Unit 11

SUCCESSION

Part II of the Intestate Succession Act deals with the distribution of the estate. By section
4 of the Intestate Succession Act a person dies intestate when she/ he has not left a will
on all or part of her or his estate. She/he is intestate only to the part uncovered by the
will and in that case the Intestate Succession Act applies.

All people have experienced death in one way or another. Most have experienced the
way the deceased’s estate is shared among relatives traditionally. The question is whose
tradition?

What of intermarriages, whose tradition should be followed. Does this practice apply to
statutory marriages as well?

The civic organisation of the 1970s identified a serious problem in the various traditional
practices of inheritance / succession which left out many women who by then had
become educated and able to buy household goods or contribute to mortgage repayments
of houses. By 1972 the Government set up a Commission of inquiry headed by Professor
M.P. Mvunga, then Director of the Law Development Commission and it took evidence
from members of the public. Its recommendations did not become law until 1989 when,
without further debate and shelving, the President1 then decided it was time to answer the
property grabbing outcry. Meantime, quite a few changes had been made to the
recommendations.

Distribution of Estate

Section 5 deals with the distribution of the estate, and gives 50% of the children
proportionate to their needs; 20% surviving spouse(s) proportionate the to duration of
marriage or such things as contribution to the acquisition of matrimonial property; 20%
to the parents of deceased, and 10% to the deceased’s dependants in equal shares,
provided a “priority dependant” can apply for adjustment of his / her share if

1
Dr Kenneth David Kaunda first Republican President 1964 - 1991

139
circumstances necessitate the portion to be enlarged. If part of the portion to be touched
was covered in a will, then that will the be adjusted accordingly to give the priority
dependant more than stipulated. This is the proviso to section 5.

By section 5(2) the share of the estate inherited by a minor shall be held for him or her by
his/her parent or, legal guardian

Section 5 closes the list of beneficiaries. However, by section 6, near relatives may also
inherit if special circumstances exist. In the absence of near relatives the estate vests in
the State bona vacantia.

Section 2 defines “near relative” as issue, brother, sister, grandparent, and other remoter
descendants of the deceased.

Section 6 provides for distribution of the estate where the intestate is survived by no
spouse but by other categories of beneficiaries; while section 7 provides for distribution
where the intestate is survived by a spouse, but not by other categories of beneficiaries.

By section 6: Where an intestate leaves non of the following beneficiaries, the Will will
be distributed as follows:

Non-Surviving Beneficiaries Ratio

children
(a) spouse children per equal shares
age / needs

(b) spouse aggregate to

Children parents equal shares

(c) spouse
Children dependants equal shares
Parents

(d) spouse
Children near relatives, in equal shares
Parents in
Dependants

140
 (e) spouse the State 100%
children bona vacantia
parents
dependants
near relatives

By section 7 where an intestate is survived by a spouse but:

to spouse and children 10%

5.7 (a) no parents
to dependants 10%

to spouse 20%
(b) no children parents 20%
dependants 10%

(c) no dependants, to parents equally

(d) no children to spouse in proportion

no parents and to to their shares
dependants as specified in
section 5
to spouse
(e) no parents and
dependants children equally

(f) no children, no to spouse on one hand equally

parents and no and
dependants near relatives on
the other

By section 8, personal chattels in monogamous marriages devolve:

to the child or
children or spouse equally
or to both and absolutely

Section 9 provides that notwithstanding section 5 where the estate includes a house

to spouse and as tenants in

child or children common.
Spouse – life
intestate to
determine

141
 (extra houses shall ) upon death or
(form part of the ) remarriage,
(estate per subsection 2 ) unless she /he
is sole
Survivor

Section 10 provides for the devolution of homestead and common property in a

polygamous marriage

homestead remains
intact; common property is shared
equally

By section 11 small estates,

negligible estates of to the spouse and child/
K30, 000.00 children, or parent if wholly
(now K3,000,000 as no surviving spouse or
amended by S.I. ) child/children

Section 13 provides that any beneficiary may transfer his/her share to a priority
dependant

Section 14 provides for offences for depriving a beneficiary. The penalty is 750
penalty units or 2 years imprisonment or both (a penalty unit is K180,000.00)

Part III of the Act provides for the administration of an estate.

