LECTURE 1

Defining Key Terms & An Overview

of the Historical Background
PRELIMINARIES
PRESENTATION OUTLINE
Course Requirements: Key Texts
Functions of the Law of Succession
Dual Character of the Law of Succession
Testate and Intestate Succession
Brief Historical Background of Testate & Intestate
Succession in Zimbabwe
Defining Key Terms under the Law of Succession
COURSE REQUIREMENTS: KEY TEXT BOOK &
STATUTES WITH RELEVANT AMENDMENTS
1. Constitution of Zimbabwe Amendment Act (No. 20) of 2013
2. Administration of Estates Act [Chapter 6:01] incl. 1997
amendment;
3. Births & Deaths Registration Act [Chapter 5:02]
4. Customary Law & Local Courts Act [Chapter 7:05]
5. Customary Marriages Act [Chapter 5:07]
6. Deceased Estates Succession Act [Chapter 6:02]
7. Deceased Persons Family Maintenance Act [Chapter 6:03]
KEY TEXT BOOKS & STATUTES (2)
8. Estate Administrators Act No. 16/98 [Chapter 27:20]
9. General Law Amendment Act, [Chapter 8:07] sect. 15 for
LAMA
10. Missing Persons Act [Chapter 5:14]
11. Wills Act [Chapter 6:06] incl. the 1998 Wills Amendment Act
12. Principles of the Law of Succession in Zimbabwe
incorporating the women’s rights perspective by Slyvia
Chirawu, 2015.
FUNCTIONS OF LAW OF
SUCCESSION
Law of Succession has economic & social function
1. Economic Function of the Law of Succession
As earlier indicated, the law of succession is concerned with the rules that control the transfer
of proprietary rights in the assets of a testator to his rightful successors.
Becomes clear that the law of succession can only operate successfully in a system that
recognises the institution of private property.
Generally speaking, these will be systems in which the economy is based on capitalist
considerations.
Law of succession thus fulfils an important economic function as it regulates the transfer of
wealth upon a person’s death.
The economic function of the law of succession is supported by the principle of freedom of
testation.
 FUNCTIONS (2)
When it comes to feminist jurisprudence, Marxist and
Socialist feminists argue that women’s oppression and lack
of power emanates from capitalism since the owners of
capital are the traditionally economically powerful men
who continue to amass wealth at the expense of women
who continue to wallow in endemic feminized poverty.
Women generally do not own much property warranting
complex administrative procedures
FUNCTIONS (3)
Social Function of the Law of Succession
Law of succession also fulfils a social function.
The social function of the law of succession is associated
particularly with maintaining and protecting the family as a
social unit.
This is why the law of succession is influenced by social trends
affecting the family such as a higher divorce rate and an
increase in the number of cohabiting relationships
DUAL CHARACTER OF THE LAW OF
SUCCESSION
Admin of Estates under general law and customary law
Customary laws of succession are subject to 2 provisos namely;
 It must be compatible with the Constitution
 It may be amended by means of legislation

The decision as to which law (customary or general law) applies or is applicable to a

particular deceased estate is made by applying the choice of law process/rules that can be
derived from statute or judicial precedent>>Cust Law & Local Courts Act
Because customary law is not a single unified system of law (that is codified) but comprises
of different customary laws of the various traditional communities in Zimbabwe major ones
being Shona & Ndebele>>>Conflict of Laws.
TESTATE & INTESTATE SUCCESSION
Testate and intestate succession are
two branches of the law of succession.
Testate succession occurs when a
person dies leaving a valid will
whereupon their estate is distributed as
per their bequest in the will;
On other hand, intestate succession
occurs when someone dies without a
valid will & their estate is distributed
by the laws of intestate succession.
PARTIALLY TESTATE & Examples-
INTESTATE
Possible to have an estate falling (i) Where a testator (person who writes a will)
under both testate & intestate bequeaths an item to a beneficiary or
succession. beneficiaries & they then predecease the
testator.
This happens where a person dies
partly testate and partly intestate. If testator dies before substituting a new
Sometimes a person’s estate is beneficiary for those who have predeceased
distributed partly on the basis of a him/her then estate is distributed in
valid will and then the other portion accordance with intestate succession.
may be distributed on the basis that (ii) Other property acquired after the writing
there is no will covering that of a will which is not included in the will & is
particular portion of the property. distributed as per intestate succession.
