Introduction.

As the quotation alludes that privileged will is a dangerous anachronism, not all may ascribe
to this saying. However, this essay seeks to determine if there remains a place for the
privileged will today where by analysis will be given to the different formalities of a Will,
and the history or basically the origin of the privileged Wills before going into details for its
basis and justification in the modern laws of Zimbabwe. The justification behind privileged
wills will be compared to interpretations placed by courts on modern day provisions in
Zimbabwe recognizing privileged wills. It will be shown that there is still a role for the
privileged will and whether it should be redefined or removed.

Formalities of a will.

Before assessing the existence of a privileged will, we need to understand why there is need
to have formalities with regards to a will. The basic requirements for ensuring that you have a
valid Will are set out in section 8 of the Wills Act of Zimbabwe 1 herein after referred to as
the Wills Act. The section states that a will cannot be said to be valid unless it is in writing,
and the testator, or some other person in his presence and at his direction, signs each page of
the will as closely as may be to the end of the writing on the page concerned in which each
signature is made or acknowledged by the testator in the presence of two or more competent
witnesses present. Where by each competent witness either signs each page of the will or
acknowledges his signature on each page of the will among other formalities as set out in the
case of Wakapila v Matongo.2

There are various reasons as to why one can decide to impose formalities to a will. However
more consideration will be given to Fuller’s3 reasons where he stipulates that the benefits of
formality rules fall into three main group which are, evidentiary to begin with, that is to say
securing good evidence for parties, third parties and courts, secondly cautionary which is
warning the parties that their actions have legal effect and lastly channeling which is
providing a tool to permit the parties to give legal effect to their intentions.

However, most people consider the proper distribution of their property on death a vitally
important matter. For those who are elderly, ill or engaged in risky occupations, it is often

1
Chapter 6:06
2
HH 1220/07 (2008)
3
L. L. Fuller. “Consideration and Form” (1941) 41 Columbia. L. Rev. 799
urgent to get such things settled fast. But some people may be in circumstances where they
cannot comply with the formal requirements for a valid will. The law has long recognised this
concern in the case of soldiers and sailors by allowing them to create privileged wills. 4 In that
case, a privileged will can be seen as an informal will which remains valid even though it
does not fulfil the usual legal requirements. Privileged wills are normally written but can be
oral. What distinguishes this type of will from a conventional will is the fact that normal
formalities are dispensed with. So, a Privileged Will does not, for instance, need to be signed
in the presence of two independent witnesses as is usual, in fact, there is no need for any
witnesses at all for the will to be valid.5

History of privileged wills.

This form of a will was derived from Roman law where the soldier is entitled to make a will
without any formalities. During the early Roman law, rigid formalities and rituals were
required for executing wills, but from the time of Julius Caesar in the 1st century BC soldiers
and later seamen in naval service were granted the special privilege of making wills without
formalities.6 At that time a soldier obtained the privilege simply by being a soldier. When
stability returned and soldiers were for the most part in quieter places, the privilege was more
restricted, being given only to soldiers in cum in expeditionibus occupati sunt.7A Lang asserts
that this privilege extended to the secretaries and orderlies of officers and camp followers on
expedition.8 Thus the development of Roman law furthered an understanding of wills and
serves in a modern way as the foundation to the law of succession and inheritance in different
jurisdictions.

Basis and justification of privileged wills in Zimbabwe.

4
LEE, Jack Tsen-Ta. A Place for the Privileged Will. (1994). Singapore Law Review. 15, 171-192. Research
Collection School of Law.
5
Slee Blackwell Solicitors. What is a Privileged will? Inheritance Disputes.co.uk. Accessed 15 September.
6
Ibid 4
7
Soldiers' Wills. What Constitutes ‘Actual Military Service.’” Virginia Law Review, vol. 30, no. 3, 1944, pp. 481–
486. JSTOR, JSTOR, www.jstor.org/stable/1068481. Pg 483
8
A Lang. Privileged will - A Dangerous Anachronism.
There are certain statutes in Zimbabwe that indicate the different class of privileged wills and
its basis and justification in the present laws of Zimbabwe. These can be seen as follows.