Any interested person may apply and be granted letters of administration subject to the
Court’s discretion in section 15 (4)

Letters of 15. (1) Where the deceased has died intestate the court may, on the application
administration of any interested person, grant letters of administration of the estate to that
on intestacy interested person.

(2) Subject to section sixteen where more than one person applies for letters of
administration, the court may make a grant to any one or more of them, and in
the exercise of its discretion the court shall take into account greater and
immediate interests in the deceased's estate in priority to lesser or more remote
interests.

(3) Where no person applies for letters of administration, letters of

administration may be granted to the Administrator-General or to a creditor of
the deceased.

(4) Where it appears to the court to be necessary or convenient to appoint some

person to administer the estate or any part of it other than the person who under
subsection (1) in ordinary circumstances would be entitled to a grant of letters of
administration, the court may, having regard to consanguinity, amount of

142
 interest, the security of the estate and the probability that it will be properly
administered, appoint such person as it thinks fit to be administrator.

(5) Where letters of administration are granted under subsection (4) the grant
may be limited or not limited as the court thinks fit.

Section 16 provides that up to 4 people may be granted letters together; section 16(2)
confers on Court particular interest in case of minors and may appoint one or more
administrators in addition to the existing one. Unless otherwise directed by court, joint
administrators exercise their powers by majority.

Number of 16. (1) Letters of administration shall not be granted to more than four persons
administrators in respect of the same estate and if there is a minority or a life interest, letters of
administration shall be granted to the Administrator-General, to a trust
corporation solely or jointly with an individual or to not less than two
individuals.

(2) If there is only one administrator (not being a trust corporation or the
Administrator-General) then, during the minority of a beneficiary or the
subsistence of a life interest, the court may appoint one or more administrators
in addition to the existing administrator.

By section 17 a lawyer may be appointed to act as administrator pending appointment of

Administrator. eg where Administrator is out of the country, or some other delay in
application.

Attorney of 17. Where a person who is entitled to letters of administration is absent from
person entitled to Zambia, and there is no other person equally entitled who is willing to act as
administration administrator, letters of administration may be granted to a lawfully constituted
attorney, of the administrator ordinarily resident in Zambia, limited until that
administrator obtains letters of administration himself and in the meantime to
any purpose to which the attorney's authority is limited.

Section 18 provides for other controls by Court during proceedings pertaining to the
administratorship.

Appointment of 18. Pending the determination of any proceedings for obtaining or revoking
administrator any grant of letters of administration, the court may appoint an administrator of
pending the estate of the deceased person, who shall have all the rights and powers of a
litigation general administrator other than the right of distributing the estate, and an
administrator so appointed shall be subject to the immediate control of the court
and shall act under its direction.

Section 19 provides for duties and powers of Administrators, which include to pay debts
and funeral expenses, as well as effect distribution of the estate in accordance with the
rights and entitlements of the beneficiaries. An Administrator must account for the

143
property, and can apply to Court to sell if doing so is in the best interest of the
beneficiaries

In that case the Administrator must obtain the best price, and can only sell upon getting a
Court Order (section 19(2))

Duties and 19. (1) The duties and powers of an administrator shall be-
powers of
administrator
(a) to pay the debts and funeral expenses of the deceased and pay estate
duty if estate duty is payable;

(b) to effect distribution of the estate in accordance with the rights of the
persons interested in the estate under this Act;

(c) when required to do so by the court, either on the application of an

interested party or on its own motion-

(i) to produce on oath in court the full inventory of the estate of

the
deceased; and

(ii) to render to the court an account of the administration of the

estate.

(2) Where an administrator considers that a sale of any of the property forming
part of the estate of a deceased person is necessary or desirable in order to carry
out his duties, the administrator may, with the authority of the Court, sell the
property in such manner as appears to him likely to secure receipt of the best
price available for the property.

Section 21 provides that

Trust Where a person dies leaving property of which he was the sole or surviving
property trustee, or in which he had no beneficial interest on his own account and leaves
no administrator or leaves one who is unable or unwilling to act as such, letters
of administration, limited to that property, may be granted to the beneficiary, or
to some other person on his behalf.

