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…AN ESTATE ADMINISTERED WITH A WILL AND AN ESTATE ADMINISTERED WITHOUT A WILL
By Precious Simuchoba and Otema Musuka
Introduction
The News Diggers dated 30th December 2020, in an article entitled; Pandemic Drives Wave of Property Grabs in Zambia” reported that “Chembe Kawela of Lusaka worked as an accountant at a telecommunications firm downtown, while her husband worked as an investment manager. The family was so comfortable that Kawele quit her job to be a full-time mother, sustaining the family on her husband’s income. Unfortunately, the husband died leaving her with two daughters aged 7 and 15 years. Beyond the grief of losing her husband and of her daughters losing their father at 7 and 15 years old, Kawele and her children faced the prospect of losing what remained to the husband’s family, including their home. Almost immediately after her husband’s death, a woman’s in-laws evicted her and her children from her marital home, often sending them onto the street with no financial help. Chembe’s husband died without a Will leaving her and the children vulnerable.” This article discusses the difference between an estate administered with a Will and an estate administered without a Will and the vices of property grabbing. Based on this discussion, a conclusion will then be drawn as a summary.
What is a deceased estate?
Estate means all the assets and liabilities of a deceased, including those accruing to him by virtue of death or after his death[1]. But according to the Intestate Succession Act[2],an estate means all the assets and liabilities of a deceased, including those accruing to him by virtue of death or after his death and for the purposes of administration of the estate under part III includes personal chattels.
The estate of a deceased person can either be administered by a Wills and Administration of Testate Estates Acts[3] were a testator writes a valid Will or the Intestate Succession Act[4] where there is no Will. According to the Wills and Administration of Testate Estates Act a testator means a person who has made a valid Will.
What is a Will?
A Will according to Oxford Advanced Learners Dictionary[5] is a legal document that allows somebody to legally state what should happen to their assets after death. In other words, it is to formally give property and possessions to somebody after one has died.
According to the article entitled “On Wills and Succession: The case for Wills from Intestancy Law[6],writing a Will in Zambia is something that many people have ignored because it is seen to be un african to talk about death and plan for it. Death is inevitable, therefore, it is important to plan for it to avoid confusions and conflicts over the estate when one dies.
Characteristics of a valid Will
According to section 6 (1) of the Wills and Administration of Testate Estates Act[7]Cap.60 of the Laws of Zambia, it states that:- A Will shall be valid if:
- a) it is in writing
- b) Is signed at the foot or end, by the testator or by some other person in the testator’s presence and his direction; andc) The signature referred to in paragraph (a) is made or acknowledge by the testator in the presence of two witnesses present at the same time who have also signed at the foot or end of the Will
(2) Any person who is not blind and is of sound mind may be a witness to a will.
(3) Where the testator is blind or illiterate, any person competent to make a will and who has not participated in the making of the will, shall carefully read over and explain to him the contents of the will before it is executed and shall declare in writing upon the will that he had to read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed.
The Wills Act also provides for what is referred to as a priviledged. Section 6(4) on certain circumstances as follows:-
- A member of a defence forces who is on active service;
- A member of the security forces who is engaged on security operations
- Any person who is ill or is physically injured and who has a settled or hopeless expectation of death and who has abandoned all hope of recovery and who eventually dies due to that illness or physical injury may make a Will in any of the following forms;
- Written and unattested, if the material provisions and signature are in the handwriting of the testator
- Written (whether or not in the handwriting of the testator) and attested by one witness.
- Orally before two witnesses.
It is seen that during the existence of these circumstances which bring about the privilege an informal Will can be revoked informally since the priviledge is still available. However, after the circumstances have ceased to exist, the privilege of making informal Wills also ceases and so does the privilege of revoking Wills formally. Any revocation thereafter must be made by formal means[8].
It then appears that any written document duly executed in accordance with the requirements of the law, relating to Wills, with evidence that the intention of the writer state how his or her estate should be handled then in the event of death then it will be accepted as Will. The signature of the testator maybe made in any way such as using initials stamped name, thumb print provided there is any intention to execute the Will. The effect of this requirement is that it must be apparent from the face of the Will that by his signature he intended to give effect to the Will[9].
Who makes a valid Will?
Subject to subsection (3) of Section 6 of the Wills Act provides that any person who is not a minor and is of sound mind may make a Will. The Wills and Administration of Testates Estate Act defines “minor” as a person who has not yet attained the age of 18 years. It would then appear that any person above the age of 18 years and is of sound mind may make a valid Will. A person with a sound mind should be able to understand what he is doing at a material time so to make a valid Will. The incapacity may arise from general insanity but there may be some other reason or disorder of mind to render a Will made under such circumstances invalid. One example is when a person is too drunk to understand or appreciate what he is doing or be under the influence of drugs, or when as a result of severe illness were one’s memory is lost.
