Making Wills under the Laws of Malawi

Introduction

Personal asset management is very important in our daily personal lives. However, there is little or no information readily available to the general public regarding personal asset management. This article has been prompted by the heart–rending story of Thandikile Jumbe which appeared in The Nation of Friday, 2 November, 2012. Thandikile is now a destitute young lady despite the fact that her father duly provided for her well–being in his Will. Thandikile’s story – and there are many other similar stories – reveals the danger that a beneficiary may still face if a personal asset management system is inefficient.

 There have been subsequent newspaper columns on the making of Wills that have been published for general public consumption. These initiatives have to be commended. However, there is more that may be said about Will–making than has been forthcoming so far.

 First, what do I mean by ‘personal asset management’? I define personal asset management here as a system of maintaining or disposing of assets that belong to you, as an individual, in the most cost effective way. An asset can be tangible or intangible. Tangible assets refer to things like a house, a motor car or a pair of shoes. Intangible assets refer to things like stocks, shares, intellectual property or business goodwill. Asset management is, primarily, guided by law and complemented by policy or best practice.

 I suggest that there are three ways relating to maintenance or disposal of personal assets: The first way is through gifts you may make during your lifetime. The second way is through the creation of a settlement trust. Finally, you may make (or write) a Will. In this article, I share some fleeting notes on the writing of Wills under Malawi law. These notes cover the following questions: What is a Will? Who can write a Will? Why is a Will necessary? When should you write a Will? Can you change or amend a Will? How may you distribute your assets under a Will? Who are Executors? Are there any formalities in the writing of Wills? What language may you use in writing your Will? Where can you keep your Will?

Before I answer these questions, let me point out that in Malawi, the writing of Wills is guided, primarily, by the Deceased Estates (Wills, Inheritance and Protection) Act (the ‘Deceased Estates Act’). The Act was passed in 2011 and replaces the Wills and Inheritance Act which was repealed by Parliament in the same year. Until its repeal, the Wills and Inheritance Act had been the law of the land in relation to deceased estates since 1967.

What is a Will?

 A Will is the document that contains your wishes regarding the distribution of your assets when you are dead. In other words, as the author of a Will, you are able to exercise control over your assets even after your death. Under the law, your wishes must be put in writing for them to be followed after your death.

Hence, under a Will, you make a legal declaration which nominates persons to manage your assets and contains instructions on the transfer of such assets to named beneficiaries upon your death.

Formalities in making a Will

A Will must be in writing. It can be handwritten or typed. If handwritten; it is advisable that you use an ink pen and not a pencil. A Will must be signed by the author in the presence of two witnesses, who must sign the Will in the presence of each other. These three persons are in one place when a Will is signed. This formality where the author and the witnesses sign the Will is called ‘attestation’ at law. Attestation is what makes a Will valid. The witnesses are witnesses to the fact that the author has signed his or her Will in their presence. They are not witnesses to the contents of the Will. In fact, witnesses must not know what the contents of a Will are. The witnesses must not read the Will. Hence, I dare say that you do not always need a lawyer to write a Will on your behalf. As long as you follow the formality of attestation, your wishes once put in writing, and two individuals are witnesses to your signature; those written wishes constitute a valid Will under the Deceased Estates Act.

The question arises: Who may be a witness for purposes of attestation under the Deceased Estates Act? The law states that a person may be a witness if he or she is not insane and is at least 18 years old. Generally, a witness or his or her spouse may not benefit under a Will. It is not a requirement under the Deceased Estates Act that a witness to a Will must be a lawyer. However, if a witness is a member of the immediate family of the author of the Will, the witness will not lose his or her benefit under the Will if it is shown (usually before a court of law) that there was no other competent person to witness the Will; that his or her benefit under the Will is a fair one; and that there is no evidence of fraud or other suspicious circumstances. Otherwise, a member of the immediate family loses his or her benefit under a Will if any of the scenarios that I have described are proven. ‘Immediate family’ refers to a spouse and children of an author of a Will.

Who can write a Will?

Under the Deceased Estates Act, the following persons may write a Will:

a)        A person who is 18 years old and is not insane;

b)        A person who is below 18 years old and is not insane and he or she is lawfully married;

c)        A person who is between 14 and 18 years old and is not insane and he or she heads a household; or

d)        A person who is below 18 years old and is not insane and he or she holds property in his or her own right.

The law takes into account the Constitution and other laws in outlining the categories of individuals who have the capacity to write a valid Will. The law also takes into account the socio–economic and cultural reality in Malawi where there are child–headed households.

