An insight into will writing

FUNGAI CHIMWAMUROMBE & TAPIWA MUHLWA

 

Introduction

Life is full of surprises! I am sure no one ever imagined a day when we all could spend days and months indoors dreading meeting the person next door.

The Covid-19 pandemic has been a testimony. The Cyclone Idai tragedy is another testimony, we witnessed the unfortunate never expected. These uncertainties remind one of the need to plan about what would happen to his/her estates when he/she leaves this world.

Such planning can be through the writing of a will which is by far the simplest ways through which one can pronounce his or her wishes when he/she dies.

Definition of a will

A will or testament may be defined as either a voluntary oral or written declaration made by a testator or a testatrix (a person bequeathing), in regard to the dissolution of his/her property after his/her death.

Wills are a creature of statute and are governed by the Wills Act (Chapter 6:06) and as such wills ought to be line with the laws of the land otherwise they can be a nullity for failure to comply with the law.

Who can make a will?

According to the Wills Act (Chapter 6:06) any person who is above the age of 16 can make a will provided that he/she is mentally sound to appreciate the nature and significance of his/her act.

The significance of making a will

There is a Shona saying which sums it up all, “pfuma yenhaka inoparira”. Problems often occur when the person who dies is the one who owned the family house and other significant properties.

Usually, this is the father and husband, but often it is the mother when she was a single parent.

In Zimbabwe, some people have enriched themselves when one of their relatives died and many still think they can. When one leaves no will, greedy surviving relatives may move in and claim their relative’s house and other property and leave the widow and children with nothing. How sad? You cannot labour for the rest of your life to have your young and vulnerable children be left for destitutes.

The above scenario has always been against the law, however, many widows and children do not know their rights and are taken advantage of.

Under the old customary law of inheritance, it was easy for a relative who was appointed an heir to take the deceased person’s property and use it.

However, under the new law, when a husband dies without leaving a will, his surviving spouse will inherit the matrimonial home in her personal capacity and the wife and children will inherit the rest of his property.

However, if a person wants to be certain that his/her property is dealt with in a manner that he/she so wished and the remaining family will not suffer any prejudice after he dies, he plans ahead and makes a will.

Validity of a written will

A written will is deemed valid if; (a) Made by a person over 16 years who is mentally sound (b) It was made freely and voluntarily and without duress and undue influence (c) Signed in the presence of witnesses who are over 16 years, able to physically see and are competent to give evidence in a court of law.

(d) Signed by witnesses who need not to know the contents of the will but witness the signing.

(e) Is dated

(f) Signed or initialled at the end of every page by the maker of the will and witnesses.

NB: A testator/ testatrix can choose not to bequeath his/her estate to his/her or children and this cannot invalidate a will. The minor children or those incapable of providing for themselves can claim maintenance from the estate.

Dispositions that can be made through

a will

(a) provision for the transfer, disposal or disposition of the whole or any part of his estate and estate refers to all the property left by a deceased person including land, buildings, bank accounts, investments, etc.

(b) make provision for the custody or guardianship after his death of any of his minor children .

 

Who can and cannot benefit from a will?

(a) A testator or testatrix is free to bequeath his or her estate to ANY person whether born or unborn, natural or juristic and whatever his/her legal capacity.

It has to be noted that this freedom is only limited to the extent it seeks not to disinherit a spouse who was legally entitled to benefit from the estate.

(b) The following statutorily cannot benefit from a written will

(i) any person who signs the will as a

witness to the making thereof or as a witness to the making of any amendment in the will

(ii) any person who puts his or her initials on every page of the will or codicil

(iii) any person who, on behalf of the testator or at his direction, personally writes out the will or any part of it that confers a benefit upon him;

(iv) any magistrate, presiding officer of a community court, justice of the peace, commissioner of oaths or designated official who has certified the will in terms of subsection (2) of section 8 or who has certified any amendment in the will in terms of subsection (3) of section 9 of the Wills Act.

(v) any person who at that time was a guardian of the testator, other than a parent; or a curator, trustee or administrator of the testator.

(vi) any person who, when the will was made or amended, as the case may be, was a spouse or child of a person incapable of receiving a benefit under the will by virtue of the points listed above.

(vii) any person who, through fraud, duress or undue influence, has caused the testator to make the will or to insert therein the provision conferring the benefit upon him/her

(viii) prevented or attempted to prevent the testator from altering the will or making a new will;

(ix) any person who unlawfully destroys or conceals a will made by the testator or a copy of such a will etc.

An executor

An executor is a person who puts into effect the intentions of the person who made the will and he or she does the wounding up of the estate with the assistance from the Master’s Office of the High Court.

One can legally name anyone who is 18 years old or over to be the executor of his/her estate as long as he/she TRUSTS them.

It can be a relative or a friend or a lawyer or law firm. It is important that the executor should be someone who is able to understand what the court asks him to do. It is always important that one chooses his or her executor in his or her will.

Can any person write a will?

The simple answer is yes. It is however, advisable that one seeks the assistance of a lawyer to come up with a document that is legally sound. Wills are normally contested and it will not be good to have the will

declared invalid for failure to comply with the provisions of the law.

It is further advisable to get a notarised will for notarised documents carry so much weight before the courts.

Safe Keeping of the will.

The following can help with the safe keeping of a will;

(a) Master of High Court (either in Harare or Bulawayo) and at the Master of High Court one is required to pay a very nominal fee.

(b) a lawyer

(c) a bank

It is advisable that one has a responsible person who knows that there is a will in existence.

Can one write a new will to replace the old one?

The answer is an emphatic yes. One can write as many wills as they can but the last will to be written will be taken into effect and this why it is important to date one’s will.

Can change of status affect a will?

Yes, if one has made a will when he/she was single, the law will not recognise it after he/she marries. He/she will have to make another one. However, a man married under customary law does not need to make another will if he/she marries another wife.

Conclusion

They say make hay while the sun shines!

We are people groping in the dark as we live each day. What tomorrow has for one is a secrete only known by our Maker and that is the simple reason one needs to write a will today and secure the entitlements of beloved ones in an unequivocal manner. Be realistic, be wise and plan ahead!

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889. Tapiwa Muhlwa is a Senior Associate, email: tapiwa@ zenaslegalpractice.com

 

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