Introduction
In the administration of deceased estates there can be disputes over the validity of wills. In this article I look at the requirements for a valid will and how wills can be challenged at law.
Formalities required for the validity of wills
The Wills Act (Chapter 6:06) or “Wills Act” regulates wills in Zimbabwe. According to section 8 thereof there are certain formalities required for the making of wills. These include the following:
- The will has to be in writing.
- The testator (the person making the will) or some other person in his (testator) presence and at his direction, signs each page of the will as closely as may be to the end of the writing on the page of the page concerned.
- Each signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time.
- Each competent witness either signs each page of the will or acknowledges his signature on each page of the will.
According to section 8(2), except in certain situations, a will that has been signed by the testator by the making of a mark shall not be valid. In terms of section 8(4) a will shall be valid even though the witnesses who signed it were unaware that the document they signed was a will. Importantly, in terms of section 8(5), where the Master of the High Court is satisfied that a document which was drafted or executed by a person who has since died was intended to be a will, the Master may accept that document, or that document as amended, as a will for purposes of estate administration.
Challenging the validity of a will
It is possible to challenge the validity of a will but one has to satisfy certain legal requirements on the grounds or factors. Some of the factors considered for the validity or otherwise of a will are:
- The testator must be of sound mind when the will is made. In other words the testator is capable of acting at law. See also section 4 of the Wills Act.
- The formalities required in terms of section 8, as explained above, have been met.
- The witnesses must not be beneficiaries of the will. See section 6(2) of the Wills Act.
- Absence of influence through fraud, duress or undue influence. See section 6(2) of the Wills Act.
Section 6 of the Wills Act is clear on who may or may not benefit from a will. That section is likely to be used to exclude certain individuals from benefitting from the estate of the testator.
Freedom of testation through wills
It appears to me that a lot of people are aggrieved if they are left out of a will or the testator bequeathed his or her estate in a manner considered prejudicial by those expecting to benefit from the estate. It is important to look at the power to make disposition by will, also referred to as the freedom of testation. See also my previous article titled “Freedom of inheritance through valid wills”. Freedom of testation was clarified by the Supreme Court in 2020 in the case of Chigwada versus Chigwada, possibly a locus classicus on the freedom of testation, which is readily available on the internet.
As referenced in the case, according to section 5 of the Wills Act:
- Subject to this Act or any other enactment any person who has capacity in terms of section four to make a will may in his will make provision for the transfer, disposal or disposition of the whole or any part of his estate.
- Subject to this Act or any other enactment, a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such inheritance or omission.
- No provision, disposition or direction made by a testator in his will shall operate so as to vary or prejudice the rights of any person to whom the deceased was married to a share in the estate in terms of any law governing the property rights of married persons.
Conclusion
The Wills Act regulates the formalities required for a will to be valid. If not complied with the same Act provides grounds for challenging the validity of wills.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his personal capacity. He can be contacted on +263 772 246 900, ghofisi@hofisilaw.com or gohofisi@gmail.com. Visit www//:hofisilaw.com for more articles.