BRIEF HISTORICAL BACKGROUND OF
TESTATE & INTESTATE SUCCESSION IN
ZIMBABWE
Due to Zimbabwe’s history of colonial rule as characterized by racial
segregation which was supported by the existing legal frameworks,
testate succession as primarily regulated by the Wills Act was associated
with the elite white members of the population who owned propertied
estates worthy of judicial administration upon decease.
While some black Africans with some property would indicate how they
wanted their property to be distributed after death, this was mostly
through verbal wills which though recognized under customary law,
were difficult to enforce.
BRIEF HISTORICAL BACKGROUND (2)
Superstitious beliefs have also been predominant among blacks that it is
taboo to write a will when you are fit and healthy as you would be
inviting death to visit you.
It is therefore the case that for most black Africans in Zimbabwe, the
most common way of administering their estates post death, has been
through intestate succession.
However, with increased levels of literacy among blacks and the
emergence of more affluent blacks post independence in 1980, more
black men (few women own property worth to write a will on) are
writing Wills.
 2013 CONSTITUTION’S IMPACT
The 2013 Constitution has greatly revolutionized Zimbabwe’s
inheritance laws under both general and customary law since the
Constitution is the supreme law of the land overriding any past unfair
practices in inheritance cases which discriminated against certain social
classes in Zimbabwean society for example women. (Sections 2, 80(3) of
2013 Constitution)
Due to its focus on gender equality; equality and non discrimination for
everyone regardless of social class or status in every sphere of society,
one’s gender, age, sex or social status are no longer the key determinants
in ensuring success in inheriting property under intestate succession.
(Sections 17(2), 56, 80 & 81 of 2013 Constitution)
CONSTITUTIONAL IMPACT POST
2013
Bhila v The Master of the High Court HH- 549-15
A landmark ruling passed by Justice Mwayera to the
effect that children born out of wedlock have the same
right to their parents' estate similar to those born inside
wedlock.
*Note* Reference to “legitimate and illegitimate
children” now viewed as unacceptable but “born in or
out of wedlock.”
DEFINING KEY TERMS UNDER LAW
OF SUCCESSION
Decedent Types of heirship:
 Heir apparent
Testator
 Heir presumptive
Beneficiary  Collateral Heir
Heir Primogeniture
Inheritance Bequeath/Bequest
Legatee Estate
Legacy
INHERITANCE
Meyerowitz describes an heir as;
A person who succeeds to the estate or a fractional portion of it after all the debts and legacies
have been paid i.e. he succeeds to the residue of the estate which consists of what is left after
provision has been made for the payment of the liabilities of the state and all bequests (legacies)
have been satisfied.
In the event there is more than one heir with the same relation to the deceased (such as two
children), they will share equally in the estate. For example, if the father of two children dies
intestate and there are no other living relatives, each of the two children (who become heirs to
the estate) will receive property equal to half of the estate. The part of a deceased person's estate
that is given to an heir is known as an inheritance.
An inheritance can involve cash, stocks, bonds, real estate and other personal property such as
automobiles, furniture and jewellery.
INHERITANCE (2)
While heir refers to a person who receives the property of another person who has died
intestate, the term heir is commonly used to describe beneficiaries as well - those who are
entitled to property left by will, trust, insurance policy or some other arrangement.
However, not all heirs are beneficiaries, such as the case with an estranged adult child who is
intentionally left out of a will.
Likewise, not all beneficiaries are heirs. For example, a person can designate a friend or
companion to receive property. In this case, the friend is not an heir (he or she would not be
the recipient of property if left intestate because he or she is not a child or direct relative);
however, the friend is a beneficiary as designated through the deceased person's will or other
arrangement.
PRIMOGENITURE RULE
“Primogeniture” is a Latin term meaning, “first born” and hence is the status
of being the firstborn child among several children born of the same parents.
Primogeniture rule is the right, by law or custom, of the firstborn legitimate
son to inherit his parent's entire or main estate in preference to shared
inheritance among all or some children, any illegitimate child or any collateral
relative.
The primogeniture rule of inheritance at Common Law gave the eldest male
child precedence vis-à-vis the right to succeed to the estate of an ancestor to
the exclusion of younger siblings, both male and female, as well as other
relatives.
