BILL WATCH 14/2024
[24th April 2024]
The Administration of Estates Amendment Bill
Introduction
Under our common law the High Court is responsible for protecting the estates – i.e. the property – of deceased persons, children and other vulnerable people who cannot manage their own affairs. This function is carried out through the office of the Master of the High Court, which is staffed by court officials employed by the Judicial Service Commission. The Administration of Estates Act [link] sets out how the Master and his or her staff must carry out their duties and the way in which estates of vulnerable people are protected and administered. The Act lays down for example how the Master appoints executors of deceased estates and gives them letters of administration; it provides for the appointment of tutors and curators to manage the estates of minors; and it provides for money belonging to minors and other vulnerable persons, as well as unclaimed money held by financial institutions, to be paid into a fund called the Guardian’s Fund which is administered by the Master’s Office.
Summary of the Bill
This Bill [link] will amend the Administration of Estates Act in order to turn the Master’s Office into a body corporate governed by a nine-member Board which will include the Master ex officio. All the Board members, except the Master, will be appointed by the Minister of Justice, Legal and Parliamentary Affairs. The Master and his or her staff will be appointed by the Board. The Board will supervise the running of the Master’s Office and will fix the conditions of service of its staff. In performing these functions the Board will be independent from outside control, except for a fairly limited power of the Minister to give the Board general directives on policy. All this is provided for in clause 3 of the Bill.
The present Master and members of his staff will be transferred to the new Office unless they opt to remain in the Judicial Service [clause 5 of the Bill, in which case presumably alternative posts will have to be found for them]
Reason for the Bill
The reason for the Bill, according to its memorandum, is to enable the Master’s Office to serve the people in a more efficient and decentralised manner. The memorandum does not explain how taking the Office out of the Judicial Service will improve its efficiency, but no doubt the Minister of Justice will deal with this when he gives his Second Reading speech to the National Assembly.
As to decentralisation, the Bill contains nothing new. The Master’s Office is already divided between Harare and Bulawayo and has branches in other main centres. The Bill does not make provision for further decentralisation.
It is not clear therefore how the Bill will improve the Office’s efficiency or spread its services more widely throughout the country, but the Minister may be able to explain this in his Second Reading speech.
How will the Master’s Office be Funded?
According to clause 3 of the Bill, the Office will get its funds from:
· fees and charges for issuing letters of administration, registering wills, supervising the administration of deceased estates, etc,
· money appropriated to the Office by Parliament, and
· donations from foreign and local donors.
The Office’s running expenses are most unlikely to be funded by donors, so to meet these expenses the Office will have to rely on fees, charges and Parliamentary appropriations – as it does at present. The Office’s sources of income will remain the same, therefore, but its expenses may be higher: for example, it will have to pay remuneration and allowances for members of the Board. If the idea behind the Bill is to make the Office self-funding, i.e. to reduce the amount it costs the Government, then the Office’s fees and charges will have to be increased. Since the persons who ultimately have to pay those fees and charges are the beneficiaries of deceased estates – mostly widows and orphans – the burden of maintaining the Office may fall on the poorest and most vulnerable members of society.
Reducing government expenditure is generally a good thing, but not at the expense of widows and orphans. It is to be hoped that during the Bill’s Second Reading in the National Assembly, the Minister will be able to provide reassurance that they will not be prejudiced.
Anomalies in the Bill
There are some anomalies in the Bill that need to be clarified and rectified.
Name of the Office
The Office will continue to be called the Office of the Master of the High Court but the High Court will no longer have any real connection with it. There will be no judge on the Board, for example, though the chairperson will have to be qualified for appointment as a judge.
The name of the Office will be anomalous when the Bill becomes law.
Guardian’s Fund
As we said earlier, the Guardian’s Fund receives and safeguards money on behalf of minors and other persons who cannot manage their own affairs. In addition, financial institutions which hold unclaimed moneys are supposed to transfer them to the Fund.
The Bill does not say whether or not the money in the Guardian’s Fund will form part of the funds of the Office and be available to meet the Office’s day to day expenses. The Bill should make it absolutely clear that the Guardian’s Fund, as a trust fund, cannot be used for that purpose.
Powers of the Board and the Minister
· Control of the Office: The Board will be responsible for determining the policies and principles under which the Office is administered and supervised yet the Minister will retain power under section 132 of the Act to make regulations for the management and good conduct of the Master’s Office – and he will be able to make these regulations without even consulting the Board. If this anomaly is left uncorrected it will cause confusion and conflict.
· Staff of the Office: The Office’s staff will be appointed by the Board, as pointed out earlier, and the conditions of their employment will be fixed by the Board. Yet clause 4 of the Bill will give the Minister untrammelled power to make regulations, without reference to the Board, fixing the conditions of service of members and employees of the Office. This anomaly will also have to be corrected.
Membership of the Board
According to a new section 4A(2) which clause 3 of the Bill will insert in the Act, a minimum of “at least three or four” of the members of the Board must be women. This is nonsense, of course: the minimum number of women must be either three or four, but it can’t be both. In any event, since there are to be nine Board members and, according to section 17 of the Constitution, at least half of them should be women, the correct number is “four”.
Amendment of Sovereign Wealth Fund Act
The very last clause of the Bill is numbered clause 6 (though there is another, earlier, clause with the same number). It will repeal section 22 of the Sovereign Wealth Fund of Zimbabwe Act. There is no conceivable reason why it should do that, and the clause is not mentioned in the Bill’s memorandum. Probably it was inserted in error. If so, it must be removed from the Bill.
Further Amendments to the Act Needed
The amendments we have outlined above are the only ones the Bill will make to the Administration of Estates Act. This is unfortunate because the Act is an old one – it dates from 1907 – and the opportunity should have been taken to overhaul it completely. But even in the absence of such an overhaul there are a few further amendments that should be made now:
Amendment of definitions
The definitions of “Assistant Master” and “Master” in section 2 of the Act need to be amended in the light of the new provisions which the Bill will insert in the Act.
The Guardian’s Fund
Section 108 of the Act states that the books of the Guardian’s Fund must be examined by an “examiner” appointed by the Minister. This seems to be an old-fashioned way of providing for an audit of the Fund’s financial statements and records. Section 108 should be updated to require the Fund to be audited annually by a qualified public auditor or by the Auditor-General.
Minister’s power to make regulations
As we have already noted, the Minister’s power to make regulations for the Master’s Office and its staff needs to be aligned with the powers the Board will be given by the Bill.
General Comments
As we have indicated, the Bill raises questions which cannot be answered in the absence of detailed explanations from the Minister. In order to assess the Bill properly, Members of Parliament will need to know, for example, precisely how the public will benefit from turning the Office into a parastatal, what the Office’s projected income and expenditure will be, and how any shortfalls in its revenues will be made good. It would be helpful too if the Minister were to indicate what consultations his Ministry engaged in before preparing the Bill, and what comments were submitted by interested parties such as the Law Society of Zimbabwe and the Council of Estate Administrators.