Section 24 provides for the effect of letters. It states that

Effect of (1) Subject to any limitations and exceptions contained in a grant of letters of
grant of administration the grant entitles the administrator to all rights belonging to the
letters of deceased as if the administration had been granted at the moment after his death
administration except that letters of administration shall not render valid any intermediate acts
of the administrator tending to the diminution or damage of an intestate's estate.

(2) Subject to subsection (1), letters of administration shall have effect over the
whole of the estate of the deceased throughout Zambia and shall-

144
 (a) be conclusive against all debtors of the deceased and all
persons holding any property of the deceased;

(b) afford full indemnity to all debtors paying their debts, and all
persons delivering up that property to the administrator.

Section.25 provides that (quote)

Death of Where letters of administration have been granted to more than one
one of several administrator and one of them dies, the representation of the estate to be
administrators administered shall, in the absence of any direction in the grant, accrue to the
surviving administrator.

Section 28 (1) states in part that:

Guarantees (1) As a condition of granting letters of administration to any person, a court

on granting may, subject to this section, require one or more sureties to guarantee, within
letters of any limit imposed by the court, any loss which any person interested in
administration the administration of an estate may incur in consequence of a breach by the
administrator.

(3) No action shall be brought against a guarantor to whom this section relates
without the leave of the court.

Section.29 provides for revocation

- if letters were obtained in circumstances in which the court proceedings

were defective in substance
- if the grant was obtained fraudulently

- if based on untrue statement of fact

- if grant has become inoperative or of no use

- for failure to account or falsification of accounts

Revocation 29. (1) Letters of administration may be revoked or annulled for any of the
of grants following reasons-
and removal

(a) that the proceedings to obtain them were defective in

substance;
(b) that the grant was obtained fraudulently;

(c) that the grant was obtained by means of an untrue statement of

a fact essential in point of law to justify the grant, though that
statement was made in ignorance or inadvertently;

(d) that the grant has become of no use and inoperative;

145
 (e) that the person to whom the grant was made has, without
reasonable cause failed, to furnish an account of his
administration after having been lawfully called upon to do so,
or has prepared an account which is untrue in a material
particular.

(2) Where the court is satisfied that proper administration of the estate and the
interests of the persons beneficially entitled to them so require, it may-

(a) suspend or remove an administrator;

(b) provide for the succession of another person to the office of

that administrator who shall cease to hold office; and

(c) provide for the vesting in the successor of any property

belonging to the estate.

Section 30 provides for the remuneration of administrator and states that

Payment of 30. (1) Where letters of administration are revoked, all payments made in good
or to any faith to under the letters of administration before the revocation of those
Administrators letters administrators shall, notwithstanding the revocation, be a legal discharge to
whose grants the person making the payment.
are revoked
(2) An administrator who has acted under any revoked letters of
administration may retain and reimburse himself out of the assets of the
deceased in respect of any expenses incurred by him or fees paid out by him
which any person to whom letters of administration are afterwards granted could
have lawfully incurred or paid.

Section 31 provides for the surrender of revoked letters and states that:

Surrender 31. (1) Where letters of administration are revoked under this Act, the Court
of revoked shall order the person to whom the grant was made to deliver up the letters to the
grants court immediately.

(2) A person who wilfully and without sufficient cause fails to deliver up
the letters of administration, in accordance with subsection (1), shall be guilty of
an offence and liable upon conviction to a fine not exceeding one hundred and
twenty-five penalty units or to imprisonment not exceeding three months, or
both.

(As amended by Act No. 13 of 1994)

146
Part VI deals with Succession generally.

Section 32 provides for the appointment of guardians for minors, and gives a right to
sell the minors interest provided it is in the interest of the minor to do so.

Guardians 32. (1) A court may appoint any person to be the guardian of a minor.

(2) A court may direct the transfer to, or vesting in the guardian of a minor
of anyproperty of the minor and may authorise or direct the sale of the
property or any part ofthe property of the minor.

(3) A guardian appointed under this Act shall be entitled to represent the
interests of the minor in any proceedings in court relating to the
administration of the estate in which the minor has a share.

