Introduction
In the administration of deceased estates, a person can die intestate (without a will) or testate (leaving behind a valid will).
In this article, I look at issues relating to wills under the Administration of Estates Act (Chapter 6:01), "AEA" or "the Act".
Wills
Section 7-11 of the Act apply. In Zimbabwe, wills are regulated by the Wills Act (Chapter 6:06). In this article, I deal with wills under the requirements of the Administration of Estates Act (supra).
Deposit of wills with the Master of the High Court According to section 7 of the Act:
Any person may deposit (lodge) with the Master or Assistant Master any will, codicil (addendum to a will) or a testamentary instrument (document), that directs how a person's assets should be dealt with upon his or her death) executed by him or her.
The Master and the Assistant Master shall each keep, or cause to be kept, a register of the names and descriptions of the persons depositing with him every such deed or document and the date of deposit or lodging.
The deed or document so deposited shall be kept under the charge or custody of the Master or Assistant Master until the death of the maker thereof (the testator) unless the deed or document is recalled by the maker.
Transmission of wills
This is provided for in section 8 of the Act, which provides as explained below.
Every person other than the Master or Assistant Master who has at the time the maker of the will (the testator) dies, in his or her possession, any deed or document purporting to be or entitled (indicated as) the last will, codicil or other testamentary instrument of any other person (the testator), or into whose possession any such deed comes after the death of the maker (testator) shall forthwith deliver the deed to the Master.
In simple terms, anyone who is in the possession of a deceased person's will, codicil or testamentary instrument is required to immediately deliver such a document to the Master or Assistant upon the death of the maker of that document ie the testator or deceased person.
Every notary public, if required by the Master to do so, shall furnish the Master with the original minute (his official original copy) of any notarial will, codicil or testamentary instrument, if the notary public is the one who commissioned the notarial deed for the testator.
Search for concealed will
Section 9 of the Act applies.
Every judge of the High Court and every magistrate or justice of the peace may, by warrant, cause to be searched a place where it is suspected that a will, codicil or testamentary instrument is concealed.
The circumstances include those explained below.
Upon information taken on oath, being transmitted (delivered) to him or her by the Attorney-General or the Master, or
Upon the information of any person made on oath before any such judge, magistrate or justice of the peace.
Order for delivery of will Section 10 of the Act applies.
It may happen that a person in possession of or who has under his or her control a will, codicil or other testamentary instrument, refuses or fails to deliver or transmit that deed or document to the Master or Assistant Master.
In such cases, the Master is authorised and required to immediately apply to the High Court or any judge for an order for the refusing person to immediately deliver such will, codicil or other testamentary instrument.
Registration of wills at the testator's death
This is in terms of section 11 of the Act. Every deed being or purporting to be the will, codicil or testamentary instrument of the testator or deceased person, which has been deposited with the Master or Assistant Master in terms of the law, may be registered by the Master or Assistant Master in his Register of Wills.
The Master and Assistant Master are required to keep such deeds.
Despite the registration of such will, codicil or testamentary instrument, all questions on the validity and legal effect of every such deed shall be reserved and remain for the decision of the Master of the High Court.
In other words a registered will may be challenged.
Where such deed or document has been deposited with the Master before the testator's death, when the testator dies, any such duplicate or copy so deposited shall be examined and compared with the original.
The Master shall authenticate such duplicate or copy with his signature.
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Further articles
Space permitting, I will write more and specific articles on the administration of deceased estates in order to assist readers.
Conclusion
It is important to understand the requirements of wills under the Administration of Estates Act.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer's professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), ACCA (Business Valuations) MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He was recently appointed to sit on the Council of Estate Administrators in Zimbabwe. He writes in his personal capacity. He can be contacted on +263 772 246 900 or [email protected] or [email protected]. Visit www//:hofisilaw.com for more articles.
