Will writing in Zimbabwe
RUTENDO MANHIMANZI
‘As you all know, my brother Chamunorwa lived in the city and had a well-paying job and small businesses. Of course, his wife Thelma was working too but Chamunorwa earned more.
As a family our tradition dictates that the brothers and sons of the deceased share his estate.
As for his daughters, they benefit from their husbands and his widow will retain her kitchenware, zvekuti pane Will hazvina basa ndezvevarungu’ .
This sentiment is all too common in our society, often expressed after the death of a wealthy family member.
However, Chamunorwa had foreseen this hence his decision to write a Will to avoid disputes.
Writing a will is one of the most important things you can do for yourself and your loved ones, and it can be done in minutes providing peace of mind for you and your loved ones.
A will is a crucial legal document for estate planning, dictating how assets are to be distributed after your death, thereby ensuring that your intentions are met while preventing potential conflicts.
What is a will?
A will as defined by section 2 of the Wills Act [Chapter 6:06] as including an oral Will, a codicil, and any testamentary writing but does not include a document evidencing an antenuptial contract or other transaction of a contractual nature.
Put simply, a will is a legal document by a testator expressing their desires regarding the distribution of their property when they pass on.
Who can write a Will?
The law is clear, Section 4(1) of the Wills Act provides that every person who is of or over the age of sixteen years may make a Will unless at the time of making the Will he or she was mentally incapable of appreciating the nature and effect of his or her act.
This means that, to be legally valid, a Will ought to be created by someone of sound mind and legal age, clearly detailing asset distribution, and be signed by the testator and witnesses who are not beneficiaries.
Importance of writing a Will
When one dies and leaves no Will, the challenges that usually arise stem from cultural practices and greedy relatives.
In most cases relatives claim the properties of the deceased leaving the widow and children vulnerable with nothing.
However, if one leaves a Will, all of this is circumvented, and the testator has power to bequeath their properties/assets to a specific person(s).
This eradicates disputes between relatives and beneficiaries and disputes amongst beneficiaries themselves.
A Will accords the testator power to appoint a person who will be responsible for the management and distribution process of their estate.
This person is known as the Executor Testamentary, whose duties among others are to take care of your estate, settling your debts, distributing your assets to beneficiaries and reporting to the probate court.
Further, a Will enables the testator to appoint a legal guardian whom they trust to take care of their minor children, if any, upon their demise.
A Will also prevents distribution of one’s estate under intestate succession which might not achieve one’s desires.
In a Will one can give guidance and instruction of their funeral arrangements, place of burial or cremation and the person to preside over their funeral.
It is critical to note that life changes such as marriage or childbirth necessitate updating your Will, which can be done through a new Will or codicil, both of which require formal witnessing and signing to be legally valid. In order to prevent any confusion or disputes, it’s critical to be specific in detailing each asset and the beneficiary.
This can be achieved through the use of an assets or property list or register, which shows a clear and organized record of your assets and their intended beneficiaries.
Validity of a Will
A Will is valid if;
- It is in writing.
- The testator, or some other person in his presence and at his direction, signs each page of the will.
- Each signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time; and
- Each competent witness signs each page of the will or acknowledges his signature on each page of the will in the presence of the testator and of the other witness.
Failure to comply with these provisions may result in the Will being rejected or deemed invalid.
An oral Will is acceptable subject to two conditions, if such declaration is regarded as a valid Will according to any law or custom to which the testator was subject when they made the declaration and the value of the testator’s estate on the date of death.
Lodging a Will with the Master of the High Court
In determining acceptance of a document as a Will the Master of High Court will consider whether or not the document complies with the above mentioned formalities for Will writing as set out in the Wills Act.
Where the Master is satisfied that a document or an amendment of a document which was drafted or executed by a person who has since died was intended to be his Will or an amendment of his Will, the Master may accept that document, or an amendment to the Will, as a Will for the purposes of the Administration of Estates Act [Chapter 6:01] even though it does not comply with all the formalities for the execution of Wills.
