NewZimbabwe.com has invited Mr. Vengai Madzima, the Senior Partner at Madzima Chidyausiku Museta Legal Practitioners (MCM Legal) to discuss will drafting in Zimbabwe.
Reporter: Welcome back Mr. Madzima, this week we want to discuss the drafting of wills. What is a will and who can draft it?
VM: Thank you
A will is a legal document outlining the unilateral expression of a person’s wishes or intentions on how their personal belongings, assets and property are to be distributed in the event of death.
This therefore means that the will only be effective on the death of the testator. The testator is the person who drafted the will and during his lifetime the will has no effect. The testator’s rights to the assets in the will remain absolute and he or she can do whatever they wish with the property including disposing of it.
It therefore means that there is no point in being too happy that you are a potential beneficiary of so and so’s will because that property can potentially be disposed of before the death of the testator.
To the second part of your question, virtually everyone with legal capacity and above the age of 16 can draft a valid will. Validity can be challenged if it is proved that the testator had no legal capacity at the time of drafting the will for reasons such as mental disability.
Reporter: You speak of validity, are there legal requirements for making a will in Zimbabwe?
VM: Indeed they are.
I will comment on the formalities first that are required for a valid will. The will has to be in writing, signed by the testator or any person assigned by the testator to sign in the presence of the testator. Each page of the will must be signed as close as possible to the last written line so that no new things can be added to the will. The testator must sign the will in front of two or more witnesses. The witnesses don’t need to know the contents of the will, what is necessary is to witness the testator signing the will.
The witnesses to the will themselves must be legally competent, that is they also need to be of majority age with the legal capacity to witness, in short, they must be able to see the signing, and not suffer from mental disability to the extent that they will not be able to give evidence in court. The witness’s job is to witness the testator and the other witnesses’ signatures. They cannot be beneficiaries of the estate.
Reporter: Having drafted the will how do I ensure that I protect it so that my wishes are adhered to?
VM: Assistance from a lawyer in drafting the will cannot be overemphasized, it goes a long way in mitigating issues to do with validity or a failure to adhere to the formalities of a will. A lawyer will also assist in terms of precise language in expressing the testator’s intentions to minimize confusion in interpreting at executing the will.
In terms of ensuring assets are protected, the mere act of drafting the will is the first step to asset protection as the will lists all the known and unknown assets of the testator.
It is helpful to complete transactions during the lifetime of the testator. You will be surprised at how common it is to find estates with incomplete documentation on property purchases et cetera. Usually, there will not be any dispute when the testator was alive but upon his death, such transactions are disputed and there is no documentation to support the testator’s declarations in the will making it difficult for the executor to claim such property.
The will can also be commissioned as an extra safeguard and registered with the Master of the High Court.
Reporter: If someone intends to challenge a will, how do they do so?
VM: If the will does not comply on the face of it with the formalities prescribed in law, this can be brought to the attention of the Master of the High Court who can either accept or reject it as a valid will. Any challenge to a will which is compliant with formalities has to be dealt with in our courts.
Reporter: What happens if I change my mind about my will, can I change it or revoke it?
VM: I will reiterate the position I stated earlier, the testator’s rights over his or her property is absolute during his or her lifetime. They can revoke the will either in part or in totality. The Master of the High Court is empowered in law to declare that a will has been revoked. This could be upon consideration that the testator has made a written indication on the will before his death or caused such an indication to be made or performed an act before death which is clear on the face of it that he intended for the will to be revoked.
Reporter: Thank you, Mr. Madzima we have to end here, because of our time.
VM: Thank you.
These discussions are of a general nature and those seeking specific legal advice should contact their lawyer.
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You can contact Vengai Madzima at vengai@mcmlegal.co.zw or www.mcmlegal.co.zw