However, we must note that Judges and lawyers interpret ‘insanity’ very narrowly and technically. The test for insanity among Judges and lawyers is that if you are so deranged that you do not know the nature or quality of your actions then you are insane. If you are insane according to the law, you cannot write a valid Will. Hence, the critical time for your sanity, as the author of a Will, is at the time of the writing and signing of the Will. All other times are irrelevant. It is possible, therefore, for you, as an author of a Will, to be (legally) sane at the time of writing and signing of the Will but later on to be considered (legally) insane. Your subsequent insanity will not invalidate your Will if it is proven that at the time of the writing and signing of your Will, you were actually sane.

Why is a Will necessary?

If you die without leaving a valid Will, the law requires that part of your assets should be distributed to your immediate family and your dependants. A person may have more than one spouse. In that case, all spouses must be considered for the distribution of the assets. The definition of ‘children’ under Malawi law includes those that are born outside wedlock. Remember that the Constitution does not allow discrimination of children on account of circumstances of their birth.

Where there is no Will, the distribution of the property under the estate of the deceased person can be acrimonious. It can be quite an ugly affair. Under Malawi law, this has led to the development of a crime loosely called ‘property grabbing’. I return to crime of property grabbing below.

A Will ensures that those people you want to benefit from your estate will indeed benefit and militates against squabbles. As we shall see below, you can choose the persons who shall see to it that the wishes in your Will are indeed carried out. Such persons are called ‘Executors’ of your Will. You can also give property to your beneficiaries subject to conditions that you may wish to impose. With a Will, you can be more confident that what you want to happen after your death regarding your assets actually does happen.

Language and Format of a Will

A Will can be in any language; English, ChiChewa, ChiTumbuka; ChiYao or whatever language you are comfortable with. Keep the language in your Will as simple as possible. In fact, the law states that it is not necessary to use technical words or terms of art in a Will. What is important is that it must be clear from the language you use in your Will what your intention is regarding the distribution of your assets.

Further, a Will can be in any format. What is important is that you must be at least 18 years old and sane when you write your Will; your signature to the Will must be witnessed by two witnesses who must be at least 18 years old and sane; and the three of you must sign the purported Will in the presence of each other. A Will is, therefore, not valid because of high sounding language like ‘Last Will and Testament of Chikadzakuwani’ or ‘heretofore’ or ‘bequeath’; etc. Such language simply displays your vanity. Keep the language in your Will simple. In fact, use everyday language.

Where can you keep your Will?

A Will must be kept in a secure place because you may not want people to read the Will (at least when you are still alive). The law provides that a Will can be kept at the High Court, a magistrate’s court (limited to a first grade magistrate’s court), a bank, an insurance firm, a pension fund administrator’s office, the District Commissioner’s office, a law firm, or at your employer’s office. Indeed, you, as the author of the Will, may keep a copy of the Will yourself; or with your close friend. It is good practice to make copies of a Will in triplicate. It is also prudent to keep a back up copy of your Will. It is important to tell your executors of the existence of your Will and where it is kept. If you cannot tell the executors of the existence of your Will, you should at least tell a close relation or a trusted friend so that the Will is indeed opened and read after your death.

After your death, the Will must be opened by the Registrar of the High Court and read in the presence of all those concerned. The Registrar opens the Will only when he or she is satisfied of the death of its author. A Death Certificate will probably be required to convince the Registrar that the author of the Will he or she is about to read – you – is indeed dead. Hence, you should to tell those close to you that they should obtain a Death Certificate when you die.

When should you write a Will?

You should write your Will yesterday. Do not say I will do it tomorrow because you do not know whether you will be alive tomorrow. Indeed, do not say I am not that rich to write a Will. Being ‘rich’ or ‘poor’ is not a yardstick for writing a Will. What is important is that you want to put your wishes in writing on how your assets shall be distributed upon your death.

Changing or Amending a Will

You can change your Will at any time. A subsequent Will revokes an earlier Will. Thus, if you want to change your Will for whatever reason, you can just write another one and destroy the old one.

If you marry, any Will made before the date of the marriage is revoked by the marriage unless the Will is expressed to be in contemplation of that marriage. However, even in the case where a Will has been revoked because of a marriage, if you want to maintain the manner of the distribution of your assets contained in the Will which has been revoked because of the marriage, you can simply write another Will where you re–confirm your wishes on the distribution of your assets.

Divorce also affects the validity of gifts made under a Will which was written during the existence of a marriage. Divorce has two effects: First, any gift made by the author of a Will to a spouse is automatically revoked once the divorce takes effect. Second, the appointment of a spouse as an executor, trustee or guardian under a Will is automatically revoked once the divorce takes effect.

It is advisable to go through your Will every year (maybe on New Year’s Day) to check that it still contains your wishes regarding the distribution of your assets; especially if some circumstances have changed. Circumstances may change because your wishes have changed, or you have acquired new assets.

