Inheritance Rights of Children Not Known: Legal Considerations and Remedies

Introduction

The Wills Act [Chapter 6:06] regulates the drafting and execution of wills in Zimbabwe. It specifies that a will must accurately reflect the testator’s intentions at the time it is executed.

However, where a child was unknown to the testator at the time of execution of the will or at the time of his/her death, their omission from the will may not necessarily reflect an intentional exclusion.

This article examines the legal remedies available to illegitimate children who are excluded from a will. It addresses situations where these children were unknown to the testator at the time the will was executed, as well as cases where they were known but still excluded. Additionally, it discusses the inheritance rights of unknown illegitimate children in the context of intestate succession.

In particular, it considers the impact of section 18 Wills Act [Chapter 06:06], on subsequent birth, legitimation or adoption of children on will.

Legal remedies

Scenario 1

Testator not aware of the child’s existence at time of execution of the will, known children are provided for in the will:

The child may have recourse under Section 18(1)(b)(ii) of the Wills Act which states that:

(1) If, after a testator has made a will—
(a) ………………………………………………
(b) an illegitimate child of the testator is legitimated or, in accordance with customary law, is legitimated or otherwise acknowledged or recognized as a child of its father;
(c) …………………………..

then, unless the will makes some other provision for the child or unless it clearly appears that the testator intended otherwise, the child shall be entitled to the following benefits from the testator’s estate—

(i) ………………………………………………
(ii) if the will makes provision for any other child or children of the testator, the child shall be entitled to the same benefits as, or to benefits of equivalent value to, those that are receivable under the will by—

A. the other child or children, where there is only one such other child or where the will treats all such other children equally;

B. the other child or other children, as the case may be, who receive the benefits of smallest value, where the will treats the other such children differently.”

Scenario 2

Testator not aware of the existence of the child at time of execution of the will and provided for specific children in the will to the exclusion of some:

The child may still have recourse under Section 18(1)(b)(ii) of the Wills Act. If the will provides for some children but not all, the child who was not mentioned may be entitled to an equitable share of the estate as the children that were provided for. The court may consider factors such as the testator’s intention and the qualifying factors used to determine the children that would inherit and those that would not, the relationship between the testator and the child, and the overall fairness of the distribution.

Scenario 3

Testator was not aware of the existence of the child (whether legitimate or illegitimate) when executing the will and, the will makes no provision for any child:

If the will makes no provision for any child, the newly recognised child inherits as though the testator died intestate (without a will) S18(1)(i) of the Wills Act states that:

(i) if the will makes no provision for any child of the testator, the child shall be entitled to any benefit that he would have received if the testator had died intestate;

Scenario 4

Testator was aware of the existence of the child when executing the will and provided for specific children in the will to the exclusion of the child and or other children:

The testator intentionally excluded them, Section 18(1) of the Wills Act generally would not apply. The testator’s deliberate decision to exclude the child would be respected.

However, if the child is a minor, the law provides for dependents to claim maintenance from the estate under the Deceased Persons Family Maintenance Act [Chapter 6:03]. See section 7 Award of Maintenance and Section 8 Form and Substance of Award.

Section 18 (3) of the Wills Act states that subsection (1) shall not be interpreted in a manner that infringes upon a child’s right to receive property, maintenance, or any other benefit from the estate of a deceased person as provided for under any other law.

Therefore, even if excluded from the will, the child can apply for financial support. The court considers factors such as the child’s proven relationship with the deceased, the financial needs of the claimant and the overall distribution of the estate.

This position was affirmed in Zaranyika. P v The Master of High Court & Ors 19-HH-526 wherein the court stated:

“ In relation to conditions [ in a Will ], and based on freedom of testation, a testator remains at liberty to impose conditions in a will be it an inheritance or a legacy. … The question to ask is whether or not freedom of testation is absolute?

Outside conditions, the only other instance that may interfere with the freedom of testation is through the provisions of the Deceased Persons Family Maintenance Act [Chapter 6:03] section 8 (1)(i) in terms of which a will may be varied so as to meet maintenance for a dependant.

With conditions however, the preponderance of authorities suggest that the condition imposed must be lawful, possible to fulfil and not contra bonos mores (against good morals).”

Scenario 5

The deceased was not aware of the existence of the child at the time of his death and died intestate:

Where a deceased dies intestate, the law ensures equal inheritance rights for all his children, including those previously unknown or illegitimate. In terms of the constitutional principles of equality, all children, whether legitimate, illegitimate, or born outside marriage, are entitled to a share of the estate. Illegitimate children may assert their rights by proving their biological relationship to the deceased, using methods such as DNA testing testimony from witnesses or evidence of acknowledgement by the deceased. This recognition entitles them to inherit equally with known heirs under the rules of intestate succession.

The court in Bhila. E v The Master & Ors 15-HH-549 ruled that the common law practice of excluding children born out of wedlock infringed upon their constitutional rights to legal protection and non-discrimination. These rights, Discrimination due to birth status, would mean children would face unjust punishment for a situation beyond their control. The 2013 Constitution explicitly prohibits discrimination based on birth status, ensuring equal treatment before the law for all children.

Conclusion

Zimbabwean law has evolved to protect the inheritance rights of all children, including those born out of wedlock or unknown to the testator. While intentional disinheritance is still valid, courts now recognise the rights of illegitimate children. The Wills Act [Chapter 6:06] provide clear legal frameworks to address scenarios where children may be excluded from a will, either intentionally or unintentionally. The Deceased Persons Family Maintenance Act [Chapter 6:03] ensures that dependents, even those excluded from a will, can seek maintenance. The Constitution guarantees equal rights for all children, regardless of birth status. This principle has been upheld in various court decisions.

Whether it is fair to the legitimate children and the surviving spouse to have illegitimate children whom they knew nothing about receiving a share of the estate, and whether the illegitimate children’s right to freedom from discrimination would bind the legitimate children and the spouse, would no doubt be questions to be decided in the Constitutional Court.