Imagine the pain and anguish that comes with losing a loved one, especially a parent. If it so happens that as you are still mourning and trying to come to terms with the loss, you learn that you were cut out of the deceased parent’s will it will most likely be more devastating. Numerous questions that will never find answers linger on your mind resulting in life-time incurable trauma. You may live the rest of your life wondering if your parent ever loved you but no answers may come your way. But such things happen more often than not.
The report on the late Dr Mtukudzi’s will has stirred up strong emotions amongst Zimbabweans most of whom have concluded that the will must be invalidated for one reason or the other. The late music icon is reported to have bequeathed all his property to his wife, making no mention of his four children who are all of the female gender. Some Zimbabweans have opined that the Dr Mtukudzi they knew would never disinherit his children like that. As such, they suspect foul play on the part of the surviving spouse Daisy. For some, even if the will is found to be authentic, it must still be somehow invalidated for its exclusion of Tuku’s children. Daisy inheriting the entire estate of her late husband legally means that Mutukudzi’s children have lost out on their father’s inheritance for good. It goes without saying that Samantha and Daisy’s child with another man are most likely going to benefit through their mother both in her life time and/or through inheritance upon her death. For the rest of Mtukudzi’s biological children, all hope is lost as they are not beneficiaries of their step mother ‘s estate unless if Daisy, out of her own will, allows them to have some either by donation agreement or through her own last will and testament. In the case of Nyathi vs Ncube N.O HB 123/11, a man died intestate and he was survived by a wife and two children from a previous marriage. His wife died just five months after him, before the winding up of his estate. The matrimonial home was then awarded to the now deceased wife’s parents much to the shock of the two children whose father had acquired the property in the absence of their now deceased step mother. The Court held that the awarding of the house to the step mother’s parents could not be interfered with since it was lawful. As at the time of her death, she had inherited the property from her husband which means it fell under her estate. The two step children could not inherit the house from her as they were not legal beneficiaries of her estate. Since the woman never had children of her own, she was survived by her parents who then became the beneficiaries to her estate.
THE DOCTRINE OF FREEDOM OF TESTATION
Preparing end-of-life documents, such as a last will and testament, is one best way of ensuring that one’s wishes will be followed when he or she is gone. A will allows one to communicate his wishes clearly and precisely as he selects his heirs rather than allowing the country laws of descent and distribution to choose the heirs, who, though blood relatives, might be people the testator dislikes or would not wish to inherit from his estate for one reason or the other.
Generally, one is at liberty to dispose of the property as they deem fit. One needs to understand that when an individual acquires property in his or her life time, such is, ordinarily, for his personal enjoyment. It is up to him to bequeath it to whomsoever he wishes in the event of his death. As such, the doctrine of freedom of testation allows a property owner to deal with the property as he wishes when writing a will. The testator is at liberty to bequeath his estate to any person (s) of his choice be it family, friends, acquaintances or even strangers. Therefore, a will is not rendered null and void simply because some close family members, even biological children, were left out. The testator is not even obliged to give reasons for excluding certain people, no matter how closely related, because a person’s will is their own business. This is clearly provided for in section 5 (2) of the Wills Act [Chapter 6:06]. As such, our law does not interfere with a testator’s wishes even where one, or some, or all of the children are completely left out in the will
If one was a dependant of the deceased and is excluded in a will, the recourse available is in terms of the Deceased Persons Family Maintenance Act [Chapter 6:03]. In terms of this Act, one can apply for maintenance from the estate. The award for such maintenance is however, reserved only for those who were dependants of the deceased at the time of his death. The Act defines Dependants as;
A surviving spouse, a divorced spouse who at the time of deceased’s death was receiving maintenance in terms of a Court order, a minor child, a major child who by reason of mental or physical disability, incapable of maintaining himself and who was being maintained by the deceased at the time of his death, a parent who was being maintained by the deceased and/or any other person who was being maintained by the deceased at the time of his death.
Thus, for one to qualify for maintenance from a deceased estate, he or she has a duty to prove that the deceased was maintaining them at the time of his death. A major child who was at the time of deceased’s death self-supporting or was not in any way physically or mentally incapacitated does not qualify.
SO, CAN A WILL BE INVALIDATED?
If the deceased left a will or any document purporting to be a will, it should be registered with the Master of the High Court. However, the master only accepts such if requirements of section 8 of the wills Act [Chapter 6:06] are met. The document must be in writing, it must be witnessed by competent witnesses present at the same time and signed on each page by testator and the witnesses for it to be accepted by the Master as a will. This means that if any person brings it to the attention of the Master, upon registration that any of the said three requirements has not been met, the master is at liberty to reject the will and proceeds as if deceased died intestate.
Anyone who seeks to challenge the will must approach the Court. A will can be successfully challenged on various grounds. One cannot challenge a will simply because someone is unhappy with its contents and feels that the property should have been distributed differently. Valid grounds include undue influence, duress, fraud and lack of mental capacity on the part of the testator. Where an Applicant proves that the will is forged the Court is inclined to find that the so called will is null and void. Where it is alleged and proved that the Testator was not mentally stable so as to lack capacity to make sound decisions at the time of writing the will, the Court will find in favour of the Applicant. Where the will is ambiguous and difficult to interpret, the court leans in favour of invalidation.
Section 5 (3) of the Wills Act renders as invalid a will which prejudices the rights of a spouse, creditor, a person in favour of whom is a court order for enjoyment of or benefit from the estate property.
Once a will is successfully challenged and held to be null and void by the Court, there will no longer be any will to talk about, so the deceased is deemed to have died intestate (without a will). As such, the probate laws of the land apply and the estate will be distributed in terms of the provisions of the Administration of Estates Act [Chapter 6:01] and the Deceased Estates Succession Act [Chapter 6:02], as the case may be.
In conclusion, it is not clear whether Dr Tuku’s will or purported will is going to be contested. Only time will tell. What we know for now is that to his wife he left a sprawling estate, to his children, memories of a father and to the nation of Zimbabwe, the soulful music that captures the aspirations of a generation.
THE END … for now.