Testate and intestate succession Definitions Estate Assets Liabilities Intestate Testate Testator Personal Representative: s44 Cap 60 s24 Cap 59 (a) Executor (b) Administrator Grant of probate: s35 Intermeddler: s65 Cap 60, s 6 Administrator Generals Act Testate succession Did the deceased leave a valid will S6(1) S6(4) S6(2) In another case, Pearson v. Pearson [(1871) L.R.2P. & D.451] the deceased called a man who was illiterate to his room and asked the man to make his mark to a paper, which he did. At the deceased’s desire, the illiterate man fetched his wife who was living in the house and also illiterate. At the request of the deceased she also placed her mark on the same paper. There was no evidence the deceased’s signature was on the paper atthe time the marks were made nor did the deceased in any way explain to the witnesses the nature of the document they had made their marks on. It was held that the execution was not valid as the witnesses did not know the deceased’s name or signature were on that paper before they made their marks as they could not read. S6(3) Capacity to make a will S4 Sound Mind Not a minor Powers of Testator s5 Appoint a guardian Appoint an executor Dispose of property Appoint an executor: who can act S25 S29 S3 See also 36. (1) S44 Powers of the PR Williams v. Holland 1965 1 WLR 739 In that case, a Testator appointed the Plaintiff as one of his executors and gave a particular house to, inter alia, his four children in equal shares. The Will contained a provision that as long as his widow and any of his children made the house their principal residence, the executors were not to sell that house without the consent of all the beneficiaries. The defendant was one of the beneficiaries and was living in the house. The plaintiff, who was a brother of the defendant, as executor gave notice to the defendant to quit and claimed possession for purposes of administration and also claimed rent from the date of the death of the T. It was held that the Plaintiff was entitled to possession for purposes of administration as against a beneficiary and was entitled to rent from the date of the expiration of the Notice to Quit. S45 Duties of PR (1) Possession and Control over Assets (2) Payment of Debts 4. Distribution of Assets Provide an account of distribution Alteration s12 Must be signed for in accordance with s6(1) Wills act Revocation s13 Written Declaration Burning or tearing with the intention Will or codicil that contradicts the existing will Adjustments: s20-24 ISAAC TANTAMENI C. CHALI (Executor of the Will of the late MWALLA MWALLA) v LISELI MWALA (Single woman) (1997) S.J. 22 (S.C.) DIAMOND v THE STANDARD BANK OF SOUTH AFRICA LIMITED (EXECUTOR) AND FOUR OTHERS (1965) Z.R. 61 (C.A.) Mutale v Mubanga and Nyembele (Appeal No. 78 of 2010) [2012] ZMSC 4 (22 January 2012); Jurisdiction: s66 CAP 60 and S43 CAP 59 The High Court See also s64 CAP 60 and s42 CAP 59 REMOVAL S51 CAP 60 and 29 CAP 59 Intestacy: Appointment of PR S15: Appointment of Administrator S15(2): where more than one applies see LINDIWE KATE CHINYANTA v DOREEN CHIWELE JUDITH TEMBO Intestacy: Distribution S5, 6, 7 S8-10 Personal chattels and house to be reserved for spouse and children See Musopelo (administrator) and Others v Hardson Musopelo (2012/HP/0808) [2014] ZMHC 5 (27 January 2014); See also Phiri v Phiri defining beneficiary contrast with CHARITY OPARAOCHA Vs WINFRIDA MURAMBIWA (2004) Z.R. 141 (S.C.) Duties and Powers s19&24 Phiri (Administratrix) v Phiri and Another (Administrator) (2013/HP/0593) [2014] ZMHC 9 (13 February 2014); LINDIWE KATE CHINYANTA v DOREEN CHIWELE JUDITH TEMBO
