By Andrew Nyamayaro
Making a Will in Zimbabwe during an epidemic Zimbabwe like most countries in the UK is under a lockdown due to the impact of the Coronavirus COVID 19. WHO declared Covid 19 to be a pandemic and will this affect the execution and validity of a Will done during the pandemic?
Further, the Chief Justice of Zimbabwe issued practice direction 1 of 2020 in light of the Covid 19 national lockdown. Effectively the operations of the courts have been by and large scaled down.
The question is whether a Will made during the COVID 19 lockdown has been made during an epidemic and if so, is it a valid Will. An epidemic is a disease that affects a large number of people within a community, population or region.
A pandemic is an epidemic that spreads over multiple countries and continues. In Zimbabwe a few infections and deaths have been reported but worldwide the numbers have been huge.
S11 of the Wills Act Chapter 6:06 state:
11 Wills made during epidemics
(1) In this section— “appropriate official” means the Master of the High Court or any other member of the Public Service responsible for ensuring that the estate of a person who has made a will during an epidemic is properly administered and distributed; “epidemic” means a greatly increased incidence of an infectious or contagious disease which results in the deaths of large numbers of persons in Zimbabwe or in any area within Zimbabwe.
(2) Any person who is within an area affected by an epidemic may during the epidemic make a will without complying with any formalities whatsoever, except that the will shall be in writing, and may in like manner during the epidemic make any amendment in such a will.
(3) A will made during an epidemic shall be valid if the testator dies within one year after making the will.
(4) A will made during an epidemic may be accepted by an appropriate official without a court order for the purposes of the administration of the testator’s estate, if the will has been signed by the testator and the appropriate official is satisfied that the will is a valid will made during an epidemic.
(5) If a will made during an epidemic has not been signed by the testator, an appropriate court may on application, if satisfied that the will is a valid will made during an epidemic, direct an appropriate official to accept the will for the purposes of the administration of the testator’s estate.
(6) Any person aggrieved by— (a) an acceptance by an appropriate official of a will made during an epidemic; or (b) a refusal by an appropriate official to accept a will made during an epidemic; may make application to an appropriate court for an order setting aside such acceptance or refusal, as the case may be, and the appropriate court may confirm or set aside the acceptance or refusal, as the case may be, and may make such other order in the matter as it thinks appropriate.
(7) Notice of any application to— (a) an appropriate official to accept a will made during an epidemic in terms of subsection (4); or (b) an appropriate court for an order in terms of subsection (5) or (6); shall, unless the appropriate court otherwise directs, be given to any spouse and intestate heir of the testator and also to any person who may be entitled to a benefit under any previous will made by the testator, if such previous will is known to exist.
It is my humble submission that a Will made during the Covid 19 national lockdown is made during an epidemic and is therefore a valid will for the purposes of execution if made in terms of s11 of the Wills Act Chapter 6:06. The Will is valid for one year.
It is also advisable to make sure that a properly drawn Will is executed if the Testator has capacity after the epidemic but before they die. The other challenge in executing a Will is that as part of lockdown requirements we are supposed to observe social distancing.
That means your witnesses have to observe you sign your Will at a two metres distance. Is that possible for the witness to observe the testator signing or maybe the government and/or Law Society of Zimbabwe has to come out with a guidance.
However, if it is accepted that a Will made during the Covid 19 pandemic is made in terms of s11 of the Wills Act Chapter 6:06 then all other formalities are not necessary as long as it is written down. Another question that might arise is whether a person seriously ill from COVID19 has capacity to write a will?
This will then depend on circumstantial evidence and the witness testimony/observation of the medical team that would be look after the Testator. A valid will maybe registered with the Master of High Court. With the lockdown it is reasonable to assume that the Deceased Estates section of the Master of High Court is closed or scaled down during the lockdown.
The impact of Covid 19 has been dire worldwide and its advisable for people to make wills if they do not have any. Making a Will does not necessarily mean that one will die soon after making one, a superstition unfortunately believed by many people. Although most lawyers’ offices are closed, they are operating remotely from home and taking on new instructions.
Please contact a lawyer as soon as possible or just write down your wishes and have at least two people witness your signature and initial all the other pages. As stated above, if accepted that we are in an epidemic, then there will be no need to follow any formalities.
Andrew Nyamayaro is the principal of Tann Law Solicitors, firm of solicitors in Coventry. He can be contacted on e-mail [email protected] or office phone 02477632323.
Visit Tann Law Solicitors’ website at www.tannlaw.co.uk
Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.