UZ PVT LAW DEPT SUCCESSION LAW LECTURE SERIES 2020: LECTURE 12

INTESTATE SUCCESSION
Basic Principles

By Dr E. Rutsate, University of Zimbabwe, Faculty of Law, May, 2020 , Lecture 12

 PRESENTATION OUTLINE
1. Defining Intestate Succession
2. Timelines in Intestate Succession
3. Administration of estates governed by
customary law
Old law of inheritance
New law of inheritance
Per stirpes & per capita succession
 DEFINITION
Intestate Succession- What is?
Basic definition: The intestate law of succession refers
to the distribution of assets in a deceased ‘s estate
whereby the deceased would have died without leaving a
will.
Legal Definition: If a person dies without leaving a
valid will or an antenuptial contract containing
provisions for inheritance, or the will that has been left
has been declared inoperative, his/her assets are
inherited in accordance with the rules of the law of
 DEFINITIONS (2)
Due to Zimbabwe’s dualist legal system, intestate succession occurs under both
general and customary law;
Intestate succession occurs in 3 situations;
1. If a person does not leave a valid will.
2. If a person appointed in a will predeceases the testator & no substitution of
heir was made;
3. If a person appointed in a will cannot take up the appointment.
It is also possible for a person to die partly testate and partly intestate
This is recognized as part of RD common law examples-
(i) one of several beneficiaries in will predeceases the testator & no changes
made as to their portion of inheritance;
(ii) other property acquired after writing of will & not included in will.
 DEFINITIONS (3)
What is the difference between intestate and testate law of
succession.
What is administration of Estates?
Not all assets are inherited as some may be used to settle debts first
and/ or meet other obligations.
Assets left can thereafter be distributed to the various heirs.
Process by which the estate’s debts are settled & remaining assets
transferred to designated beneficiaries after a person’s death is known
as administration of the deceased’s estate>> executor/executrix
dative appointed etc.
Administration of estates under both general & customary law.
TIMELINES IN INTESTATE SUCCESSION
Pre-Independence Era- Pre-1980
Post Independence Era i.e. 1980 – 1997 with the
ushering in of the Administration of Deceased
Estates Amendment No. 6/1997 now
incorporated in the Admin of Estates Act
Post 1997 to 2013 with ushering in of
Constitution
- Current Scenario
 PRE-INDEPENDENCE ERA
Pre- 1980 during colonial rule
Due to colonial dispensation, black men &
women discriminated against but black
women formed the bottom rung of citizens
since they lacked legal capacity to acquire,
own and dispose of any proprietary interest,
movable or immovable (outside of mawoko
property)
 POST 1980 -1997 ERA
At independence Zimbabwe inherited a dual legal system.
Section 89 of the 1980 Zimbabwean Constitution sanctioned the existence of
this dual legal system which is perpetuated through Section 192 of the
Zimbabwean Constitution (Amendment No. 20 of 2013)
Choice Of Law
However Sect 23 of the old 1980 Constitution discriminated against women
since all issues to do with personal law inclusive of inheritance issues governed
by customary law
However a lot of changes took place within the law vis-à-vis LAMA (now sect.
15 of GLA) on 18 yrs as age of majority when previously women were
perpetual minors.
 1980- 1997
IMPACT OF LAMA OF 1982 (NOW SECT. 15 OF THE GLA CHAPTER 8:07
Interplay between customary law & general law in Zimbabwe problematic especially
regarding cases involving the rights of women under customary law.
Katekwe v Muchabaiwa,(1984 (1) ZLR 112), the Supreme Court held that the father of an
African female who had reached the age of 18 no longer had a right to sue for seduction
damages under customary law in respect of his daughter on basis that the LAMA had changed
the status of women who previously were viewed as perpetual minors & could not sue or be
sued on their own capacity without a guardian.
Court was of view that LAMA had bestowed on African women majority status on reaching
18 thereby bestowing on them rights they could not enjoy under customary law.
Reasoning followed in Chihowa v Mangwende,(1987 (1) ZLR 290), where it was held that one
of the consequences of LAMA was that a woman upon attaining the age of 18 could be validly
appointed as heiress of her father’s estate under customary law, and with the same rights and
duties as those which devolve upon a male heir
 CONTRADICTORY JUDGMENTS
Position changed in Vareta v Vareta (SC 126 1990)
It was held that the eldest son was the natural heir of the
father’s estate even if there was an older female sibling and
that the situation had not been affected by the LAMA.
Chihowa v Mangwende was then restricted to cases where
there was no male heir.
Murisa v Murisa (1992 (1) ZLR 167), the Supreme Court
confirmed the customary law rule that a wife cannot inherit
from her husband’s estate.
 CONTRADICTORY JUDGMENTS (2)
Magaya v Magaya (1999 (1) ZLR 100), the Supreme Court delivered
an earth shattering judgment
Held that Katekwe v Muchabaiwa had been wrongly decided.
That LAMA did not affect rights & duties under customary law.
According to Magaya v Magaya, women were deemed to have no
rights of inheritance under customary law, not because they were
minors but because they are women in an African society.
Jena v Nyemba, (1986 (1) ZLR 138 (S), p. 142), also reinforced this
ruling as the SC set out the proprietary consequences of a marriage
under customary law whereupon a woman was said to be entitled only
to mawoko property.
 CHANGES IN CUSTOMARY LAW SUCCESSION
Prior to the 1st of November 1997, women in unregistered customary law unions
did not inherit from their customary law husbands’ estates unless provided for in
a will.
The preferred heir was the eldest son who inherited property in his personal
capacity.
Although he had a duty to look after the family left behind, he could actually sell
the property as long as he provided that family with alternative accommodation,
even a home in the rural areas.
The Administration of Estates Amendment Act Number 6/1997 introduced
radical changes to the law of inheritance especially under customary law such
that the major beneficiaries of a deceased estate are the surviving spouse and
children.
More importantly, the Act recognises an unregistered customary law union
 AMENDMENT NO. 6 OF 1997
Magaya v Magaya judgment resulted in a big
outcry from women’s rights groups such as
Musasa, WLSA etc which forced Govt. to enact
the Administration of Estates Amendment Act
No. 6 of 1997
This clearly outlined the procedure to be
followed in distributing an estate that is intestate
under customary law
 TYPES OF INTESTATE SUCCESSION
Intestate succession can be either per capita or per stirpes
Per stirpes is a Latin expression meaning “by the roots”
Stirps - singular & plural- a no. of stirps or stirpes
A stirps is a line of descendants of common ancestry> (the
roots)
It includes every descendant of the deceased who survives the
deceased or a predeceased descendant of the deceased who
leaves living descendants.
Per Capita is a Latin maxim meaning, “by the head” or
“headcount.”
SUCCESSION BY REPRESENTATION PER
STIRPES
All children of the deceased form a stirps & can inherit any equal share of
deceased’s estate.
However if one child predeceases the parent and leaves behind children, upon
death of the grandparent, the predeceased child’s children jointly or severally
share the share due to their parent :
Mhlanga Case where a deceased grandmother had 6 children of which 1, a
daughter had pre-deceased her leaving her own 3 children.
The 3 grandchildren inherited their deceased mother’s share from the
grandmother by representation per stirpes .
Each grandchild was entitled therefore to 1/3 share of the pre-deceased
mother’s 1/6 share
PER STIRPES SUCCESSION BY
REPRESENTATION

