TAKUDZWA HILLARY CHIWANZA
Writing a will may evoke feelings of unease, yet it carries significant importance within families and society as it establishes orderly and amicable succession planning. In Zimbabwe, testate succession, governed by the Wills Act [Chapter 6:06], provides clarity on how a testator’s property will be administered and shared after their demise.
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| Understanding the fundamentals of will writing is essential for effective estate planning |
This write-up aims to outline, in brief but understandable terms, the fundamental aspects of will writing in Zimbabwe, emphasizing the legal requirements and considerations necessary to create a valid will.
Understanding the Concept of a Will
A will, according to Section 2 of the Wills Act, encompasses an oral will, a codicil, and any testamentary writing, excluding documents related to contractual transactions like an ante nuptial contract.
In simple terms, a will is a legal document that expresses a testator’s wishes (the person creating a will) regarding the distribution of their property after death, specifying when and how beneficiaries can inherit the assets as provided for by the testator.
It serves as a clear manifestation of the testator’s desires concerning the allocation of their estate. In a will, a testator may name someone to be the executor, also known as a personal representative. The executor’s job is to sort out the testator’s final matters throughout the entire process of the administration and distribution of their estate.
The Formalities of a Valid Will
To ensure a will’s validity and enforceability, it must adhere to specific formalities outlined by the Wills Act.
The acceptance of a document as a will by the Master of the High Court is vital for its validity and recognition.
When determining acceptance, the Master of the High Court reviews compliance with the formalities set out in Section 8(1) of the Wills Act, which include:
1. Written Form: A will must be in writing.It can be written in any language.
2. Testator’s Signature: The testator must sign the will.
3. Witness Requirement: The will must be attested to by two or more witnesses in the presence of the testator.
4. Witness Signing: Each competent witness must sign on each page of the will in the presence of the testator and the other witness. A witness need not know the contents of the will but must witness the signing by the testator.
Failure to comply with these essential formalities may result in the document being rejected as a valid will.
Eligibility of Witnesses and Testator’s Capacity
Any individual over the age of 16, competent to be a witness in court, and capable of observing the testator signing a will can serve as a witness. However, it is important to note that a person who benefits under a will cannot act as a witness to that will.
Regarding the capacity to make a will, Section 4 of the Act stipulates that individuals aged 16 years and above, possessing mental capacity, may create a will without the aid of a guardian.
The murky waters called freedom of testation
In a political and economic setup that holds private property as sacrosanct, the principle of freedom of testation is one that is given immense consideration and significance.
Freedom of testation grants the testator the right to distribute their assets to whomever they choose, for the reason that they privately own the property. A testator can bequeath their property to any person, whether born or unborn, natural or juristic.
It is crucial to understand that a testator has the freedom to disinherit their children or spouse. Disinheriting a spouse or child does not invalidate a will, as Zimbabwean courts uphold freedom of testation, as guaranteed in Section 5(2) of the Wills Act [Chapter 6:06]. This has the potential to cause serious injustices in society.
In light of this, Section 5(3)(a) of the Wills Act imposes a limitation on freedom of testation. It states that no provision, disposition, or direction made by a testator in their will shall operate to vary or prejudice the rights of any person to whom the deceased was married concerning a share in the deceased’s estate or the spouses’ joint estate, according to laws governing the property rights of married individuals.
The purpose of this provision, as illustrated in the case of Chigwada v Chigwada & Ors SC 188/20, is to protect the property belonging to the surviving spouse from being disposed of by the testator as if it were part of their own estate.
The court clarified that this provision does not imply that a husband or wife cannot disinherit the surviving spouse through a will. However, the testator must ensure that the assets they intend to dispose of via the will belong exclusively to them.
Therefore, a surviving spouse can be disinherited through a valid will. Such can be the tricky aspects of private property when it comes to succession and estate planning.
Important to note is that minor children or individuals legally incapable of providing for themselves can claim maintenance from the estate.
Restrictions on Benefitting Under a Will
Of course, as much as the law empowers individuals to make a will providing for what specified beneficiaries will get, certain individuals are incapable of benefiting under a will. These include:
1. A person who witnessed the will.
2. Any person who signs the will in the testator’s presence and at their direction.
3. Any person who personally writes out the will on behalf of the testator or any part of it that confers a benefit upon them.
4. Any person who has certified the will.
5. Any person who fraudulently or unduly influenced the testator to make or alter the will.
6. Any person who unlawfully destroys or conceals a will made by the testator.
7. Any person who caused the testator’s death.
8. Any person who, through an unlawful and intentional act or omission, directly caused the benefit to be conferred upon them.
Conclusion
After drafting, signing, and fulfilling all the mentioned formalities, it is advisable to securely store the will with the Master of the High Court, a lawyer, or a bank.
Additionally, it is essential to inform a trusted individual about the existence and location of the will. It is also important to note that a will becomes effective upon the testator’s death.
On the overall, planning ahead and creating a will empowers individuals with sufficient prudence to exert control over the distribution of their property after their demise.
Though it may be difficult for some, it is always advisable to seek legal assistance from a legal practitioner experienced in will writing is of huge significance to ensure compliance with the law and the necessary formalities for a valid will.
By properly understanding the fundamentals of will writing in Zimbabwe and what makes them valid at law, individuals can navigate this process with certainty and confidence, ensuring their wishes are respected and their loved ones are provided for.
And all this should be in accordance with the law.
So, go ahead. Prepare for the future adequately. Do not be hesitant—write that will.
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