The late Justice David Majanja was a brilliant legal scholar and highly respected within and beyond judicial circles. Known for his reasoned and well-articulated landmark judgements in human rights and public interest litigation, Majanja left an indelible mark on Kenyan jurisprudence. Following his death in July 2024, it came as a great surprise to many that a dispute would emerge over his estate, particularly since he had the prescient wisdom of leaving a written will. But perhaps Justice Majanja chose to continue educating us as part of his legacy, as the legal dispute has surfaced a personal administrative anomaly that should make us sit up and pay attention.

Let me begin first with some kizungu mingi (a lot of English). When you write a will and are subsequently promoted to glory in Kenyan-speak, you are deemed to have died testate. If you are promoted to glory without writing a will, you are deemed to have died intestate. By leaving a will, you help everyone and their brother since you make it crystal clear how you want your estate to be distributed. More importantly, a good lawyer will also guide you to ensure that all your dependents are taken care of in the will since the Kenyan Law of Succession Act is quite prescriptive about who the dependants are. Failure to consider your dependants will mean that your wishes can be tampered with by the courts, if an unhappy dependant emerges as having been left out or insufficiently provided for.

In the Majanja case, the court highlighted Section 111 of the Insurance Act which provides that a policyholder may nominate a beneficiary at the point of taking out the policy or at any time before it matures. Further, within that section, the Act provides that if the policy matures and said beneficiary or beneficiaries have been promoted to glory, then the proceeds become part of the policyholder’s estate. The court therefore found that Justice Majanja’s group life insurance policy as well as his employee benefits were to be considered an intestate part of his estate, since he had not specifically named a beneficiary to receive the proceeds in the first instance.
The view of the court was that insurance and employee benefits are “defined benefits” rather than claims that would arise from a legal action, what, in legalese, are called “choses in action”. Subsequently, since these benefits are defined, beneficiaries should be specifically provided for by the policyholder and/or employee in the event of their passing. If such person does not name a beneficiary, then this forms part of the intestate part of the estate and is now subject to the rules of intestacy. This means that letters of administration must be sought by a person or people to oversee the distribution of the intestate part of the estate.

All of a sudden, the living space of your earthly home becomes very busy. On the couch sits a set of executors who are managing the distribution of what you have put in your will. At the dining table sits another set of administrators who are managing the distribution of what you did not specify in the will. As an experienced succession lawyer told me, what Justice Majanja’s lawyer could have added, to avoid all the unfortunate post mortem drama, is a clause in the will that dealt with what is called the “residuary estate”. Such a clause provides for what happens to any assets of the deceased that may be acquired after the writing of the will, or that were not specifically mentioned in the will, thereby protecting those assets from intestacy.

If you are allergic to lawyers in your lifetime, or consider that thoughts and discussions imagining your death are treasonous, then a simple way to avoid postmortem drama is to do a few things. First, ensure you have named beneficiaries for your insurance policies and retirement benefits. Walk over the human resource department and ask them for one of the million forms that they have to name beneficiaries, more so in the event that your employer has a group life policy for its staff. Secondly, help your family survive the nightmare of your promotion to glory. Write a schedule of your assets. Update it annually. Keep it with a trusted friend if you don’t want your spouse to see it. But just make it easy for your family to find your things before the Unclaimed Financial Assets Authority inherits some of them. If you’re not going to write a will that says who gets what, then at the very least, let the who know what the what is!

X: @carolmusyoka

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