Sorry for the late one but let's talk about inheritance law in Malawi on today's Sunday Law Clinic.

Here we go. Had some urgent work to do over the weekend making it difficult .

In one Macro-economics lecture some 11 years ago, we were learning about the effects of some variable in the short run vs in the long run. Someone asked, what about in the VERY long run? The response was in the VERY long run we'll all be dead. It was a joke of course but true.

We will all die, eventually.
Others want to face this reality and prepare their families for what happens after they are gone especially in terms of property succession. Others don't. Unfortunately, property grabbing is common back here in times of grief.

There are a number of ways that one can employ to ensure orderly succession on their death. One may prepare a will, a trust, or transfer property to intended beneficiaries in advance.

The most straight-forward of the above ways is transferring property to the people you want to own the property while you're still alive. Ideally, these will be your spouse, children, dependants, or close family.

The danger of course is that since you're alive, you might still be in need of use of the respective properties. Or that the new owner might decided to sell the property.

To circumvent the above issues, you can create a trust. In this case, you appoint a number of people you 'trust' to act as Trustees together with you and then transfer all the property you have to their joint names. This will mean that the Trustees are now the new owners.

However, Trustees are simply owners in name. The 'true' owners are the ones named in the document creating the trust as being entitled to benefit from the Trust property. Normally, Trustees will only be paid honoraria for expenses in their work.

The document creating the Trust (called Trust/Settlement Deed) will have a number of terms detailing how the Trustees are to manage the property they have been entrusted with to the benefit of the named persons. A Trust will ordinarily outlive it's creator, called settlor.

The Settlor will have made arrangements indicated in the Trust Deed on who will succeed him as Principal Trustee when he dies. This will usually be the Settlor's spouse or oldest child or well-trusted sibling. In this case, the Trust will continue despite the settlor's death.

On such death, there will be minimal legal issues on property inheritance and succession.
Of course you cannot take away the possibility that some people who are ignorant will try to grab property but the avenues for help are almost straight forward.

The downside of a Trust is that property is actually in the name of all the people named as trustees. While the law will try and protect the beneficiaries by placing a number of responsibilities on the trustees, shrewd individuals may still dupe the trust.

Problems will also arise where the remaining Trustees no longer have the motivation to serve and the beneficiaries want to share the property. In this case, the property will be divided according to rules that are used when one has left no will.

Where a person has left a will, the property will be administered or shared to the intended transferees according to that Will. However, where the Will has excluded a member of the immediate family from its benefit, the court may order that such member become a beneficiary.

Immediate family means spouse and children and this includes adopted child, or a child born out of wedlock. Spouse means a wife or husband from a marriage recognized under the Constitution.

The Will can state the person who should administer the property when the Testator (the author of the will) dies. It can be a person, a partnership, or a company. People have appointed accountants, lawyers, law firms, or banks before.

Where a person dies without a will and without any provision on succession of property, he is said to have died intestate. When one dies intestate, there are principles which the court uses to distribute his property.

Of course the first thing will be to appoint a person to administer the property. Any member of the immediate family can apply to a Judge to be such administrator or to nominate such administrator of the deceased estate.

Property will then be distributed to the spouse or spouses and children and dependants. Dependants are people who were being helped by the deceased person being his or her parents, or a minor (below 18yrs) whose education depended on the deceased person.

The distribution will be based on age and needs of the children, contribution of the spouse, if there are a number of them, and intention of the deceased person derived from how the deceased person conducted their affairs before they died.

Here is the downside of wills:

For one to be able to have access to a deceased estate, the estate needs to be assessed and if it exceeds K10 million, there is supposed to be paid estate duty to government which is progressive from 5 % to 11% of the value of the estate.

Miscellaneous:

The Deceased Estate (Wills, Inheritance and Protection) Act from which almost all of our succession law derives makes property grabbing an offence under its Section 84. If found guilty, one could pay a K1 million fine and be imprisoned for 10 years.

I hope after this thread you start thinking about the future of your spouse and children plus dependants in case you die

Questions are welcome but I will only attend to them later in the evening.