An Introduction to Wills & Estates in Zimbabwe

1. What is a Last Will and Testament?

A Last Will and Testament is an important legal document that is the written recordal of instructions by a person (the Testator or Testatrix) in respect of his or her free and independent wishes concerning the distribution of the assets of his or her estate upon their demise.

2. Is there freedom of testation in Zimbabwe?

In Zimbabwe a testator or testatrix is at liberty to impose conditions in a will be it an inheritance or a legacy. Such conditions may have the effect of postponing or suspending the vesting of a bequest. The question of freedom of testation in Zimbabwe was authoritatively answered by the Supreme Court of Zimbabwe in the case of Chigwada v Chigwada & Others 2020 (2) ZLR 1353 (S) wherein it held that, ‘the of testamentary disposition recognises the doctrine of freedom of testation and does not oblige a testator to bequeath his or her property to the surviving spouse.’

3. What are the key formalities for a valid Will in Zimbabwe?

A Last Will and Testament (Will) is not just an ordinary document. A Will, is a legal document which derives its validity from compliance with the Wills Act [Chapter 6:06]. It records the free and independent wishes of a testator or testatrix in respect of the distribution of the assets of his or her estate.

A Will should comply with the formalities of the statute prescribing the requirements of a valid Will. see Janda v Janda 1995 (1) ZLR 375 (S). The key formalities for a valid Will in Zimbabwe are:

• (a) It must be in writing;
• (b) The testator is sixteen (16) years old or older and not mentally incapacitated;
• (c) The testator, or some person in his or her presence and at his or her discretion, must sign each page of the Will as closely as may be to the end of the writing on the page concerned;
• (d) Each signature is made or acknowledged by the testator by the testator in the presence of two (2) or more competent witnesses present at the same time; and
• (e) Each competent witness either, (i) signs each page of the Will, or (b) acknowledges his or her signature on each page of the Will in the presence of the testator and of the other witnesses.

The Master of the High Court is empowered to reject a Will in Zimbabwe which does not comply with the provisions of the Wills Act [Chapter 6:06]. The Master of the High Court of Zimbabwe is empowered to consider any document that purports to be a last will or codicil and does not meet the above requirements. see Mashakada v The Master of the High Court & Another 2001 (2) ZLR 311 (H).

4. Can you have more than one Will as a Zimbabwean?

Yes. It is possible for a Zimbabwean to have more than one Will. In fact, the Supreme Court of Zimbabwe in Rogers v Rogers & Another 2008 (1) ZLR 330 (S) had to decide a matter concerning a Will executed in the United Kingdom in terms of which the testatrix had bequeathed her immovable property situate in that country in equal shares to her children and a Will she executed in Zimbabwe which dealt with both her local and international assets.

It is not uncommon for Zimbabweans to own assets situated outside of the country. In fact, it is a reality, given the rise of emigration and the statics of the Zimbabweans in the diaspora. However, many uncertainties may arise and several complexities exist with regards to the administration of foreign assets, the nature of the assets and the jurisdiction in which the assets may be situated. It is therefore important to seek the advice of a reputable law firm and or lawyer when considering issues of estate planning including foreign assets.

5. Does Zimbabwe recognise Worldwide and Foreign Wills and Testament

Unless otherwise specified, a professionally drawn and executed Zimbabwean will covers a testator’s world – wide assists, and is akin to a foreign will and testament. Thus, a properly drawn Zimbabwean Will may be recognised as an International Will which covers a testator’s or testatrix worldwide estate. There may be instances in which a testator or testator may have drawn up a Foreign Will which is also known as a Concurrent Will or Offshore Will to deal or regulate property rights in Zimbabwe, same will be recognised in Zimbabwe.

6. Whether there is a provision for Joint Wills in Zimbabwe?

Yes. The Wills Act [Chapter 6:06] recognises joint wills in Zimbabwe. A Joint Will is a single testamentary document which is executed by two or more individuals, most commonly spouses. The parties need not be married for them to execute a joint will in Zimbabwe. For the purposes of interpretation, the Wills are treated as individual and separate Wills. see Zvobgo v Madondo N.O. & Others 2006 (2) ZLR 103 (H).

