcy trustee of any property that he acquires or that passes to him before his discharge[22]. It, therefore, stands to reason that a bankrupt individual may seek to disclaim inheritance in order to avoid such seizure and protect it from the creditors.

This may seem like a no brainer, however, the insolvency law restricts such dealings by providing that a bankrupt may not execute a power of appointment or any other power vested in him if the result would be to defeat or destroy any contingent or other estate or interest to which the bankrupt may otherwise be beneficially entitled at any time before discharge.[23]

Kenyan case law is comprehensively clear in this area, however, a look at the American jurisprudence reveals a debate on whether a renunciation/disclaimer by an insolvent debtor may essentially be a fraudulent transfer[24] with arguments based on the fact that a person cannot be compelled to take property against his will while others opine that a legatee under a will [or intestacy] should not defeat the claims of his creditors by renouncing his legacy. The subject was well considered by Supreme Court of California’s Justice Trainor[25] who in finding a renunciation by a judgment debtor to be a fraudulent conveyance [since it was meant to defeat judgment obtained by the respondent] further observed that renunciation may be overturned:

(1) Where there has been a long delay before renouncing (Crumpler v. Barfield & Wilson Co., 114 Ga. 570, 40 S.E. 808; Strom v. Wood, 100 Kan. 556, 164 P. 1100; In re Howe’s Estate, 112 N.J.Eq. 17, 163 A. 234;

(2) Where there has been collusion between the debtor and those benefiting by the disclaimer (Schoonover v. Osborne, supra; Bradford v. Calhoun, supra);

(3) Where the donee has caused his creditors to rely upon his apparent acceptance. Daniel v. Frost, 62 Ga. 697; Lehr v. Switzer, supra; Ex Parte Fuller, Fed.Cas. No. 5,147, 2 Story 327; see Kearley v. Crawford, 112 Fla. 43, 151 So. 293.

As well as

(4) Where the legatee renounces his bequest to defeat his creditors. Estate of Buckius, 4 Pa. Dist. Rep. 775; Daniel v. Frost, 62 Ga. 697; Ex Parte Fuller, Fed. Cas. No. 5,147, 2 Story 327

In the UK, the legal position is very clearly encapsulated by Abbot C.J who observed: [26]“The law certainly is not so absurd as to force a man to take an estate against his will. Prima facie, every estate, whether given by will or otherwise, is supposed to be beneficial to the party to whom it is so given. Of that, however, he is the best judge, and if it turns out that the party to whom the gift is made does not consider it beneficial, the law will certainly, by some mode or other, allow him to renounce or refuse the gift.”

It remains to be seen at the local level how Kenyan courts will navigate such issues and pronounce itself once such a case comes to the fore.

  • Judgment debtor under a lawsuit-Similarly as in bankruptcy, a person against whom a decree or judgment has gone in court may seek to avoid execution through the attachment of his property, which includes property received through inheritance, by disclaiming the inheritance altogether.
  1. A beneficiary may also elect to pass the inheritance on to another beneficiary with a more dire financial need. Since the beneficiary gets an equitable interest in the property upon bequest nothing bars them from further gifting the property to another person. This is however, dependent on the law or provisions of the will as the disclaiming beneficiary may not have the freedom to choose the contingent beneficiary[27] after his disclaimer.[28]

  2. To avoid legal costs-This is an unlikely reason for disclaimer, but just like the reason for avoidance of tax a beneficiary may disclaim inheritance where the cost for filing for succession is significantly high compared to the value of the property bequeathed. For instance, where the property is worth Kshs, 100,000/- and is at Mombasa county, a beneficiary in Kisumu may take into account the travel costs, court fees, and legal fees and general inconvenience in filing for a grant in Mombasa and end up disclaiming the property. The same is applicable to minimal shares and cash balances held by entities such as the Unclaimed Financial Assets Authority as established under the Unclaimed Financial Assets Act.[29]
  3. To avoid undesirable property-For instance a person may disclaim an unappealing property which may be in a swampy & marshy area, an arid area, rocky beachfront, a slum dwelling, or a highly insecure area.[30]

