I recently lost my husband. Before his passing, he made an oral will, expressing his wish to be cremated. My in-laws are strongly opposed to this, stating that cremation goes against their cultural practice. They also say that according to my husband’s culture, women have little say in decisions regarding the burial of their husbands. I want to honour my husband’s wishes, but at the same time, I don’t want to disrespect my in-laws’ customs, or overstep cultural boundaries. Please advise.
Legally, your situation involves several key issues being the authority of your husband’s expressed wishes, the cultural practices of your in-laws, and your rights as his widow, particularly in the context of gender and burial decisions.
Kenyan law recognises oral wills, provided they meet certain conditions under the Law of Succession Act. For an oral will to be valid, it must have been made in the presence of at least two witnesses and within three months prior to death. If your husband’s wish to be cremated was expressed before witnesses and meets these conditions, it carries legal weight. As his widow and likely the personal representative of his estate, you have the legal authority to ensure his wishes are carried out, including his desire for cremation.
In addition, the Constitution guarantees the right to dignity, which extends to honouring the wishes of the deceased. The right to privacy also supports your husband’s autonomy in making decisions regarding his body after death. While your in-laws may be asserting cultural norms that dictate burial practices, these should not override his expressed wishes. The Constitution further protects you from discrimination, including cultural practices that may exclude you from decision-making due to your gender.
I understand that your in-laws have mentioned that, according to their culture, women have no say in burial decisions. However, this is a form of gender discrimination, which the Constitution explicitly forbids. The law guarantees that men and women have equal rights in all family matters, including burial arrangements. While cultural traditions are respected, they do not hold more weight than the rights of individuals and the deceased’s wishes, especially when those customs conflict with the law.
There have been legal precedents in Kenya, where courts have had to balance between cultural practices and the rights of the surviving spouse. Recent court decisions have made it clear that while cultural norms are important, they should not override the individual’s rights or the authority of the surviving spouse to carry out the deceased’s wishes.
In your case, your husband’s desire for cremation legally takes precedence over cultural objections. If the oral will is valid and clear, you have the legal right to carry out his wishes. Should the dispute with your in-laws persist, you may want to consider seeking mediation or legal counsel from a family lawyer to help resolve the matter.
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
Source link : https://nation.africa/kenya/news/gender/how-do-i-honour-my-husband-s-wish-for-cremation-despite-my-in-laws-opposition–4782582
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Publish date : 2024-10-04 04:00:00
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