NewZimbabwe.com has invited Mr. Vengai Madzima, the Senior Partner at Madzima Chidyausiku Museta Legal Practitioners (MCM Legal), to discuss with us legal issues that affect Zimbabweans. The discussions are of a general nature and those seeking specific legal advice should contact their lawyer.
Reporter: Welcome back Mr. Madzima. This week, we want to discuss what happens on the ground or in reality when a person dies without a will.
VM: A person can die without a will and in some instances, they may have drafted a will but the will is considered invalid, possibly for lack of formality; in either event, the person is deemed to have died intestate.
In such circumstances, there is normally a conflict among family members on what law applies, whether it is customary law or statutory law. In situations where the person is of means, that is, if the person has acquired assets in their lifetime or is considered ‘rich,’ you will always find family members who consider it apt to apply customary law, which is then interpreted in a skewed manner leaning towards self – aggrandizement motivated by greed.
If I may put it in more palatable words, family and friends usually ‘feel’ entitled to benefit from whatever contribution they may have made in the deceased’s lifetime, that contribution has to then be compensated by acquiring some of the estate assets to the obvious detriment of the eligible and deserving beneficiaries.
What is disconcerting is that in several such situations, some relatives have indeed benefited and deprived the deserving beneficiaries of their inheritance, whether by coercion, force or undue influence. This is common in cases where the beneficiaries are too young to fight for themselves.
One would think that the greed is only from relatives, but you will be surprised by claims that are lodged by friends and even business acquaintances, aimed at getting whatever they can get from the estate, especially where they assume that there are plenty of assets in the estate.
If you want to study unadulterated human nature, watch the reactions of family and friends when a person of means passes away.
Reporter: What law applies and how or who is considered a beneficiary in terms of that law?
VM: Our statutory law has made provision to address such instances where a person dies without a will or where the will was considered invalid. Aspects of customary law is blended in practice with our statutory law
.
The overarching intention of our statutory law is to protect the spouse and children of the deceased so that they are also not left economically orphaned.
That being said, the spouse and children are prioritised in the distribution of the estate; in the event that there is no spouse and children, then the estate is passed on to the deceased’s parents. In the absence of a spouse, children and parents, the siblings and extended family may inherit.
Reporter: Are there circumstances when this statutory approach does not achieve favourable outcomes?
VM: Well, that question really depends on what side of the table one is sitting on. I will give one or two examples where there were unfavourable outcomes for one side. It is open for a person to decide whether it’s a favourable or an unfavourable outcome.
The law is clear that the surviving spouse is entitled to solely benefit the house and household goods and effects that the surviving spouse used immediately with the deceased spouse before the loss of life. In this particular case, I will give, the ‘house’ was a large farm under title deeds, the deceased spouse had recently married the surviving spouse after divorcing a long-time partner. The new spouse had her own daughter with another man who was active in the daughter’s life. At the farm, the ‘grown’ sons of the deceased also stayed on another part of the farm
The question in the estate was who would own the farm? The surviving spouse claimed it as the matrimonial home and it was awarded to her by the Master. The effect of this award was that the farm was to be registered in her name and on her death, would go into her estate. Her only beneficiary at the time would be her daughter. This means that the property or legacy had shifted completely from one family to another. The remaining sons argued that their father was big on legacy and this was never his intention.
Reporter: That is a lot to take. What other situations can have detrimental consequences for a potential beneficiary?
VM: Well, if we remain on the spouse issue, the spouse is entitled to the house and household goods and a child’s share of the remaining estate after expenses relating to the distribution of the estate are subtracted. The child’s share is calculated as the number of children the deceased sired, then adding the surviving spouse and dividing each beneficiary as a fraction of the total beneficiaries. In simple terms, if there are 4 children plus a surviving spouse, the child’s share will be one-fifth.
Our constitution prescribes that children are children and none should be disadvantaged because they were born out of wedlock. I know of a case where the surviving spouse was expecting a significant portion of the estate on the death of her husband. Unbeknownst to her, the deceased had sired over 15 children out of the marriage, making the total potential beneficiaries over 20, dissipating the hopes of the surviving spouse in benefiting an economic portion of the estate, which she alleged they had accumulated together.
As I stated before, the outcomes have differing views depending on who is benefiting and who has been deprived of benefits.
Reporter
: Thank you, Mr. Madzima. We have to end here because of the time.
VM: Thank you.
You can contact Vengai Madzima on
[email protected]
or at
www.mcmlegal.co.zw
.
Copyright 2025 New Zimbabwe. All rights reserved. Distributed by AllAfrica Global Media ().
Tagged:
Zimbabwe,
Press and Media,
Southern Africa
Provided by SyndiGate Media Inc. (
Syndigate.info
).
