Estate planning: Why burial clause is crucial in Wills

Have you thought of the place where you will be laid to rest when you die? And who has the final say on the burial rites? Is it your spouse or the clansmen?

The Court of Appeal will grapple with these issues in a dispute over where to bury a Kisii elder who died in April this year.

It’s a battle similar to the one witnessed in 1986, pitting Wambui Otieno against her husband’s clan, Umira Kager, over the burial of Silvano Melea Otieno, popularly known as S.M. Otieno.

In that case, the widow wanted the celebrated lawyer buried in Ngong, but the clan would hear none of it and insisted Nyalgunga, in Siaya, would be the deceased’s final resting place.

After a five-month court battle, the clan had its way.

“Having regard to the Luo Customary Law relating to burial, which as indicated earlier is the law applicable in this matter and, considering the finding I earlier made that the deceased had expressed the wish that upon his death he be buried at Nyalgunga, I hereby direct and order that the deceased’s body be handed over to Joash Ochieng’ Ougo and Virginia Edith Wambui Otieno jointly or to any one of them for burial at Nyamila Village, Nyalgunga Sub-Locaton, Siaya District,” Justice Samuel Bosire (retired) ruled on February 13, 1987.

Three decades later, the same scenario plays again. The body of Naftali Onderi Ontweka has been lying at Lee Funeral Home since June, accumulating hundreds of thousands in storage charges.

As at June 12, 2023, the widow says, the mortuary charges stood at Sh391,000. The daily mortuary charge for preserving the body is Sh4,000, meaning that by now the amount is nearing Sh679,000 and counting.

The fight pits his four brothers against the widow on whether to bury him in Bomachoge, Kisii County, or Kamulu in Machakos County.

The court put on hold the plans to bury Mr Onderi at his Kamulu home pending the determination of an appeal filed by his siblings.

“While this option of exhuming the deceased’s remains is available, in our considered view, it would be more prudent to await the outcome of the appeal rather than subject the family to the process of exhuming and reburying the body,” Justices Hellen Omondi, John Mativo, and Mwaniki Gachoka ruled.

Last month, The High Court ruled in favour of the spouse, Zipporah Masese Onderi, and allowed her to collect the body for burial in Kamulu. The court had also ruled that Kisii burial rites should apply.

Dead man’s word

But the brothers were adamant that their brother’s wish was for his remains to be interred in Bomachoge and rushed to appeal the High Court ruling.

The Abagusii like other tribes in Africa, burial ceremony, is the last respect given to the dead body. Burial is usually done according to Abagusii customs and traditions. When a married man dies the dead body is supposed to be laid in the reception room at the left side of the room for the whole night.

The dead body is removed from the house using the left door when the grave is ready in the morning, a time when the animals are off the cow shed for grazing.

Kenyans are slow to take the legal cover that a will offers. PHOTO | SHUTTERSTOCK

Customs and traditions

The brothers of the deceased told the courts that just like the Abagusii customs, their brother’s body ought to be taken into the house using one door and exit through the other one.

This was countered by the widow and her firstborn son, who said the Kamulu home similarly has two doors and is in good condition, unlike the Bomachoge home. The son said his father never repaired it because he never intended to live there.

The brothers countered the argument further, submitting that Mr Onderi was the chairman of the Mogunde family and was even crowned as a Gusii elder, and given blessings to contest for Bomachoge Borabu Constituency in the 2022 General Election.

“There is no evidence that the deceased’s wishes were for him to be buried in Kamulu. Therefore, it is in the public interest and in the interest of justice for the deceased to be buried in accordance with the Gusii community customs and not as per the wishes of his nuclear family, as was held by the High Court,” the relatives submitted.

The Court of Appeal directed the relatives to file the main appeal within 30 days and ordered the case to be listed for hearing on a priority basis when the court resumes from August recess.

Costly and lengthy court trials

Meanwhile, such burial disputes continue to play out across Kenya, subjecting families to costly and often lengthy court trials, not to mention the emotional toll.

Law scholar and family lawyer Ruth Odhiambo, however, says the drama quickly fizzles out if the deceased had the foresight to write a Will stating their funeral and final resting place.

Unfortunately, despite similar high-profile burial disputes playing out in public, year in, year out, Dr Odhiambo says Kenyans are slow to take the legal cover that a will offers, preferring to hold on to traditional beliefs that shun making preparations for death.

“Writing a Will is the surest way to avoid subjecting your loved ones to unnecessary court battles,” she says, advising that the document should be explicit on who has the rights to the body.

“It is advisable, especially if you care for all dependants and beneficiaries. So long as no one is disinherited, the deceased’s wishes should be honoured,” she points out.

False assumption

More often than not, the law lecturer says most people fighting over the body of a deceased engage in such court battles with a false assumption that a win gives them an automatic right over the property left behind by the departed spouse or relative.

Dr Odhiambo says that should never be the case as burial and distribution of one’s estate are different issues.

Most Kenyans are hesitant to write a Will, fearing the expenses. Yet, Dr Odiambo says writing a Will should not be an expensive affair; it all depends on the estate’s net worth.

To do a will, she says, you need at least two witnesses or more than two if one of the witnesses is a beneficiary.

As to where to keep the Will, Dr Odhiambo says you can deposit it with an advocate, a bank, or a trusted friend. One also needs to state who to read the Will to the beneficiaries.

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