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The Law of Succession in Zambia: Recent Proposals for Reform

Published online by Cambridge University Press:  28 July 2009

Simon Coldham
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Extract

The 1982 Report on the Law of Succession (the Report) was the first report to be published by the Law Development Commission (the Commission) sinceit was established in 1974. This almost certainly indicates the importance which the government of Zambia attaches to the reform of the law of succession, and perhaps marks a change of attitude on its part towards customary law, which could also have implications for the law of marriage and divorce. Statements by government ministers indicate that legislation along the lines proposed by the Commission is likely in the near future. It seems appropriate, therefore, to appraise these proposals and to compare them with reforms carried out elsewhere in Commonwealth Africa.

Type
Articles
Information
Journal of African Law , Volume 27 , Issue 2 , Autumn 1983 , pp. 162 - 168
Copyright
Copyright © School of Oriental and African Studies 1983

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References

1 Government Printer, Lusaka.

2 Law Development Commission and Institute of Legislative Drafting Act, no. 5 of 1974.

3 It is rare for Africans to make wills. Thus in 1980, out of 73 applications for probate none were in respect of an African's estate; in 1981 2 out of 84, in 1982 1 out of 60, in 1983 3 out of 68. Probate Register, High Court Registry, Lusaka. The account in this article of the way in which the law of succession is operating in contemporary Zambia is based on the writer's research in Zambia in July–September, 1984. This research was largely made possible by a generous grant from the British Academy.

4 In 1983 the Administrator-General administered 53 estates of which 31 were Africans' estates.

5 Letter from the Minister of Legal Affairs to the Administrator-General dated 14 02, 1984Google Scholar.

6 The research also covered the customary law of marriage and divorce, but nothing has been published on that part.

7 Report, p. 1Google Scholar.

8 Ibid.

9 Ibid., App. C.

10 Such a will is similar to but distinct from a donatio mortis causa.

11 No account is taken of recent amendments to the Wills Act made in England. Sometimes the Bill is even wordier than the original, e.g., s.13., which provides: “A will shall automatically be deemed to have been revoked if the testator contracts a marriage after the execution of the will.”

12 e.g. rules relating to the construction of wills. In this regard it might have been appropriate to have included a provision to die effect that, in construing a will, the court should give effect to die intention of the testator and is not bound to follow English law, as Malawi did in the Wills and Inheritance (Amendment) Act, 1979.

13 According to most customary laws a woman's property devolves upon her children, not upon her husband.

14 This is a curious provision. Advocates of change recommend that die shares of widows should depend on die duration of their marriages to the deceased. Report, p. 7.Google Scholar

15 This definition is based on the Malawi Act.

16 Cf. the Malawi Act which reserves a substantial proportion of an intestate's estate for his “customary heirs”.

17 In the rural areas the administration of estates is generally settled out of court and the sparsity of succession cases in the Local Courts suggests that this works well. In the larger urban areas it is becoming much more common for an application to be made to the Local Court for a certificate of administration. The usual practice is for the deceased's relatives to appear before the court and to indicate which of their number they wish to take over the administration of the estate. Disputes are rare; indeed all the 67 applications heard by Lusaka Local Court No. 1 in the first quarter of 1984 (about 20 per cent, of its business) were settled by consent. Of a sample of over 200 Local Courts appeal cases heard in Lusaka only four concerned succession. Interviews with Local Courts Justices confirm this picture.

18 S.6 of the Administrator-General's Act makes it an offence to intermeddle with the property of a deceased. As far as one can discover, no prosecutions have ever been brought under this section.

19 This Act is extended to Zambia by the British Acts Extension Act.

20 Payments of capital are only authorised in the case of small estates.

21 Cf. the Kenya Law of Succession Act, 1972, s.29.

22 A possible explanation is that Part III of the Bill (dealing with family provision) closely follows the 1938 Act and like that Act (until it was amended in 1952) is only concerned with the estate of persons who die teslate. It is only in Part IV (dealing with intestacy) that, almost as an afterthought, dependants are permitted, by means of a clumsy reference back to Part III, to apply for provision in die case of intestacy.

23 Both die Malawi and the Kenya Acts make some concessions to customary law.

24 Cf. die Kenya Law of Succession Act, 1972, s.32. The Commission rejected the proposal that the application of the new law should be restricted to urban areas and to larger estates. Report, p. 7Google Scholar.

25 For a discussion of the problems to which such a formula may give rise, see Roberts, S. A., “The Malawi Law of Succession: another attempt at reform” [1968] J.A.L. 81, at 83Google Scholar.