STUDENTS’ COVER PAGE UNIVERSITY OF LUSAKA School: LAW Degree Programme: Bachelor of Laws Course name and Code: probate and succession L Assignment No.1 “Student’s Surname: Longwe Student’s First name: Kapembwa Student number: LLB18110063 Mode of Study: FULLTIME E-mail Address: kapsylongwe@gmail.com Phone Number: 0978187254 Lecturer’s name: Mrs. Pupwe Due Date: 10th September, 2021.” The first issue to be considered is whether or not the deceased’s adult children are entitled to an inheritance from the estate? It should be noted that the deceased died without leaving a Will, “a Will is a legal expression or declaration of a person’s mind or wishes as to the disposition of his property to be performed or take effect after his death”1, therefore the law that will apply in this case is the law on intestate succession2. Succession can be defined to mean; “inheritance, the right to inherit, the order in which inheritance is bequeathed and the condition precedent under which one can succeed another”3.“Intestate succession is the succession of an heir at law to the property and estate of his ancestor when the latter has died without leaving a Will, or leaving a Will which has been annulled or set aside”4, in this jurisdiction, Intestate succession is governed by the intestate succession Act5. Beneficiaries of an estate are the people upon whom the deceased’s estate can be divulged. The intestate succession Act in section 56 provides that the estate of a deceased who died without a will shall be distributed to his/her spouse, children, parents, and dependents in prescribed portions. In addition, section 37 defines a child to mean a child born in and out of marriage, an adopted child, and a child who is born but not yet conceived. Therefore, since the Law does not stipulate the age of a child when defining a child, it therefore implies that even the adult children fall under the auspices of section 5 and can benefit from the estate of the deceased. In addition, it matters not that the children were from an earlier marriage as a child includes one born outside a marriage. The second issue is whether or not the jointly owned farm in kabwe is a part of the deceased’s estate. The Act8 defines estate as meaning “all the assets and liabilities of a deceased, including those accruing to him by virtue of death or after his death and 1 Thomas v House Section 4 of the intestate succession Act. 3 Kerridge R. Parry & Kerry: The Law of Succession, 12Ed (London, Sweet & Maxwell 2009) Page 1 4 ibid 5 Chapter 59 of the Laws of Zambia. 6 Ibid. 7 Intestate Succession Act. 8 Ibid. 2 for the purposes of administration of the estate under Part III includes personal chattels.” “The law in the Lands and Deeds Registry Act9 recognizes two forms of co-ownership; namely joint tenancy and tenancy in common. The right of survivorship determines what happens to a certain type of co-owned property after one of its owners dies, it was originally a right at Common Law, however, it is recognized by statute as indicated10. Under law there are many kinds of co-ownership, but the right of survivorship is found only in joint tenancy, it is defined as a contract between two or more parties specifying their simultaneous ownership of some form of real or personal property such as a house, land, or money. In all joint tenancies, at the death of one of the joint tenants, ownership of the remaining property passes to the surviving tenants. This is a powerful legal right because it takes precedence over other claims upon the property.”11 What this entails is that the farm which was owned jointly by the deceased, Mr. Phiri, and his friend Mr. Kabwe will pass to the surviving owner, Mr. Kabwe and will therefore not be devolved as part of Mr. Phiri’s estate. The third issue is whether or not the shop owned by the deceased Mr. Phiri and Mr. Kabwe will form part of the deceased’s estate? “The law on tenancy in common stipulates that there no rights of survivorship. This means that if two individuals are tenants in common and one of them dies, the dead co-owner’s share does not to go the living co-owner. Rather, the deceased’s share goes to the party selected in his/her will or his beneficiaries where he dies intestate.12” In a Tenancy in Common, the shares in the property may be of unequal size, and can be freely transferred to other owners both during the owner's lifetime and through a probate. Even if owners own unequal shares, all owners still have the right to occupy and use all of the property, this includes the right to devolve the property. 9 Section 51 of chapter 183 of the Laws of Zambia ibid 11 Accessed at https://law.jrank.org/pages/9882/Right-Survivorship.html 12 Accessed at https://www.legalmatch.com/law-library/article/co-ownership-legal-issues-with-jointly-ownedproperty.html 10 Therefore, the shop owned by the deceased and Mr. Kabwe will be will form part of the deceased estate in accordance with the percentage that he owned in the property. In summation the deceased’s estate includes two farms, six shops and whatever percentage was owned by the deceased in the shop which he co-owned with Mr. Kabwe, as tenants in common. Furthermore, due to the fact that he died intestate, the estate will be devolved in accordance with the provision in the intestate succession Act, under which his children are to inherit 50% in equal shares and the wife gets 20%. It matters not the age of the child or whether or not one is a child of the marriage as explained in section 3. In conclusion the estate should be administered and distributed as provided in section 5 of the intestate succession Act13. 13 Chapter 59 of the laws of Zambia. BIBLIOGRAPHY STATUTES Intestate succession Act, chapter 59 of the Laws of Zambia. Lands and Deeds registry Act chapter 83 of the laws of Zambia. CASE LAW Thomas v House 145 Va. 742. BOOKS Kerridge R. Parry & Kerry: The Law of Succession, 12Ed (London, Sweet & Maxwell 2009). INTERNET SOURCES https://law.jrank.org/pages/9882/Right-Survivorship.html accessed on 6th September, 2021. https://www.legalmatch.com/law-library/article/co-ownership-legal-issues-with-jointlyowned-property.html accessed on 6th September, 2021.
