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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.