|
The law of Intestate and Testate Succession in Zambia
Continued from last issue
A Review Of The Provisions Of The Intestate Succession Act
The Intestate Succession Act applies to every person who at the time of his
death
was domiciled (resident in Zambia) but only if that person is a member of
that community to which customary law would have applied had the Act not
been enacted. It is clear that even the Act sets it to every person who dies
intestate that in Zambia, it excludes certain categories of Zambian. The Act
does not apply to land held under customary tenure, institionalised property
of the chieftainship (property belonging to a chief by virtue of his
position and family property. This weakness in the Act which has negative
bearing on the rural women because most land in rural areas is held under
customary tenure and property is mostly family property. What this means is
that land held under customary land tenure and family property is not
covered by the Act but by customary law which was observed earlier on does
not recognize widows as beneficiaries.
The Acts major objective was to provide a norm law applicable nation wide
and to make adequate financial provisions for the surviving spouse(s)
children, dependants and relatives of a person who dies intestate. To this
end, the estate of an intestate is shared out as follows 20% of the property
to the surviving spouses(s) 50% goes to the children of the deceased whether
born in or out of wedlock's. 20% goes to the parents of the deceased and 10%
goes to the dependants. The Act also provides for the distribution of
property. The family house homestead property and chattels (which includes
cars if not used for business purposes) go to the surviving spouse (note the
gender-neutrality)
The remaining property is available for distribution as part of the estate.
Where there is more than one house only, one house is for the spouses
surviving and children. The other house(s) are part of the estate to be
distributed. Where there are two or more widows the 20% is distributed in
proportion to their respective number of years in the marriage. The widow's
contribution to the deceased's property may also be taken into account if it
so demands.
Where the estate includes a house and more than one widow and children
survive the deceased, they all hold the house as tenants in common. The
surviving spouses had life interest in the house which determines (comes to
an end) on the remarriage of the surviving spouse. The distribution of the
estate is done by a person known as the administrator who is not supposed to
have any pecuniary benefits in the esteem and his main job is to ensure the
satisfactory administration of the estate. Any beneficiary who causes the
death of the deceased will lose his benefit. Any interference with the
distribution of the estate is a criminal offence, the court may remove
administrators who fails to account for their Actions.
Another short coming of the Act is that the penalties are inadequate and do
not act as a deterrent to would be property grabbers. The extent of property
grabbing can be seen from statistics obtained from the National Legal Aid
Clinic for Women where between January and December 1999, 80 cases involving
property grabbing were handed by one lawyer at the Lusaka Office. Between
January and April 2000 already 88 new cases of property grabbing had been
handled by the clinic. What is interesting is that the widows have reported
in most of these cases that before their husbands died, they had a good
relationship with the husband's relatives but the situation changed after
the death of their husband. Further the Act has no procedural rules making
it difficult for the courts to know how to proceed in enforcing the law.
This act was passed to simplify the law governing the making of Wills,
provide for adequate financial and other provision for dependants in Will
and to provide for the administration of estate of persons who die testate.
It allows any adult of sound mind to dispose off their property in any way
they want by writing a Will. They choose who they want to be the executor of
the Will so long they person qualifies under the Act.. The Act empowers the
testator to appoint a guardian for his young children if he so wishes.
|
