Introduction
On several occasions I have been approached by families where their deceased parent, for example a father, had a farm allocated to him, through an offer letter, under the Government’s land reform programme. The families will be keen to know how the farm will be treated under the administration of deceased estates or under Government policy on farms. Specifically, the family wants to know if one or more family members can succeed the deceased on the farm.
Conditions to the offer letter
At the back of the offer letter are usually conditions relating to the offer of the farm. These conditions may appear titled “CONDITIONS APPLYING TO THE OFFER OF LAND UNDER THE ZIMBABWE LAND REFORM AND RESETTLEMENT PROGRAMME (PHASE II / MODEL A2 SCHEME”. In the conditions , you may find the following under paragraph 1.
The offer is subject to the following conditions:-
a)…………………………………………………………………………………………………..
b)………………………………………………………………………………………………….
c) (i) that you shall not cede, assign or make over any right or obligation or sublet or part with possession or grant any form of right of occupation in respect of this farm or part thereof without the prior written consent of the Minister, and
(ii) That in the event of death of the Lessee, the rightful heir shall apply for succession.
(iii) That in the event of the Lessee not being able to continue farming operations because of physical or mental factors, he / she can apply for cession or surrender his rights to the Ministry of Lands, Agriculture and Rural Resettlement.
d)…………………………………………………………………………………………………….
e)…………………………………………………………………………………………………….
Put in simple words, paragraph 1(c)(ii) make it possible for the rightful heir (successor) to apply to the Ministry of Lands to succeed the Lessee (i.e. the deceased person who was the Lessee at the time of his or her death).
Recommendations
When a person passes on, it is a requirement to ensure his or her deceased estate is administered and finalised. The Master of the High Court or your legal practitioner can advise you on the process of estate administration.
As regards a farm held through an offer letter, when the deceased passes on, it is important to check with the Master or your legal practitioners on how best to deal with the farm. Government policy, in my view, is to promote continuity on the farms by family members. This is why it is possible to succeed a deceased person through the process of succession. I advise family members of the deceased to agree on who is the rightful heir to the farm. This is with regards to occupation and enjoyment of the land. The land still belongs to the State. Where there is an executor appointed to administer the deceased estate, family members are encouraged to fully cooperate and agree on the rightful heir.
Use of family trusts
It is common for family members to agree to use a family trust as the rightful heir to the farm. The family members will be the beneficiaries. This can be the deceased person’s surviving spouse and children. Through the trust, family members will be able to collectively use the farm. The advantage of using a trust is that it exists in perpetuity and there will be continuity even when a family member who is a beneficiary subsequently passes on. You may want to contact your legal practitioners on the registration of a family trust.
Further changes on succession
Should there be changes in Government policy on laws impacting on succession, space permitting, I will share these with you at the material time.
Conclusion
The issue of succession to farms held through offer letters affects many families. It is important to be familiar with Government policy and the laws relating to succession.
Further articles
Space permitting, I will write mote and specific articles on the administration of deceased estates in order to assist 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, 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.
