Administration of Estates in Lesotho

The Administration of Estates and Inheritance Act, 2024 comes as a long-awaited review of the law relating to inheritance, administration, and distribution of estates of persons who are deceased, minors, persons under curatorship, mentally incapacitated persons, certified ill and incapable of managing their own affairs including persons absent from Lesotho without a lawful representative in Lesotho whose whereabouts are unknown. Further, it regulates the wills and rights of beneficiaries, and it provides for incidental matters.

Wills

The Act details the content and form of wills. This narration can act as a guide to testators as to what to include in their will. It provides that a will shall –

  1. be legibly handwritten or typed and signed;
  2. by a testator
  3. at the foot of each leaf of the will
  • in the presence of two competent witnesses who are over the age of 18 and who shall append their signatures before or in the presence of the testator and each other:
  1. be dated
  2. have a revocation clause
  3. give full names, nationality, identity number, addresses and marital status of the testator; and
  4. give full names and identity number of witnesses


The Act also discusses the issue of competence to make a will. It establishes that any person aged 18 years and above who owns the property and is mentally capable of understanding the nature and effect of his act may make a will. In essence, the Act bestows on every person the right to draft a will or written instructions.

It further extends competence to either married or unmarried couples to make a mutual will. This will prove useful in today’s society as more and more people are moving from the concept of marriage and are displaying a preference for ‘stay–togethers’ or ‘cohabitation’ as opposed to marriage.

Abolition of customary law heir

The greatest highlight of the Act is that it abolishes the concept of a customary law heir. The Act declares that:

‘The customary law on inheritance and allocation of property to an heir shall not be applicable to an estate of the deceased person.’

Rather, all children of the deceased person under civil or customary marriage, both male and female, regardless of age, shall be beneficiaries in equal shares of the estate of their deceased parents unless there is a will or written instructions to the contrary.

Moreover, the Act avers that siblings shall have co-ownership of land in matters relating to the inheritance of land and that inherited arable land shall not be subjected to subdivision. 

The Act further provides that in a polygamous marriage, all the children in each house, male or female, regardless of age, shall inherit in equal shares, where there are no will or written instructions. This concept further eradicates the customary law practice that allotted inheritance for first-born sons only. Under the new Act, even female children are eligible to inherit.

Protection of vulnerable persons

To protect the inheritance of vulnerable persons, a child whose deceased parent’s estate is inherited by paternal uncles on intestacy under customary law even before the commencement of the Act is be entitled to the property of its parents on the coming into operation of this Act. Furthermore, upon the death of the paternal uncle, the child is eligible to inherit from the property of the paternal uncle to the extent of the child’s share.

The Act truly protects the interests of orphaned children. It will also curb the injustices that prevailed under the customary law reign, which allowed paternal uncles to inherit without enforcing accountability to the deceased’s children, leaving the orphaned children destitute.

Position on Spouses

The Act upholds the position of the spouse as it was under the previous amended Act. It allows a spouse to inherit a child’s share of the intestate estate, where the deceased spouse leaves a descendant who is entitled to succeed. However, if the deceased spouse leaves no descendants, the surviving spouse shall be the sole heir.

Controversy on illegitimate children

The National Assembly aimed to introduce the inheritance of children born out of wedlock from their biological fathers where there is evidence of maintenance from such a father. It further suggested that a child born out of wedlock shall inherit a child’s share from its mother, irrespective of its mother’s marital status.

These clauses were rejected by MPs and the majority of principal chiefs, who argued that they wanted to protect the ‘sanctity’ of children born in formal marriages. This then led to controversy between the aforementioned parties and human rights activists who reasonably advocated for the need to protect illegitimate children from continued discrimination under inheritance law.

Conclusion

To conclude, the Administration of Estates and Inheritance Act, 2024 includes updates on provisions pertaining to;

  • Abolishment of customary law heir
  • The introduction of the inheritance of a female child and that of siblings regardless of age or gender on an equal basis, allowing all siblings to inherit equally.
  • Introduction of inheritance under customary law for polygamous and non-polygamous marriage or union
  • The conferment of the right or freedom to write a will or written instructions to every person.
  • Lastly, the introduction of inheritance of vulnerable people

 

References

The Administration of Estates and Inheritance Act, 2024

Committee on Law and Public Safety Cluster (2024) Report on the Administration of Estates and Inheritance Bill, 2024 Lesotho National Assembly

https://nationalassembly.parliament.ls/wp-content/uploads/2024/03/Report-on-the-Administration-of-Estates-and-Inheritance-Bill-2024-.pdf

 

Mathatisi Sebusi, (2024, April 4th) ‘Uproar over Inheritance Act.’ Lesotho Times

https://lestimes.com/uproar-over-inheritance-act/