WILL MAKING
KAYIRA J
WHY MAKE A WILL?
The law which regulates will making is called “Deceased Estates (Wills, Inheritance and Protection) Act of 2011.”
• Deceased Estates: You write a will because you want to address the situation after you have died because
death is a reality & unplanned for in most instances.
• Wills, Inheritance: A will is an expression of your intention on who should get your property after your
demise-Wilu ndizofuna za munthu womwalira kuti katundu wake agawidwe motani.
• Protection: When there is a will, your interests after death are protected and respected-Mukakhala osalemba
wilu adzakuchitireni chiganizo chogawa katunduyo ndi abwalo lamilandu.
• Reduces conflicts unless where a bona fide beneficiary has been inadvertently omitted causing exceptional
hardship on his or her life
MYTHS ABOUT WILL MAKING
• Mukalemba Will mufa msanga-This is not true
• Mukalemba Will ndikuwawuza akazanu akuphani-This is not entirely true
LEGAL FRAMEWORK
• The Constitution
• Deceased Estate, (Wills, Inheritance and Protections) Act
• Marriage, Divorce and Family Relations Act
• Estate Duty Act
• National Registration Act
• Trustees Incorporation Act
CONTENTS OF DEWIPA
(i) provides for the making of wills and the distribution of property of a person who dies leaving a valid
will;
(ii) provides for the distribution of property of a person who dies without leaving a valid will ;
(iii) provides for the protection and administration of property of a person who has died (deceased
estate);
(iv) provides for the prosecution of offences relating to deceased estates;
(v) provides for civic education of the public relating to deceased estates;
(vi) provides for the functions of courts in relation to deceased estates
CONTENTS CONTINUE…
The Act governs deceased estate of:
(A) a person who dies while permanently staying in Malawi
(B ) a person who dies outside Malawi but has property in Malawi.
The Act, however, does not apply to any money or benefit in a pension fund of a person who has
died.
DEATH, PROPERTY AND INHERITANCE
.
• In terms of deceased estate, death is the premise on which property is inherited
or transferred.
• In other words, the intentions of a will maker or the distribution of the deceased
estate for a person who has died without leaving a valid will can only be initiated
after the owner dies.
• This is the sole reason why it is now mandatory that each death be registered at
district level by either a spouse, parents, children or sibling of the deceased
person within 6 weeks of his or her death according to Sections 33 and 35 of the
National Registration Act.
• A Certificate of Death is thereby issued under Regulation 39 in Form NR 13 as
per the schedule in the Regulations.
DEATH, PROPERTY AND INHERITANCE
• When a testator dies, the entire estate vests automatically in executors as per section 50 of DEWIPA. This happens by
operation of the law and without the need for any formality.
• The reason for this was explained by the High Court in the case of Mthawanji and another vs. Ching’amba and
others[1992] 15 MLR 324 to be because the executor’s title is derived from the Will, which operates from the death of the
testator.
• The grant of probate merely confirms the executor’s title to the goods
• This principle is reflected in section 38 (1) of the DEWIPA.
This means that the executor can pay and receive debts even before probate is obtained. Once the executor obtains
probate, he or she can sue third parties.
LEGAL EFFECT OF DEATH
• The following statement by Lord Parker in Chitty vs. Chitty which was quoted with approval in the Mthawanji case
explains the principle;
• “assuming but without deciding that this is to be deemed to be a suit which the testator would, if he were living, have a
right to institute, the Lordships have come to the conclusion that this contention cannot be upheld. It is quite clear that
an executor derives his title and authority from the will of his testator, including all rights of action, vest in him
upon the testator’s death, and the consequence is that he can institute an action in the character of executor
before he proves the will. He cannot, it is true, obtain a decree before probate but this is not because his title depends
on probate, but because the production of probate is the only way in which by the rules of the court, he is allowed to
prove his title. An administrator, on the other hand, derives title solely under his grant and cannot therefore institute an
action as administrator before he gets his grant. The law on the point is well settled. [1992] 15 MLR 324
A SETTLEMENT TRUST
• Helps focus on investments even when people are alive
• Able to benefit from proceeds whilst still alive
• Easier management
• Reduces estate duty issues
• Provides for the holding assets on behalf of a child until they reach the age of 18. Doing
so allows for the property or money to be properly managed until the children are old
enough legally to take possession of it. Some types of trust allow the beneficiary to
receive an income from the property.
• Provides for your spouse while keeping the estate intact to be passed to your children.
