CHAPTER 60
WILLS AND ADMINISTRATION OF TESTATE ESTATES ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Application

   3.   Interpretation

PART II
WILLS GENERALLY

   4.   Capacity to make Wills

   5.   Powers exercisable by Will

   6.   Execution of Wills

   7.   Rules relating to Foreign Wills

   8.   Gifts to beneficiary who witnessed Will

   9.   Incompetency of witness

   10.   Creditor witnessing Will

   11.   Executor competent witness

   12.   Erasures, interlineation and alteration

   13.   Revocation of Will

   14.   Incorporation of other documents

   15.   Revival of revoked Will

   16.   Construction of Will

   17.   Doctrines of equity

   18.   Residuary estate

   19.   Custody of Wills

PART III
FAMILY PROVISIONS IN WILL

   20.   Unreasonable provisions in Will

   21.   Matters to be considered by court when varying Will

   22.   Time within which application must be made

   23.   Effect and form of order

   24.   Variation of orders

PART IV
EXECUTORS

   25.   Executors

   26.   Express renunciation of right to probate

   27.   Citation and presumed renunciation

   28.   Effect of renunciation

PART V
GRANT OF PROBATE AND LETTERS OF ADMINISTRATION BY COURT

   29.   Grant of probate

   30.   Number of executors and administrators

   31.   Corporations

   32.   Probate of copy, draft or contents of Will

   33.   Codicil propounded after probate

   34.   Authenticated copy of Will proved abroad

   35.   Effect of probate

   36.   Failure of executors

   37.   Attorney of absent executor

   38.   Attorney of person entitled to letters of administration

   39.   Codicil propounded after letters of administration

   40.   Appointment of administrator pending litigation

   41.   Trust property

   42.   Grants with exception

   43.   Grants of excepted part

   44.   Effect of grant of letters of administration or probate

   45.   Duties and powers of personal representative

   46.   How powers of several personal representatives exercised

   47.   Death of one or several personal representatives

   48.   Death of sole or surviving personal representative

   49.   Expiry of limited grant when estate not fully administered

   50.   Guarantees on granting letters of administration

PART VI
REVOCATION AND ALTERATION OF GRANTS AND REMOVAL OF EXECUTORS AND ADMINISTRATORS

   51.   Revocation of grants and removal

   52.   Payments to personal representatives whose grants are revoked

   53.   Surrender of revoked grants

PART VII
GENERAL

   54.   Sealing of certain grants made outside Zambia

   55.   Guardians

   56.   Expenditure on care and management

   57.   Personal representative or guardian not to derive benefit

   58.   Offences by personal representative and guardian

   59.   Beneficiary causing death of deceased

   60.   Receiver pending grant

   61.   Sale by order of court

   62.   No suit against receiver

   63.   Rectification of errors

   64.   Disputes

   65.   Intermeddling with property of deceased prohibited

   66.   Jurisdiction of court

   67.   Regulations

   68.   Practice and procedure

   69.   Savings

   70.   Non-Application of 1837 Wills Act of United Kingdom

AN ACT

to simplify the law governing the making of Wills; to provide for adequate financial and other provisions to be made for dependants in a Will; to provide for the administration of estates of persons dying having made a valid Will; and to provide for matters connected with or incidental to the foregoing.

Act 6 of 1989,

Act 13 of 1994.

[19th May, 1989]

PART I
PRELIMINARY

1. Short title

This Act may be cited as the Wills and Administration of Testate Estates Act.

2. Application

This Act shall not apply to—

      (a)   land which at the death of the testator had been acquired and was held under customary law and which under that law could not be disposed of by Will;

      (b)   property which at the death of the testator was institutionalised property of a chieftainship and had been acquired and was being held as part of chieftainship property.

3. Interpretation

In this Act, unless the context otherwise requires—

“active service” has the meaning assigned to it in the Defence Act;

“administrator” means a person to whom a grant of letters of administration has been made and includes the Administrator-General;

“Administrator-General” has the meaning assigned to it by section 2 of the Administrator- General's Act;

“brother or sister” includes a half-brother or half-sister and brother or sister by adoption;

“child” means a child born in or out of marriage, an adopted child, a child who is conceived but not yet born;

“codicil” means any document which supplements a Will and contains anything which the testator wishes to add to the Will or any explanation or revocation of what the Will contains;

“court of probate” means a court or authority by whatever name designated, having jurisdiction in matters of probate;

“dependant” means a wife, husband, child or parent;

“estate” means all the assets and liabilities of a deceased, including those accruing to him by virtue of death or after his death;

“executor” means a person to whom the administration of the estate of a testator or part of it is entrusted by express or implied appointment under a Will;

“internal law” in relation to any territory or state means the law which would apply in a case where no question of law in force in any other territory or state arises;

“issue” in relation to any person means the children, grandchildren and other remoter descendants of that person;

“letters of administration” means letters of administration with the Will annexed;

“marriage” includes a polygamous marriage and “husband” “wife”, “widow” and “widower” shall be construed accordingly;

“minor” means a person who has not attained the age of eighteen years;

“personal representative” includes an executor and administrator;

“security forces” includes the Defence Force, Police Force, Prison Service, Zambia National Service, Zambia Security Intelligence Service and any other body or organisation which engages in operations of a security nature;

“security operation” means war operations or security manoeuvres which endanger life;

“signature” includes a thumbprint;

“testator” means a person who has made a valid Will;

“Will” includes a codicil.

PART II
WILLS GENERALLY

4. Capacity to make Will

Subject to sub-section (3) of section 6, any person who is not a minor and is of sound mind may make a Will.

5. Powers exercisable by Will

Without prejudice to any power which may be exercised by a testator in his Will, a testator may—

      (a)   dispose of any property which is his or to which he Will be entitled at the time of his death or to which he may be entitled thereafter;

      (b)   appoint one or more persons to be his executor or executors;

      (c)   subject to the Trust Restrictions Act attach any terms and conditions in relation to the disposition of any part of his estate; or

      (d)   appoint a guardian for his minor child where the surviving parent of the minor child is incapable, by physical or mental infirmity, to take guardianship of the minor child.

6. Execution of Will

   (1) A Will shall be valid if it is in writing and—

      (a)   is signed at the foot or end, by the testator or by some other person in the testator's presence and by his direction; and

      (b)   the signature referred to in paragraph (a) is made or acknowledged by the testator in the presence of two witnesses present at the same time who have also signed at the foot or end of the Will.

   (2) Any person who is not blind and is of sound mind, may be a witness to a Will.

   (3) Where the testator is blind or illiterate, any person competent to make a Will and who has not participated in the making of the Will, shall carefully read over and explain to him the contents of the Will before it is executed and shall declare in writing upon the Will that he had so read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed.

   (4) Notwithstanding any other provisions of this Act—

      (a)   a member of the defence forces who is on active service;

      (b)   a member of the security forces who is engaged on security operations;

      (c)   any person who is ill or is physically injured and who has a settled or hopeless expectation of death and who has abandoned all hope of recovery and who eventually dies due to that illness or physical injury, may make a Will in any of the following forms—

      (i)   written and unattested, if the material provisions and signature are in the handwriting of the testator;

      (ii)   written (whether or not in the handwriting of the testator) and attested by one witness;