The guardian so appointed has authority to represent the minor in any court proceedings
relating to the administration of the estate. The guardian has no pecuniary interest in the
estate and can only meet actual costs from the estate i.e. any expenses incurred in the
proper care and management of the estate.

Section 35 deals with offences by administrators or guardians. If an administrator or

guardian deprives a minor of his / her benefit, she / he commits a crime and can be fined
or sentenced for up to 1 year or can be both fined and sentenced (not exceeding 500
penalty units)

Offences by 35. (1) An administrator or guardian who wrongfully deprives a minor of

administrators property or a share in property to which the minor is entitled intending to
and guardians benefit the administrator or guardian or any person other than the minor shall be
guilty of an offence and liable upon conviction to a fine not exceeding five
hundred penalty units or to imprisonment not exceeding one year, or both.

(2) When any person is convicted of an offence under subsection (1), the
court may, in addition to any penalty which may be imposed-

(a) order the restitution to the minor of the property which has
passed in connection with the commission of the offence;

(b) if the property cannot be restituted or cannot be found, order

the convicted person to make compensation to the minor of
such sum as the court may assess as the value of the property.

(3) A court shall have jurisdiction to try an offence under this section
although it has previously dealt with an application relating to the
property in question.

(As amended by Act No. 13 of

1994)

147
In addition, whatever is taken / stolen from the infant is recoverable, or if it is no longer
available (thus not recoverable) its economic value shall be recovered from the offender.

In addition, the guardian or administrator’s appointment may be revoked.

By Section 36 any beneficiary who intentionally causes the death of the deceased forfeits
the right to inherit from that deceased.

Beneficiary 36. Any beneficiary who intentionally causes the death of the deceased shall
causing death forfeit the right to inherit any part of the property of the deceased.
of deceased

Section 40 is on presumption of death. Where two people or more die together, as in an

accident, and it is not possible to determine who died first, the younger is deemed to have
survived the order.

Uncertainty 40. For the purpose of this Act where two or more persons have died in
regarding circumstances rendering it uncertain which of them survived the other or others,
survivorship the deaths shall, for all purposes affecting rights in, to or over property, be
presumed to have occurred in order of seniority, and accordingly the younger
shall be deemed to have survived the elder.

Section 42 provides for other matters that the Court shall have jurisdiction to determine.
It provides that

Disputes 42. On application in the prescribed manner, by an interested person, a court

shall have jurisdiction in relation to a deceased person's estate-

(a) to decide whether or not the deceased person died intestate;

(b) to decide what is the property to which the deceased person
was entitled at the date of his death;
(c) to decide how the distribution of the property forming part of a
deceased person's estate should be carried out;
(d) to order the sale or other disposition of property belonging to a
deceased person's estate for the purpose of paying the debts of
the deceased or for the purpose of distribution;
(e) to appoint a guardian in place of a guardian who has acted
improperly, or who has died.

Section 44 states that (quote)

Transfer of 44. (1) A subordinate court or a local court to which application is made
applications under this Act shall transfer the application to the High Court if-
for orders
relating to
succession
to High Court

148
 (a) the subordinate court or the local court is satisfied that an
interested party has made application to the High Court for an
order relating to the administration or distribution of the estate
of the deceased to which the application relates; and

(b) the subordinate court or the local court is satisfied that it is in

the interests of justice to transfer the application to the High
Court or that it is otherwise necessary to seek directions from
the High Court as to the correctness or legality of the
application or order to be made thereunder; or

(c) the subordinate court or the local court is so ordered or

directed by the High Court.

(2) Where an application is transferred to the High Court under subsection (1)
the High Court shall make such order or give such directions in relation to it as it
considers fit.

Cases
Mwalimu Beauty Nanganywe Mbobola v Chansa Mbobola
Florence Mwnanamwale Billigsley v Estate of the Late Dr. John Billigsley 1994/HP/1563

149
Questions for Discussion

Discuss the beneficial interest of :

(a) a widow in a civil marriage

(b) a widow or widows in a polygamous or potential polygamous marriage

(c) a mistress or girl-friend

(d) children of the deceased

150