Online Reporter
Trust Maanda
Legal Position
A PERSON who dies without leaving a will is said to have died intestate, while one who dies leaving a will, dies testate.
A will is a document made by a person during his lifetime, in terms of which he or she bequeaths his or her property to persons he or she chooses, and directing how he or she wishes his or her estate to be distributed.
A will sets out the orders of the testator on how he or she wishes his or her assets to be inherited. It lists the property and the beneficiaries he or she intends to inherit the property.
The testator can nominate his or her executor in a will. In that case, an executor can only act after he or she is appointed by the Master or the Assistant Master having jurisdiction over the district where the deceased was ordinarily resident.
If you do not mention an executor in your will, the Administration Estates Act provides for how one can be appointed.
The power to make a will is provided for in the Wills Act that any person who has capacity to make a will may in his or her will make provision for the transfer, disposal or disposition of the whole or any part of his estate.
A will can provide for maintenance of some beneficiaries from the estate of the deceased.
The power to make a will and bequeath your assets to whoever you choose is what is called freedom of testation.
A person has a right to assign his or her property to any one of his or her choice in the event of his or her death.
Section 5(2) of the Wills Act provides that a will shall not be invalid solely because the testator has disinherited or omitted to mention any relative or because he or she has not assigned any reason for such disinheritance or omission.
Once a will complies with all the requirements of validity, its provisions determine the question of succession to the deceased’s estate. A testator can dispose of his or her property to whomever he or she wills.
The doctrine of freedom of testation is entrenched by Section 71(2) of the Constitution of Zimbabwe, which provides that: “(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.”
The right to private property guaranteed under the Constitution includes the right to decide how one’s property is disposed of during one’s lifetime and after death.
The provisions of Section 5(1) of the Wills Act give effect to the fundamental principle of equality of men and women, which forms
the basis of the guarantee of property rights under Section 71(2) of the Constitution.
This means that men and women have equal right to decide how to dispose of their property by way of a will to whomever they desire.
Section 8 of the Wills Act provides for the formalities of a valid will. The Wills Act provides further that even where all the formalities of a will are not followed, but the Master is satisfied that a document or an amendment of a document which was drafted or executed by a person who has since died was intended to be his or her will or an amendment of his or her will, he may accept that document, or that document as amended, as a will for the purposes of the administration of that person’s estates.
A will contains the real wishes of the deceased regarding the disposition of his or her property. Therefore, a will should not be lightly disregarded.
In a will, the testator can provide for who he or she wants to be appointed as the executor of the estate.
This provides the testator with an opportunity to choose who will be in charge and control of his assets and the winding up of his estate. A testator can choose the executor on the basis of his qualities such as honesty or professionalism. This way, the testator will have the confidence that his or her estate will be wound up to the best advantage of the estate and beneficiaries.
A testator can in terms of his or her will, appoint a person who should be the guardian of the minor children of the deceased.
Where the testator leaves minor children behind, he or she can choose the person whom he or she trusts to take care of his or her children and decide for the children as a parent would do.
A will can provide that someone can have a right of use of an immovable property until the happening of a certain event.
For example, a will can stipulate that a beneficiary can reside in a house belonging to the deceased until they reach a certain age, marry or die, whichever occurs earlier.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on+263772432646.
