Judgment
Delivered on 23rd January 2012
Court:
In The Supreme Court of Zambia, Holden At Kabwe (Civil Jurisdiction)
Panel: Sakala, CJ.,
Mwanamwambwa and Wanki, JJS.
Judgment of the Court by:
Wanki, JS.
Subject
Matter: Wills and Administration of Testate
Estates Act, Chapter 60 of the Laws of Zambia – Variation of Will in Zambia –
Reasonable Provision for Dependants in Zambia
Facts:
This case
involves an appeal against an Order of the High Court which varied the Will of
the late Lagos Nyembele, granting his widow, Marjorie Mumbi Nyembele, and their
two children, Chishiba and Chibwe Nyembele, seventy percent (70%) of the value
of the whole estate. The Respondent, Marjorie Mumbi Nyembele, filed an
Originating Summons seeking a declaration that the Will was unreasonable and should
be varied. The Will was written in 1999, before the testator's marriage to the
Respondent (which occurred in August 2003) and before the birth of their two
children (born in August 2001 and December 2003). The original Will provided
for the estate to be shared between the testator's mother and sister. The
Appellants, Bonaventure Mutale and Aubie Willy Mubanga (executors of the
estate), did not oppose the application in the High Court but submitted on a
point of law regarding Section 20 of the Wills Administration of Testate Estate
Act, arguing that it does not specify percentages for variation. The High Court
granted the application as prayed, leading to this appeal.
Issues:
· Whether
the High Court erred in law and in fact by varying the Will of the late Lagos
Nyembele and granting the widow and children 70% of the value of the whole
estate.
· Whether
the 70% awarded could be deemed reasonable in the circumstances, considering
the provisions of Section 20(1) of the Wills and Administration of Testate
Estates Act, Chapter 60 of the Laws of Zambia.
· Whether
the High Court properly exercised its discretion in varying the Will without
considering factors such as the size of the net estate, the claimant's income,
and the testator's reasons for the dispositions in the Will.
Holding:
The Supreme
Court dismissed the appeal, finding no merit in the sole ground of appeal. The
Court held that the High Court properly exercised its discretion in varying the
Will and ordering that the Respondent and the two minor children be given 70%
of the estate.
The Court
reasoned that:
Discretionary Power:
Section 20(1) of Chapter 60 of the Laws of Zambia empowers the Court to make
reasonable provision for the maintenance of a dependant if the testator has not
done so, leaving the specific figures or percentages to the Court's discretion.
Reasonableness of Award:
Given the circumstances of the case, where there is a widow and two minor
children of the testator, and in the absence of evidence of other children, the
Court did not find the 70% award unreasonable.
Lack of Opposition:
The Appellants did not oppose the application in the High Court and did not
propose an alternative percentage, leaving the matter to the High Court's
discretion. The High Court, therefore, granted the percentage that was applied
for, which was unchallenged.
Full Case: Here