Parties are thus not precluded from executing Joint and Mutual Wills in Zimbabwe. A Mutual will is a Joint Will, but each testator gives a benefit to the other. While both parties are alive, they may revoke his or her share of the Mutual Will with or without communication to the other party. However, after the death of one party the survivor cannot revoke his or her share of the Joint and Mutual Will where both of the following conditions and circumstances occur:

• (a) The Mutual Will effects a ‘massing’; and
• (b) The survivor has accepted some benefits under the Will.

In a typical joint and mutual will, there is generally a clause which provides that the “first dying of us nominates the survivor of us as the Executor of the Estate of the first dying of us.”

7. How to find a Will of a deceased person online in Zimbabwe

A Last Will and Testament (Will) in Zimbabwe as in other countries is a confidential document. It generally will not be available online. A Will only comes into effect upon the death of the testator. At present the Master of the High Court of Zimbabwe does not have an online repository of wills.

It is advisable for parties drawing up a any codicil, testamentary instrument or Will in Zimbabwe to ensure that same is deposited with the Office of the Master of the High Court (Master) either open or enclosed under a seal which will be kept under the charge and custody of the Master.

8. Whether it is a legal requirement to read out a Will in Zimbabwe?

There is no legal requirement under the Wills Act [Chapter 6:06] or any other enactment for the formal reading out of a Last Will and Testament in Zimbabwe. Resultantly, when a loved one passes on, it is not mandatory for there to be the reading of the deceased’s Last Will and Testament in Zimbabwe (unless the testator left specific instructions for the reading of his or her Last Will and Testament).

9. Who is entitled to read out a Last Will and Testament in Zimbabwe?

In Zimbabwe, there is no legal requirement under the Wills Act [Chapter 6:06] or any other enactment for the reading out of a Last Will and Testament (Will).

It is rare in Zimbabwe for a Will to be read out. However, this does not mean that same does not occur or has not occurred. The Harare High Court decision in Munyukwi v Estate Late Nduna 2014 (1) ZLR 551 (H) emanated from the reading out of a Will wherein the applicant discovered that they were not a beneficiary and sought a court order nullifying the deceased’s Will.

Ideally an executor or executrix duly appointed and issued with Letters of Administration by the Master of the High Court should read out the Will. A deceased estate in Zimbabwe can only be represented by an executor or executrix duly appointed and issued with letters of administration.

The reading of a Will does not have to be at the offices of a legal practitioner, and the will can be read in much the same way as any other legal document, in any private location and where some parties are outside of Zimbabwe it may be done so online.

Where letters of administration have not been issued appointing an executor or executrix by the Master of the High Court, that office is vacant. Before the granting of Letters of Administration, there is no executor or executrix so to speak. The fact that a testator nominated a specific person in his or her Last Will and Testament to be executor does not automatically clothe the nominee with letters of administration. see Estate Wakapila v Matongo & Others 2008 (2) ZLR 43 (H) 44F-G.

The reading out of a Last Will and Testament by an executor or executrix although not a legal requirement in Zimbabwe may be useful and important to the proper administration of the estate as it ensures that the deceased relatives, know where they stand in respect to the Last Will and Testament.

10. Are there persons precluded from benefitting under a Will in Zimbabwe?

Section 6 of the Wills Act [Chapter 6:06] deals with the capacity of certain persons benefitting under a Will in Zimbabwe. Any person, whether born or unborn, natural or juristic and whatever his or her legal capacity, may receive a benefit conferred on them in terms of a Will. However, the following persons are precluded from benefitting under a Will in Zimbabwe:

