As an introduction to the last tool for asset protection planning, I have asked my lawyer friend, Nancy Samuriwo, to present some live real case Zimbabwean cases which came before the courts. After these cases tomorrow we look at the theory and then the following day we present a sample will. Read on and enjoy.
1. Problems of Intestate Succession (Before the Deceased Persons Family Maintenance Act): An Illustration:
Murisa N.O. v. Murisa 1992(1) ZLR 167(S)
In the beginning there was love… until death separated them:
- Josiah Tapfumaneyi Murisa (“J. T.”) and Priscilla Murisa had an unregistered customary marriage before the husband died on 18 May 1986, leaving an estate comprising modest household property, pension benefits, an insurance policy and a little cash.
- At the time of his death, JT. and Priscilla had two minor children born of this union aged 2 years and approximately 4 months.
Then the past reared its ugly head … and the they were to:
- The Appellant, Fanuel Murisa, a brother of the deceased, alleged in court that the deceased had fathered another son with one Susan Nyabonda with whom he had had a relationship prior to the union with Priscilla.
- This child was born on 4 August 1976, prior to the birth of Priscilla’s two minor children.
- On 25 July 1997, in Harare , following the traditional African custom of “kurova guva” (“beating the grave” – cleansing ceremony) Priscilla’ s son Lloyd– Nyasha was appointed heir to his father’s estate under Priscilla’s guardianship.
- Prior to that on 2 July 1987 a Presiding Officer in Marondera, had appointed Nyabonda’s son, James as heir to the estate and issued a certificate declaring him to be the heir to the estate, with the deceased’s brother, Fanuel Murisa as guardian.
- Priscilla did not take kindly to the Marondera ruling and successfully instituted proceedings in the Magistrates Court for the nullification of James’ heirship.
- Pricilla appealed to the District Court at Harare. The Provincial Magistrate who heard the case overturned the Marondera decision and appointed Priscilla heir to JT’s estate.
- Uncle Fanuel was dissatisfied with the decision and appealed to the Supreme Court.
- Six years later, the matter was heard in the Supreme Court.
Supreme Court Here We Come …!
- The case in the Supreme Court was narrowed down to one issue: whether Priscilla, as a wife in a customary law union had a right in law to be appointed heir to her late husband’s estate, i.e. whether she could be an heir ab intestato.
One < two, 1< 2…Processing…wait please…
- The Supreme Court considered the provisions of Section 69 of the Administration of Estates Act (Chapter 6;01, which has now been amended) which provided as follows:
“If any African who has contracted a marriage according to Africa law or custom… dies intestate his estate shall be administered and distributed according to the customs and usages of the tribe or people to which he belonged”.
And now… The Ruling: “Pause and Rewind”!
- It was held that African customary law did not recognise the right of a customary law wife to be appointed heir to her deceased husband ‘s estate despite the advent of the Legal Age of Majority Act, which conferred majority status upon African women who had previously been perpetual minors.
- The matter was remitted to the Magistrates’ Court for a determination as to whether James was the oldest child and whether he was indeed JT’s son.
What do we learn from this?
- In noting that the matter has taken too long to get to the Supreme Court without any satisfactory conclusion, Ebrahim JA (as he was then) made the following comments:
“This matter has been in the courts for over four years now. It is unfortunate that it has taken so long to resolve. Regrettably the beneficiaries of the estate have suffered as a consequence because the Master of the High Court has stopped making disbursements towards their up keep. In my view, the Master of the High Court should ensure that the proven beneficiaries, that is, Lloyd and Victor, (Priscilla’s sons) receive financial assistance in matters such as food, school fees and clothing. Since this matter is still pending, any such expenditure should be kept to a minimum”
See Page 171(c) of the judgment.
- It became apparent in the hearing that Uncle Fanuel retained Priscilla and JT’s matrimonial property pending the resolution of the dispute.
- The Supreme Court ordered him to restore the property to Priscilla, pending the finalisation of the matter.
- The relief came a little too late for both Priscilla and her children.
- The protracted litigation came at a time when Priscilla was mourning the death of her husband… she must have been emotionally exhausted by the time the matter got to the Supreme Court. Did she have the strength for another battle with a vivacious Susan?
- Was the Magistrate going to finalise the matter once and for all?
- Was Priscilla going to hire lawyers? (Both parties were self-actors in the Supreme Court.)
- Was JT’s family, including Uncle Fanuel, going to play a loving role to Priscilla and her children?
- Would the children, including James, understand this drama years from now and would they be happy with the decisions made by Priscilla and Uncle Fanuel?
- Were the children negatively affected by the litigation and if so, how?
- What was the effect of inflation on the little cash that JT left?
- Was Uncle Fanuel motivated by family honour or greed?
- If JT could rise from the dead what would he say to all of them?
- Did Priscilla think of Shakespeare’s Macbeth and substituting “she “he” quote over and over again:
“ He should have died hereafter:
There would have been a time for such a word.
Tomorrow and tomorrow, and tomorrow,
Creeps in this petty pace from day to day,
To the last syllable of recorded time;
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life’s but a walking shadow, a poor player
That struts and frets his hour upon the stage,
And is heard no more: it is a tale
Told by an idiot, full of sound and fury,
She might have had to agree with Thomas Hardy in “The Mayor of Casterbridge” that:
“Happiness is an occasional episode in the general drama of pain”.
Moot Points…. Let us Reflect.
- Was it worth it in the end?
- Are we going to leave a legacy of pain and pain?
- What kind of players are we on life’s stage?
N.B. Legal Developments since Murisa v Murisa.
- The ruling above was made prior to the amendment of the Administration of Estates Act (Chapter 6;01).
- Subsequently, Act No.6 of 1997, which conferred a right to a customary law widow to be appointed heir to her husband’s estate, amended this Act.
