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NewsDay

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Protecting property rights — Wills

Opinion & Analysis
The majority of people in this country altogether avoid or defer planning for their deceased estates until it is too late.

The majority of people in this country altogether avoid or defer planning for their deceased estates until it is too late. Some people are so secretive to the extent that they hide their property and wealth usually from spouses and close family members. However, as experience has shown, it is simply not clever to hide any property to the extent absolutely nobody knows about it except oneself.

Your Rights with Miriam Tose Majome

When you die, all your secrets die with you. No one will know that you owned a one-bedroomed flat under sectional title if the documents were stashed away secretly or that you had a secret bank account or secret insurance policy. Unclaimed property will end up in the wrong hands or eventually get forfeited by the State. It is regrettable that many people fail to plan their estates yet it is not a hard thing to do.

Their families lose out and some get torn apart. People fight for estate property because of a failure to plan how property will be preserved, managed and distributed after death. We continue looking at ways people can protect their property after they are no longer there to do it themselves. Last week we discussed trusts and this week we discuss wills. The law

A will, also called a testament, is a legal document by which a person expresses his or her wishes regarding how their property is to be distributed when they die. A will also gives direction regarding non-material interests. The Wills Act Chapter 6:06 provides the legal framework for consolidating and amending the law regarding the execution, validity, interpretation and protection of wills and the disposal of property by will and related matters Who can write a will

Anybody above the age of 16 years who is not mentally incapacitated can write a will. If anyone disputes a will on the basis that the testator was mentally incapacitated at the time they wrote the will, the onus will be on them to prove that claim.

Contents of a will

Wills are not written just to distribute material property and possessions. Even people who do not own any property can write wills. A will is simply a way of expressing one’s wishes and directions for managing their personal business after they are no longer there to do it themselves. For example, parents or guardians of minor children can provide for how their children will be taken care of.

They can appoint custodians for their children and even state the particular schools they may wish the children to be enrolled in. Another common example is stating one’s wishes regarding their own funeral and interment. Yet another example is establishing a trust where instead of distributing all or part of one’s property, they donate it into a trust called a testamentary trust.

Freedom of testation

People have absolute freedom over their own property and personal interests. They are allowed to give their property to whomsoever they may want during their lifetimes or after they die. It goes without saying that the property must be legitimately owned and that there are no other valid claims competing for it such as debts. Notably a person is allowed to write a will that excludes family members such as parents, children and siblings or other relatives. A will shall not be invalid only because close family members were left out. That is not a valid reason by anyone to contest a will.

The testator is not obliged to give reasons for excluding certain people no matter how closely related because a person’s will is their own business. Any person, including unborn children or juristic persons such as organisations, can be beneficiaries, but witnesses to a will cannot be beneficiaries.

Disinheriting spouses

Wills cannot contain provisions that disinherit spouses from their legal entitlements to matrimonial property. For example, if the spouses jointly own property, the other spouse cannot write a will that purports to deprive their spouse of their legitimate share. There are two contesting legal opinions. One view advocates complete freedom of testation where a spouse can give their property to whomever they want excluding the spouse. This opinion was held in Wakapila v Matongo HH/71/08. The husband, who had exclusive title to the house, had bequeathed it to a third party in his will.

The High Court upheld this position to be correct. However, this was later disproved in Chiminya vs Chiminya HH/272/15. In this case, wives were endowed with rights to inherit in their deceased husband’s property even if it had been exclusively registered in the husband’s name. As such, if a spouse disinherits the other spouse, they can contest the will on that basis. A legitimate creditor can also contest a will if the will deprives them of their rights to claim owing debts.

Next week we will discuss the validity of wills and practical aspects of will writing. We will also look at evolving international perspectives regarding electronic property in deceased estates.

  • Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]