• (a) Any person who signed the Will as a witness to the making thereof or as a witness to the making of any amendment in the Will;
• (b) Any person who, on behalf of the testator or testatrix or at their discretion, personally writes out the Will or any part of it that confers a benefit upon him or her;
• (c) Any magistrate, presiding officer of a community court, justice of the peace, commissioner of oaths or designated official who has certified the Will or who has certified any amendment in the Will;
• (d) Where the testator was a minor or under a legal disability at the time the Will was made, any person who at that time was a guardian of the testator, other than a parent, curator, trustee or administrator of the testator, as the case may be;
• (e) Any person who, when the Will was made or amended, as the case may be, was a spouse or child of a person incapable of receiving a benefit under the Will;
• (f) Any person who claims the benefit through a person incapable of receiving the benefit under the Will;
• (g) Any person who, through fraud, duress or undue influence has cause the testator to make the Will or to insert therein the provision conferring the benefit upon him;
• (h) Any person who prevented or attempted to prevent the testator from altering the Will or making a new Will;
• (i) Any person who unlawfully destroys or conceals a Will made by the testator or a copy of such Will;
• (j) Any person who has unlawfully and intentionally killed the testator or testatrix;
• (k) Any person from whom a testator or testatrix has inherited the benefit concerned, where such other person and the testator were married to each other or were parent and child;
• (l) Any other person through whom his or her claim to the benefit derives;
• (m) Any person who, in some way other than by causing the death of a person, has by his or her unlawful and intentional act or omission directly cause the benefit to be conferred upon him or her.

11. The Validity and Effect of a Will in Zimbabwe

In terms of section 11 of the Administration of Estates Act [Chapter 6:01] all questions as to the validity and legal effect of a Will in Zimbabwe are issues for determination by the High Court. The Supreme Court in Logan v Morris N.O. & Others 1990 (2) ZLR 65 (SC) 71E held that: “The Master is not empowered to conduct judicial enquiries. Where matters of law arise, he is enjoined to refer the matter to a Judge or to the Court.”

A will, codicil or other testamentary instrument in Zimbabwe which purports to be a Will can have its validity challenged on the grounds of fraud, lack of capacity to make a will, illness, diminished intelligence and undue influence, drugs and intoxication. see Hall & Another v Tyndale-Biscoe 1973 RLR 110. The Master of the High Court is confined to the registration of wills, codicils and other deeds. Issues of validity and legal effect of documents and all such questions remain for determination by the High Court. By registration of a document as a Will, the Master of the High Court is not confirming its validity at all.

According to the Supreme Court in Chigwada v Chigwada & Others 2020 (2) ZLR 1353 (S), a will which complies with all the requirements of validity cannot be set aside on the basis of extraneous matters, such as that its execution has the effect of disinheriting the surviving spouse. The law of wills imposes an obligation on all who deal with the deceased property, including the surviving spouse, to give effect to the intention of the deceased regarding the disposition of his or her property as expressed in a valid will.

12. Is it a requirement to file someone’s Last Will and Testament with the Master of the High Court in Zimbabwe?

A Last Will and Testament is an important legal document that is the written recordal of instructions to a testator or testatrix of the free and independent wishes of the testator or testatrix in respect of the distribution of the assets of his or her estate upon their demise.

A Will derives its validity from compliance with the provisions of the statute prescribing the requirements of a valid will. The Supreme Court in Chigwada v Chigwada & Others 2020 (2) ZLR 1353 (S) held that, ‘the law of wills imposes an obligation on all who deal with the deceased’s property, including the surviving spouse. It is for this reason that the law provides that where there is reason to suspect that any will, codicil or other testamentary instrument is being concealed, that a warrant may be issued by a Magistrate or a Judge for any such place to be searched so that the last wishes of a deceased can be carried into effect.

It is not uncommon for a deceased’s Last Will and Testament (Will) to be among the deceased’s files and or safe. Typically, a testator to a Will may wish to provide a duplicate copy of the original to certain people while he or she is alive. There may also be a paper trail which helps parties to be able to locate a deceased’s Will. For instance, admission documents at a hospital, nursey home or documents in connection or reference to a law firm.

The Supreme Court in Sansole N.O. & Others v Ncube & Others 2002 (1) ZLR 492 (S) took judicial notice of the fact that most people keep their Wills with their legal practitioners, bankers and such like people. In Mashakada v The Master of the High Court & Others 2001 (2) ZLR 311 (H) the testator left his Will in the custody of his bankers.