Freedom of Testation
Freedom of Testation is guaranteed in section 5(2) of the Wills Act.
The testator has a right to distribute their estate to whomsoever they choose even if it disinherits his/her children or spouse. A Testator can hand down their property to any person whether born or unborn, natural or juristic.
However, The Wills Act in Section 5(3) (a) has made attempts to offer protection to spouses by stating that the contents of a Will drafted by a married person should not disadvantage the surviving spouse of their right to benefit from the deceased estate or spouses’ joint estate in terms of any law governing the property rights of married persons.
The interpretation and application of this provision has given rise to varied judgments. Arguments proffered being that a testator is not mandated to dispose through a Will of his/her estate to their surviving spouse, they have the freedom to dispose of their assets in a manner they so wish. In other cases, the courts have held that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In a prominent case of Chigwada v Chigwada & Ors SC 188/20 the court interpreted this provision as providing for the protection of property belonging to the other spouse from being disposed of by the testator through a Will as if it is part of their own estate.
The court went further to state that this provision should not be read to mean that a husband or a wife cannot disinherit the other through a Will, rather the testator must ensure that the assets they intend to dispose of through a Will belong to them.
This has resulted in a number of surviving spouses being disinherited from an estate, prompting the surviving spouses to challenge the authenticity of the Will.
Restrictions on Will beneficiation
Although the law empowers individuals to make a Will providing for what specified beneficiaries will get, according to the Act certain individuals are incapable of benefiting from a Will. These include:
- A person who witnessed the will.
- Any person who signs the will in the testator’s presence and at their direction.
iii. Any person who personally writes out the will on behalf of the testator or any part of it that confers a benefit upon them.
- Any person who has certified the will.
- Any person who fraudulently or unduly influenced the testator to make or alter the will.
- Any person who unlawfully destroys or conceals a will made by the testator.
vii. Any person who caused the testator’s death.
viii. Any person who, through an unlawful and intentional act or omission, directly caused the benefit to be conferred upon them.
Where can one safely keep a will
Proper storage of your will is vital to ensure it remains safe and accessible.
One can store the original document and a copy in a secure safe deposit box at a bank, the Master of the High Court or a lawyer of choice. Once your will is safely stored, it’s important to inform your executor or family where it is stored.
Soldiers Will
This is a testament by a soldier who is in full-time employment with or as a member of any branch of the Defence Forces of Zimbabwe or the Armed Forces of any other country allied to or associated with Zimbabwe, at a time when Zimbabwe is at war or the forces concerned are engaged in the suppression of armed rebellion or insurrection either in Zimbabwe or in any other country in support of the government of that other country.
A soldier’s Will is made without complying with any formalities, except that it must be in writing and witnesses are not required. A soldier Will typically only dispose of personal property.
This Will is automatically revoked if the soldier survives war or military operation. A soldier’s Will shall be valid if the testator dies while on active service or within one year after he has ceased to be on active service.
The purpose of the soldiers Will is to accord military personnel the right to dispose of their property in the event of their death whilst in the line of duty and ensure that their wishes are respected and fulfilled.
Wills made during epidemics
These are Wills made during epidemics, like public health crises or outbreak.
They also have relaxed requirements. Likewise, they do not have to comply with formalities except that it must be in writing.
A Will made during an epidemic shall be valid if the testator dies within one year after making the Will.
The purpose of these Wills is to allow individuals to make a Will quickly and easily, even in situations where they may not have access to legal services or witnesses. This ensures that their wishes are respected, and their loved ones are provided for, even in the face of uncertainty and crisis.
Conclusion
The Creation of a Will is a crucial step in estate and succession planning. It allows one to express their wishes regarding asset distribution and guardianship of minor children and it helps to prevent family disputes.
It is important for one to seek assistance from a Legal Practitioner when writing a Will to get proper guidance on compliance with the law pertaining to Will writing.
Rutendo Manhimanzi is a registered Legal Practitioner with the law firm, Ruzvidzo Legal Counsel. She can be reached on +263 773 589 263 or email rmanhimanzi@yahoo.com
