Introduction
I have previously written many articles on the administration of deceased estates to assist readers. In this article I look at the common disputes encountered in the administration of estates.
Common disputes
Some of the common disputes include the following:
- Some people targeting certain assets in the deceased estate.
- Disputes over the distribution of assets.
- Appointment of an executor.
- Attempts to remove the executor.
- Challenging of wills.
- Culture versus the law.
- Where there is more than one surviving spouse or family.
People targeting certain assets
It is common to find people, such as family members, hoping to benefit from estate assets so that they can have a better life. As human beings we are different and I reconcile myself with that. In such situations those targeting certain assets may make attempts to get the assets they want. They may do so in more ways than one, for example through lobbying, fighting to be the executor, claiming special relations with the deceased during his or her lifetime, manipulating wills or fighting valid ones, influencing the executors or pushing for his / her removal, etc.
Distribution over distribution of assets
These disputes may arise from people who are targeting certain assets as explained above. In some situations there may be unfairness or even clear prejudice through manipulation, fraud, theft, etc. Most fights in estates are around the distribution of assets to beneficiaries. My view is that most answers are in a valid will or are answered by the law where a person dies intestate (without leaving behind a valid will). Legal practitioners and the office of the Master are useful.
Appointment of an executor
Some disputes may be on the appointment of an executor. An executor may be appointed through a will or by the Master in terms of section 25 of the Administration of Estates Act (Chapter 6:01). Family members may prefer certain executors against others. In the event that an independent executor has been appointed through a will or by the Master instead of a family member, some family members may prefer that while others may not like it. I have dealt with specific situations where family members have insisted on an independent executor while in some situations they have resisted such professionals preferring a family member.
Attempts to remove an executor
It is common for family members or beneficiaries to push for the removal of an executor for various allegations such as:
- Bias or unfairness
- That the executor is working against the interests of the decease estate or beneficiaries or that particular beneficiary.
- Incompetence or neglect of duties.
Challenging a will
Disputes over the contents or validity of wills are prevalent. There are many reasons and allegations associated with such disputes and may include the following:
- The will does not reflect the wishes of the deceased when he or she was still alive. This is usually raised by people who think they have been unfairly treated in the will.
- The deceased was manipulated as he or she was too sick to be able to act at law.
Wills are regulated by the Wills Act (Chapter 6:06). The key test to challenging a will is that the following have to be met:
- The right at law of the person challenging the will was violated through the will, and
- If the requirements for challenging the will are met.
The requirements for challenging the will are as follows:
- The testator (the deceased person) must be of sound mind when the will is made.
- Every page has been signed by the testator as well as witnesses thereto.
- The witnesses must not be beneficiaries of the will.
- Influence on the testator through fraud, duress or undue influence.
Readers are advised to be familiar with the doctrine of freedom of testation which was explained by the Supreme Court of Zimbabwe in 2020 in the case of Chigwada versus Chigwada. It was explained that the law of testamentary disposition (inheritance) in Zimbabwe recognises the freedom of testation (freedom to bequeath through a will) and does not oblige a testator to bequeath his or her property to the surviving spouse, but to a person of his or her choice.
Culture versus the law
Whether there is a will or not, some people particularly in the village where some of us came from, may prefer culture ahead of the law. Fortunately or unfortunately, the law is superior.
Where there is more than one surviving spouse or family
This is reality of life. I wish to remain neutral and respectful. Such situations can be infested with “landmines”. Each surviving spouse or family may be claiming rights to assets in the estate. I have received many phone calls from many parts of the country to advise on this issue. It can be an emotional issue.
Conclusion
Disputes in estate administration are common. Please consult your legal practitioner or the office of the Master of the High Court of Zimbabwe.
More articles
Space permitting I promise to write more articles on estate administration for the benefit of readers.
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), ACCA (Business Valuations) MBA (EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, commercial arbitrator, 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 was recently appointed to sit on the Council of Estate Administrators in Zimbabwe. He writes in his personal capacity. He can be contacted on +263 772 246 900 or ghofisi@hofisilaw.com or gohofisi@gmail.com. Visit www//:hofisilaw.com for more articles.