With predeceased spouse

Deceased
Grandparent
Both surviving & deceased Pre-Deceased Surviving Son with
child entitled to a half share
of mother’s estate Daughter no children
Grand children inherit per
stirpes ½ share of their Surviving Surviving
mother’s ½ share i.e. ¼ Grandchild 1 Grandchild 2
share
 PER CAPITA SUCCESSION 1
EXAMPLE
If Steve is survived by his 3 sons, Aaron, Ben & Chad,
under per capita, each son will get 1/3 of Steve’s estate.
However, if Aaron predeceases Steve, then Aaron’s
share would be split between Ben and Chad, with each
receiving a 1/2 share.
None of the grandchildren would be entitled to any part
of the estate.
 PER CAPITA SUCCESSION 2
Contrast “per stirpes” to “per capita,” the latter
which means taking “by total headcount” or “by a total
number of individuals.”
In the estate planning context, this means that if
the beneficiaries are to share in a distribution “per
capita,” then all of the living members of the identified
group will receive an equal share
The estate is divided into equal shares at the generation
closest to the deceased with surviving heirs.
PER CAPITA SUCCESSION BY REPRESENTATION
If all the heirs are of the same degree of relationship to the
decedent, e.g. they are all surviving children or all
grandchildren, then the estate will be distributed per capita.
However, if they are not of the same generation, for example,
if both children and grandchildren survive, then the younger
generation will only be entitled to that portion of the estate that
older generation would have received had they survived.
Per capita at each generation is an alternative way
of distribution, where heirs of the same generation will each
receive the same amount.
PER CAPITA SUCCESSION
PER STIRPES V PER CAPITA SUCCESSION

Focuses on both deceased & surviving Focuses only on Nearest Surviving

descendants Descendants
 OTHER DEFINITIONS
For other definitions see pages ix to
x: Definition of Terms in S. Chirawu’s
book: Principles of the Law of
Succession in Zimbabwe
(incorporating the Women’s Rights
Perspective) Sable Press (2015)
INTERNATIONAL HUMAN RIGHTS FRAMEWORK
1948 UDHR
1966 ICCPR
1966 ICESCR
CEDAW
Women’s Protocol/ Maputo Protocol
CRC
ACWRC
SADC Protocol on Gender and Development
END