PRIMOGENITURE RULE (2)
This rule was also predominantly enforced within the ambit of
inheritance practices falling under customary law in Zimbabwe but
was amended under the Administration of Estates Amendment Act
No. 6/97 to only confine such male heirs to succeed to the
deceased’s name, his traditional heirlooms such as tsvimbo or
intonga (knobkerrie), spear etc. and not valued property which is
shared equally among beneficiaries.
However, the primogeniture rule is still largely observed in
succession to traditional chieftainships under customary law which
is predominantly through the male line.
HEIR
Definition 1:
A person entitled to inherit property and other assets from an individual who
has died, based on the rules of descent and distribution, according to state laws.
An heir is usually the spouse or child of the decedent, but if neither of these
exist, it can be another close relative.
In modern times, the term heir is also used to describe someone who receives
assets according to a person’s will.
Definition 2:
A person who inherits, or is entitled to inherit, all of the property or other
assets, of a deceased person, based on their rank or relationship with the
deceased.
HEIR VERSUS BENEFICIARY
While the terms heir and beneficiary are often used
interchangeably, they are actually two very different things.
An heir automatically inherits A Beneficiary inherits money or property as
based on lineage. stated in a last will and testament, regardless
of the fact that the will’s contents may not be
No will is required for an heir to the same as the state’s laws of succession;
inherit a decedent’s assets. Only requirement is that the will should not
be contra bonos mores & should be compliant
Each state has specific guidelines with Constitutional provisions.
for the order in which family
members inherit under “intestate In this way, leaving a will overrides the
succession.” natural succession of heirs, allowing the
deceased to decide who inherits what from
his/her estate.
TYPES OF HEIRS: HEIR APPARENT
Term heir apparent is used in relation to an individual’s position in a line
of succession to a title or position, most commonly in royalty.
An heir apparent is the person first in line of succession, and cannot be
replaced or moved down the line while still living.
Term sometimes used in reference to an heir to an individual’s large estate.
Usually this would be the individual’s oldest child, who is set to inherit a
large amount of financial and property assets, and perhaps business
interests as well.
In many Royal circles, the title of “crown Prince” is given to the heir
apparent to the throne.
HEIR PRESUMPTIVE
An heir presumptive holds his/her position only so long
as a true heir does not come along to bump his/her
position down on the list.
If a rich but childless man has named his nephew, as heir
presumptive, then two years later, he has a biological
child of his own.
This biological child becomes heir apparent, moving the
nephew down on the list of succession.
COLLATERAL HEIRS
Collateral heirs are the decedent’s siblings and parents.
If deceased person was not married when he died, and did not have living children, most
state’s laws place the decedent’s parents next in the line to inherit his estate.
If parents are also deceased, the siblings are next in the line of succession.
In the event more than one collateral heir exists on the same level of succession, the property
is commonly divided equally per capita.
Example: Ralph dies and is survived by a brother and two sisters since both his parents pre-
deceased him.
Ralph had long been divorced and had no children.
Ralph’s assets will be divided equally among his brother and two sisters, each receiving one-
third of his estate.
ORDER OF SUCCESSION OF HEIRS
An heir inherits someone’s estate because he or she was related to the deceased person.
Inheritance might be through a specific gift listed in the deceased person’s will, or through intestate
succession.
People considered to be heirs are blood relatives, including:
Spouse
Children, both biological and adopted
Parents
Siblings
Nieces and nephews
Aunts and uncles, by blood relation
Cousins
Grandparents
 WHO IS A
BENEFICIARY OF A
WILL?
A beneficiary is an individual or entity
to whom a deceased benefactor or
testator bequeaths real &/or personal
property, cash or other assets.
A will defines a testator's
intended beneficiaries & the
inheritance they are to receive.
Inheritance should not be contra bonos
mores (contrary to public morality.)
