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what does the law of succession say about inheritance for adopted children and those born out of wedlock?

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Introduction

The Law of Succession in Kenya is primarily governed by the Law of Succession Act (Cap 160). This Act provides comprehensive guidelines on how the estate of a deceased person should be distributed among the beneficiaries. The Act addresses various categories of beneficiaries, including adopted children and children born out of wedlock. This response will delve into the specific provisions of the Law of Succession Act and other relevant statutes to explain the inheritance rights of adopted children and those born out of wedlock.

Adopted Children
- 1.1 Legal Framework
- 1.2 Rights of Adopted Children
- 1.3 Case Law
Children Born Out of Wedlock
- 2.1 Legal Framework
- 2.2 Rights of Children Born Out of Wedlock
- 2.3 Case Law
Conclusion

1. Adopted Children

1.1 Legal Framework

The primary legal instruments governing the inheritance rights of adopted children in Kenya include:

The Law of Succession Act (Cap 160)
The Children Act, 2001 (No. 8 of 2001)
The Constitution of Kenya, 2010

1.2 Rights of Adopted Children

Equal Rights: According to Section 3(2) of the Law of Succession Act, an adopted child is considered a child of the deceased for all intents and purposes. This means that adopted children have the same rights as biological children when it comes to inheritance.
Definition of a Child: The Children Act, 2001, under Section 2, defines a child to include an adopted child. This reinforces the notion that adopted children are to be treated equally in matters of inheritance.
Constitutional Provisions: Article 53(2) of the Constitution of Kenya, 2010, states that a child's best interests are of paramount importance in every matter concerning the child. This constitutional safeguard ensures that adopted children are not discriminated against in matters of inheritance.

1.3 Case Law

Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR: In this case, the court held that adopted children have the same rights as biological children in matters of inheritance. The court emphasized that the Law of Succession Act does not distinguish between adopted and biological children.

2. Children Born Out of Wedlock

2.1 Legal Framework

The legal instruments governing the inheritance rights of children born out of wedlock include:

The Law of Succession Act (Cap 160)
The Children Act, 2001 (No. 8 of 2001)
The Constitution of Kenya, 2010

2.2 Rights of Children Born Out of Wedlock

Equal Rights: Section 3(2) of the Law of Succession Act states that references to "children" in the Act include children born out of wedlock. This provision ensures that children born out of wedlock have the same inheritance rights as those born within wedlock.
Definition of a Child: The Children Act, 2001, under Section 2, defines a child to include those born out of wedlock. This ensures that such children are not discriminated against in matters of inheritance.
Constitutional Provisions: Article 53(1)(e) of the Constitution of Kenya, 2010, provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not. This constitutional provision ensures that children born out of wedlock are not discriminated against in matters of inheritance.

2.3 Case Law

Re Estate of John Musambayi Katumanga (Deceased) [2014] eKLR: In this case, the court held that children born out of wedlock have the same rights as those born within wedlock in matters of inheritance. The court emphasized that the Law of Succession Act does not distinguish between children based on the marital status of their parents.

Conclusion

The Law of Succession Act, the Children Act, and the Constitution of Kenya collectively ensure that both adopted children and children born out of wedlock have equal inheritance rights as biological children born within wedlock. These legal provisions are designed to prevent discrimination and to uphold the best interests of the child in all matters concerning inheritance. The courts have consistently upheld these principles, ensuring that all children are treated equally in matters of succession.