It does occur, that a testator will simply advise certain persons of the existence of his or her Will and in whose custody, it is in. There is nothing wrong with advising loved ones or professional advisors. In most cases, it may actually be convenient to do so. The fact that one has disclosed the name or location of his or her Will does not mean or result in the Will becoming public. The contents of the Will remain confidential and a secret to the general public.

In terms of section 8 of the Administration of Estates Act [Chapter 6:01] any person other than the Master of the High Court who as at the time of death of the deceased, possession of any deed purporting to be or entitled the last will, codicil or other testamentary instrument of any person, or into whose possession any such deed comes after the death of the testator has a statutory duty to transmit the last will, codicil or other testamentary instrument to the Master of the High Court.

If any person is reasonably believed to be in possession of or have under his or her control any last will, codicil or other testamentary instrument after the death of the testator and refuses to deliver or transmit the will, codicil or testamentary instrument, the Master of the High Court in terms of section 10 of the Administration of Estates Act [Chapter 6:01] is authorised to make an application to the High Court of Zimbabwe for an order for the delivery of the will, codicil or other instrument.

13. Registration of Wills in Zimbabwe

The Master of the High Court maintains a Register of Wills. Therefore, every deed being or purporting to be a will, codicil or other testamentary instrument of any person before or after their demise should be registered with the Master of the High Court.

Once a testator settles his or her Last Will and Testament, they should register the Will with the Master of the High Court. A Testator is not precluded from advising his or her confidants about the existence of the Will or its registration number, if same has been accepted by the Master of the High Court.

Issues to do with the validity of a will, codicil or other testamentary instrument are not issues which are determined by the Master of the High Court, but are issues which are statutorily reserved for determination by the High Court. A mental capacity challenge for instance, of necessity is one that goes to the validity of a Will which is a matter for determination by the court. see Hall v Hall & Others 2016 (2) ZLR 404 (H).

The Master of the High Court is therefore required by law to register a document which purports to be a will, codicil or other testamentary instrument. For purposes of registration of a Will, the Master of the High Court is authorised and required by law to open or cause to be opened every such will, codicil or other testamentary instrument which may be sealed up.

Where a document presented to the Master of the High Court appears to meet all the requirements of section 8 of the Wills Act [Chapter 6:06] which deals with the formalities for a valid Will in Zimbabwe, there is no need for a ceremony regarding its registration. see Akinjide – Obonyo & Another v The Master of the High Court & Others 2020 (2) ZLR 380 (H).

14. Whether the registration of a Deceased Estate is automatic in Zimbabwe?

The registration of a deceased estate is not automatic in Zimbabwe. The estates of all persons dying either testate or intestate in Zimbabwe are administered and distributed according to the law under Letters of Administration in terms of which the Master of the High Court appoints an Executor or Executrix to administer the deceased estate.

In all cases in which any deceased person by will or codicil appoints any person to be his or her Executor or Executrix in Zimbabwe, the Master of the High Court, upon application of such executor or executrix is required by law to grant Letters of Administrator to him or her. see The Registrar -General Ghana v Master of the High Court & Others 2018 (1) ZLR 63 (H).

15. Lodging claims against a Deceased Estate in Zimbabwe

Claims may be lodged against a deceased estate in Zimbabwe. Before making any claim against a deceased estate in Zimbabwe it is essential to recognise your standing i.e., whether you are a beneficiary, legal heir, creditor or family dependant. There is a procedure to be followed when making or lodging claims against a deceased estate in Zimbabwe.

The procedure and applicable timeframes are provided for in legislation. There is abundant authority in Zimbabwe on the re-opening of a deceased estate after the winding up of an estate. Zimbabwean law accepts that claims can be brought against a deceased estate.

A party intending to lodge a claim against a deceased estate in Zimbabwe has to join the executor or executrix as a party to the litigation. No person, other than an executor or executrix has authority to institute proceedings on behalf of a deceased estate. The usual way of lodging a claim against a deceased estate in Zimbabwe, is through the executor or executor.

