Introduction
The High Court of Harare, through Justice Maxwell, in April 2025 delivered a pivotal judgment that nullifies the re-registration of a birth certificate, by deceased father’s close relative, for a child born out of wedlock (whose parents never subsequently married). This ruling carries profound implications for estate planning and the legal entitlements of legitimate heirs. The court determined that the re- registration was unlawful, thereby safeguarding the rights of ‘legitimate’ heirs to an estate.
Summary of the Case
In the matter of Teresiah Mkudu versus Ruvimbo Manyonda and Estate Late Lazarus Mkudu and Registrar General of Births and Deaths N.O and Master of the High Court N.O (2025), the High Court invalidated the re-registration of a birth certificate for a child born out of wedlock (by a close relative of the deceased), directing the Registrar-General to expunge it from the records.
This judgment rendered the birth certificate void, challenging the legality of attributing paternity to a deceased individual almost twenty years posthumously. The contention arose from a disputed inheritance involving the estate of the late Lazarus Mkudu.
Teresiah Mkudu, the applicant, sought a declaratory order to nullify Ruvimbo Manyonda’s birth certificate, issued nearly 20 years after Mkudu’s demise. Teresiah argued that the re-registration of Ruvimbo’s birth contravened the Births and Deaths Registration Act [Chapter 5:02], which permits such re-registration only if the child’s parents subsequently marry.
She asserted that this condition was unmet, as no marriage had transpired between Ruvimbo’s mother and the late Lazarus Mkudu. Ruvimbo, the first respondent, contested the application, defending the validity of her birth certificate based on section 12(2)(c) of the Act. She maintained that the law allowed the registration of a father’s name if requested jointly by the child’s mother and a near relative of the deceased father.
However, Teresiah countered that this provision applied solely to the initial registration of a birth and could not be invoked posthumously, where the alleged father did not acknowledge paternity during his lifetime.
Justice Maxwell ruled in favor of Teresiah, concluding that the Registrar-General’s Office had exceeded its legal mandate.
Key Take-Aways
- Unlawful Re-registration viz Other Available Options
The court determined that the re-registration of the birth certificate was executed in violation of the Births and Deaths Registration Act [Chapter 5:02]. The Registrar-General was instructed to remove the birth certificate from official records. This ruling underscore the necessity of adhering to legal protocols in the registration and re-registration of birth certificates, particularly in inheritance disputes. The judge rightfully indicated that the law did not permit relatives of the deceased father to posthumously acknowledge paternity or invoke legitimation to re-register a birth. Children or their guardians can file petitions in court to establish paternity. The court may consider various forms of evidence, including DNA tests from surviving relatives, affidavits, and historical documentation. The law in other countries such as the United States, United Kingdom, Canada, Australia and South Africa allows for DNA testing from surviving relatives to establish paternity. This is often used in cases where the deceased did not formally acknowledge the child during his life. Courts may order genetic verification through DNA tests on surviving relatives such as parents, siblings, or other children.
- Right to Inheritance
The High Court’s ruling underscores the critical importance of parents taking proactive measures to protect their children’s rights to inherit. In cases where a child is born out of wedlock, the legal recognition of paternity can significantly impact the child’s ability to claim inheritance from the father’s estate. Had the father acknowledged the child and ensured the proper registration of her birth certificate while he was still alive, it would have solidified her legal standing as his heir. This proactive step would have eliminated any ambiguity regarding her status as the deceased’s offspring, thereby preventing potential disputes and legal challenges from another heir or other interested parties. This would have also precluded any questioning of her inheritance rights, as the legal documentation would unequivocally support her status as an heir.
Moreover, the legal framework governing inheritance rights aims to protect legitimate heirs and ensure that estates are distributed fairly and according to the deceased’s wishes. By adhering to these legal requirements, courts can prevent fraudulent claims and ensure that legal rights are upheld, though not always, as ignorance…or procrastination by parents to plan their estates may exclude those with possible ‘legitimate’ claims. This proactive approach not only secures the child’s financial future but also maintains the integrity of the estate planning process. The protection provided by the law works well for the so called ‘legitimized’ heirs and is detrimental to that child which the father failed to acknowledge for whatever reason.