Powers of the Testator
Section (5) of the Wills and Administration of Testate Estates Act Cap. 60 states that the powers of the testator are to:-
- Dispose of any property which is his or to which he will be entitled at the time of his death or to which he may be entitled thereafter;
- Appoint one or more persons to be his executor or executors;
- Subject to the Trust Restrictions Act attach any terms and conditions in relation to the disposition of any part of his estate; or
- Appoint a guardian for his minor child where the surviving parent of the minor child is incapable, by physical or mental infirmity, to take guardianship of the minor child”.
According to the Wills and Administration of Testate Estates Act Cap 60, an executor means a person to whom the administration of the estate of a testator or part of it is entrusted by express or implied appointment. Further, Section 25 of the Act states any person of, or above, the age twenty-one years and having capacity to enter to a contract may be appointed an executor of a Will.
Duties of an executor
According to the article on the Probate and Succession in Zambia[10], the duties of an executor include the following:-
- To collect and receive assets of the deceased person;
- Pay the debts of that deceased person; and
- Distribute the surplus to those who may be entitled.
Can a Will be Challenged?
When all the requirements of a Will are met by the testator, then the Will is considered to be valid and it can be executed. However, there are also certain circumstances when the Will is considered to be unreasonable for example, when the children to the testator are not included in the will, or when the spouse to the testator is also not included in the will and when one child of the testator is given more shares of the estate then the other children. The court therefore, may vary the will and make certain decisions regards to the will.
When it comes to the estate of land as regards to the beneficiaries, the testator can only give the gift of land to the beneficiaries that are directly connected to the testator. The testator cannot give a gift of land to the beneficiaries’ child or grandchild.
Offences by personal representative or guardian
According to section 58 (1) of Act a personal representative or guardian who wrongfully deprives a minor of property or a share in property to which the minor is entitled intending to benefit himself or any person, other than the minor, shall be guilty of an offence and liable upon conviction to a fine not exceeding five hundred penalty units or to imprisonment not exceeding one year or both.
What Does it Mean Dying Without a Will?
According to the Intestate Succession Act[11], Cap. 59 of the Laws of Zambia, the term intestate means a person who dies without having made a will and includes a person who leaves a will but dies intestates as to some beneficial interest in his movable or immovable property.
Therefore, when one dies intestate, it means that a person dies without a valid will and the estate is distributed by the law of intestacy. For example, where the deceased is survived only by a spouse, the spouse inherits the entire intestate estate. Where the deceased is survived only by children, then the children will inherit the estate. Where there is a combination of a spouse and children, they inherit the estate in specific shares. Where there is no spouse and children, the parents of the deceased will inherit the estate. If there are no parents, the near relatives (brothers and sisters) of the deceased will inherit the estate. But if the spouse, children, parents to the deceased and dependents are all alive, they all inherit the deceased’s estate with specific shares as stipulated in the Intestate Succession Act Cap 59 of the Laws of Zambia.
Intestate Succession requirements are very clearly set out in the Intestate Succession Act and the exact proportions that each beneficiary is supposed to get is clearly tabulated by law. According to the Act a surviving spouse will be entitled to 20% of the estate,[12] and a life interest in the matrimonial home. The children of the family will be entitled to 50% of the estate according their educational needs and ages[13]. A 50% for the children may seem sufficient for some and this provision may sometimes raise problems with children from a single partner or even multiple partners. Parents are entitled to 20% of the estate[14] and where the parents are deceased the portion will be split equally between spouse and children[15]. The remaining 10% will revert to any dependants of the deceased[16].
Offences against an Entitled Person
Section 14 of the Act state that any person who:-
- Unlawfully deprives any person of the use of-
- Any part of the property of the deceased to which that person is entitled under this Act; or
- Any property shared with the deceased to which this Act applies or
- Otherwise unlawfully interferes with the use by any person of any property referred to in paragraph (a);
Shall be guilty of an offence and liable on conviction to a fine not exceeding seven hundred and fifty penalty units or imprisonment not exceeding two years or both.
In the Intestate Succession a child Act[17],means a child born in or out of marriage, an adopted child, a child who is conceived but not yet born.
The Intestate Succession Act[18] an administrator means a person to who a grant of letters of administration has been made and includes the Administrator-General.
Letters of administration on intestacy
Section 15(1) of the Act states that where the deceased had died intestate the court may, on the application of any interested person, grant letters of administration of the estate to that interested person.
