Hilary Muza 
As the world continues to grapple with the Covid-19 pandemic, the death toll continues to rise. As much as the battle continues and numbers are being reined in, the cold fact is people continue to die.
Zimbabwe alone has suffered over 3 900 casualties to date. The question we have to ask ourselves is whether we are doing all we can to ensure that our families are taken care of in the unfortunate event that we should fall victim to the scourge of the coronavirus. It is important to revisit the importance of drafting wills to avoid the problems that bedevil those that are left behind. In this piece, I will explore the various types of wills that one can prepare, detailing the advantages that come with them.
What is a will?
According to the Ontario Supreme Court in Del Grande v Sebastian (1999) 27 ETR 2d 295, a will is a legal document containing a person’s instructions about what should be done with his/her assets after their death. For a will to be valid according to Zimbabwean law, it must satisfy certain requirements laid out in the Wills Act [Chapter 6:06]. These requirements vary according to the type of will one elects to make.
Oral wills
Oral wills are included in the definition of will in terms of section 12 of the Wills Act [Chapter 06:06]. For an oral will it must be viewed as valid according to the testator’s custom or any law to which the testator was subject. For instance, if a testator led a life governed by customary law, then a will made in accordance with custom will be valid. A significant drawback of an oral will is that, despite the ease of making one, the testator’s estate must not exceed ZWL$10 000.
Written wills
Written wills must comply with section 8 of the Wills Act in that the testator must sign each page of the will, the will must be executed in the presence of two witnesses, the witnesses must sign each page or acknowledge their signature on each page.
These formalities exist to ensure that the integrity of the will is beyond question. Making a written will must be a carefully thought out process, especially when it comes to who will draw up the will and sign it as witnesses.
There is a certain class of persons disqualified from benefitting from a written will according to the Act. These are any people who sign the will as a witness to an amendment thereto, any person who signs the will in the presence of the testator, any person who writes out the will or any part of the will that confers a benefit upon them and anybody who certifies the will as being valid.
For this reason, it is a bad idea to have beneficiaries to the will play a part in its making.
This appears to be the intention of the legislature. The Act does make a proviso stating that disqualified persons can benefit from a will only to the extent that they would have benefited had the testator died intestate.
Wills made during a pandemic
On March 17, 2020, Covid-19 was declared a national disaster. This declaration came with the first lockdown measures to fight the disease, which measures have been tightened since then as the pandemic persists.
A will that is made under such circumstances arguably complies with section 11 of the Wills Act, which provides for wills made during an epidemic. Such wills do not have to follow the formalities that generally apply to a written will.
The only requirement for such a will is that it simply be in writing. This dispenses with the need to have witnesses. All the testator has to do is write a will and sign it. Wills made during an epidemic are valid if the testator passes on within a year after making the will. This means that such wills are only valid for a year, after which they will have to be renewed if the pandemic continues or a written will that is compliant with the usual formalities can be prepared. The advantage of preparing a will in terms of section 11 of the Act is that it is easy to do, ensures that the testator’s affairs are in order the same way a written will would, and is easy to amend for as long as it is within the one year period.
Advantages of having a will
At some point in life it is not unusual to come across a family that has been thrown into turmoil because a deceased person did not leave a will. Some seemingly peaceful families can be at each other’s throats before the deceased is in the ground. Some families do not get the closure they need because they have to go through the administrative processes of registering the estate, appointing an executor, compiling an inventory of assets and so on when these things could have been provided for in a will.
The confusion and strife that comes with not leaving a will is all too clear to see. Writing a will allows a testator’s loved ones to easily deal with their affairs and wind up the estate quickly and efficiently.
A will can set out in clear terms who the beneficiaries are, what is to be inherited and who will be executor over the estate among other things. Having these and other issues addressed in a will allows a testator’s family time to grieve.
We are hard wired to want to accumulate as much wealth as we can for our families. We, however, disregard our families’ physical and emotional welfare after we die by not writing wills when we have the opportunity to.
Covid-19 has made it strikingly clear that our time to leave this earth is not within our control. Let us be prepared for the sake of those we leave behind.
Muza is an admitted legal practitioner, conveyancer and notary public. He writes in his personal capacity and is reachable at hilarykmuza@gmail.com and at 0719 042 628.
