On 1st September 2023, Parliament enacted Statutory Instrument No. 38 of 2023 (hereinafter referred to as the “Intestate Succession Rules” or the “Rules”). The purpose of these Rules is to codify the procedural law in relation to intestate estates. This is a positive development, as the procedure was previously not codified. The Rules are now the primary source of procedural law for intestate succession in Zambia.
We briefly highlight some of the salient provisions introduced by the Rules below.
Application for grant – Rule 7
There is now a strict time limit of twelve months from the death of the deceased within which to submit the application. Failure to do so requires obtaining leave of court to make the application. This emphasizes the importance of timely applications. Notably, the Rules also provide that in instances where a period is fixed by the Rules for the performance of an act, the court may on application by the party extend the period within which the act may be performed.[1] Any application to extend the period within which to perform an action must still be made within reasonable time. Additionally, there is a requirement to publish the application for a grant in a daily newspaper of general circulation in the Republic.
Resealing of grant issued outside the Republic- Rules 15 & 19
It is interesting to note that while the Intestate Succession Act does not make any provision for resealing of a grant issued outside the Republic, the Rules have given guidance on the procedure to be followed when a representative wishes to reseal a grant for purposes of dealing with assets within the jurisdiction. This application may be made by the personal representative or the person’s lawyer.
Rectification of grant- Rule 20
A personal representative may rectify a grant in accordance with Section 41 of the Intestate Succession Act within thirty days of the issuance of the grant. This rule goes further to place a timeline of 30 days within which the application to rectify the grant may be made.
Contentious Issue- Rule 22.
This rule provides that where there is a contentious issue arising in relation to an intestate estate, the matter is commenced by way of Writ of Summons and Statement of Claim. It is in addition to Section 42 of the Act which provides for the reasons a dispute under the Act[2] may be brought.
Application for Sale – Rule 24
A Personal Representative who intends to sell the property of the estate in accordance with Section 19(2) of the Act[3] is required to make an application by way of summons accompanied by an affidavit in support of the application. This was the procedure followed prior to the promulgation of the Rules. The Rules state that the affidavit in support of the Summons for leave to sell must contain evidence of the following;
- Ownership of the property by the deceased (i.e. the Certificate of Title);
- Consent of the Beneficiaries together with the Certified copies of the Beneficiaries National Registration Card(s); and
- The Grant
Notably, the practice prior to the Rules has been that the notice of intention to sell the property of the estate must also be advertised in a daily newspaper with wide circulation. The proof of advertisement is normally exhibited in the affidavit in support. Given that this is not provided for under the Rules, it is unclear whether this will still be a requirement or not.
Conclusion
The codification of the procedural law in relation to intestate estates is a welcome development as it provides guidance and refines the practice in this area.
[1] Ibid, Section 28.
[2] Intestate Succession Act, Chapter 59 of the Laws of Zambia.
[3] Ibid
