Estate planning: An important gift you can give your family
Although the Constitution of Zimbabwe contains provisions that aim to protect children’s property and inheritance rights, the reality is that many children are not able to protest violations of their rights due to inadequacies of the prevailing laws.
FIRST LADY Auxillia Mnangagwa and her team of legal experts have been to several provinces where they initiated programmes on inheritance to educate widows and orphans about their rights. This follows sad stories of how women and orphans lose property upon the death of their husbands and parents.
The First Lady’s office has also been inundated with complaints from widows and orphans ejected from their properties.
The programmes, which were conducted in Harare, Midlands, Masvingo, Mashonaland Central and West provinces have seen women coming out in their numbers.
Research has shown that children and women in the country suffer property confiscations, and urgently require recognition of their property rights at law and in practise.
The Legal Resources Foundation (LRF) published a pamphlet in 2013 titled “INHERITANCE Under Customary Law & General Law”, highlighting that where there is no will and the General Law of Inheritance is applicable, and “if there is a surviving spouse and no children, the house and the property go to the spouse”.
The issue of inheritance is also a problematic where children born out of wedlock are involved, as they are often denied the right to their father’s property.
Section 56 (3) of the Constitution outlaws discrimination in a specific manner.
It reads: “Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status or whether they were born in or out of wedlock.’’
A person or a child should not be discriminated against and deprived of rights which are accorded other people simply because they were born of parents not married to each other. The choices, mistakes, folly or circumstances of parents should not be used against children born out of these relationships.
Indeed, the prevailing common law position where some children were seen as lesser beings was outlawed as it violated the Constitution.
Children are recognised as the first in line to inherit from their parents.
Their inheritance rights are often considered to be realisable only when they reach adulthood.
They would then directly own and decide over the property left to them by their deceased parents. Until this time, the family members that would assume care for them would also manage their assets.
In some instances, relatives who agree to take care of orphaned children, and are also responsible for administering their inheritance, often appear to abuse their position by selling part of the assets or deriving personal benefit from their management — for example, by renting out the house or leasing the land.
Although the Constitution of Zimbabwe contains provisions that aim to protect children’s property and inheritance rights, the reality is that many children are not able to protest violations of their rights due to inadequacies of the prevailing laws.
In most cases, laws fail to adequately specify children’s rights or the means to enforce their rights.
In general, children are not in a position to use either customary law or statutory law to their advantage because of barriers commonly encountered.
Most children are faced with challenges in claiming their inheritance as some of them are not fully aware of their rights.
They are unable to pursue their prop- erty claims before their deceased parents’ property is permanently alienated.
They are of lower status and power than their competitors, who are often their guardians. They are also not permitted at law to pursue their property claims on their own, and are unable to meet the logistical and legal costs of pursuing their property claims.
One of the major issues that have been ignored traditionally is the inheritance by daughters.
A girl child is marginalised at all times on issues of inheritance. Their biggest perceived disadvantage is that on marriage, the daughter assumes the name of the husband and the offspring follows the bloodline of the father.
Consequently, the family tree, which normally builds itself around the sons, would be broken. It is also feared that the wealth or other traditional positions held would then pass on to a different family.
The Bible provides an answer to daughters’ rights to inheritance.
God elevates daughters ahead of the deceased’s brother or any other relative, in the absence of an heir.
The scriptures proclaim that a daughter can be an heir as well. The book of Numbers 27v 8-11 quotes God’s law on inheritance: “Say to the people, ‘if a man dies and has no son, then you shall cause his inheritance to pass to his daughter.
“If he has no daughter, then you shall give his inheritance to his brothers. If he has no brothers, then you shall give his inheritance to his father’s brothers.
“If the father has no brothers, then you shall give his inheritance to his kinsman that is next to him of his family, and he shall possess it. It shall be to the people a statute and ordinance as the Lord commanded Moses.”
It is, therefore, clear that all children are born equal before God and should be treated likewise.
The mother’s rank to the father is irrelevant. Every child born of the same father should be treated as if born of one mother also. Every child should equally benefit at inheritance, irrespective of the mother’s status to the father.
Master of the High Court Mr Eldard Mutasa is on record emphasising why it is important for people to be acquainted with deceased estate laws.
He rightly puts it that it was a criminal offence for family members to distribute property of the deceased other than clothes, without the approval of the Master of the High Court.
Mr Mutasa said the law dictated that people should register deceased estates within 14 days, while failure to do so is a crime.
He said an estate can still be registered without a death certificate.
This law will help children and spouses who are supposed to inherit the deceased’s property.
It is important for property holders to write wills as they can help their children and widows after their death.
A will specifies the method to be applied in the management and distribution of the deceased’s estate.
It is a legal instrument that permits a person, the testator, to make decisions on how an estate will be managed and distributed after death.
Estate planning is an important and everlasting gift you can give your family.
And setting up a smooth inheritance isn’t as hard as you might think.