Estate planning is a critical process that begins with deliberate planning to acquire assets, preserve those assets, and ensure that they are distributed according to one’s wishes in the event of death. It entails deciding what types of assets to acquire, what preservation mechanisms to implement, who will inherit from the estate, who will manage it, and how to reduce taxes and legal complications. The article focusses on the distribution of assets after death. Key topics covered include protecting loved ones, avoiding legal disputes, ensuring fair distribution, minimizing taxes and expenses, and providing for minor children. Several key case laws in Zimbabwe emphasise the importance of estate planning by highlighting the potential pitfalls of failing to have a proper plan in place. The major case law reference is Sibanda v Moyo & Others1.
Summary of Sibanda v Moyo & Others, the Sibanda case
One of the most compelling reasons for estate planning is to safeguard loved ones. Without a clear plan, your family could face legal battles, financial difficulties, and the loss of family assets.
In the Sibanda case, the applicant, Tryphine Sibanda, claimed to have been married to the late Knowledge Moyo. The case also involved the estates of the late James Moyo (her father-in-law), who passed away in 2001, and the late Richard Moyo (her brother-in-law), who died in 2002. Tryphine sued the Master of the High Court for selling the house that had benefited her and her late husband during and after James Moyo’s lifetime. She had resided in this house since her customary marriage to Knowledge Moyo in 1991, located at 864/2 Old Magwegwe (the property in dispute).
Despite the sale of the property in execution of James Moyo’s estate, Tryphine remained resolute about the property and sought to reopen estates that had been settled years ago (estates of James and Richard Moyo, which had resolved to dispose of the disputed property). She claimed that her marriage to Knowledge Moyo entitled her to benefit from James Moyo’s estate. However, the court found that Tryphine did not provide sufficient evidence to prove she was Knowledge Moyo’s surviving spouse. It also concluded that Knowledge Moyo had never made any claims against his father’s estate during his lifetime, and Tryphine failed to demonstrate the basis on which she was representing the estates
1 HB 51 of 2021; HC 2422 of 2019
of Knowledge Moyo and Richard Moyo. She lacked both a cause of action and the authority to initiate the proceedings.
Furthermore, the claims were deemed prescribed by law, as the applicant failed to bring the claims within the required three years after the estate was finalized by the Master of the High Court. Consequently, the case was dismissed.
Failure to Protect Loved Ones
For reasons unknown, the late Knowledge Moyo, despite residing on his late father James Moyo’s property, never asserted any claim to it. He appeared content merely to have a roof over his head and that of his purported wife. Unfortunately, James Moyo had not adequately planned his estate; beyond acquiring the house, he made no provisions for its distribution upon his death. Consequently, the matter had to be resolved through the probate process at the Master of the High Court. This process may not have been equitable for all parties involved, potentially opening the door to legal disputes.
Although Knowledge Moyo may have loved his purported wife, he never took steps to protect her fully by laying a claim on the house. As is often the case, the estate was not registered unless there was an intention to sell the property, leaving no way to lay a claim. As a result, she was left without a place to call home and unaware of her legal rights concerning the disputed property. Her situation was further complicated when the courts questioned her status as the surviving spouse. This scenario is often mirrored in cases involving young children who are left at the mercy of relatives and the law. Without a proper estate plan, they may be ignorant of their rights to remaining assets and could lose their entitlement to properties, especially if the case is decided on technicalities such as prescription.
If we truly care for our loved ones, we must plan for their future after we are gone, rather than leaving them to face the uncertainties of this world. There are instances where individuals apply for guardianship of minor children, not out of love, but to benefit from the estate. Once they have exploited the estate, the children are often left vulnerable and unprotected.
Avoiding Legal Disputes
Estate planning is essential for avoiding legal disputes among family members and beneficiaries. The case of Sibanda illustrates how conflicts can arise over property sales and underscores the importance of adhering to legal requirements. Ignorance of the law is no excuse, and those with legal acumen can exploit the vulnerabilities of actual beneficiaries. Many may be unaware of the processes involved at
the Master of the High Court, particularly children, and those who feign concern for their best interests may act against them.
In some instances, beneficiaries may be led to believe they have a claim to property, only to discover after the death of a key individual that property rights are vested elsewhere. One might question why, in the current case, the estate of the late James Moyo was not disposed of timeously and the disputed property dealt with while both brothers were still alive, and why after benefiting for song it came to light that she had no claim. This is what normally happens in Zimbabwe, people postpone registration of an estate, until its too late to assert rights. Although she fought a losing battle, it incurred costs for everyone involved, especially the unsuspecting purchaser of the disputed property.
To avoid such conflicts, utilizing tools such as a Last Will and Testament or a Family Trust can provide certainty in estate distributions and prevent lengthy legal processes. Even a bona fide purchaser of the disputed property suffers as they await the finalization of the court case to enjoy their investment.
