|
Getting your Trinity Audio player ready…
|
By Nyaradzo Funeral Assurance Company Group Information Department
The topic of death is one that poses, in many instances, if not all, a plethora of questions. What will happen to my movable possessions? What will happen to my house? What will my children inherit?
Due to misconceptions, writing a will is still viewed by many as trickery, deceit, and witchcraft. An example of a myth associated with will writing is that the testator will soon die or family members will look forward to his or her death once the will is written. These beliefs are unfortunately a major discouraging factor against will writing, but it is important to understand that death is unpredictable, and keeping one’s affairs in order will work in the best interests of those that stand to benefit.
Wills should be kept private and confidential meaning only trusted individuals (executors, witnesses, and testator’s lawyer or will drafting service providers) must partake in the processing of a valid will, being fully aware of their duty not to disclose contents or existence thereof.
Another misconception that is closely linked to the secrecy and confidentiality of will writing is that it supports infidelity or stinginess. In reality, the converse is true. It should be understood that the major reason behind will writing, is to accurately and efficiently give direction to the testator’s wishes regarding his or her estate when departed and in order to do so with certainty, a valid will is an honest and transparent account capable of such administration. Others are of the view that will-writing is for the older or richer, this is not correct. The Wills Act provides that anyone above the age of sixteen years (16) is eligible to write a will if that person has the required mental capacity. In addition, having a will is not dependent on one’s net worth, modest-sized assets, or singular assets can be subject to a valid will.
To try to understand why it can be difficult for certain societies to accept will writing, one should be acquainted with the surrounding economic issues that breed fights for inheritance. A great number of people especially in developing countries, with a few exceptions, are not financially stable.
Consequently, inheritance is and will always be contested by those that want to benefit. A sad observation is that some property grabbers will leave the spouse and children of the deceased with an empty home simply because they culturally or traditionally deem themselves as deserving of inheriting from the deceased’s estate without taking into account the possible detriment to those that were dependent on the deceased. These potential squabbles may carry with them unfair and unwarranted cost implications particularly where contesting parties find themselves before a court.
It is thus imperative to dispel any ill thoughts or preconceived misconceptions that surround will-writing. If anything, a valid will makes estate administration much easier for those left behind, affording intended respect to the testator’s wishes.
Accordingly, do not procrastinate Sahwira.
Getting your affairs in order
What is a will and why it is important?
In Zimbabwe, wills are regulated in terms of the Wills Act [Chapter 6:06]. This piece of legislation governs and sets out requirements for the validity of different types of wills recognised in the Republic. In terms of section 2 of the Wills Act, a will includes an oral will, a codicil, and any testamentary writing but does not include a document evidencing an antenuptial contract or other transaction of a contractual nature. In simple terms, a will is a legal document in which a testator (the person making the Will) declares his or her wishes regarding the disposal of their assets after death.
The importance of will writing is indisputable as it ensures a secure future for the testator’s beneficiaries, failure of which the true wishes of the testator regarding movable or immovable property may never be fulfilled. In the event that the testator left-behind children, whose interests are always of paramount importance as enshrined in our Constitution, a valid will can designate who will care for them. In essence, the main purpose of this last testament is to give direction on the intended disposal or distribution of the testator’s wealth as well as to avoid the souring of relations through costly disputes concerning the testator’s estate.
Advantages of writing a will.
- Your intentions will be
- It entitles to the conclusiveness of estate.
- Avoids lengthy process of winding up of an estate at the Master’s
- Avoids property
- Honors the true and specific wishes of the
Disadvantages of not writing a will
- The law will decide how your estate will be
- If you are not married your partner is not legally entitled to anything when you
- Family disputes over your assets and
- External legal costs for your beneficiaries (with no protection, your beneficiaries might have to find a lawyer to contest the laws of intestacy and it can be costly).
- Any inheritance tax that your estate has to pay might be higher than it would be if you had made a
Types of wills
According to the Wills Act, there are different kinds of wills distinguished by the formalities required for their validity; and these being:
Written Wills
This type of will is drawn up in writing by the testator or another person in his presence or at his direction provided that the testator signs each page of this will closely as may be to the end of the writing on the page concerned. Further, each signature by the testator is made or acknowledged in the presence of two or more competent witnesses present at the same time. These requirements are peremptory for the validity of a written will. The Wills Act permits the testator in his or her will to make provision for disposal of the whole or part of his or her estate as well as for the custody or guardianship of any minor children and any other lawful provision or direction in respect of his or her own or any other property. There is a level of certainty in clearly written and valid wills which obviates family or other disputes over the property of the deceased.
Oral Wills
This is an oral declaration by the testator making provision as may be made in a will. This type of will is valid where the declaration is made in accordance with any law or custom to which the testator was subject when he made it and the value of the testator’s estate on the date of death does not exceed ten thousand dollars ($10 000). An appropriate official, who is defined in the Act, may cause terms of the oral will to be reduced to writing and may accept the will without a court order for purposes of the administration of the testator’s estate. Any person aggrieved by the acceptance of the oral will or refusal thereof by the appropriate officer may make an application to an appropriate court for an order setting aside such acceptance or refusal. Whilst an oral will may be easy to make, the uncertainty of its terms may be subject to costly procedures in case of a dispute arising.
Other Wills
The Wills Act also makes separate provisions for wills made by soldiers or wills made during epidemics. This is to accommodate circumstances where certain peremptory formalities cannot be complied with given the nature of the testator’s employment conditions or existing situation.
In conclusion, questions surrounding the disposal of a deceased’s assets have, for years, been known to result in bitter wrangles leading to death sometimes. There is a need for an assurance that events to follow upon death are scheduled as intended by the departed. Put differently, death must not be the end, instead, it must mark the beginning for those left behind. Thus the need for a valid will, to present solutions to foreseeable disputes concerning the estate of the deceased.