FIDEI COMMISSARY SUBSTITUTIONS
A fidei commissary substitution relates to the substitution
of another heir or donee by a fidei commissum or direction
that the original heir or donee at his death or upon some
state event or condition transfer the inheritance or gift or a
part thereof to the substituted heir or donee
a gift of property by will or gift inter vivos wherein the
donee (as an heir of the testator or an heir of such person) is
directed and under a duty to transfer the property to
another or other persons designated as donees
 FIDEI COMMISSARY (2)
This occurs when a testator leaves property to someone else
(fiduciary) on condition when the fiduciary dies the property
will be handed over to another person (3rd party known as the
fidei commissary)
The parties in a fidei commissary are the testator, the fiduciary
& the fidei commissary
2 Types of fidei commissums
Conditional
Future date
 EXAMPLES OF FIDEI COMMISUMS

Conditional: This depends on the occurrence of a future condition

e.g. “I leave my house to my son Garikai but if he migrates with no
intention to return, the house will go to my son Peter.”
Garikai may or may not migrate. Peter will only get the house on
condition that Garikai migrates.
Future Date: e.g. “I leave my farm to my wife Rudo & after 15 years
it must pass on to my daughter Rugare.”
The requirement is that Rugare must be still alive in the 15th year.
If not, the farm remains with Rudo and when she dies, it forms part
of her estate.
DEPENDANT
Sect. 2 (Interpretation Section)of the Deceased Persons
Family Maintenance Act [Chapter 6:03] states that;
“dependant”, in relation to a deceased, means;
(a) a surviving spouse;
(b) a divorced spouse who at the time of the deceased’s
death was entitled to the payment of maintenance by the
deceased in terms of an order of court;
DEPENDANT (2)
(c) a minor child;
(d) a major child who is, by reason of some mental or physical
disability, incapable of maintaining himself and who was being
maintained by the deceased at the time of his death;
(e) parent who was being maintained by the deceased at the time
of his death;
(f) any other person who;
 (i) was being maintained by the deceased at the time of his death; or;
 (ii) was entitled to the payment of maintenance by the deceased at the
time of his death;
 LEGATEE
A legatee is any person or entity such as a company or charitable foundation that receives a
gift – whether money, an object, or other benefit – from a will under the terms of a person’s
will.
A legatee need not have any relationship with the person who has bequeathed something to
him or her in a will.
There is, technically, a difference between gifts of real property and gifts of personal
property.
Someone who receives real property from a will is referred to as a “divisee,” and someone
who receives personal property from a will is a “legatee.”
The more correct generic term for anyone who receives any gift pursuant to the terms of a
will is “beneficiary.”
DECEDENT
A person who has died often referred to as the
“deceased.”
Sect. 2 (Interpretation Section)of the Deceased
Persons Family Maintenance Act [Chapter 6:03]
states that,
“deceased” means a person who has died
whether testate or intestate;
 WHAT IS A TESTATOR?
A testator is a person who executes a will.
A testator can personally establish his/her
will or they can also do so on behalf of
someone else e.g. as an attorney or a trusted
relative.
The testator’s name must appear at the top of
the will, indicating it expresses their final
wishes, and must personally sign at the
bottom of the will to execute it.
After testator dies, his/her appointed
executor files the will with the court to
initiate administrative proceedings.
 WHO IS AN EXECUTOR?
When one leaves a will that sets out
what is to happen to their assets
after their death, it is expected that
the will also appoints a person (the
executor) whose role is to sort out
the assets and liabilities and ensure
that the terms of the will are carried
out.
Where there is no will, the Master or
Additional Assistant Master of the
High Court (Magistrate) with the
assistance of the deceased’s relatives
appoint an Executor /Executrix who
in most cases is the deceased’s
spouse.
EXECUTOR
“Executor” means any person to whom Letters of Administration
have been granted by the Master or the Assistant Master in respect
of the Estate of a Deceased Person under any law relating to the
administration of estates,
And includes a person acting or authorized to act under letters of
administration granted outside Zimbabwe but signed and sealed by
the Master or the Assistant Master for use within Zimbabwe, & in
any case where the Estate is not required to be administered under
the supervision of the Master or the Assistant Master, the person
administering the Estate; (Sect. 2 (Interpretation Section) of the
Estate Duty Act [Chapter 23:03])
 TYPES OF EXECUTORS
Executor testamentary: this is the executor who is appointed by the testator in the will. He
is required to complete the acceptance of executorship, and then his appointment must be
confirmed by the master.
Executor dative: This is the executor appointed in an Edict Meeting by the Master when
the deceased has died intestate or has left no will.
The appointment in the will could also be invalidated
The executor may appoint co-executors to assist him.