Ensuring Fair Distribution
A well-conceived estate plan ensures that assets are distributed equitably among heirs. This is particularly crucial in blended families or situations with multiple potential heirs. By clearly articulating your wishes, you can prevent conflicts and ensure that everyone, including those claiming rights through them, receives their fair share.
In the Sibanda case, the dismissal was based on technicalities, and the court did not consider Tryphine’s possible reasoning for believing she had a legitimate claim to her father-in-law’s property— the share her husband might have received if he were alive. The distribution of the estate could have benefitted her differently had the father-in-law articulated his wishes in a Will or through another estate planning mechanism such as a Last Will and Testament (and made both sons beneficiaries). The outcomes of court proceedings are unpredictable, underscoring the necessity of a deliberate estate plan.
The Chigwada v Chigwada case2 resulted in an outcry, as many women believed that a civil marriage protected their marital rights to property, unbeknown to them that all marriages in Zimbabwe are out of community of property. This means, despite marriage, parties have separate property rights and are entitled to acquire and dispose of properties in their own names however they wished. The deceased’s
wishes, as expressed in his Will, to have his son from another marriage inherit ahead of his surviving spouse, were honored. This highlights the importance of deliberate estate planning to ensure that your intentions are respected and to avoid potential disputes.
Minimizing Taxes and Expenses
Estate planning is also instrumental in minimizing taxes and other expenses, thereby ensuring that a greater portion of assets is transferred to heirs rather than being depleted by taxes and legal fees. This can be accomplished through various strategies, such as establishing Family Trusts or making charitable donations during one’s lifetime.
In Zimbabwe, many individuals are more familiar with taxes incurred during their lifetime and often overlook the impact of ‘death taxes,’ which can be more substantial than those levied during life. Deliberate planning to minimize these taxes is therefore critical in estate planning.
By proactively addressing these financial considerations, one can significantly reduce the tax burden on their estate, ensuring that their heirs receive the maximum possible benefit. This foresight not only preserves wealth but also provides peace of mind, knowing that one’s legacy is protected and efficiently managed
Providing for Minor Children
Estate planning is crucial for parents with minor children, as it allows for the designation of guardians and the establishment of trusts to secure their future needs. This ensures that your children are cared for and financially supported even in your absence.
In the case of Usore & Anor v Chigwada & Anor3 the applicants sought to be appointed as joint legal guardians of a minor child following the death of the child’s mother. The court found that the appointed guardian had failed to comply with legal requirements and had mismanaged the minor’s benefits. The court emphasized the importance of appointing curator ad litem to protect the interests of the minor child. This case underscores the potential for abuse when guardians are not properly supervised and highlights the need for stringent legal oversight to ensure that the benefits of beneficiaries are protected.
3 HC 757 of 2020; HH 483 of 2020
To safeguard the interests of minor children, instruments such as Family Trusts can be invaluable. These trusts allow for the proper appointment of trustees and the use of investment vehicles to manage and protect the benefits intended for minor children. By establishing a Family Trust, parents can ensure that their children’s financial needs are met and that their assets are managed responsibly, providing peace of mind and security for the future.
In Zimbabwe, where legal complexities and potential for abuse are prevalent, it is particularly important to have a robust estate plan in place. This not only protects the financial interests of minor children but also ensures that their guardians act in their best interests, free from conflicts and mismanagement. Through careful planning and the use of legal instruments, parents can create a secure and stable future for their children, even in their absence.
Conclusion
Estate planning is not merely a privilege for the affluent; it is a necessity for anyone who wishes to ensure their assets are distributed according to their intentions and to shield their loved ones from legal and financial hardships. By dedicating time to meticulously plan your estate, you can secure peace of mind for yourself and your family. In Zimbabwe, where legal complexities and potential for disputes are prevalent, a well-structured estate plan is indispensable. It not only guarantees that your wishes are honored but also provides a clear framework to prevent conflicts and protect the interests of your beneficiaries. Instruments such as Wills, Family Trusts, and the appointment of guardians or trustees are vital components of a comprehensive estate plan. Ultimately, estate planning is about taking proactive steps to manage your legacy and ensure that your loved ones are cared for in your absence. It is an act of foresight and responsibility that transcends wealth, offering security and clarity in an often-uncertain world. By planning for the future, you can leave a lasting impact and provide enduring support for those you cherish.
ABOUT THE AUTHOR
Mercia Monica is a holder of an MBA, LLBS, Diploma in Insurance, Associateship in Insurance and Certificate in Adapt Leadership. She has over 14 years of experience as a Lawyer and Estate Planner. The views expressed herein are exclusively those of the author.