Where legal proceedings had been commenced during the deceased’s lifetime, the executor or executrix must be substituted on the record when applied. It is the duty of the executor to take control of the estate of a deceased and he or she are the only person entitled by law with legal standing to sue on behalf of the estate or to be sued. see Estate Late Mwayera v Horlodge Investments (Pvt) Ltd & Others 2019 (1) ZLR 172 (H).

16. How to sue a Deceased Estate in Zimbabwe?

You cannot sue a deceased estate in Zimbabwe. A deceased estate is not a persona. In brief, a deceased estate is an aggregate of assets and liabilities of the deceased. The totality of these rights, obligations and powers of dealing therewith vests in an executor or executors. Such rights, obligations and power may also vest in joint executors. see Standard Bank Financial Nominees (Pty) Ltd v Lurie (Pty) Ltd & Others 1978 (3) SA 338 (W).

One therefore cannot sue a deceased estate in Zimbabwe. A deceased estate on its own, lacks legal capacity in Zimbabwe. The usual way in which a deceased estate can be sued in Zimbabwe, or is sued is through the Executor or Executrix. see Estate Late Mwayera v Horlodge Investments (Pvt) Ltd & Others 2019 (1) ZLR 172 (H).

17. The Role of the Executor of a Deceased Estate in Zimbabwe

Whether testate or intestate, an Executor or Executrix, either testamentary or dative must be appointed in accordance with the provisions of the law which prescribes his or her duties and the method of his or her administration and subject to the supervision of the Master of the High Court. see Clarke v Barnacle NO & Others 1958 R&N 358 (SR) 349B – 350A.

An executrix or executor occupies the position of legal representative of a deceased person with all the rights and obligations attaching to that judiciary position. The primary duty of an Executor or Executrix is to finalise as quicky as possible the administration of the state. He has no principal and represents neither the heirs nor the creditors of the estate. He or she, however, should consult the beneficiaries, heirs and legatees in any decision including the administration of the estate.

An Executor or Executrix is legally vested with the administration of the estate. This means that the deceased estate’s assets, liabilities, rights, obligations and powers vest in the executor or executrix, and he or she alone can deal with them. Although an executor or executrix can delegate his or her functions, they cannot abdicate their role. see Nyandoro & Another v Nyandoro & Others 2008 (2) ZLR 219 (H).

In Segal & Another v Segal & Others 1976 (2) SA 531 (C) 535 A - B it was held that:

“In our law the executor is the person in whom, for administrative purposes, the deceased’s estate vests. It is his function to take all such steps as may be necessary to ensure that the heirs in the estate to which he is appointed receive what in law is due to them. It is an aspect of this function to remove whatever obstacles exist to the achievement of this end. If the actions of an executor in another estate are such as to prevent the receipt by the estate which he administers of assets due to such latter estate, it is he who should take all appropriate steps to remedy the position. If these steps involve the removal of the executor in such other estate it falls within the competence of the executor in the creditor estate, and not of an heir in the estate, to take the necessary action.”

18. Whether one can appoint Joint Executors or Co-Executors to administer an estate in Zimbabwe

In terms of the law, a deceased estate is represented by an executor or executrix duly appointed and issued with Letters of Administration by the Master of the High Court. A testator or testatrix is empowered by the law to set out in his or her Last Will and Testatment that their estate is to be administered jointly i.e., that there shall be joint executors.

Co – executors or Joint executors are thus, for administrative purposes, the persons in whom the deceased estate vests. They have certain rights and powers in connection with the liquidation and administration of the estate and also certain duties to perform. The office of executor is sui generis. Executors are legally vested with the administration of the estate and have no principle. They represent neither the heirs nor the creditors of the estate. see Goosen v Bosch & The Master 1917 CPD 189.

Where more than one executor is appointed in an estate, the executors are required to act jointly. see Hofmeyr v le Grange & Others 1921 CPD 432. The function of joint executors is to take all such steps as may be necessary to ensure that heirs in the estate to which they are appointed receive what in law is due to them. In order to do this, joint executors of a deceased estate in Zimbabwe are expected to gather all the assets of the estate including but not limited to collection of monies due to the deceased, collection of proceeds of insurance policies and ascertaining liabilities.