• Protects the family home from being sold for instance to pay for residential care
“
BUSINESS OPPORTUNITIES
ARE LIKE BUSES. THERE'S
ALWAYS ANOTHER ONE
COMING.
Richard Branson
UNDERSTANDING WILL MAKING?
• What is a will:
• a legal declaration by a person of his or her wishes or intentions regarding the disposition of his or her property after his or her
death.
• Who can make a will? Section 5 of the Act
• a person who is of sound mind
• A person who is not a minor
The Act, however, does allow a person who is minor to make a will in the following cases only:
(i) where the minor is lawfully married;
(ii) where the minor is heading a household and is not below the age of fourteen years; or
(iii) where the minor has property in his or her own right in accordance with any written law;
HOW DOES ONE MAKE A ‘VALID’ WILL?
• It must be made in writing
• It must be signed by the testator (the one who makes the will)
• It must be signed by the testator in the presence of at least two competent witnesses who shall also
sign the will in the presence of the testator and in the presence of each other
• The witnesses must be of sound mind and must not be minors
NB: A beneficiary under a will must NEVER be a witness to a will Section 7 of DEWIPA
CONTINUES…
• The witnesses and their spouse must ordinarily not be beneficiaries of the will
• Except if the court is satisfied, upon the application of the witness, that-
(a) there was no other competent person who could have been witness to the will;
(b) the benefit is fair in all the circumstances or the benefit consists of property that would have
devolved to the witness upon intestacy; and
(c) there is no evidence of fraud, coercion, undue influence or other suspicious circumstances
surrounding the making of the will.
REVOKING OF A WILL?
- The testator may at any time revoke his or her will-
(a) by destroying the will with the intention to revoke it; or
(b) by making a subsequent will
Where a testator dies having made more than one will, the latest in time of the said wills shall prevail
over the earlier wills to the extent of any revocation, variation or inconsistency.
CHANGING SOME WORDS IN A WILL
• When a person changes a Will by removing, deleting or erasing some words in the Will after it has
already been signed, those changes can only be recognized if-
(a) the removal, deletion or erasure has been signed by the owner of the will in the presence of two
witnesses who must also sign in the presence of each other and the maker of the will; or
(b) If the removal, deletion or erasure is stated in writing at the end of a Will or some part of the Will
recognizing that this has been done. This writing has also to be signed as above.
CONTINUES
• Effect of marriage on a will
A will shall be revoked by the marriage after the making of the will by the testator unless the will was
made in contemplation of marriage with the person who becomes the spouse of the testator.
• Effect of divorce on a will
- where the husband had one wife and had a Will for the benefit of the wife but later on he marries a
second wife; such a Will is revoked upon marrying a second wife.
- After the death of the person who made the Will, the divorced spouse cannot benefit from the Will
even if his or her benefit is not removed from the Will.
EXCEPTION
• The Will may, however, clearly provide that the dissolution of the marriage shall not affect any
benefit given to the divorced spouse under a Will.
WHO CAN KEEP YOUR WILL?
A will can be deposited by the author to the following before his or her death:
• The Registrar/ Resident Magistrate/First Grade Magistrate
• District Commissioner
• Law Firm
• Financial Institution e.g Commercial Banks,
• Insurance company,
• An employer
• An administrator of a Provident Fund
• Any person trusted by the author
NB: Leave instructions on how the will can be withdrawn from the custodian
WHO KEEPS WILLS AFTER DEATH?
• After death the original will is kept at the High Court as per Section 77 of DEWIPA
• The original of every will of which probate is granted or in respect of which a grant of letters of
administration with a certified copy of the will annexed or an administration grant with a certified copy of
the will annexed is made under this Act shall be deposited and preserved in the registry of the court that
made the grant, but it may, if the court so determines, be transmitted for such preservation to a registry of
the High Court.
CONTENTS OF A WILL
• Name
• Place and Date
• Address
• Description of property
• Who gets what
• Statement confirming that this is a last will overriding any previous wills
• Name & Signature of author
• Witnesses (Name & Dates)
INTESTACY
• This is where a person dies without leaving a valid will:
• This can also happen where somebody dies leaving a Will which does not comply with
requirements of valid Will
• if the deceased person left a will which does not dispose of all his or her property there shall be an
intestacy in respect of the property which is not disposed of by will.
