Introduction
I recently attended a workshop arranged by the Council of Estate Administrators and Insolvency Practitioners (“CEAIP”). I had the privilege of presenting on ethics and governance with respect to estate administration and insolvency practice. The Master of the High Court, Mr Eldard Mutasa presented on Estate Administration while prominent insolvency practitioner Mr Bulisa Mbano presented on insolvency practice.
The Master articulated several issues for the benefit of everyone, in fact for the country. He did so with passion, commitment and professionalism. The CEAIP was led by its chairperson, prominent legal practitioner Mr S.J. Chihambakwe. Other board members present were Ms P. Mandigo, Mrs E. Gwasira, Mr. A. Chitaunhike and myself.
Complaints on estate administration
As part of my presentation I looked at some common complaints raised on estate administration, which include the following:
- Wills being rejected as not reflecting the true wishes of the deceased testator.
- Estate administration taking too long.
- Estate administrators acting without authority, for example when disposing of assets.
- Alleged abuse of estate assets including trust funds realised from asset disposal
- Estate administrators not sharing important information.
Effect of lack of understanding of the law
During deliberations, it came to my attention that most of the complaints were a result of lack of understanding of the law, especially by estate beneficiaries or families of the deceased. For example, estate beneficiaries failing to understand the law on testate and intestate distribution. The deceased dies testate if he / she leaves behind a valid will and dies intestate if he / she does not leave behind a valid will.
A will may be rejected by family members or beneficiaries or supposed beneficiaries if it does not favour them or meet their expectations. In my article of 9 May 2024 titled “Freedom of inheritance through a will” I explained the law on testamentary disposition i.e. freedom of testation or inheritance through a will. I cited the case of Chigwada versus Chigwada where the Supreme Court held that the law on testamentary disposition, which is based on the universal principle of equality of men and women gives a right to a person married out of community of property to dispose of his or her estate by will to whomsoever he or she chooses. I explained that marriages in Zimbabwe are out of community of property.
In the case of intestate succession, general laws on estate administration apply.
At the centre of complaints or disputes is lack of understanding of the law. It is quite common for beneficiaries or family members to attempt to address situation, not based on the law as they may not understand applicable laws, but on culture, morality, common sense or even on humanitarian grounds. The estate administrators themselves may also not understand the law, depending on their experience.
Allegations that estates take too long
Admittedly, some estates may take several years to finalise, for various reasons such as the following:
- Estate disputes which may include litigation such as challenging a will or contesting disposal of a family property.
- An estate administrator not prioritising the estate, for various reasons such as disputes.
- Estate administrator not sure how to address certain situations or solve problems.
Lack of important information
It is not uncommon for estate beneficiaries to allege that they do not know what is happening on the estate because they do not have information. This boils down to lack of effective communication between the estate administrator and the estate beneficiaries.
My suggestions on reducing or easing complaints over estate administration
I make the following suggestions or proposals.
Education on the laws applicable to estate administration
There is need to educate the public and estate administrators on the laws as they apply to different situations. There are many ways such as the following:
- The Master of the High Court, Council of Estate Administrators and Insolvency Practitioners, Law Society and Government and other stakeholders joining hands on public awareness and education. To clearly articulate the law versus culture, morality, humanitarian situations, etc.
- The Master of the High Court may develop the “Master’s Handbook on Estate Administration”, if its not there already, addressing key or common areas of the law. Such a handbook to be easily accessible, for example in softcopy form, and to be regularly updated.
- The Master may influence the promulgation of regulations for clarity and to ensure compliance.
- The Master together with the CEAIP may develop guidelines to assist estate administrators in discharging their duties.
Alleged abuse of estate assets
Estate administrators to be trained on what amounts to abuse of trust assets such as trust funds and acting within the law. Lessons can be learnt from the Law Society, for example.
Communication
Effective communication can be achieved through training of estate administrators and putting in place grievance / complaints handling procedures. CEAIP has the latter.
Code of Ethics and Disciplinary procedures
In order to enforce desired standards of behaviour and performance the CEAIP and the Master’s office may work on a Code of Conduct, including disciplinary procedures. CEAIP has the latter.
Conclusion
Ethics are important in the administration of estates for the benefit of the public. An understanding of the law will also help the public and probably reduce complaints.
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 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.
