The Sunday Mail
Legal Matters with Tichawana Nyahuma
Recently, I spoke to an acquaintance of mine who related to me an incident in which he gave a lift to a teenage girl whose age he estimated to be about 15 or 16 while driving into the CBD of Harare.
He said he observed that the girl seemed troubled and therefore he enquired. The girl immediately broke down. When she had finally collected herself, she told my friend that her parents had perished in a car crash some months earlier. Prior to that incident, they were residing somewhere in the leafy northern suburbs of Harare and she was attending school at one of the plush girls’ schools in that area.
Her parents were well-to-do and had provided everything that a child would want. But everything changed after their death. Her uncle (the father’s brother), sold their house and squandered all the money. She, together with her two other siblings who are also still minors, are now residing with the same uncle in one of the high density suburbs south of Harare and have also transferred to schools in the same area.
She said that she and her siblings now have to put up with demeaning and scornful conduct subjected to them by their cousins, the uncle’s children, who say that they thought life was rosy and that they are now at the same level. Sad.
This unhappy story is what prompted me to come up with this instalment as it was clear to me that the trouble that befell the girl in question and her siblings could have been avoided if their parents had left a Will. So what, therefore, is a Will from a legal stand point and what is its purpose?
I hold the view that many a citizen in our country including even those of the most modest and elementary education, know what a Will is all about. Put simply, a Will is a document that carries the force of law which ensures that upon your death, your money and other assets are inherited only by people you want to benefit. It also ensures that your assets do not fall into the hands of people you do not want to benefit.
The beneficiaries can include persons yet to be born as well as charity organisations and other corporate bodies. It also encompasses issues like who will be the guardian of your minor children in the event of your death and what will happen in the event that people you want to benefit die before you or put in another way, they die ahead of you. Lastly, in the Will, you nominate the person who will manage your affairs after your demise. That person is called an executor when he is male or executrix when she is female.
The person making the Will is technically called the testator if he is a male and testatrix if she is a female (both of whom I shall from now on, refer to as “X”).The person who makes a Will, as it were,speaks and rules from the grave.
Though I do not have any statistics, it would appear to me from discussions with friends, family members and other acquaintances that most people do not have Wills. This is despite the fact that drawing up a Will is an inexpensive and a pretty straightforward process. In fact, in our society, the dominant view seems to be that, a Will is only for those in our midst who are affluent, have properties and are financially endowed. Others are of the view that drafting a Will only becomes an issue after retirement and when one is approaching the sun set of his life. In my own view, the fact that death can and does knock at anyone’s door with or without notice, justifies the making of one’s Will today rather than tomorrow regardless of one’s age.
Generally speaking, a Will can either be oral or in writing. It is, however, recommended that a Will be in writing for certainty and removal of disagreements and or doubts among the would-be heirs or beneficiaries. There are several types of Wills such as Soldiers Wills, Joint Wills, Wills drawn during epidemics and so on. In this discussion, I confine myself only to that simple written Will for the very ordinary person.
Who can make a will?
Issues to do with Wills in Zimbabwe are governed by the Wills Act (Chapter 6:06). In terms of that Act, any person aged 16 years and above has the right and capacity to make a Will unless at the time he made the Will, X was an imbecile and, therefore, not possessed of a sound mind thereby making him lack the mental capacity to appreciate the nature and effect of his act. The burden of proving such an assertion will be on the person who makes the allegation in keeping with the time-honoured principle of law that says that he who alleges must prove. So, if at the time that he executed his Will, X was so intoxicated or so ailing as to have been impaired in his/her ability to correctly express his/her true intent, such a Will is liable to be set aside by the court.
It is instructive that a person who has been declared to be insane is not always taken to be incapable of making a Will. If it is shown that at the time when he made the Will, his insanity had taken leave of him in which event he was in a sane or coherent state and he takes the necessary precautions of removing doubts of his mental capacity at the time of executing his/her Will, such as making arrangements for the presence of his medical practitioner at the time of signing, then such a Will will be perfect and, therefore, capable of being enforced by the court. It has been held in a number of cases that there is no presumption that a person who is declared not capable of handling his own affairs is also incapable of executing a Will. See for instance, the South African case of Geldenhuys v Borman NO 1990 (1) 161 (E).