- Clear and Timely Documentation of Paternity
Justice Maxwell dismissed Ruvimbo’s assertion that section 12(2)(c) of the Act allowed for the father’s name to be entered on the birth certificate at the request of the mother and a near relative of the deceased. The judge clarified that this provision applies exclusively to initial registration, not re- registration years after the father’s death without his lifetime acknowledgment of paternity. This decision reinforces the necessity for clear and timely documentation of paternity to avert disputes and ensure the integrity of the registration process. There are instances where the mother hides the child from their father or where the father merely denies the paternity without doing a DNA test, it is therefore critical for both parties to protect the best interests of the child as enshrined in the Constitution.
- Deliberate Estate Planning through Wills and Trusts
In Zimbabwe, both a Last Will and Testament and a Family Trust can play crucial roles in protecting
the rights of a child born out of wedlock. Here’s how each mechanism works:
- Last Will and Testament
A last will and testament is a legal document that allows an individual to specify how their assets should be distributed after their death. Here’s how it can protect the rights of a child born out of wedlock:
- Explicit Inclusion: The Will can explicitly name the child as a beneficiary, ensuring they receive a portion of the estate. This is particularly important to avoid any disputes or claims of exclusion based on the child’s surname.
- Guardianship Provisions: In the case of minor beneficiaries, the Will can appoint a guardian for the child, ensuring that someone trusted by the deceased will take care of the child’s welfare.
- Executor’s Role: An executor is appointed to administer the estate according to the Will. The executor must act in the best interests of all beneficiaries, including children born out of wedlock.
- Legal Protection: The Will provides legal protection against discrimination. Section 56 of the Constitution of Zimbabwe outlaws’ discrimination based on whether a child was born in or out of wedlock, however where a father fails to acknowledge their child during their life, the discrimination is inevitable though unintended.
- Family Trust
A Family Trust is a legal arrangement where assets are held by a trustee for the benefit of beneficiaries.
Here’s how it can protect the rights of a child born out of wedlock:
- Asset Protection: Assets placed in a trust are protected from creditors and cannot be easily
contested. This ensures that the child’s inheritance is secure.
- Non-Discriminatory Beneficiary Designation: The trust can explicitly name the child as a beneficiary, ensuring they receive their share of the assets regardless of their birth status/surname.
- Trustee’s Fiduciary Duty: The trustee has a fiduciary duty to act in the best interests of all
beneficiaries, including children born out of wedlock. This duty is legally enforceable.
- Flexibility and Control: The trust can be structured to provide for the child’s needs over
time, such as education, healthcare, and living expenses, ensuring long-term support.
- Legal Framework and Case Law
The legal framework in Zimbabwe supports the rights of children born out of wedlock but they need to assert their rights through the proper channel: –
- The Constitution of Zimbabwe: Section 56(3) of the Constitution prohibits discrimination based on birth status.
- High Court Rulings: The High Court has ruled that children born out of wedlock have the same inheritance rights as those born within marriage. In the landmark case of Bhila v
Master of the High Court & Others, the High Court ruled that children born out of wedlock should not be discriminated against in inheritance matters. The court emphasized that all children have equal rights to their parents’ estates.
There was therefore need to prove paternity in the current case without invoking section 12(2)(c) of the Births and Registries Act and the rights of Ruvimbo Manyonda could have been protected through the DNA results, as an example, which may have showed relatedness to any of deceased’s close relatives. Failure to utilize the DNA route brings forth questions of genuineness of the claim if not lack of proper guidance and ignorance.
Conclusion
The High Court of Harare’s ruling on the nullification of the re-registration of a birth certificate for a child born out of wedlock has significant implications for estate planning. It highlights the importance of adhering to legal requirements and procedures to ensure the protection of legitimate heirs’ rights. This decision serves as a crucial reminder for deliberate and timely estate planning, the father may have thought that he had all the time to acknowledge his child, but death had other plans. We think we have time and fail to plan our estates whilst we still can.
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.