19. Whether you can sue an Executor of a deceased estate in Zimbabwe?

Yes. It is possible to institute legal proceedings i.e., sue an executor of a deceased estate in Zimbabwe. Whether a deceased person died testate or intestate, his or her estate upon their death finds its persona through the executor or executrix duly appointed with Letters of Administration. It is pertinent to note a deceased estate cannot be sued in its own name, but has to be represented by an executor or executrix. The failure to correctly cite the executor or executrix of a deceased estate is a fatal irregularity in Zimbabwe. Nyandoro & Another v Nyandoro & Others 2008 (2) ZLR 219 (H).

20. Time limits for Winding Up a Deceased Estate in Zimbabwe

Whether a man or woman dies testate or intestate, the issue of time is always of the essence. In Zimbabwe an estate is required to be wound up within six (6) months. This is not by accident but by design to ensure that assets are gathered together and that the heirs and legatees enjoy their benefits.

The Harare High Court in Zaranyika v The Master of the High Court & Others 2019 (3) ZLR 288 (H) held that taking too long to wind up an estate may mean that assets depreciate, bank balances are wiped out or lose value and some beneficiaries pass away.

Whilst the law provides for the winging up of a deceased estate in six (6) months, this is not practical. In reality, this seldom happens due to a myriad of reasons most of which concern the beneficiaries who may not have sufficient funds to cover the estate administration expenses.

In Chidhakwa v Motsi N.O. & Another 2020 (2) ZLR 58 (H) the executrix dative was removed from office due to her failure to wind up the estate, to the prejudice of the beneficiaries.

21. Liquidation and Distribution Accounts in Zimbabwe

A Liquidation and Distribution Account is a true and correct reflection of the assets and liabilities of an estate. In terms of the law, the Master of the High Court can direct that an executor or executrix of an estate render periodical accounts of his or her administration and distribution of the estate until the estate is finally liquidated.

The Harare High Court in Zaranyika v The Master of the High Court & Others 2019 (3) ZLR 288 (H) held that a Liquidation and Distribution Account also known as an Estate Account is not only of interest to the beneficiaries of an estate, but also to professional executors and creditors. It is also important to the national fiscus due to the sums payable to the Master of the High Court as Masters Fees and Estate Duty payable upon the estates of deceased persons to the Zimbabwe Revenue Authority (ZIMRA).

In deciding whether to confirm an Estate Account, the Master of the High Court must be guided by the supporting documents concerning the estate, for instance, the inventory (preliminary, executors, additional) as applicable, and the will in testate succession.

A Liquidation and Distribution Account in Zimbabwe should reflect all the money received and all the expenses paid. If a deceased property managed by an executor or executrix has been receiving rentals, an income and expenditure account should be compiled. Such account, should reflect all the money received and how it has been used i.e., payment of municipal rates etc., and if there has been any balance, this is transferred to the estate account.

If the estate is dutiable, the relevant documents to ZIMRA must be attached. The estate file should also contain proof of advertisements placed in the newspapers and the Government Gazette in relation to a call on creditors and debtors to come forward and also the estate account as lying for inspection. These documents, at the end of the day, guide the Master of the High Court on whether to approve a Liquidation and Distribution Account in Zimbabwe. After the confirmation of the Estate Account the executor or executrix will proceed to distribute the estate to the beneficiaries.

22. Can I challenge the refusal by the Master to register a Will?

Yes. It is possible and permissible for an aggrieved party to challenge the refusal by the Master of the High Court to register a Will. In terms of section 8(5) of the Wills Act [Chapter 6:06] the Master of the High Court has authority to determine whether or not a document that does not meet all the formalities should be registered as a Last Will and Testament in Zimbabwe for the purposes of the administration of an estate of the person who made the document.

