WILL writing is a culture that is foreign to most African communities.
But with urbanisation and changes in property rights, marriage laws and many other pieces of legislation, writing a will is the ultimate guarantee that will protect or settle inheritance matters as prescribed by a deceased person.
A will specifies the method to be applied in the management and distribution of the deceased’s estate.
It is the legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death.
If a person does not leave a will, or the will is declared invalid, the person will have died intestate, resulting in the distribution of the estate according to the laws of the State in which the person resided.
A will serves a variety of important purposes. It enables a person to select his heirs rather than allowing the State laws of descent and distribution to choose the heirs, who, though blood relatives, might be people the testator dislikes or with whom he is unacquainted.
This document allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator.
It safeguards a person’s right to select an individual to serve as guardian to raise his young children in the event of his death.
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Last Saturday I attended a meeting hosted by Love Feast, a couples’ platform founded by pastors Phillip and Lyn Chidavaenzi. The meeting was held under the theme “Where is my inheritance?” and the Master of the High Court, Eldard Mutasa, spoke at length about the management of deceased estates in relation to three kinds of marriages recognised under Zimbabwean law.
He stated the various types of marriages Zimbabwe has, highlighting their advantages and disadvantages.
However, what shocked participants at this meeting was the fact that it is not automatic for a woman or man to inherit an estate following death of a spouse, even if they were legally married.
He noted that the only way couples and families could avoid conflict over these matters was only through a will, which unfortunately, most people are not writing.
He said that a will was now acceptable in handwritten form, signed on each page and submitted to his office for safe-keeping.
The will is ascribed a number and kept in a safe area and the individual must make it known to his/her family that he/she has a will, although the family may not be privy to its contents. Family members will then alert the Master of the High Court once the person dies.
He gave some examples of wills that have been discovered years after a person has died, making it difficult to dispose of assets as instructed by the deceased.
“There is one man whose will was found tied onto the wooden rafters of the roof of his house, when occupants were putting up a ceiling.
“A will is a very easy document to write and it costs just $1 for safe-keeping at the High Court. It is a simple process that can be done by anyone and this lessens the burden for us when addressing inheritance issues at the High Court,” he said.
Mutasa said when a person dies, any close relative can register the deceased estate at the High Court, although the surviving spouse is mostly preferred.
“That should happen within 14 days following death of that individual,” said.
Mutasa, who is also a minister of religion, however, noted that there were some provisions of the law that needed to be reviewed or amended.
He gave an example of a situation when a woman who dies resulting in her husband inheriting a house. When the husband remarries and dies, that house is transferred to the new spouse ahead of the children of the first wife.
“There is one Nigerian man I asked if it was moral for him to take a house that he did not buy ahead of children of his deceased wife. His arguments were that he was legally married and hence he was entitled to the house,” Mutasa said.
“That Nigerian sold the house and now runs several successful businesses in the city.
“Yes, the law stipulates that he should benefit, but the office of the Master of the High Court cannot do anything because all decisions that we reach are based on what the law says, even when we note a lot of loopholes in some of these laws.
“This is the reason why you hear so many horrible stories about this office which has in some instances been described as corrupt and yet we are basically following what the law says about these marriage and inheritance issues.
Mutasa added: “We have made presentations about these matters, but until these laws are amended, we will continue using the same laws that result in legitimate children becoming homeless.”
He emphasised the need for churches to stop misleading congregants into believing that when couples marry under Chapter 5:11, that means the surviving spouse takes over.
“There is one woman who lost her home after her husband died because she was not living at the house when the husband passed on,” he said.
“She was working as a pastor in some rural area and because there were stepchildren involved who noted that their father had died in her absence, she lost the home.”
With Zimbabweans so mobile as they search for greener pastures around the world, it won’t be surprising for some men and women to lose out on inheritance just because they were not present when their spouse died.
That is why most people would rather stay in an abusive marriage because leaving that home automatically disinherits you. The law says you have to be living at the house until death does you part.
“But many couples divorce by signing in diaries or affidavits and little do they know that when such a thing happens, complications arise even if you were the one who built the house,” Mutasa said.
This revelation was a real shocker for most people and I personally suggest that Mutasa goes live on television and radio so that this message reaches out to as many people as possible.
There must be serious lobby to revise some of these laws because for as long as they exist, there will be so many emotionally hurt and disappointed individuals who will lose out on hard-earned properties.
The meeting was an eye-opener.
