It means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.
Matrimonial Property Act of (2013) the matrimonial property act provides that married women has the same rights as married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable; enter into contract and sue and be sued in her own name .
We mean women should not only have access to land as the right but also enter upon and useland, exercise control over land as one’s ability to make decisions with regard to the land.
These include the ability to:
• determine the size of land used for farming activities and whether the land will be used for food or cash crop production.
• transfer land titles, whether by sale or inheritance (land ownership)
Section 40 of the Constitution of Kenya stipulates that every person has right to own land of any description in any part of Kenya. The National Land policy 1.5.1 (7), (c), (d) put more emphasis on gender equity and land rights.
This is when there is no will left by the deceased (intestate). In case the deceased left one surviving spouse and a child or children, the surviving spouse shall be entitled to:-
• The personal and household effects of the deceased
• The intestate property but cannot sell this intestate property as the spouse is holding it on behalf of the children. If the spouse remarries, he/she loses his/her entitlement to the intestate property.
Where the deceased has left a surviving child or children but no spouse, the intestate property will be transferred to the surviving child or divided equally among the surviving children.
Where the deceased left no surviving spouse or children, the intestate shall be transferred in this order of priority:
• Father; or if dead,
• Mother; or if dead
• Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
• Half -brothers and half sisters, and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
• Distant relatives up to the sixth degree in equal shares.
If the deceased is not survived by any of the above then the intestate property estate shall be taken up by the state.
A will can be revoked, altered and revived only by the maker at the time when he is competent to dispose of his property. This can only happen when the maker takes some action to indicate that he/she no longer wants the will to be binding. For this to be effective, the intent of the maker, whether express or implied must be clear and an act of revocation consistent with this intent must take place.
• The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased before his death.
• The deceased’s parent, step parents, grand-parents, grandchildren, step- children, children whom the deceased had taken into his family as his own,
• Brother and sisters, and half -brothers and half-sisters, who were being maintained by the deceased before his death.
• Where the deceased is a woman, her husband if he was being maintained by her before her death.
A written will must have the following characteristics:
• It must be signed by the maker.
• Incase its signed by somebody other than the maker, then this should be done in the presence of the maker and under his/her directions.
• It must me witnessed by two or more witnesses and these witnesses MUST NOT be beneficiaries in the will otherwise there shall be need of an additional two witnesses.
• If the maker of the will refers to another document in his will, the document shall be considered as part of the will as long as it is verified that it is the exact same document the maker was referring to in his/her will.
• An executor shall not be disqualified as a witness to prove execution of the will or to prove the validity or invalidity of the will.
• If the dependent or dependents feel that the deceased’s will does not provide adequately for their needs, they may make an application to the Court.
• The Court may order a specific share of the property be given to the dependent (s) or periodical payments or lump sum payment.
It is only valid if;
• Made before 2 or more competent witnesses;
• The maker dies within 3 months of making it;
• An oral will made by a member of the armed forces during a period of active service shall be valid if the maker of the will dies during the same period of active service even if he/she dies more than 3 months after making the will;
• If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except if the contents can be proved by a competent independent witness.
•When the maker of a will lacks knowledge and approval of a will, the will is as if it was not made at all. This is because of
• Fraud / forgery
• Mistake / duress / undue influence