THE Zimbabwe Administration of Estates Act currently stipulates that if one spouse dies, the surviving spouse inherits all the immovable property. However, due to dynamics resulting from the Aids pandemic, this has been noted to present some problems to the disadvantage of children in the event that the surviving spouse remarries.

As organisations involved in the provision of free legal services to children in difficult circumstances, Justice for Children Trust (JFT) and the Legal Resources Foundation (LRF) have received many cases where children have been evicted from their parents’ houses after one of their parents has died. In light of the above JFT and LRF conducted a consultation workshop for civil society and the relevant Government departments to discuss the issues at hand.

The consultation was held with the aim of achieving legal and policy reforms for the benefit of children. The theme of the workshop was Inheritance in the era of HIV and the orphan crisis in Zimbabwe.  The consultation was held in response to the rising number of court cases involving disinherited children and spouses, rising cases of marriages of convenience, disparities between customary and common law, and the need to balance moral values and the law with particular reference to the Wills and Inheritance Act and the Administration of Estates Act.

There is a need to carry out awareness programmes on the Wills and Inheritance Act, as many people are not knowledgeable about it.  In addition the meeting also recommended that programmes target the rich, executives and middle income earners as they are increasingly falling into victims of marriages of convenience (both male and female). The Wills and Inheritance Act should be amended to safeguard the interests of children, the formation of an independent arm of Government that would monitor the disposal of estates especially houses. Surviving spouses should not be allowed to dispose of property before the last child reaches the age of 21.

There is nothing like legitimate or illegitimate child.  Every child is simply a child. Where a spouse comes in as a second husband/wife after the death of the first wife/husband when there is already developed property then he/she can only enjoy use of the property, otherwise ownership rests on the children. The courts must be given authority to deal with unjust wills. Database of marriages must be developed as a resource for would-be brides and bridegrooms to check the status of their partners to avoid multiple marriages. Individuals should be organised when they are still alive to avoid confusion after death. Wills can be cumbersome where property is involved, but trusts are easier to handle.

Custody of estate in community

When one of two spouses who have been married in community of property dies, the joint estate shall remain under the charge of the survivor until the executor of the deceased, or the tutor testamentary or dative of the minor children of the marriage, or the Master or curator bonis lawfully appointed to such minor children, takes proceedings for the administration, distribution and final settlement of the joint estate: Provided that nothing in this section shall prevent any such joint estate from being placed under sequestration as insolvent.