“DEATH is not the end. There remains the litigation over the estate.” Ambrose Bierce
A brush with death gives a wake-up call to a lot of things in life. Globally, the COVID-19 pandemic has resulted in over 1,3 million deaths being recorded and Zimbabwe has also faced the ordeal and the pandemic is still looming. People should be more contemplative about their wishes and how they would prefer to support their nearest and dearest if they were to succumb to the virus.
guest column:Scott P Mamimine
Have you planned for your demise?
A will is a legal document that allows a person to state what they want to happen with their assets. In the definitional section of terms in Wills Act (Chapter 6:06), a will includes an oral will, a codicil and any testamentary writing, but does not include a document evidencing an antenuptial contract or other transaction of a contractual nature.
With regards to oral wills, it can be difficult to actually prove the oral will. Because it was not written, it may be difficult to remember all of the terms that the testator provided. Witnesses may have different memories about what was said.
The oral will may have been delivered during an emotional distraught time, such as the testator being struck with a sudden illness and the witnesses may have a blurry recollection.
Additionally, proving an oral will is often subject to challenge. Individuals who stand to inherit may not want the instructions in the oral will to be carried out.
Those trying to prove the provisions in the oral will may not be able to show that all of the elements were met, such as the person being in peril of death.
The key reasons to have a will can be summarised as follows:
Provides an inventory of assets, especially in cross-border estates.
Clearly sets out the deceased’s final wishes for the ownership of assets to minimise the chances of conflict. A will, or side letter, might even set out reasons for such decisions.
Avoids uncertainty or unintended consequences (such as the intestacy rules).
The great management guru Peter Drucker once said: “There is no success without a successor.” In other words, lasting achievement is really only achieved if it continues after we are gone.
If one dies without a will, then the person would have died “intestate”. The word “intestate” means a person who has died without having made a will and the estate will be distributed in accordance with the laws of intestacy. In Zimbabwe, this means the Adminstration of Estates Act (Chapter 6:01) and the Deceased Estates Succession Act (Chapter 6:02) become the governing statutes on how the estate of the deceased who died intestate should devolve.
The Wills Act [Chapter 6:06] regulates the writing of wills in Zimbabwe.
In order for a will to be valid it must satisfy the requirements as set out in section 8(1) of the Wills Act as follows:-
It must be in writing
It must be been signed by the testator (a person who has made a will or given a legacy or inheritance)
It must be attested to by two or more competent witnesses in the presence of the testator.
A document that does not comply with these formalities may not be accepted as a will.
The COVID-19 pandemic impacts on the law of will writing in Zimbabwe. It is praiseworthy that our law had already foreseen and catered for this eventuality and predicament we are in.
The stringent formality requirements in terms of section 8 of the Wills Act admits of acceptable derogation in the wake of COVID-19 pandemic.
Section 11 enjoins the Master of the High Court or any other member of the public service responsible to ensure that the estate of a person who has made a will during an epidemic is properly administered and distributed;
An “epidemic” is defined in the Act as a greatly increased incidence of an infectious or contagious disease which results in the deaths of large numbers of persons in Zimbabwe or in any area within Zimbabwe.
Thus any person who is within an area affected by an epidemic may during the epidemic make a will without complying with any formalities whatsoever, except that the will shall be in writing, and may in like manner during the epidemic make any amendment in such a will.
Thus, a will made during an epidemic may be accepted by an appropriate official without a court order for the purposes of the administration of the testator’s estate, if the will has been signed by the testator and the appropriate official is satisfied that the will is a valid will made during an epidemic.
And even if a will made during an epidemic has not been signed by the testator, an appropriate court may on application, if satisfied that the will is a valid will made during an epidemic, direct an appropriate official to accept the will for the purposes of the administration of the testator’s estate.
The provisions of section 11 of the Wills Act clearly assist the World Health Organisation guidelines on prevention of the spread of the virus which preventive measures include social distancing. Thus, while it is preferable that you sign your will in the presence of two witnesses, it is possible for you to sign alone and this curbs contact with other people.
When one feels the need to get the will attested, it is advisable to try and find two witnesses who are already living together, close by. That way, when they witness your will they do not increase the risk of passing infection between each other and they are not travelling to get to you, nor you to them. If you cannot, then each witness should sign the will in sight of each other and you, but take it in turns to do so, from a safe distance.
However, it is also advisable that the law must be reformed to cater for the digital age we are in. Advances in technology have been invaluable during the lockdown, in recognition of this difficulty to comply with the strict requirements of a valid will, other jurisdictions are introducing new legislation which permit virtual witnessing of wills via live video links such as Zoom, Skype and Facetime as an alternative to physical presence.
The current legal framework which demands the physical attestation of wills in Zimbabwe leaves a lot to be desired in order to embrace the new development of virtual witnessing across the globe.