Caleb Mucheche
A will is a declaration in a document executed in a manner required by the law by the person making it, the testator or testatrix, as the case may be, in regard to the devolution of his or her property.
It can only be recognised as such if it satisfies the requirements set by the law. This testamentary act must been done freely and voluntarily by the testator without any duress or undue influence.
The words will and testament can be used interchangeably or together, e.g. last will and testament.
A will can only be used if the testator has died or has been declared dead in terms of the Missing Persons Act. The Master of the High Court will therefore not issue Letters of Administration if this requirement is not satisfied.
Why write a will
There are various advantages for writing a will. Below are briefly some of the advantages associated with writing a will. A will gives you a say on:

• What you want to be done with your property;

• It also helps you protect your property from property grabbers;

• Who you want to benefit from your property; and

• Who you want to be the guardian of your children if they are minors.

If one dies without a will, that is called intestate. Where one dies without a will, the law says that the surviving spouse takes the matrimonial home where he or she resided with the deceased up to the time of his/her death and all the household goods in that house.
The law does not protect children if one dies without a will because if the surviving spouse remarries, children can be chucked out of the house by the surviving spouse’s new husband or wife. Furthermore, if that surviving spouse dies without a will, that very same house and all the goods in it can be taken by the remaining spouse, and the children from the former marriage remain excluded.

In most cases, when a person remarries upon the death of his or her spouse, the new spouse may not embrace the children from the former marriage.
That is why it is of fundamental importance that one writes a will during his/her lifetime because of a huge gap in our law which does not protect children.
Where there is a will which indicates how the immovable and movable property is to be distributed, the concept of surviving spouse getting the matrimonial home and all the household goods in it does not apply.

The will takes precedence
The Deceased Estates Amendment Act No. 6 of 1997 only addressed the abuses and vices that were being caused by the concept of heirship or heiress but has created a serious inequity by bluntly stating that the surviving spouse gets the matrimonial home and all the household goods in that house. If one dies without a will, whether you are married under general law or customary law, the concept of surviving spouse getting the matrimonial home and household goods therein applies.

Section 3A of the Deceased Estates Succession Act gives the surviving spouse in a general law estate the matrimonial home if the other spouse dies without leaving a will (intestate). If the surviving spouse does not remarry there will not be much of a problem, but if he/she marries, if there are any surviving children, they may end up as losers and vagrants without a roof over their heads.

The legislature is strongly urged to revisit this area so that children are also protected because in some cases, the matrimonial home will be the sole/only property of the deceased estate and if the surviving spouse gets it, children are left empty-handed. The legal provisions bestowing the surviving spouse with the matrimonial home can be a fertile breeding ground for marriages of convenience where some unscrupulous persons will enter into dubious “marriages” for amassing properties/wealth and not out of genuine love.

This can even result in a cruel and heartless spouse precipitating the other spouse’s death so that they can inherit the matrimonial home and the vicious cycle can go on. This is why it is of paramount importance that one plans his family inheritance/estate otherwise strangers can end up benefiting to the exclusion of one’s children.
Any person who is 16 years and above is competent to write a will.

The age of 16 is generally regarded as the common law age of consent and also the fact that the person will be having a better appreciation of the nature of the act. Since appreciation is of the very essence it means that people without the requisite appreciation are disqualified from such acts and these include minors and insane people, among others.

N.B It is strongly advisable for a prospective will writer to seek competent legal advice before writing a will to avoid the pitfalls associated with defective wills.
One must refrain from seeking the services of bogus or “street lawyers” but consult a genuine legal practitioner knowledgeable in estate planning for professional advice and guidance. Prevention is always better than cure.

• Caleb Mucheche is a legal practitioner and teaches law at theUniversity of Zimbabwe. Feedback: advocatemucheche@gmail.com or mucheche@justice.com or mmlawchambers@yahoo.com