The Wills Act chapter 6: 06 in chapter 10, 11 and 12 respectively stipulates that Soldiers
wills, wills made during epidemics and oral wills can be categorized in the class of
privileged wills.

a) Soldier

A soldier can be understood as one engaged in military service and especially in the army. 9
With regards to the making of privileged wills the term 'soldier' encompasses males and
females enrolled as combatants in the military, naval and air forces, and also non-combatants
who are attached to the forces, such as army doctors, nurses, chaplains, military instructors
officers in the army dental corps and engineers. Other military personnel, such as persons in
the reserves, or in the Home Guard, also qualify as soldiers.10 Of recent the decision on the
soldiers is based on actual service.

The wills Act in section 10 (1) stipulates that;

“active service” means full-time employment with or as a member of any branch of the Defence
Forces of Zimbabwe or the armed forces of any other country allied to or associated with Zimbabwe,
at a time when

a) Zimbabwe is at war; or

(b) the forces concerned are engaged in the suppression of armed rebellion or insurrection
either in Zimbabwe or in any other country in support of the government of that other country.

Thus implying only soldiers who are in actual military service can make such wills, and there
are tests for making such a will which are whether that testator was in actual military service
and whether the service was actually active. These were set out in In Re Wingham.11 In other
wards with regards to a soldier the exceptions to the formalities of a will are only accepted if
one is in actual military service as alluded in the above Wills Act.

In such a situation, one asks themselves whether privileged will is justified. It is basically
obvious that the benefits of following the formalities of a will outweighs that of a privileged
will.
9
https://www.merriam-webster.com/dictionary/soldier. Accessed on 15 September 2018.
10
Ibid 5
11
[1948] 2 All E.R. 908 (C.A.).
Looking at the costs of complying with section 10 of the wills Act, it may not be expensive or
tiring since one may stipulate that soldiers like any other citizen if are eligible to make a
Privileged Will then you can do so as soon as you receive orders that you are to be posted
into an operational area. This can even apply after the war or conflict has officially ended. A
formal state of war need not exist but there must be “war like” operations. 12 However this
assertion may be critisied in the sense that the difficulty and delay of the formality may be for
them a greater burden given that they run a much higher risk of early and sudden death than a
majority of the population since they are more likely to die without warning, they are also
more likely to die without the opportunity of revising and formalizing the arrangements
which they have made concerning the disposition of their property on death. 13 Thus many
may argue that the will be made before going into the battlefield where it may be ascertained
to be unrealistic since the soldier will not be expected to amend the will every time he or she
is notified of a duty call. Hence the legislation extends the privilege to those in actual military
service. Though the justification is that all those proceedings should be done way before
being in a state of actual military service.

b) Wills made During Epidemics.

The Wills Act of Zimbabwe refers to “epidemic” as 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. Subsection 2 further stipulates that 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. An example may be
seen where one is in an area infected by ‘ebola’ In most instances such a person’s life may be
short lived thus there is need for her or him to make a will without the necessary formalities
which may be time consuming. Another example can be the current situation in Zimbabwe
where there was a new cholera outbreak in Harare and other districts. The outbreak was
notified on 6 September 2018. To date 1,901 are a victim. Most of the cases are being
reported from the high density suburbs of Glen View and Budiriro in Harare. 14 Therefore

12
Patricia Critchley. “Privileged Wills and Testamentary Formalities: A Time to Die?” The Cambridge Law
Journal, vol. 58, no. 1, 1999, pp. 49–58
13
Ibid 12
14
UN Children's Fund. Zimbabwe Cholera Outbreak Report #1 (13 September 2018). Reliefweb international.
individuals in such areas are subject to privileged wills since an outbreak of an epidemic is an
unforeseen circumstance.

c) Oral wills.

Usually when it comes to writing a will, the image anticipated is that of sitting down with pen
and paper or making an appointment with a legal representative to draw up the document.
The individuals then decide on how they want their property and assets to be divided out and
sign the document, in most cases with a number of witnesses signing it. Whereas majority of
persons have to abide by certain formalities there instances where a Will can be made orally,
let’s say someone on a deathbed who did not make a Will earlier may make his testament
orally without putting any writings down. A case example is that of In re Goods of Charlotte
Piercy15 where the testatrix was very ill in bed and totally visually but was in full possession
of her mental faculties. The Wills Act in section 11(4) stipulates that for this will to be
recognized, it should be based on two conditions. Which are that the declaration is regarded
as a valid will according to any law or custom to which the testator was subject when he
made the declaration and the value of the testator’s estate on the date of his death does not
exceed ten thousand dollars.