Freedom of testation
But is X completely free to deal with his/her property as he/she pleases in his/her Will? The answer is both a yes and a no and here is why.
Generally speaking, X is at large to execute his Will which is valid both in terms of content and in accordance with all the prescribed formalities. He/she is free to leave his assets to whoever he/she pleases. In our country, this freedom is, however, to some extent limited as there are certain restrictions which are imposed by law.
Just like in our lifetimes, freedom of property is not always absolute. For example, X cannot deal with matrimonial assets as he/she pleases because that is governed by other legislation which says that upon the death of a spouse, certain matrimonial assets fall into the estate of the surviving spouse as for example, the matrimonial home.
X cannot, therefore, seek, through the avenue of a Will, to disinherit his spouse after his demise without making adequate alternative arrangements for the welfare of the surviving spouse. Strictly speaking, therefore, not all matrimonial assets are capable of inclusion in the Will as they are distributable in terms of the relevant legislation after X’s death as aforesaid.
A person who is entitled to benefit from a Will but is left in the cold can institute court action against X’s estate as for example, claiming maintenance. Such a person could be a dependent minor child or a surviving spouse.
Sometimes X draws up his Will but keeps it as a closely guarded secret. That is discouraged because upon X’s death, people will then not know that the deceased left a Will and will, therefore, distribute his property according to some other law or as they wish because it will then be assumed that X died intestate; that is to say, he died without leaving a Will.
There is no doubt that complications will arise when the Will eventually surfaces. It is accordingly suggested and recommended that X, after drawing up his Will, must inform someone he trusts such as his lawyer, banker or even an acquaintance. Better still, the Master of the High Court of Zimbabwe has a facility in terms of which a copy of the Will can be lodged with him for safe keeping for a small fee. What this means is that upon X’s death and when his estate is now being administered, the Master’s office will automatically know that the deceased left a Will.
The process
The process of drafting a Will is simple. It only takes a piece of paper where X writes down how he wishes his assets to be dealt with after his death. He can write in his own hand or type but after it is done, it must be signed on each and every page so closely to the end of the last words thereon by X or some other person in his presence and at his instructions. There must not be left any space that might make it possible for some other person with a wicked motive to add some things. X must then acknowledge each signature thereon in the presence of two or more witnesses present at that time and the witnesses also sign each and every page of the Will.
The witnesses do not need to have been aware of the contents of the Will or to have read it or to have been aware that the document they attested to, was a Will. Lastly, the Will must be dated. It is, however, recommended that whoever wishes to draft a Will, must instruct their lawyer who is trained at the most appropriate language to use therein. Otherwise a Will that is drafted even in the vernacular is nevertheless valid so long as the above formalities are observed.
A lot of disputes have arisen relating to the deceased’s signature where in some cases, allegations are made that X’s signature on the Will differs from a known or usual signature. However, the manner in which X actually signs the Will does not really matter as long as there is ample evidence that it was in fact him who signed the Will. If, for instance, X is stricken by some illness, chances are that he may not be in a position to sign his “usual” signature. That, therefore, cannot be used as a basis to set aside the Will.
Unqualified beneficiaries
There are certain persons who are disqualified from benefiting under a Will. These are:
Where a person influences X to give him a benefit under the Will, he is not entitled to benefit therefrom.
An unworthy person who intentionally causes X’s death cannot also benefit under the Will. This also includes a person who leads X into some form of immoral lifestyle and indirectly causes his death.
If a person conceals or unlawfully destroys X’s Will, he is not entitled to benefit under that Will.
A person who, on X’s instructions, writes out X’s Will which also confers a benefit upon him, is disqualified from benefiting under that Will.
A person who witnesses the execution of the Will or signs the Will in the presence and direction of X or such a person’s spouse is incapable of benefiting under that Will.
If a person through fraud, undue influence, duress or other uncouth means causes X to make a Will which also confers a benefit on that person, he cannot benefit from such a Will.
As already said above, the burden of proving any of these assertions is squarely on the person making such allegations. So, when are you drawing up your Will?
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