Estate planning in Zimbabwe: Mechanisms, missteps, and the case for trust donations

Estate planning is a cornerstone of wealth preservation and intergenerational legacy management.

In Zimbabwe, where family structures are complex and legal systems are evolving, the importance of strategic estate planning cannot be overstated.

From wills and trusts to donations and living estates, the mechanisms available are diverse but their effectiveness hinges on how and when they are deployed.

Estate planning mechanisms available

Zimbabwean law provides several instruments for estate planning, including:

• Wills – The most common tool, allowing individuals to specify how their assets should be distributed upon death. However, wills are subject to probate and can be contested.
• Inter vivos donations – Gifts made during the donor’s lifetime, often used to transfer property to children or relatives.
• Trusts – Legal arrangements where assets are held by trustees for the benefit of beneficiaries. Trusts can be discretionary, vesting, or charitable.
• Living estates – A hybrid mechanism where the donor retains use of the property while transferring ownership.
• Company structures and shareholding – Often used for business succession planning.
• Deeds of nomination and beneficiary designations – Common in insurance and pension arrangements.

Each of these mechanisms has its place, but the choice must be informed by legal, financial, and familial considerations.

Why donating to a Trust is safer than donating directly to a child

While donating property directly to a child may seem like a gesture of love and foresight, it can expose the asset to significant risks.

Children, especially young adults, may not have the maturity or stability to manage high-value assets. Moreover, once the asset is legally theirs, it becomes vulnerable to their personal circumstances—marriage, debt, divorce, or even death.

In contrast, donating to a trust allows the donor to:

• Retain control over how and when the asset is used.
• Protect the asset from creditors, spouses, and unintended beneficiaries.
• Ensure continuity in case of the child’s death or incapacity.
• Avoid fragmentation of the estate due to inheritance disputes.

Trusts also allow for multi-generational planning, ensuring that assets benefit not just the immediate child but future descendants, while maintaining oversight through trustees.

The Harare case: A cautionary tale

Mukudu v Mukudu & Ors (HH 228/17)

Background:

In this case, a father had transferred ownership of a family home to his son. After the father’s death, the son sought to evict his mother—the surviving spouse—from the property, claiming full ownership based on the title deed. The mother attempted to challenge the transfer, arguing that the donation was not properly executed and that she had not been served court papers correctly.

Key Issues:

No formal deed of donation: The son argued that the property was transferred directly to him by his father and that no formal donation agreement existed.

Eviction of surviving spouse: The son-initiated eviction proceedings against his mother, asserting that she was living in the house at his pleasure.

Procedural irregularities: The mother had obtained a default judgment against the son, which he later sought to rescind, claiming improper service of summons.

Court Findings:

• It noted that the absence of a formal deed of donation created ambiguity and conflict.
• The case revealed how direct donations without legal safeguards can lead to family disputes, eviction threats, and costly litigation.

Disadvantages highlighted:

• Risk of eviction: A surviving spouse may be evicted if the property is donated to a child without protective clauses.
• Family conflict: The donation led to a breakdown in family relations and legal battles.
• Legal uncertainty: Lack of formal documentation undermined the mother’s ability to challenge the transfer.
• Emotional and financial strain: The litigation consumed time and resources and strained familial bonds.

All this could have been cured by donating into a Trust and giving the parents a life usufruct over the property. A life usufruct is a type of personal servitude that grants an individual the right to use and enjoy another person’s property—including collecting income or “fruits” from it—for the duration of their lifetime, without transferring ownership.

Child mortality and estate risk

Zimbabwe, like many Sub-Saharan countries, still grapples with high child and youth mortality rates due to health challenges, road accidents, and other socio-economic factors.

Donating assets to a child without considering these risks can result in unintended consequences, especially if the child dies intestate or without proper succession planning.

In such cases, the asset may pass to a surviving spouse or distant relatives, bypassing the original intent of the donor. Trusts mitigate this risk by ensuring continuity of ownership and control, regardless of the beneficiary’s life events.

Conclusion: Strategic planning is protection

Estate planning is not merely about transferring wealth, it is about preserving intent, protecting beneficiaries, and ensuring legacy. In Zimbabwe’s dynamic legal and social landscape, trusts offer a robust mechanism to achieve these goals. While donations to children may seem emotionally satisfying, they often lack the legal safeguards necessary to protect both the donor and the asset. Visit your legal advisors and estate planners, so that you are guided toward mechanisms that offer flexibility, protection, and foresight.

Disclaimer: –

This article is intended for informational purposes only and should not be construed as legal, tax, or financial advice. Readers are encouraged to seek appropriate professional guidance from BDO Tax & Advisory Services before making decisions based on the content herein.