WRITING YOUR WILL & PROTECTING YOUR WEALTH FOR FUTURE GENERATIONS


First Published: July 2, 2015

Extracts of a Presentation by: Davison Kanokanga SC

RTG INSPIRATIONS - Davison Kanokanga SC

WRITING YOUR WILL & PROTECTING YOUR WEALTH FOR FUTURE GENERATIONS

WHAT IS A WILL

“A will is a legal declaration by which a person, the testator, names one or more persons to manage his or her estate and provides for the distribution of his or her property at death” Wikipedia

 

TYPES OF WILLS

–          Written

–          Oral

 

ORAL WILLS

Oral wills are provided for in s.12 of the Wills Act (Chapter 6:06).

 

FOR IT TO BE VALID IT MUST:

–          Be regarded as a valid will according to any law or custom to which the testator was subject

–          The value of the testator’s estate on the date of his death must not exceed the sum of US$ 10 000.00

 

Shortcomings of Oral Wills

 

–          Restricted to estates not exceeding US$ 10 000.00 at the time of the testator’s death

–          Witnesses may die

–          Memory lapses by witnesses

–          Witnesses may be un-co operative

–          Witnesses may even deny the Will

–          Witness may become insane

 

WRITTEN WILLS

 

Written Wills are provided for in section 8 of the Wills Act.

In terms of the aforesaid section, for a written Will to be valid it must meet the following requirements:

(a)  The Testator or some other person in his presence and at his direction, must sign each page of the Will as closely as may be to the end of the writing on the page concerned (Janda vs. Janda 1995 (1) ZLR 375), and

(b)  Each signature referred to above must be made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time, and

(c)   Each competent witness either signs each page of the Will, or acknowledges his signature on each page of the Will in the presence of the testator and of the other witness

The Master of the High Court has discretion in terms of section 8 (4) of the Act to accept a document which was drafted or executed by a person who has since died, as his Will even though it does not meet the requirements set out in section 8 of the Act. (Mujuru N.O & Ors vs. Master of the High Court & Ors HH 112/2008)

 

ADVANTAGES OF HAVING A WRITTEN WILL

–          It minimizes the delays and costs when it comes to the administration of the estate of the deceased.

–          The testator appoints a person of his/her choice to administer their estate

–          The testator appoints his/her own beneficiaries

–          The testator can appoint a guardian over their minor children

–          It gives you peace of mind

–          Makes it easier for your loved ones to deal with your affairs when you are gone

–          Avoids inheritance disputes

–          Specifying wishes for your funeral

–          Avoiding the unintended consequences of intestacy

–          Speaking and ruling from the grave

 

DISADVANTAGES OF DYING WITHOUT A WILL

 

–          The deceased has no control over who inherits and what they inherit

–          The deceased has no control over who administers the estate

–          Creates scope for inheritance disputes

–          It may take some time before Letters of Administration are issued. Meanwhile the deceased’s assets including bank accounts will be frozen

–          The inheritance of minor children must in the absence of a Testamentary Trust, be paid to the Guardian’s Fund.

–          The courts may have to decide the welfare of your minor children

–          Beneficiaries will have to look at the following pieces of legislation for the administration of the Estate:

(i)                Administration of Estates Act (Chapter 6:01)

(ii)              Deceased Estates Succession Act (Chapter 6:02)

(iii)            Deceased Persons Family Maintenance Act (Chapter 6:03)

–          Challenges arising from section 3A of the Deceased Estates Succession Act which provides that:

“The surviving spouse of every person who, on or after 1st November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of  the estate, the house or other domestic premises in which the spouses or the surviving spouse, as the case may be, lived immediately before the person’s death

–          Challenges arising from section 68 (2) (c) of the Administration of Estates Act (Chapter 6:01) which provides that:

(a)  Where the deceased person was a man and is survived by two or more wives, whether or not there are any surviving children,

(i)                Where the wives live in separate houses, each wife should get ownership of or, if that is impracticable, a usufruct over the house she lived in at the time of the deceased’s death

(ii)              Where the wives live together in one house at the time of the deceased person’s death, they should get joint ownership of or, if that is impracticable, a joint usufruct over the house

(b)  Where the deceased person is survived by one spouse and one or more children, the surviving spouse should get ownership of or, if that is impracticable, a usufruct over the house in which the spouse lived at the time of the deceased’s death.

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