INTESTACY CONTINUES…
In the event that there is intestate property the Court is mandated to:
• Examine the value of the property
• Consider any wishes expressed by the intestate in the presence of reliable witnesses;
• such assistance by way of education or other basic necessities any of the spouses or children may have received from the
intestate during his or her lifetime;
• any contribution made by the spouse or child of the intestate to the value of any business or other property forming part of the
estate of the intestate
• Examine potential beneficiaries in terms of their relationship with the deceased, age, how the deceased was helping them needs
e.g. school fees, food, shelter, special needs if it is a person with disability
• Make a fair distribution of the estate to the beneficiaries
BENEFICIARIES
According to Section 17 of DEWIPA priority is given to immediate family who are:
• Spouse
• Children (regardless of the how they were born Section 23 of the Constitution)
• Officially recognized marriage
• From a concubine or first marriage
• Adopted children
• Dependents
• Those who were under the custody of the deceased
• Those who were being assisted or educated by the deceased
BENEFICIARIES…
Under Section 18 of DEWIPA, in the event that there are more properties remaining after sharing the estate
to the immediate family, courts will then share properties to:
• Parents of the deceased
• Grandchildren of the deceased
• Siblings of the deceased (brothers & sisters)
IN INSTANCES OF MULTIPLE SPOUSES RESIDING IN
DIFFERENT LOCALITIES
- If the intestate left more than one female spouse surviving him each living in a different locality:-
• each spouse and her children by the intestate shall be entitled to a share of the property of the
intestate in their locality;
• but such spouse and children shall have no claim to any share of the property of the intestate in the
locality where another spouse lives:
This does not apply to the property of the intestate of a value exceeding a small estate or institutional
money or private land.
IN INSTANCES OF MULTIPLE SPOUSES IN ONE LOCALITY
• If the intestate left more than one female spouse surviving him all living in the same locality, each
spouse and her children by the intestate shall be entitled to a share of the property of the intestate
proportionate to their contribution.
WHAT IF THE SURVIVING SPOUSE REMARRIES?
• Re-marriage shall not deprive a surviving spouse of property inherited under intestacy
• except in the case of property on customary land where title in that property shall devolve to the
children of the spouse by the intestate upon the re-marriage of the surviving spouse.
PROPERTY
GRABBING
Funded by UNDEF
CONTACT:
The President
Women Judges Association of Malawi - WOJAM
P / Bag 15, LILONGWE, MALAWI
[Link]
PROPERTY GRABBING
Section 84: unlawful possession of deceased estate
Taking deceased estate which is not yours
Any person not being entitled under a will or upon any intestacy who, takes possession of, grabs,
seizes, diverts or in any manner deals in, or disposes of, any property of a deceased person, or does
anything to such property, which occasions or causes or is likely to occasion or cause deprivation or any
form of hardship to a person who is entitled under the will or upon the intestacy, shall be guilty of an offence
and liable to a fine of K1,000,000 and to imprisonment for ten years and in addition to such sentence,
The court shall direct that the property or the monetary value be immediately restored to the person/s
lawfully entitled ; and that
the whole, or part of the fine imposed be paid to the person/s entitled or into the estate of the deceased
person.
WHAT SHOULD HAPPEN WHEN A PERSON DIES WITHOUT A
WILL
Any of the beneficiaries mentioned in section 17 and 18 can apply to court to get permission to administer or
distribute property of the deceased.(Obtaining letters of administration)
The spouse and children of the deceased have priority to apply for letters of administration.
A beneficiary can apply to court for letters of administration in order to have permission to administer a
particular part of a deceased estate, (for example money left by the deceased in the bank account where the
money is intended to be used to pay school fees of the child of the deceased or to settle debts of the
deceased.)
The appointed administrators have a duty to ensure that they manage the property for the benefit of all
people who are entitled to benefit from the property.
OFFENCES AND PENALTIES AGAINST EXECUTORS AND
ADMINISTRATORS AND GUARDIANS
Section 88 of DEWIPA An administrator or guardian who wrongfully deprives a minor of property or a share in
property with intention to benefit such administrator or guardian or any other person, commits an offence.
The punishment upon conviction in court is a fine of K1,000,000 and imprisonment for three years.
A court can in addition order the guilty administrator or guardian to pay back money or property deprived from the
minor.
MURDER FOR BENEFITS
Section 80 of the Act provides that a sane person who murders another person, shall not benefit from the
property of the murdered person.
This means that even if the murderer was a beneficiary mentioned in the will of the deceased, the murderer
will not receive any such benefit.
This applies even where the deceased left no will and is murdered by a member of the deceased’s
immediate family or dependant or a relative of the deceased.
THANK YOU!!
QUESTIONS?