WILL WRITING IN ZIMBABWE AND ITS SIGNIFICANCE

A part of the Roman Catholic prayer which says, “Mwari wangu ndinoziva ndinofa, Asi handizive rinhiko? Handizive Seiko? Handizive kupiko …” which can be translated as, “My God I know I will die, But I don’t know when? I don’t know how? I don’t know where?” reminds one that we are not in this world forever and everyone will die at some point and no one knows the date, the place or the way. Death is not predictable but one can prepare for what will happen to their estate when they leave the world. Will writing is the easiest estate planning tool in which one can pronounce and declare his or her wishes when he or she dies and it will be quicker to handle one’s affairs and distribute their assets according to their wishes after demise.

What is a Will?

Section 2 of the Wills Act [Chapter 6:06] defines a Will 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. In simpler terms, a Will is an oral or written declaration made by a person pertaining to the distribution of his or her estate. A Will is a declaration of the testator’s wishes. A person who writes a Will is called a Testator.  Wills and Will writing is regulated by the Wills Act [Chapter 6:06].

Who can write a Will?

Section 4(1) of the Wills Act [Chapter 6:06] 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 is mentally incapable of appreciating the nature and effect of his or her act.  So, any person who is of or above the age of sixteen has the capacity to make a Will provided that he or she is mentally capable of appreciating the consequences of his or her acts.

Importance of writing a Will

It is common that in majority of cases when a person dies, relatives will rush to grab the Late’s properties leaving the dependants of the deceased person destitute. Some can even chase the dependants out of their home. In some cases, some beneficiaries would squander all the assets to the disadvantage of others. But if one leaves a Will, all of this can be avoided.  By writing a Will one can bequeath a specific property to a specific person(s). This avoids disputes between relatives and beneficiaries and disputes between beneficiaries themselves.

One can also appoint a person who will manage and handle the distribution process of your Estate in a Will and the person appointed will be called Executor Testamentary. One can also appoint a legal guardian whom they trust to take care of the children, if any, upon their demise. Having a Will also prevents distribution under intestate succession which may not comply with one’s wishes. One can also include funeral instructions in their Will, for example, funeral arrangements, burial place or cremation, religious ceremony etc. These are some of the advantages of having a Will.

Formalities in Will writing

A Will is valid if;

1. It is in writing
2. It is signed by the Testator and or some other person in the presence of the testator and at his or her direction. A Will must be signed and initialled on each page as closely as maybe to the end of the writing on the page concerned.
3. A Will must be signed in the presence of two competent witnesses present at the same time and who are of or over the age of sixteen years, who are competent to give evidence in a court of law and physically capable of seeing a testator sign his Will or acknowledge his signature on a Will.
4.  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 a Will but witnesses the signing by the testator.

It is not mandatory to have a Will dated but it is preferable to do so. An oral Will is acceptable subject to the two conditions, that is, 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.

Freedom of Testation

Freedom of testation means that the Testator has a right to distribute his or her assets to whomsoever he/she chooses. A Testator can bequeath his or her property to any person whether born or unborn, natural or juristic. It is imperative to note that a Testator has freedom to disinherit his or her children or spouse. Disinheriting a spouse or child cannot invalidate a Will as the Zimbabwean Courts uphold the principle of Freedom of Testation as guaranteed in section 5(2) of the Wills Act [Chapter 6:06].

Section 5(3)(a) of the Wills Act [Chapter 6:06] imposes a limitation to freedom of testation to the extent that no provision, disposition or direction made by a testator in his or her Will shall not operate so as to vary or prejudice the rights of any person to whom the deceased was married to a share in the deceased’s estate or spouses’ joint estate in terms of any law governing the property rights of married persons.The purpose of this provision was explained in the case of Chigwada v Chigwada & Ors SC 188/20 as to provide for protection of the property belonging to the other spouse from being disposed by the Testator by Will as if it is part of his or her 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 surviving spouse by a Will but the testator must ensure that the assets he or she intends to dispose of by Will belong to him or her. Therefore, a surviving spouse can be disinherited by a valid Will.

Minor children or those legally incapable to provide for themselves can claim maintenance from the estate.

People who cannot benefit under a Will

The following people are incapable of benefitting under a will: –

1. A person who witnessed a Will.
2. Any person who signs a Will in the testator’s presence and at his or her 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 him
4. Any person who has certified the Will.
5. Any person who fraudulently or unduly influenced to make the Will or prevented the testator from altering the Will or making a new Will.
6. Any person who has unlawfully destroys or conceals a Will made by the testator.
7. Any person who killed the testator.
8. Any person who has by his or her unlawful and intentional act or omission, directly caused the benefit to be conferred upon him or her.

After writing a Will, signing and complying with all formalities mentioned above, a Will can be safely kept with the Master of the High Court, a Lawyer or a Bank. One should have a trusted person who knows the existence of the Will. A Will comes into effect upon the death of the Testator.

To sum up, it is important for one to plan ahead and have a Will which will enable him or her to control how their property will be distributed after they die. It is important to get assistance from a Legal Practitioner when writing a Will who will guide with compliance with the law and formalities for making a valid Will.