Succession is the transfer or rather the distribution of the property of the deceased to the person or persons entitled, either by will or by operation of law. Put simply, succession is the action or process of inheriting property. In succession matters there are numerous challenges in the process of succeeding a deceased person.
The Law of succession Act outlines the persons that can inherit the property of a deceased person as dependants which include: the wife or wives, or former wife or wives,, and the children of the deceased whether or not maintained by the deceased immediately upon his death; such of the deceased parents, step parents, grandparents, grand children, 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 where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
An administrator as per the Act refers to a person to whom a grant of letters of administration has been made under the Act. The administrator plays a critical role in succession. It is the administrator’s job to gather all of the assets of the estate, pay the debts of the estate and distribute the assets to the beneficiaries in accordance with the will or laws of intestate succession. In intestate succession (where the deceased died without a will), disputes are common as beneficiaries struggle with who should get what from the estate.
In Kenya, there is a huge backlog of succession cases in courts with disputes ranging from appointment of administrators, identification of the deceased beneficiaries, identification of deceased assets among others. Because, in litigation, the court must listen to every aggrieved party the cases take long to conclude. Some parties may also delay the court cases for selfish reasons thus engage in delaying tactics by filing multiple applications in court. At the end of the day, some beneficiaries end up not benefiting from the estate and some properties go to waste. There many undeveloped properties all over the country because the owners are deceased and the succession matters have been pending in courts. Many children have also lost an opportunity to get good education while their deceased parents’ assets are held in abeyance awaiting the long litigious process.
Out of acknowledgment of these challenges, courts in Kenya have been encouraging adoption of mediation as an alternative form of dispute resolution. Through The Court Annexed Mediation, many cases have been resolved and parties have saved time and money which could have been incurred in litigation.
Succession disputes do begin in the shadow of a traumatic event that is the death of the testator. The death of a loved one may exacerbate emotions that abound open deep fissures especially where a family member feels as if they were treated unfairly. It is vital that these long term relationships be reconfigured and the benefit of mediation here is that it is vital in maintaining family harmony. This is possible in mediation as the goal usually is not only settlement but the fostering of a better mutual understanding between the parties. Mediation ideally inspires parties to better understand the interests of the other parties as the mediator encourages parties to fully express their emotions and views.
The mediator (a third party) assists the parties to reach a negotiated settlement and the process is quicker and less expensive as compared to the court process. The role of a mediator include but not limited to: understand the scope of the conflict and set out the agenda for mediation; define the concerns of each party in an effort to promote communication and understanding; ensure that parties to the mediation have an equal opportunity to express their concerns so that the mediation does not become one-sided; keep the matter confidential; employ the use of soft skills such as proper communication, optimism, empathy, deep sensitivity and determination and move the parties towards interest driven solutions and cultivate mutuality in issues.
Mediation is highly beneficial in succession disputes because it involves family members or relatives. The advantages include: mediation relies on cooperation and focuses on reconciliation thereby reducing the stress brought by family conflicts; mediation ensures a quicker resolution of the family conflict taking an average of 3 months depending on nature of the conflict unlike litigation which can take several years of back and forth; ensures parties have equal time to ventilate their issues especially as the mediator assists to foster an understanding but also ensures the conversation is not one-sided.
Cases that have been ongoing in courts such as the one concerning the estate of Mbiyu Koinange, are subjected to a lot of media coverage. Many people however value privacy and would prefer their family issues dealt with quietly. Preservation of privacy simply cannot be guaranteed by litigation as court sessions are public. Mediation is private and the mediator is bound by a confidentiality agreement and this is crucial in maintaining family privacy.
Mediation also guards against fracturing of family ties as it avoids future fights by minimising future emotional and financial costs.
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