Any alteration in a Will has to be signed for by you, as the author, in the same way that you signed your Will; with two witnesses present. It is better not to make alterations on the Will itself. Minor changes to the Will can be done through a document amending your Will called a ‘codicil’. A codicil is a separate document which is attached to the original Will. For major changes, it is better to revoke the old Will and draw up a new one.

Distribution of Assets

The first thing is to list down all your assets. This refers to houses; motor vehicles; household goods like furniture, cutlery, home entertainment electronic equipment, etc; insurance policies; clothes; shoes; certificates of shares and stocks; etc. Second, take note of all your liabilities. Liabilities such as bank loans and estate duty have to be paid first before distribution of the estate. What remains of the estate after these payments is what is actually distributed. Third, once a list of your assets is in place, you should draw up a list of beneficiaries; which person gets which asset.

Take note that the Deceased Estates Act does not apply to any benefit or entitlement of a deceased person occurring under a pension fund. This is the case because such benefits or entitlements are governed by the Pension Act which was also passed in 2011. This means that you cannot distribute your benefits or entitlements under a pension fund through a Will. Distribution of benefits or entitlements under a pension fund must be made through a nomination form which will ordinarily be kept by your employer. Just as it is important to periodically review your Will, it is also important to periodically review your nomination form to take into account any changes in your personal circumstances.

Who are Executors?

Executors are the people who make sure that your wishes (expressed in your Will) are carried out. A Will should contain a clause appointing executors. In short, an executor is an administrator of a deceased estate. The Deceased Estates Act states that there must be between two and four executors. Executors must be at least 18 years old and must not be insane. A limited company, a corporation and a trust corporation are persons at law and can therefore be executors.

It is not unlawful for executors to get benefits under the Will. Hence, executors may benefit under a Will if you, as the author of a Will, gave them some asset.

Executors play a very important role in ensuring that your wishes as contained in your Will are carried out. It is therefore very important that you must choose reliable and trustworthy people as executors. Your employer; your spouse; brother, sister or other close relation; your lawyer, accountant or other professional; or indeed your best friend, can be good choices of executors. Lawyers, accountants or other professionals may charge for the services they render as executors. Commercial banks also provide executorship services at a fee.

An executor has a duty to account to the beneficiaries under a deceased estate on how the assets under the estate are being managed. The Deceased Estates Act states that the Minister shall make rules on the manner of the reports or updates from executors to beneficiaries.

An executor commits a crime if he or she deprives a beneficiary under an estate of the property or a share of the property to which that beneficiary is entitled. The punishment for the crime is a fine of up to MWK1 million and imprisonment for 3 years. Hence, for example, in the dreadful story of Thandikile Jumbe, the question that arises is: To what extent were the executors of the estate of Thandikile’s deceased father accountable to Thandikile as a beneficiary? If a deceased estate gets depleted, and it is clear that the beneficiary did not take any benefit, then the executor of that estate has a lot of questions to answer. Indeed, if there is evidence that the executor deprived a beneficiary under a deceased estate that beneficiary’s benefit, the executor is committing a crime. Such an executor must be reported to the police, the Director of Public Prosecutions or the Administrator General for possible criminal prosecution.

The Issue of Property Grabbing

It is important to make Wills during your lifetime as this helps to guard against the squabbles that may erupt in relation to the distribution of your estate upon our death.

Where a person takes property belonging to an estate which property he or she is not entitled to he or she commits a crime. A person also commits a crime if he or she prevents beneficiaries under a will from accessing their benefits under a Will. In this country, this crime has come to be known as ‘property grabbing’. Such a person must be reported to the police or the Director of Public Prosecutions or the Administrator General. The police are obliged to prosecute such person before a court of law. If a court of law finds such person guilty, he or she will be sent to prison. Relatives can commit the crime of ‘property grabbing’. Hence, relatives must also be reported to police or the Director of Public Prosecutions or the Administrator General where they take property under an estate beyond their entitlement or where they are not entitled at all (for example, if a Will does not include them as beneficiaries under an estate).

The punishment for the crime of property grabbing is a fine up to the monetary value of the property dispossessed from the rightful beneficiaries and imprisonment for 10 years.

Conclusion

Every person should take time and think about how he or she wants his or her assets to be managed. Making a Will is one of the many ways of personal asset management. One of the myths in the public domain is that you need a lawyer to make a Will. This is not true. It is merely a myth. Indeed, on the back of this myth and the ‘fear’ for lawyers’ fees, a lot of people have ended up not writing Wills. I have endeavoured to show that what is important to ensure that your purported Will is indeed valid under the law is that the formality of attestation has been followed.

Let us also ensure that we get rid of any instances of ‘systemic failure’ in the administration of deceased estates. We owe it to the departed who left Wills to ensure that their wishes on the distribution of their assets are followed to the letter. In this way, tragic stories like that of Thandikile Jumbe may not exist.

Finally: Get a pen and a piece of paper. Write your Will now.