Inheritance Laws in Eswatini
Inheritance laws in Eswatini (formerly Swaziland) are influenced by common law principles, customary law, and statutory law. Eswatini’s legal system recognizes both formal and customary inheritance systems, with each applying in different contexts depending on the deceased's background, the type of estate, and the cultural practices of the deceased's family.
1. Testate Succession (Inheritance According to a Will)
Testate succession refers to the process of inheriting assets based on a valid will left by the deceased. Eswatini allows individuals to write a will to dictate how their estate will be divided upon death.
Types of Wills in Eswatini:
Notarial Will: A will that is executed in front of a notary public, ensuring its validity. This is the most common and formal type of will.
Holographic Will: A will that is entirely handwritten and signed by the testator. While it does not require notarization, it must meet certain legal requirements to be valid.
Oral Will: In very limited situations (such as during imminent danger of death), a person can make an oral will in the presence of witnesses. This type of will is valid but should be used only in extraordinary circumstances.
Testamentary Freedom and Forced Heirship:
Testamentary Freedom: In Eswatini, an individual has the freedom to distribute their estate according to their wishes through a will. However, this freedom is limited by forced heirship rules, which ensure that certain close relatives inherit a portion of the estate, even if the deceased wanted to leave them nothing.
Forced Heirship: Children (both biological and adopted) and the spouse have rights to inherit a minimum share of the estate. This is a reflection of the legal protection of family members.
- Spouse’s Share: A surviving spouse typically has the right to inherit part of the estate, usually a third of the estate. In some cases, the spouse may be entitled to a larger share, depending on the nature of the estate and other factors.
- Children’s Share: If there are children, they inherit in equal shares. Each child is entitled to an equal portion of the estate, and if there is no will, the estate is divided accordingly.
2. Intestate Succession (Inheritance Without a Will)
When a person dies intestate (without a valid will), Eswatini’s laws determine how their estate will be distributed among the heirs.
Order of Succession:
The inheritance rules for intestate succession are set out in Eswatini’s Intestate Succession Act. The order of succession is based on family relationships:
Spouse: The surviving spouse has the first right to inherit. If the deceased was married to only one person, the spouse is entitled to one-third of the estate, though this may vary if there are children. If the deceased was married to more than one person (polygamous marriage), the spouse’s share may be different.
Children: The children of the deceased are entitled to inherit the majority of the estate if no will exists. In the absence of a spouse, children inherit the entire estate. The estate is divided equally among all the children.
- Legitimate children and illegitimate children (those born out of wedlock) generally have equal inheritance rights under the law.
Parents: If there are no children or spouse, the parents of the deceased will inherit the estate. If both parents are alive, they will divide the estate equally between them.
Siblings: In the absence of a spouse, children, and parents, the siblings of the deceased inherit the estate. Siblings divide the estate equally if both are alive.
Extended Family: If there are no surviving direct heirs (spouse, children, or parents), more distant relatives such as uncles, aunts, and grandparents may inherit the estate.
State: If no heirs can be found, the estate will ultimately pass to the state.
3. Customary Law and Inheritance
Eswatini has a strong tradition of customary law, particularly in rural areas and among the Swazi people, where inheritance practices are often governed by customary law rather than formal civil law. Customary law can influence inheritance distribution, especially when the deceased belongs to a royal family or has substantial landholdings in rural communities.
Key Elements of Customary Law in Inheritance:
Patrilineal System: In many Swazi communities, inheritance traditionally follows a patrilineal system, meaning that property and land are passed down through the male line. Typically, sons inherit the property, while daughters may not inherit land but may receive other property such as livestock or personal possessions.
Family Elders: In customary inheritance, the family elders or the head of the family (often a male relative) may play a significant role in determining the distribution of assets.
Polygamous Marriages: In the context of polygamous marriages, a widow or wives may inherit a portion of the estate. Customary law often has specific rules about how the property is divided among wives in a polygamous union.
Widow’s Rights: In some cases, widows under customary law may inherit property or livestock, but their rights may be subject to the discretion of family leaders or other family members.
4. Inheritance Procedure
When someone dies in Eswatini, the probate process must take place to determine the rightful heirs and distribute the estate. Whether the deceased had a will or not, the process generally follows these steps:
Application for Letters of Administration: If there is no will, an heir must apply for letters of administration from the court to administer the estate.
Probate Process: If the deceased left a will, a probate court process will be initiated to confirm the will’s validity and execute its terms. If there is no will, the court will proceed according to intestate succession laws.
Debts and Liabilities: Any outstanding debts and liabilities of the deceased must be paid out of the estate before the assets are distributed to heirs. This includes funeral expenses and taxes.
Distribution of Assets: Once all debts are settled, the estate is distributed to the heirs. If there is a will, it is distributed according to the wishes of the deceased. If there is no will, it is divided according to intestate laws.
Transfer of Property: Any real property (land, houses) must be transferred to the heirs through the appropriate legal channels, including registering the property with the Deeds Office.
5. Inheritance Taxes
As of now, Eswatini does not impose inheritance taxes on estates. However, there may be administrative fees for the process of transferring property, obtaining letters of administration, and registering assets with the relevant authorities.
6. Disputes and Legal Challenges
Inheritance disputes may arise in Eswatini, especially where there are disagreements over the validity of a will, intestate succession, or the application of customary law. Disputes are usually resolved through the courts, and sometimes family elders or community leaders may play a role in resolving issues related to customary inheritance.
Common issues in inheritance disputes include:
- Claims of undue influence in the creation of a will.
- Disagreements about the rights of widows or the division of property in polygamous marriages.
- Claims from extended family members when immediate family members do not inherit as expected under customary law.
Conclusion
Inheritance laws in Eswatini are shaped by a combination of statutory law, customary law, and common law principles. While testate succession provides freedom for individuals to distribute their estate, forced heirship laws ensure that close family members (spouse, children) receive a portion of the estate. For those who die intestate, the estate is distributed according to a set order of priority. Customary inheritance practices also play an important role, especially in rural areas and for members of the Swazi community. The probate process ensures that estates are settled, and while there is no inheritance tax, administrative fees may apply.
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