Any person who is aggrieved by the Master of the High Court’s decision to accept a document as a Last Will and Testament is entitled to approach the High Court of Zimbabwe to challenge the decision. The High Court in Mujuru N.O. & Others v The Master of the High Court N.O. & Another 2008 (2) ZLR 308 (H) refused to give effect to a Will which was partly type written and handwritten and not signed on each page by either the testator or two competent witnesses.

23. Are there are principles in the interpretation of Wills in Zimbabwe?

The cardinal rule in interpreting a Last Will and Testament is that, if possible, a court should give effect to the wishes of a testator or testatrix and this can be construed so as to ascertain from the language used therein the true intention of the testator in order that his or her wishes be carried out.

The High Court in Zvobgo v Madondo N.O. & Others 2006 (2) ZLR 103 (H) held that there are three (3) basic principles in the interpretation of a Last Will and Testament in Zimbabwe namely:

• (a) The main rule of construction is to ascertain the intention of the testator or testatrix; and
• (b) The testator’s or testatrix intention as ascertained from the Last Will and Testament may be supplemented, if necessary, by ‘armchair’ evidence that may be admissible; and
• (c) The court cannot make, or remake a testator or testatrix Last Will and Testament. It cannot change the devolution of the estate.

The South African Supreme Court of Appeal in Raubenheimer v Raubenheimer & Others 2012 (5) SA 290 (SCA) at para 23 held that:

“In interpreting a will, a court must, if at all possible, give effect to the wishes of the testator. The cardinal rule is that 'no matter how clumsily worded a will might be, a will should be so construed as to ascertain from the language used therein the true intention of the testator in order that his wishes can be carried out.”

24. Can a named executor in a Will in Zimbabwe refuse office?

A testator in drawing up his or her Last Will and Testament in Zimbabwe has the freedom to nominate and appoint any such person to be an executor or executrix of his or her estate. The fact that a will or codicil nominates an executor or executrix does not automatically clothe that executor or executrix with authority.

The Master of the High Court is required to still appoint and issue Letters of Administration to the person nominated in a testator’s will or codicil in Zimbabwe. see Estate Wakapila v Matongo & Others 2008 (2) ZLR 43 (H) 44F – G.

The provisions of sections 23, 24 and 25 of the Administration of Estates Act [Chapter 6:01] give preference to the appointment as executor by the Master of the High Court of a person nominated in a testator’s will or codicil in Zimbabwe. It is only where the nominated person has predeceased the testator, declined the appointment or has the appointment challenged that the Master of the High Court is precluded from issuing him or her with Letters of Administration. see Munyukwi v Estate Late Nduna & Another 2014 (1) ZLR 551 (H).

25. The effect of a divorce on a Will in Zimbabwe

Section 16 of the Wills Act [Chapter 6:06] is an important provision which deals with the effects of divorce and annulment on a Last Will and Testament in Zimbabwe. In terms of the aforesaid provision, a Will becomes void upon the subsequent marriage of the testator. In terms of the current law as it applies to Zimbabwe, a Will is automatically revoked upon the subsequent marriage of the testator.

The rationale for the inclusion of section 16 of the Wills Act [Chapter 6:06] in Zimbabwe appears to have been to alter the common law in terms of which a Will was not revoked pursuant to a subsequent marriage by a testator. In terms of the current law as it applies to Zimbabwe effect of a divorce on a Will in Zimbabwe is that the new status created by a subsequent marriage is not subjected to the consequences of a Will that existed before the marriage came into existence. see Dikinya v Chakasikwa N.O. & Others 2018 (1) ZLR 443 (H).

26. Whether it is important to update your Will after a divorce in Zimbabwe

In terms of section 16 of the Wills Act [Chapter 6:06] a Last Will and Testament in Zimbabwe becomes void upon the subsequent marriage of the testator. In terms of the current law as it applies to Zimbabwe, a Will is automatically revoked upon the subsequent marriage of the testator. see In Re Savanhu 1990 (2) ZLR 177 (HC).