- There are other laws that have been promulgated and which continue to receive legislative attention to ease the plight of widows and children, but that is not an encouragement to leave estate matters in disarray!
2. The Importance of Attending to Legal Formalities: Revocation Of a Will: Sansole NO & Others v Ncube & Others.
In the beginning there was love..
- Francis Nehwati (FN), the testator, executed a will leaving most of his estate to his wife.
- The will was drawn by a legal practitioner who, at that time was FN’s friend and the executor of the estate (First Appellant).
Then there was no love lost…
- Shortly afterwards, his wife left the matrimonial home and commenced acrimonious divorce proceedings against FN.
- She went to live at the lawyer’s house and later moved to the lawyer’s farm just outside Bulawayo!
- This soured relations between FN and the lawyer who had been the best of friends prior to these developments.
And then there drama…
- FN married another woman (the Second Appellant) according to customary law and he intended to make her the main beneficiary in a second will, which he intended to execute.
- He retrieved a copy of his will from his legal practitioners, almost certainly believing it was the original will and told his son that he had done so to revoke it.
- Subsequently, FN took steps to draft a new will but died before it could be executed.
- After his death, the copy could not be found: the legal practitioners found the original will, which left the bulk of the estate to the first wife.
- The divorce proceedings had not been concluded.
- Both “wives” “contested” for the “position “ of being the executor and main beneficiary of FN’s estate.
- And the battles raged in the Courts (The validity of the first will was the focal point of the High Court proceedings.)
- FN’s estranged wife wanted the estate to be distributed under the first will and the second wife would have none of that.
- The High Court at Bulawayo ruled that FN’s first will had been revoked and could not be used for devolving property in the estate.
- The first wife and the executor appealed to the Supreme Court.
- The issue was whether in the circumstances the deceased had revoked his earlier will.
Supreme Court here we come…
- The woman that FN loved at the time of his death was in a precarious position.
- The Administration of Estates Amendment Act No. 6/1997 could not be of significance to her as she could be classified as a “beneficiary” for purposes of the Act because of the proviso to Section 68 (3) which in the relevant part reads as follows:
. “A marriage contracted according to customary law shall be regarded as a valid marriage for purposes of this Part notwithstanding that it has not bee solomnised in terms of the Customary Marriages Act (Chapter 5:07), and any reference in this part to a spouse shall be construed accordingly;
Provided that such a marriage shall not be regarded as valid for the purposes of this Part if, when it was contracted, either of the parties was married to someone else in accordance with the Marriage Act (Chapter 5:11) or under the law of a foreign country under which persons are not permitted to have more than one spouse.”
- Considering the circumstances of the facts, the Supreme Court came to the conclusion that FN’s actions were conclusively indicative of his intention to revoke the earlier will which left the bulk of the estate to the “legal wife”.
- The case no doubt, saved the day for the “customary widow”.
- Formal procedures should be adhered to strictly.
- Any material change of circumstances should be reflected in your will as soon as this can be done.
- Avoid unnecessary publicity of your intimate affairs… tighten your will as much as you can to filter out as many possible areas of contention as possible.
- Do not leave it to the Courts to interpret what you would have wanted for your beneficiaries, they are made of lawyers, not soothsayers.
- Divest as much property from yourself as possible so that your estate has the least possible assets for people to fight over! Plan your estate. Create a trust, form a company, donate to charity… bless someone.
- Live your life to the full but not in a manner that will bring heartache and pain to those who love you and who have contributed selflessly to make you who you are.
- In as much as possible try not to base your life’s most important decisions on friendships, if the dynamics change, you may be compromised. Rather, opt for clean, uncomplicated professional relationships.
- Choose to live a legacy of love, not litigation.
3: The Justification for Strict Compliance with Will Formalities: Janda v Janda 1995 (1) ZLR 375 (S)
- I will quote the headnote of the case, which is self-explanatory.
“Under the Wills Act —, the legislature has prescribed certain formalities pertaining to a will which are necessary to be complied with. The purpose of these formalities is to eliminate, as far as possible, the perpetration of fraud and speculation, for when the validity of your will is challenged, the testator will be dead and so may be the witnesses. Section 8 (1) (d) of the Act requires each witness either to sign each page of the will or acknowledge his signature on each page, in the presence of the testator and the other witnesses. A person will be held to have signed a will in due form if he has written on it in his own hand his surname or last name of a name by which he is ordinarily known. It is sufficient for a testator, but not for witnesses, to sign by making his mark. In the case of a witness, using only his initials will not suffice, unless they happen to be the name by which the person is ordinarily known. If a will does not comply with these formalities, it is invalid, even if the effect of declaring it would be to defeat the real intention of the testator.”
· The above cases involve ordinary people like you and I let us learn from them.
- Where there is a will, there is certainly a way. Make a will to ease the burden and pain of your death on your loved ones.
- For those without loved ones, (not that there are!), protect your wealth from “vultures”. Make a will and protect your wealth from the claws of their greed!
- Going back to our theme of wealth management, the Murisa case illustrates quite well the dissipation of wealth that occurs when plans are not put in place for wealth preservation in the event of our death.
- We are in the “living years” and it is true indeed that it is too late when we die to right some wrongs, we need to take precautions now.
- As business people most of us are motivated to wake up in the morning and face the day in the sincere hope that one day those that are closest and dearest to our hearts will be able to enjoy the fruits of our sweat.
- It would be tragic and irresponsible, if these people who have been the “wind beneath our wings” are left with the unenviable tasks of:
- Mourning us and grieving over our death,
- Burying us in as close a location as we would have chosen if we had cared to apply our minds to the issue,
- Untangling a myriad of intricately woven complications created by the reckless abandon of our poor or non-existent estate planning.