Chirawu16 stipulates that this was put in place to curb abuse which would result even in items
not subject to customary law being alleged to have been bequeathed through an oral will.

This kind of Will is highly contested and considered as a dangerous anachronism in the
modern laws of Zimbabwe, in that it leads to fraud thus it is acceptable on limited grounds.
As stated in the Janda v Janda17 case, it was articulated that the manifest purpose behind
formalities is to eliminate the perpetration of fraud and speculation. In an Article written by
Arnold and Smith law firm it is asserted that proving that a deceased person’s final words
constitute a legally binding will is an uphill battle. So-called “witnesses” can come out of the
woodwork claiming that the deceased made oral bequests.18

d) The Constitution

15
16 (3) ER 1038
16
Chirawu S. Principles of the Law of Succession in Zimbabwe. Incorporating The Women’s Rights Perspective.
(2015) WLSA. Harare, Zimbabwe.
17
1995 (1) ZLR 375
18
Arnold & Smith, PLLC is a civil and criminal litigation firm in Charlotte. Handwritten and Oral Wills. North
Carolina. Accessed on 20 September 2018.
In analyzing this aspect, one may argue that although wills Act takes into consideration the
privileged wills, the constitution19 herein after referred to as the constitution still remains the
supreme law of the country in which it puts across in section 56 the issue of equality and non-
discrimination where it is stated in sub section 1 that all persons are equal before the law and
have the right to equal protection and benefit of the law. Subsection 3 further asserts that
every person has the right not to be treated in an unfairly discriminatory manner on such
grounds as their nationality, race, color, tribe, place of birth, ethnic or social origin, language,
class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital
status, age, pregnancy, disability or economic or social status, or whether they were born in
or out of wedlock. Thereof in this instance everyone is expected to be treated equally when
making their wills and not discriminated basing on certain grounds. With the emergence of
privileged wills, it is presumed to be discriminatory with regards to profession. Soldiers are
subject to free legal advice and are therefore expected like any other professions expected
make wills upon notice of a call for duty before going into the battlefront.

Conclusion.

Privileged wills as much as it is termed as a dangerous anachronism, it cannot totally be done

with or removed. However it should be redefined or subjected to certain limitations. Looking
at wills made during an epidemic, there is no justification as to why such wills should not be
privileged. Thus soldier’s wills should be subject to limitations and granted to those who are
in actual military service as stipulated by the Wills Act. Oral wills should be redefined and
only be granted under certain circumstances in order to do away with fraud. The justification
of these privileged wills when being analysed the supremacy of the constitution cannot be
foregone since it advocates for equality and non-discrimination as elaborated and explained
above.

19
Constitution Of Zimbabwe Amendment No. 20 (2013)
REFERENCES.

A Lang. Privileged will - A Dangerous Anachronism.

Arnold & Smith, PLLC is a civil and criminal litigation firm in Charlotte. Handwritten and
Oral Wills. North Carolina. Accessed on 20 September 2018.

Constitution of Zimbabwe Amendmect No. 20 2013

Chirawu S. Principles of the Law of Succession in Zimbabwe. Incorporating The Women’s

Rights Perspective. (2015) WLSA. Harare, Zimbabwe.

In Re Wingham [1948] 2 All E.R. 908 (C.A.).

In re Goods of Charlotte Piercy 16 (3) ER 1038

Janda v Janda 1995 (1) ZLR 375

LEE, Jack Tsen-Ta. A Place for the Privileged Will. (1994). Singapore Law Review. 15, 171-
192. Research Collection School of Law.

L. L. Fuller. “Consideration and Form” (1941) 41 Columbia. L. Rev. 799

Slee Blackwell Solicitors. What is a Privileged will? Inheritance Disputes.co.uk. Accessed

15 September

Soldiers' Wills. What Constitutes ‘Actual Military Service.’ Virginia Law Review, vol. 30, no.
3, 1944, pp. 481–486.

Patricia Critchley. “Privileged Wills and Testamentary Formalities: A Time to Die?” The
Cambridge Law Journal, vol. 58, no. 1, 1999, pp. 49–58

UN Children's Fund. Zimbabwe Cholera Outbreak Report #1 (13 September 2018).

Reliefweb international.

Wakapila v Matongo HH 1220/07 (2008)

Wills Act Chapter 6:06

https://www.merriam-webster.com/dictionary/soldie. Accessed on 15 September 2018.