Where parties convert a potentially polygamous marriage in Zimbabwe into a monogamous one, such a marriage is not a ‘subsequent marriage’ as contemplated by section 16 of the Wills Act [Chapter 6:06]. The object of section 16 of the Wills Act [Chapter 6:06] is to afford some measure of protection to the new spouse of the testator who had been previously married, and to any issue whether born to the parties or adopted by them. see Savanhu v Heirs Estate Savanhu 1991 (2) ZLR 19 (S).

27. Subsequent Marriage and effect of a Will in Zimbabwe

In terms of section 16(4) of the Wills Act [Chapter 6:06] where it appears from a Last Will and Testament (Will) that when it was made the testator or testatrix was expecting to be married and that he or she intended that: (a) the Will should not become void upon the expected marriage, the Will shall not become void upon that marriage; (b) a particular disposition or provision in the Will should not become void upon the marriage.

That disposition or provision of the Will in terms of section 16(4) of the Wills Act [Chapter 6:06] shall take effect notwithstanding the marriage, and any other disposition or provision in the Will shall take effect also, unless it appears that the testator or testatrix intended the disposition or provision to become void upon the marriage.

In Mapenzauswa v Muskwe & Others 2008 (1) ZLR 376 (H) it was held that:

“It seems to me that the intention of the testator can be discerned from the wording of the will. He referred to the applicant three times by name and called her “my surviving wife”. The civil marriage was contracted just less than 6 months after the will was executed. He made three bequests to her in the will. He therefore provided for her. He called her his surviving wife even though she was not yet, legally, his wife. At that time, in law, she was his girl friend. He obviously desired that she become his future wife. He was then 79 years old. He had children, grandchildren and great grand children from his previous marriage that he felt he owed a filial duty to provide for. He also wished his future wife to benefit from his only major asset together with his descendants in the proportion which he believed did justice and fairness to them all. In my view, this demonstrates that he made the will in contemplation of his pending civil marriage to the applicant. He therefore did not intend that his will be invalidated by that marriage. The civil marriage did not, in my view, invalidate his will. The will and the subsequent acts of the testamentary executor, cannot, therefore, be impugned.”

28. The effect of birth of a child on a Will in Zimbabwe

Section 18(1) of the Wills Act [Chapter 6:06] in Zimbabwe regulates the effects of subsequent birth, legitimation or adoption of child on a Last Will and Testament. In Zimbabwe, if a Will makes no provision for any child of the testator, the child is entitled to any benefit that he or she would have received if the testator had died intestate.

If the Will makes provision for any other child or children of the testator, the child is entitled to the same benefits as, or benefits of equivalent value to, those that are receivable under the Will by:

• (a) The other child or children, where there is only one such other or where the Will treats all such other children equally; or
• (b) The other child or other children, as the case may be, who receive the benefits of smallest value, where the will treats the other such children differently.

As provided for in section 18(1) of the Wills Act [Chapter 6:06], an illegitimate child can only be entitled to benefit from the testator’s estate where that illegitimate child of the testator is legitimated. The Bulawayo High Court in Rabeka v Stockil & Others 2015 (1) ZLR 37 (H) held that:

“It is now settled law that the fact that the father’s name appears on the child’s certificate does not mean that the father has any rights of guardianship or custody. Needless to say that, the fact that the father’s name appears on the child’s birth certificate does not have the effect of legitimating the child.”

29. What is Form MHC 11 in Zimbabwe

Pursuant to death the close relatives of the deceased should furnish the Master of the High Court of Zimbabwe with a Death Notice, Inventory, and where applicable the Last Will and Testament of the testator or testatrix the Master of the High Court requires that Form M.H.C 11 be duly completed.

Form M.H.C. 11 therefore a special form which has to be filed with Master of the High Court. It is also known as an Acceptance of Trust Form in terms of which an executor accepts nomination or appointment of office and makes a declaration that there are permanently resident in Zimbabwe, are not rehabilitated insolvents and that they under the obligations of an executor, which would have been explained to them.

In the case of where the deceased’s Will has been accepted for administration purposes by the Office of the Master of the High Court of Zimbabwe, the Master will enclose the Acceptance of Trust Form i.e., Form M.H.C. 11 together with a Bond of Security for the Issue of Letters of Administration.