By Chipo Mahlangu*
- BACKGROUND
Death is never a welcome development, but it is inevitable, nevertheless. Acknowledging that death is real and inevitable is not failure or lack of faith but victory and pragmatism.
It gives one the opportunity to think and plan objectively for the future. A discussion on Estate Planning shall be done hereunder in terms of Will Writing and Family Trusts.
- WILLS AND WILL WRITING
- What is a Will?
A Will in simple terms is a legal document that specifies who gets the property if a person dies. It can only be recognized as such if it satisfies the requirements set by the law. This testamentary act must be done freely and voluntarily by the testator without the use of any duress or undue influence.
- Testate and Intestate Succession
Legally there is no obligation on a person to leave a will behind if he or she dies. A person who dies without leaving a will is said to have died intestate and laws governing intestate succession will govern this matter.
If one dies after having executed a will, they are said to have died testate. The problem with intestate succession is that it does not afford you the opportunity to have the people you wanted inherit your property and it takes a great deal of time in terms of procedure compared to testate succession.
Disadvantages of intestate succession
- Greed on the part of the deceased’s relatives resulting in spouses and children suffering.
- Many families have been split because of succession disputes and other people have actually died as a result of such.
- Minor children are at great disadvantage if the person appointed to be the guardian is inconsiderate and his powers not clearly defined.
- The welfare of children most of the time is likely to be sacrificed at the altar of greed and the deceased in his or her grave can do virtually nothing.
Advantages of testate succession
- Enables you to appoint the person you want to be the guardian of your children and you will define his or her powers in your will.
- You can provide for the welfare of your children, educationally, socially, economically among other things.
- The life for the survivors should not drastically change when you pass on thus the need to make adequate preparation now.
- Legal Issues
- A will is an important legal document thus there is need for greater care and clarity so that wishes of the testator will be clearly seen from the document itself.
- The will therefore has to conform to set standards in terms of the law if the contents are to be enforced.
- A will that will be deemed valid is one that adheres to the requirements stated in the Wills Act and the Common law.
- Once a Will has been written and executed properly in terms of the law it becomes binding.
- Who can write a Will?
- Any person who is 16 and above is competent to write a will.
- Greater clarity is called for as there would be no person to clarify your will when you die and also the fact that courts respect what is called freedom of testation that is the wishes of the testator. The courts do not usually want to appear as if they are making a will on behalf of a person by being greatly involved in the interpretation of a person’s will.
- It is common in modern times to engage the services of a lawyer particularly if your estate is quite big and complex issues are involved.
Why?
- You enjoy a great deal of professionalism in the manner that your will is written.
- Complexities in the will are reduced.
- Minimises chances of the will being disregarded as legally defective.
- Disposing of Property by Will in a marriage set up
- The Wills Act does not require a husband or wife to bequeath his or her property to the surviving spouse. A valid will cannot be set aside because one thinks that the testator ought to have bequeathed his or her property to the surviving spouse.
- The right of every person to freely dispose of his or her property is a fundamental right for every person regardless of gender enshrined in section 71(2) of the Constitution.
- One may even give his or her property to any other person they are not married to under a Will.
- Confirmation
- A will must be lodged with the Master of the High Court in Harare or Bulawayo.
- If not, upon your death, the Executor must register that will with the Master.
- FAMILY TRUSTS AND THEIR FORMATION
While a Will is one of the methods which a person can use to protect his assets from falling into wrong hands in the event of one’s death, another method is formation of family trusts.
- What is a Family Trust?
A Family Trust is a legal persona or entity and is run by trustees. The Trust is created by a founder who is known as the Donor, Founder or Settler.
The Founder donates property to a trust or settles for a Trust. The Trust is usually named after the Founder e.g. The C. Mahlangu Family Trust or The Chenai Moyo Family Trust. In a Family Trust the beneficiaries are usually the immediate family members of the founder e.g. the spouse or the children.
- Objects of a Trust
- The objects of the trust are to vest specified assets (both movable and immovable assets) in the name of trustees or administrator for administration in accordance with the formalities of the law it is created.
- There are many forms of vesting the property in the hands of the trustees. A classic example is where vesting of the assets can be in terms of a will.
- The will may provide as follows: “In the event of my death, I want my property to be vested in a Trust which is going to be administered by Tom Banda as the Trustee.”
- It is also possible to vest property in the Trust by means of a contract or an ante nuptial contract. An ante nuptial contract is an agreement which is entered into by two parties before entering marriage to govern their proprietary rights after marriage.
- A donation can also be made to a Trust.
- The objects of a Trust must be lawful. They must not run fowl of public policy or perpetrate criminal activities.
- Characteristics of a Family Trust
– Once formed, a Family Trust attains semi-judicial personality. This means that it is recognized by the law as an entity with full powers to own property.
– A Family Trust has a distinct legal personality which is independent of the trustees who run it. If the family Trust involves immovable assets, then it has to be registered in the Deeds registry Offices in Harare or Bulawayo. In creating a Family Trust, the founder will donate the assets to the Trust.
*Chipo is a practicing Attorney, Conveyancer and Notary Public registered with the Law Society of Zimbabwe with vast experience in dealing with Commercial Law, Family Law, Constitutional Law and Property Law matters.
She is the past Chairperson of the Law Society of Zimbabwe Compensation Fund. Chipo is a registered Estate Administrator with the Council of Estate Administrators and Insolvency Practitioners of Zimbabwe.
She can be contacted on +263 776 359 635 or email: cmahlangu@rmattorneys.co.zw or chipo.mahlangu@yahoo.com
*The information set above is by way of guidance. Specific advice should be sought in all cases.