Executor Dative- where there is no will & is appointed in an edict meeting or by Master
Letters of Admin to be granted to Executor
Revocation of Letters of Admin: This is only effected by the High Court if it involves an
Executor Testamentary
The Master can only revoke Letters of Admin for an Executor Dative.
An Executor may also renounce Letters of appointment as Executor
ROLE & DUTIES OF AN EXECUTOR
There are certain duties that must be carried out by the
executor, which include:
Preliminary tasks (These are performed before receiving of
the letters of admin or appointment and they are:-
Attending to funeral arrangements;
Notifying any banks, insurers and other organisations of the death;
Ascertaining and taking control of assets;
Identifying beneficiaries and their entitlements;
Obtaining the grant of the court;
 EXECUTOR’S ROLES & DUTIES (2)
Other preliminary tasks involve the following;
 To interview the family of the deceased as soon as possible after the death (This is
to obtain important information that may help in the administration of the
estate. e.g. locating the will etc.)
 To complete the death notice
 Complete the inventory with estimated value of the deceased entire estate
 Acceptance of executorship
 Both the inventory and the acceptance of executorship must be sent with the copy
of the will to the Master
 Attending to payment of all estate liabilities, settling any disputes and paying any
income tax liability;
 EXECUTOR’S ROLE & DUTIES (3)
Distributing assets to beneficiaries, either by the transfer of the assets or
by distributing money received from sale of the assets;
Investing funds or managing assets of the estate on behalf of the
beneficiaries before distribution; and
Ensuring any property which is held in trust (for example, for life
beneficiaries) is kept in good repair, insured and that rates and taxes are
paid.
Preparing a financial statement setting out the assets of the estate and
their distribution
At this stage the executor can determine the estate’s assets and liabilities,
finalise the accounts and completing the administration process
 BEQUEATH/ BEQUEST
To “bequeath” is to leave (property) to some other person or beneficiary by way of a will.
Legally speaking, this is to “dispose of Personal Property owned by a decedent at the time of
death as a gift under the provisions of the decedent's will.
The term bequeath applies only to personal property. For a testator, to give real property to
someone in a testamentary provision, devises it.
A bequest is a financial term describing the act of giving assets such as stocks, bonds,
jewelry, and cash, to individuals or organizations, through the provisions of a will or an
estate plan.
Bequests can be made to family members, friends, institutions, or charities.
LEGACY

A legacy refers to an amount of money or property left to

someone in a will.
Historically, legacy referred to either a gift of real property or
personal property.
The term has also been used to describe the social goodwill
capital that an heir inherits from a famous or legendary
parent/benefactor e.g. musician, artist etc.
 LEGACY VS BEQUEST
Legacy and bequest are two legal terms that are often used to discuss the last
will of a person.
Both legacy & bequest refer to a testamentary gift of personal property be it an
amount of money or personal property.
However, legacy is often used to refer to a gift of money whereas bequest
usually refers to personal property.
Although this appears to be the key difference between legacy and bequest,
these two are synonyms and can be used interchangeably in legal language.
There are different types of legacy/ bequest such as specific, general,
demonstrative, residuary, etc.
 ESTATE
The term “Estate,” refers to all the money and property owned
by a particular person, especially at death.
An estate, under common law, is the net worth of a person at
any point in time alive or dead.
It is the sum of a person's assets – legal rights, interests and
entitlements to property of any kind – less all liabilities at that
time.
The term is also used to refer to the sum of a person's assets
only.
 NET ESTATE
Net Estate is defined in the Deceased Persons
Family Maintenance Act [Chapter 6:03] as;
“net estate”, in relation to a deceased, means all
the property of his deceased estate which, but for
the provisions of this Act, would be available for
distribution to his heirs and legatees;
(See Section 2 (Interpretation Section))
CODICIL
A codicil is an additional or supplementary document that amends, modifies,
or revokes an existing will or becomes part of one BUT does not replace it.
It allows you to change your will without making an entirely new will, and
must be signed in the exact same way as the will was signed (although the two
witnesses do not have to be the same two people that witnessed the original
will).
With a codicil, anything can be amended in the will examples which include
the personal representative, executor, beneficiaries, or any other part of the
estate transfer.
One needs to take note of the Sections & language that need to be changed
since it is a requirement that the specific sections be referenced in the Codicil.
END