Effecting a disclaimer on inheritance

As observed in the aforementioned legal arguments the general rule with regard to the disclaimer is that an heir or beneficiary under will or intestacy may not be compelled to take up a gift or inheritance against their will.[31]This however, we have observed may be qualified by looking at the intentions of the beneficiary in effecting such disclaimer as well as the general interests of creditors and decree holders affected by a fraudulent disclaimer.[32]

The Kenyan law on succession is silent on the matter of disclaimer and only touches on the close subject of lapse[33], forfeiture of inheritance by the murderer of a testator[34] or renunciation of executorship.[35] For instance, in the matter of the estate of Husseinbhai Karimbhai Anjarwalla (Deceased)[36] where the deceased had left a will appointing three executors, the third proposed executor filed a Deed of disclaimer before the grant was issued and was able to be released from his obligation as an executor under the will.

According to W. Musyoka a beneficiary may effect a disclaimer by informing the personal representative of his intention to disclaim either orally or in writing.[37]

In the absence of statutory direction on this matter it is largely left to courts to see the direction on how to effect a disclaimer. Under intestacy, the matter has been partially articulated by Ang’awa J in the Matter of the Estate of Mariko Marumbi Kiuru (Deceased)[38] where she observed that under the Law of Succession Act[39]daughters are taken into account in the distribution of the estate unless they have issued a disclaimer to their right to inheritance.

Further, in the case of Mary Wangari Kihika v John Gichuhi Kinuthia & 2 others [40] in a case which reiterated the equal right of women in inheritance, Muigai J observed that in absence of oral or documentary evidence from the Respondent’s to suggest renunciation of a person’s right to inheritance from the deceased’s estate the court can make a finding on a balance of probabilities that the Applicants are still entitled to inherit from the estate of the deceased.

Similarly, Matheka J in pondering over a similar determination of the equal right to inheritance noted that[41]: “The fact of the matter is unmarried or married, that is neither here nor there. The only ground [for inequality] would be a renunciation of the right to inherit. And that applies equally to both the males and the female children.”

Effect of disclaimer on inheritance versus variation

From the foregoing we can determine that indeed courts do recognize the right to a beneficiary to disclaim their inheritance whether orally or in writing. It however, stands to be seen how courts will consider the issue of whether a beneficiary who disclaims their right of inheritance retains the right to assign it to another beneficiary or whether the inheritance fails ab initio from the disclaimer.

Some scholars have since taken the view that as a shortcoming of disclaimers a beneficiary loses control over the final destination of the property that has been disclaimed while in a variation the beneficiary is able to direct the personal representatives as to whom their rights will be transferred to.[42]

The clear difference between disclaimer and variation can, therefore, be summed as where a beneficiary elects to disclaim their right to inheritance, the rules of testate or intestate succession would determine who would benefit from the disclaimed part of the estate whereas where a beneficiary opts to execute a deed of variation, that beneficiary has the freedom to choose who they wish to benefit from their share of the estate. [43] However, much caution must be exercised in broaching the subject of variation of inheritance since the Kenyan courts have demonstrated that there is no legal foundation for instituting variations to a grant especially once the grant has already been confirmed.[44]

In conclusion the legal issues of disclaimer and variation are fairly new to the Kenyan legal systems and are slowly developing in our courtrooms in the clear absence of statutory provision. However, the law is always developing and it stands to be seen whether these issues will be codified in statute to avoid ambiguity in succession law practice in Kenya.

References

[1] Cap 160 Laws of Kenya

[2] Article 40

[3] No. 49 of 2013 Laws of Kenya

[4] No. 6 of 2012 Laws of Kenya

[5] No. 3 of 2012 Laws of Kenya

[6] See Law of Succession Act Cap 160 Laws of Kenya- section 9 and 10

[7] Ibid- section 9 and 10

[8] Black’s Law Dictionary 9th Edition, p. 176 (2009)- A person for whose benefit property is held in trust; esp., one designated to benefit from an appointment, disposition, or assignment (as in a will, insurance policy, etc.), or to receive something as a result of a legal arrangement or instrument.

