Importance of wills

Vaidah Mashangwa
WHILE a number of laws such as the Domestic Violence Act (2007), the Zimbabwe National Gender Policy and the Constitution are in place, many women, girls, men and boys continue to have their human rights violated. In the same vein, the Government of Zimbabwe has ratified many international and regional conventions that are aimed at promoting and protecting the rights of every Zimbabwean citizen.
These include among others the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Sadc Protocol on Gender and Development and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.

One area which poses problems for women in Zimbabwe is inheritance of the deceased spouse’s property.
Due to greedy relatives and other harmful cultural practices women continue to suffer after the death of their spouses.

Legally there are laws in place and processes that ought to be followed after the death of a person.
It is important therefore to appoint an executor after the death of a person.

The executor is a person solely responsible for managing the estate that is the property that the deceased person leaves behind. This includes the house, money, furniture, cars and so on.

The executor ensures that distribution of the estate is done according to the law.
In this case, the surviving spouse is given first preference in terms of the appointment of the executor.

It must be borne in mind that the beneficiaries of the estate are the surviving wife or wives or husband of the deceased.
Children are also part of the beneficiaries. In cases where the deceased had no wife or husband and children, the brothers, sisters or parents are the beneficiaries.

It must be clear that property grabbing and disinheriting the spouse and children is a crime. This does not matter whether the couple had a union under the customary law or civil marriage.

It is important for surviving spouses to register the death at the nearest District Registry Office. The distribution of an estate cannot be done if the death is not registered.

In some instances, relatives grab the death certificate. In all circumstances, the death certificate must be kept by the surviving spouse who then registers the estate.

If a woman is denied a death certificate by relatives of the deceased she can approach a District Registry Office where the death certificate was obtained.

The registration of the estate is done either at the High Court or Magistrate Court.
If a deceased person had a civil marriage and also left a will, the estate is registered at the High Court.

In case of a registered customary marriage or an unregistered customary union then the estate is registered at the Magistrates Court.
If the deceased was an unmarried African whose parents had a civil marriage, the estate is also registered at the High Court.

There are cases when relatives even chase away the surviving spouse and children from the matrimonial house.
This is not allowed. The Deceased Persons Family Maintenance Act Chapter 6:03 provides that the surviving spouse and dependants must continue to occupy the family house.

Occupation of the above property applies to all types of marriages that is under the Marriage Act, Customary Marriage Act, the unregistered customary law union or unmarried persons.

Whether they are crops or animals that the deceased person was using, the surviving spouse is entitled to their use before distribution of the estate.

A person who violates these rights shall be guilty of an offence and can be fined or imprisoned.
The surviving spouse is free to report to the police if property is grabbed, an application for the return of the goods can also be made to the court. This is called a spoliation order

Dependents should however continue to pay rates and bills on the said property.
The administration of estates depends on whether the person had a will or not as well as the type of marriage.

Anyone above the age of 16 years can write a will. A will contains the name and address of the person making it and the names of the people who will benefit and ways of identifying them such as identification particulars or date of birth.

The person writing the will (testator) must indicate the items and money to be given to each person and the executor.
The testator identifies who will be the guardian of the children younger than 18 years. If a father dies, the mother automatically becomes the guardian.

If a will is changed, the testator must sign and two witnesses who are above 16 years. They can be different from those who signed the original will.
A will can be kept at the Master of the High Court who registers it and gives it a number. It can also be kept at a bank, given for safe-keeping with lawyers, priests or pastors and can be kept by a trusted friend.

A will can be contested if it leaves out a spouse or children.
Married people can also write a joint will where they detail what they want done to their estate when they die. They should also include what should be done if they do not die at the same time.

In cases where people just write their wishes on a piece of paper and do not follow the requirements of the Wills Act, the Wills Amendment Act gives the Master of the High Court power to look at such papers and decide whether they express the wishes of the deceased or not.
If the court is satisfied that the deceased indeed wrote the piece of paper such information can be accepted as a will.

In case where the testator dies, the person who has the will at the time of death must register it at the Master of the High Court.
Wills help  to protect our families so let us all endeavour to write wills.

Vaidah  Mashangwa is the provincial development officer for Bulawayo in the Ministry of Women Affairs, Gender and Community Development.  She can be contacted on 0772111592,(09)889224 and email [email protected]