Introduction
The African society tends to embrace collectivism rather than individualism. A fact of life is that, once one is born, death is inevitable, in Shona they say “ukazvarwa, chasara kufa” (When you are born, what follows is that you will die). Interestingly, death is not a subject taken lightly in the African culture, speaking about it is taboo, even worse, planning for it. There is a belief that when one speaks of death, they are seen as summoning death upon oneself or another. African traditions and cultures revolve around ubuntu values, such as “I am because we are”. Despite this, it is unorthodox, to speak openly about death or plan about what happens to one’s personal assets or the care of their loved ones after death.
Anthropology reveals that all cultures are dynamic and constantly changing as individuals navigate and negotiate beliefs, values, ideas, ideals, norms and meaning in the systems that make up the cultural environment in which they live.[1] This article seeks to demystify the concept of death, but simplifying the process of planning for one’s affairs and distribution of assets through a will. It is envisaged that even where speaking of death, let alone planning for it, is considered bad luck, writing a will is a simple process, and in the unfortunate event of death, the affairs and assets of the deceased are distributed in accordance with their wishes outlined in the will.
In Zimbabwe, wills are governed under what is known as the law of succession and more specifically the Wills Act (Chapter 6:06).
What is a Will?
Simply put, a will is a document in which a person makes his wishes known as it relates to how his funeral should be conducted, and or how his assets after his death are to be disposed of, or divided, as well as other matters in his control, in legally prescribed ways. The Wills Act defines a will as including an oral will, a codicil, and any testamentary writing.[2]
Who May Write a Will?
A will may be executed by anyone who is sixteen years or above, with the exception of persons who are at the time of making the will mentally incapable of appreciating the nature and effect of their act.[3] The most obvious examples of mental incapacity include mental illness, drunkenness and incapacity due to the effects of drugs.[4] The onus of proof to show mental incapacity rests with the person who makes the allegation. The person making a will is known as a testator. The testator must have testamentary capacity to make a will, as alluded to above, or else the will is invalid. It is worth noting that although a testator may have had testamentary capacity at the time of making the will, if it is determined that the testator’s freedom of expression was a result of undue influence, duress or mistake, such will may be invalidated by a competent court of law, for the reason that the will ceases to be the authentic wishes of the testator.[5]
Power to Make Dispositions by Will
The Wills Act gives the testator the power to make provision of the transfer, disposal or disposition of the whole or any part of his estate, make provision for the custody or guardianship of any of his minor children after his death, and make any other lawful provision, disposition or direction whether in respect of his own or any other property or in respect of any other matter.[6] This power by the testator to make dispositions is limited in that it cannot be used as an instrument to vary or prejudice a surviving spouse who is entitled to a share in the testator’s estate or in the spouses’ joint estate. Neither may it be used to prejudice any person entitled to receive any property, maintenance or benefit from the testator’s estate in terms of any law or court order. The same is true for any creditor whose debt or liability is payable from or attaching the testator’s estate.[7]
Who May Benefit From a Will?
Any person born or unborn, natural or juristic may benefit from a will, as long as they are conferred as such in terms of a will. However, the following persons are disqualified from receiving any benefit from a will; a witness to the will or amendment of the will, a person who personally writes the will on behalf of the testator or at his direction, a person who has certified the will or an amendment of the will, a person who is a guardian other than a parent, or a curator, trustee or administrator of the testator who happens to have been a minor at the time the will was executed, a person who at the time the will was made was a spouse, or child of a person incapable of receiving a benefit from the will, a person who through duress, undue influence or fraud has caused the testator to make the will or prevented the testator from making amendments to the will, or making a new will, a person who has unlawfully destroyed or concealed the will, a person who has intentionally killed the testator, and a person whom the testator has inherited such benefit from. The burden of proving that a person is incapable of benefiting from the will lies with the one who alleges.[8]
Who may be a Competent Witness to a Will?
A testator must sign his will in the presence of at least two competent witnesses. The witnesses must in turn sign the will as well.[9] A competent witness is one who is sixteen years of age or above, competent to give evidence in a court of law, and physically capable of seeing the testator sign his will or acknowledging the signature on the will as the testator’s.[10]
Formalities in the Execution of Wills
With the exception of oral wills, soldier wills and wills made during epidemics, all wills to be considered valid should be in writing, the testator or some other person in his presence and under his direction should sign each page of the will as closely possible to the end of the writing on each page, the testator signs or acknowledges his signature on each page to his witnesses. A testator who signs his will by making a mark or by directing some other person to sign on his behalf. Such will shall only be valid if it is certified before the death of the testator.[11]
Revocation of Wills
The only way a valid will can be deprived of its legal force is by it being revoked by the testator at any time before his death. Revocation can be wholly or partly, absolutely or conditionally. A joint and mutual will cannot be revoked by a surviving spouse, to the extent that the will effects a massing of the estates or if the surviving spouse has accepted some benefit under the will. A testator can expressly revoke a will or simply make a new one.[12] The subsequent remaking of the will or part thereof revises the will.[13]
What to Do After Drawing Up a Will
After a person has drawn up a will, codicil or testament and ensured that they have followed all the formalities, they may deposit same with the Master of the High Court, open or under a sealed cover. The Master will then keep the will in safe custody until the death of the testator.[14] The testator’s lawyer or the nominated executor will then uplift the will from the Master’s office, and thereafter the estate of the deceased will be administered in terms of the law. Depositing a will with the Master is not mandatory, a testator can keep their will anywhere where it will be safe, such as with his lawyer, bank, close relative or friend. Such person in possession of a testator’s will should as soon as possible after the death of the testator deliver the will to the Master of the High Court.[15]
Can a Will be Challenged
A will may be challenged on a number of grounds. If successfully challenged it will be declared by a competent court of law to be void in part or in its entirety. The court will proceed to distribute the testator’s estate as if the will never existed. One of the grounds that a will can be challenged is its validity, this is when the formalities were not properly followed. Another ground is that the testator lacked capacity to make the will at the time it was executed. The will being executed as a result of undue influence or the will was forged could also be another ground, as was the case in the case of Govereh v Makasi.[16] The grounds listed here are not exhaustive.
Conclusion
To ensure a smooth and orderly distribution of one’s assets and handling of their affairs after their demise, it is most imperative to write a will, and to do it properly following all the formalities required by the law. Anything short of this may result in a will being challenged and declared void. Losing a loved one is hard enough, complicating the loss with chaotic distribution of assets of the deceased can be avoided by writing a will, perhaps with the assistance of a lawyer.
[1] Michael Welsch. The Art of Being Human. pp 237 [2] Section 2 The Wills Act [Chapter 6:06] [3] Section 4 The Will Act [Chapter 6:06] [4] MJ De Waal et al.1993. Law of Succession Students’ Handbook. Stellenbosch. Juta. pp 31. [5] MJ De Waal et al.1993. Law of Succession Students’ Handbook. Stellenbosch. Juta. Pp 32 [6] Section 5(1) The Wills Act [Chapter 6:06] [7] Section 5(3) The Wills Act [Chapter 6:06] [8] Section 6 The Wills Act [Chapter 6:06] [9] MJ De Waal et al.1993. Law of Succession Students’ Handbook. Stellenbosch. Juta. PP 37 [10] Section 7 The Wills Act [Chapter 6:06] [11] Section 8 The Wills Act [Chapter 6:06] [12] Section 15 The Wills Act [Chapter 6:06] [13] Section 19 The Wills Act [Chapter 6:06] [14] Section 7(1) Administration of Estates Act [15] Section 8(1) Administration of Estates Act [16] Govereh v Makasi 2023 ZWMSVHC 9