[9] Ibid-section 29

[10] See RNM vs RMN HC Machakos, Succession Cause No. 1 of 2017 where P. Nyamweya J in advocating for proof of dependency under section 29(b) of the LSA quoted Beatrice Ciamutua Rugamba vs Fredrick Nkari Mutegi & Others, Chuka Succ. Cause No. 12 of 2016 which noted as follows: “From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise.  It is not the mere relationship that matters, but proof of dependency.”

[11] Ibid- section 35

[12] Ibid- section 36

[13] Ibid- section 38

[14] Stamp Duty Act Cap 480 Laws of Kenya -Section 117(h)

[15] See https://kra.go.ke/en/business/companies-partnerships/companies-partnerships-pin-taxes/company-partnerships-types-of-taxes – on Rental income tax retrieved on 14th April 2020

[16] See https://kra.go.ke/en/individual/filing-paying/types-of-taxes/capital-gains-tax retrieved on 14th April 2020- a tax levied on the transfer of property situated in Kenya, acquired on or before January 2015 It is declared and paid by the transferor of the property.

Indeed Income Tax Act Cap 470 8th Schedule, section6(2) (c) & (d) categorically disclaims property vested in a personal representative of a deceased person by operation of the law and transfer of property by a personal representative to a person or legatee in the course of the administration of a deceased person under testate or intestate succession,  from the list of transactions where there is deemed to be “transfer of property” for purposes of capital gains.

[17] See Finance Act No. 16 of 2014 Laws of Kenya -section 10 which sought to amend section 34 of the Income Tax Act Cap 470 essentially reintroducing Capital Gains Tax on all transfers of property.

[18] Supra note 15- KRA guidelines on CGT exemptions

[19] See https://www.investopedia.com/articles/06/refuseinheritance.asp retrieved as at 22nd August 2019 and see also U.S Code, Title 26, Internal Revenue Code, Subtitle B. Estate and Gift Taxes, Chap 11, Estate Tax– section 2046 & 2518

[20] Laws of Kenya

[21] See Insolvency Act 2015 Laws of Kenya -section 104

[22] Ibid section 141

[23] Ibid section 158

[24] See Dean David Gamin, Renunciation of a Testamentary Benefit as a Fraudulent Transfer, Case Western Reserve Law Review, Vol 37, Issue 1 (1986), Case Western Reserve University

[25] See Re Kalt’s Estate et al vs Youngworth L.A 16728 (1940)

[26] See Townson vs Tickell (1819) 3 B. & Ald. 31 at p.36

[27] See https://www.investopedia.com/terms/c/contingent_beneficiary.asp retrieved as at 22nd August 2019

[28] Supra note 19 on The Right Way to Use Qualified Disclaimers

[29] See No. 40 of 2011 Laws of Kenya

[30] Supra note 19 on Other Reasons to Disclaim Inherited Assets

[31] See Re Stratton’s Disclaimer (1958) Chapter 42, p.50

[32] Supra note 21

[33] Law of Succession Act Cap 160 Laws of Kenya-Section 23

[34] Ibid-Section 96

[35] Ibid-Section 59

[36] (2000) eklr

[37] W. Musyoka, Law of Succession, Law Africa Publishing Ltd, Chapter 21, p.317 (2006)

[38] Nairobi HCSC No. 201 of 1997

[39] Cap 160 Laws of Kenya

[40] [2015] eKLR

[41] Re Estate of Muthoni Kanyua (Deceased) [2018] eKLR

[42] Supra note 37- p.318 & 319

[43] See https://www.birketts.co.uk/insights/legal-updates/deeds-of-variation-ripe-for-abolition retrieved on 26th August 2019

[44] See in Re Estate of Jerioth Nyawira Munyua (Deceased) [2016] eKLR- where Ngaah Jairus J in dismissing an application seeking to amend a confirmation of grant and vary the mode of distribution, the learned judge termed it as an abuse of the court process and noted that: “…the deceased’s estate should be distributed as per the confirmed grant; if the beneficiaries are agreeable, as the applicant has suggested, that one beneficiary’s share should devolve upon any other beneficiary or beneficiaries, they can still achieve the same goal even after the transmission of the estate. They do not have to involve the court as the applicant has purported to.”

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