Section 16 (1) of the Act also state that the letters of administration shall not be granted to more than four (4) persons in respect of the same estates and if there is a minority or a life interest, letters of administration shall be granted to the administrator-General, to a trust corporation solely or jointly with an individual or to not less than two (2) individuals.
Duties and powers of an administrator
According to Section 19 (1) of the Intestate Succession Act[19], the duties and powers of an administrator are:-
- To pay the debts and funeral expenses of the deceased.
- To effect distribution of the estate in accordance with the rights of the person
- To produce an oath in court the full inventory of the estate of the deceased; and
- To render to the court an account of the administration of the estate.
- e) To sell the property in such manner as appears to him likely to secure receipt of the best price available for the property.
Distinction Between Dying with a Will and Dying Without Will
| A person dying with a Will | A person dying without a Will |
| ü The testator can choose an executor to administer the estate. | ü For one to an administrator, they need to apply to the court. |
| ü Deceased’s wishes are carried out over the estate. | ü The intestacy law and rules govern all the estate. |
| ü A will can be amended. | ü The exact proportions are clearly tabulated by law. |
| ü Testator chooses the beneficiaries of the estate. | ü The law chooses the beneficiaries based on the circumstances. |
What is property grabbing?
Property grabbing occurs when individuals or families are removed from or lose access to their rightful property or homestead[20]. There are number of reasons as to why the problem of property grabbing exists in in Zambian society and why often it is not challenged. One of the many reasons are abuse of the cultural and traditions and poverty. There are some cultural values that encourages property grabbing and some of these customs consider property grabbing as a normal practice expected to be followed without any question or challenge. Other causes of property grabbing are ignorance of law on the Intestate Succession Act, fear of witchcraft and intimidation and disunity among families[21].
In Zambia, people should be encouraged to write a Will to avoid issues of property grabbing which cause a lot economic problems to families. Others have appreciated the practice of writing a Will. For example, a Lusaka man of Chaisa Compound wrote a Will and said “The house plot 40 of Chaisa Compound belongs to my two sons. In case of the death the executor (wife), my brother shall on behalf of my children correct rentals and pay for my children’s school fees, food and well being. I have no bank account, as for the house, my first-born son shall become the legal owner and if he too dies then the young brother shall take over”. The article entitled AIDS Care[22] published in 2007.
Conclusion
In Zambia, the deceased’s estate can be administered either through a Will or without a Will. Dying with a Will implies that a testator write valid instructions on how his property should be administered by an executor. A Will speaks from death as regards all property comprised in it unless a contrary intention appears. Will is therefore, capable of disposing all property owned by the testator at his death even if he acquired such property after making a Will. Dying without a Will show that a person died without leaving instructions as to how his property should be handled after death and the law will govern on how the estate should be administered by the administrator.
In order to administer the estate of the deceased person, the Wills and Administration of Testate Estates Act and the Intestate Succession Act have been enacted. However, there are some gaps that have been identified. For instance, the Wills and Administration of Testate Estate Act contains a definition of Will which is inadequate. In addition, there is no clarity on the age of persons who can make a privileged will. Therefore, it appears that soldiers, security personnel and terminally ill, regardless their age, can make a Privileged Will. The law also does not provide the duties of executor.
In order to help resolve some of the gaps in the law governing the estate of the deceased person in Zambia, the Zambia Law Development Commission conducted a research in 2013 on the review of the Intestate Succession Act Chapter 59 of the Laws of Zambia. One of the recommendations made was that there was need to ensure that the guardians understood their duties where whenever given the mandate to handle the estate of the deceased.
FOOT NOTES
[1] The Wills and Administration of Testate Estate Act Cap 60 of the Laws of Zambia
[2] The Intestate Succession Act Cap 59 of the Laws of Zambia.
[4] Ibid
[5] Oxford Advanced Leaner’s Dictionary
[6] On Wills and Succession:The case for Wills from Intestacy Law
[7] Ibid (6) (1).
[8] Article on Probate and Succession in Zambia
[9] Ibid
[10] Ibid
[11]ibid
[12] Ibid 5 (1) (a) o.
[13] Ibid 5(1) (b)
[14] Ibid 5 (1) (c)
[15] Ibid 7 (e)
[16]Ibid 5 (1) (d)
[17] Ibid
[18] Ibid
[19] Ibid 19(1)
[20] An endline study of the prevalence of property grabbing among widows –Uganda.
[21] What is the Church’s Social Teaching saying about Property Grabbing
[22] AIDS Care” Property grabbing and writing will in Lusaka, Zambia: An examination of will of HIV- Infected cohabiting couples.