1. I have a parent/sibling/ relative who passed on outside Zimbabwe; can I register their deceased estate in Zimbabwe?
Section of the 5 (1) Administration of the Deceased Estates (Chapter 6:01) provides that,
"Whenever any person dies leaving any property in possession, reversion or expectancy or living a will, the nearest relative of the deceased who is near the place of death, or in default of any such near relative or connection, the who at or immediately has the chief charge of the house in or the place on which the death occurs shall within fourteen days thereafter cause the a notice of death to be framed in the form A and shall cause that notice, signed by himself to be delivered and transmitted...."
The reading of the section above clearly indicates that criteria to be used in deciding whether or not one's estate should be registered with the Master of the High Court is property possession in Zimbabwe and not the place where the death has occurred.
One good example that can give one the significance of registering the deceased's estate is one where a family member of the deceased intends to sell property that was registered in the name of the deceased. This transaction will never go through unless there is the wounding up of that person's estate. Tax clearances will not be availed to one and there won't change of name from the original owner to the intended new owner.
The same goes with the one who inherits the property of the deceased, he/she won't be successful in changing the ownership unless the estate has been registered and wound up at the Master of the High Court in Zimbabwe.
2. Can I be appointed an executor to a deceased estate of my relative whilst I'm out of the country?
The function of an executor is to wind up the estate of the deceased and this is an involving process that invites one in and out of the Master's Office and it therefore requires one to be on the ground.
In terms of Section 25 of the Administration of Estates Act the responsibility lies with the Master to ensure that an Executor is appointed and normally he calls up a meeting with the surviving spouse, next of kin and creditors etc and it is at that meeting that an Executor is appointed. It is one's availability that matters here.
There is an executor we call a testamentary executor and this one is an executor of choice by the deceased. This executor can be in or outside the country and that will not invalidate the will. However, as indicated above, the office of an executor is an involving one and requires one to be on the ground and in this instance the executor out of the country can choose an attorney/agent who can act in place and stead in facilitating the wounding up of the deceased's estate.
3. Is it possible to inherit from parents' Estate while I'm outside the country?
Inheritance knows no boundaries; it is a matter of intention!
If one has been name a heir to one's estate through a valid, whether he is out or in the country is a question that can never be considered. What is only given effect is the pronouncement made by the deceased through his/her will and this is obviously subject to the validity of the will.
Even in a scenario where a parent dies without leaving a will, the executor will bequeath property to a child out or within the country as long as it is agreed upon by the family members and allowed by the law.
It is imperative to encourage parents and everyone around to write a will through lawyers to avoid unnecessary contestation since a will leaves no room for doubt and questions as to what should be done with the property of the deceased. A will is also good in the sense that it will cater for those that the deceased intended to benefit from his/her estate.
4. My father appointed one of his children as the heir to all of his property as indicated in his will. Can I challenge will?
No one has the right to inherit! It's as simple as that!
The case of Chigwada v Chigwada & 2 Others SC-188-20 is an authoritative law on this aspect and it reiterates the position above that no one has a right to inherit. The deceased is at liberty to bequeath property that is in their name to any person of choice.
One can only challenge the will on the grounds that what has been bequeathed to the heir does not belong to the deceased but as long the property is the deceased's there can be no contestation.
However, there are other grounds recognised by the Wills Act that can be considered if one deems it proper to challenge the validity of a will and the grounds which include undue influence, duress etc. Challenging the validity of a will is not as easy, it is highly technical and this normally calls for the expertise of a legal practitioner of sound expertise.
5. In his will, my spouse gave the house which is in his name to our child and not to me. Is that possible under the law?
It is very possible and permissible under the law in Zimbabwe for one reason that marriages in Zimbabwe are out of community of property. In fact the law governing the property rights of married persons in Zimbabwe is the Married Persons Act (Chapter 5:12) which provides that since 1929 marriages are out of community of property. This therefore means that parties to marriage out of community of property are legally entitled to own property in the individual capacities and on the basis of the doctrine of freedom of testation which Zimbabwe recognises, a testator is not obliged to bequeath his/her property to a surviving spouse. The case of Chigwada v Chigwada & 2 Others SC-188-20 is the authority on this aspect.
The only way parties can evade this piece of law and ensure certainty as to what will happen to the properties they own is to;
- Enter into ante nuptial contracts. (Kindly enquire from the author on how this is gone about)
- Put family trusts in place. (kindly enquire from the author on the functionality of this)
- Ensure your name also appear on the title deed or the agreement of sale. This way will only ensure that one's spouse can only disinherit the surviving spouse of half the share and not the whole house.
6. Someone I know died in Zimbabwe and they owed me money. How do I recover my money?
It is very possible to recover one's money from the estate of the late and there are two ways to go about it as outlined below;
- Register your claim through executor: In terms of Section 43 of the Administration of Deceased Act (Chapter 6:01 ) the Executor is obliged to put in a public notice to creditors to lodge their claims with him. The publication of this notice is normally done in local newspaper that widely circulates and also the government gazette is also used. This can be done through the assistance of an attorney. The claimant should also furnish the executor with proof of indebtedness by the deceased.
- Sue the executor: There are instances where it is permissible to sue the estate if one's claim has not been given attention. The creditor issues out summons in a court that would have jurisdiction to deal with the matter and litigants are advised to seek the expertise of lawyers for the process can be highly technical.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.