By Dickson Jere
A man died without leaving a Will. Apart from his wife, he had no children, parents, brothers, sisters or dependents at the time of his death. However, a niece appeared – daughter of his late brother – claiming part of the estate as a “near relative”. But the surviving spouse who is also Administrator of the estate argued that she is not covered under the law to inherit.
The dispute went to the High Court in which the Judge ruled that the niece can inherit part of the estate as a “near relative” even though the law does not specifically cover her on the list.
He said near relative includes the term “remoter descendant”, which includes a niece.
Unhappy with the ruling, the widow appealed to the Court of Appeal, arguing that a niece is not covered under the Instestate Succession Act for her to have a share of the uncle’s estate.
A panel of three judges were constituted to determine the case.
“The Act establishes an order of preferences. If there are no relatives to inherit the property, the estate becomes bona vacantio as it escheats to the State,” the Judges observed.
The Court went ahead and described a “remoter descendant” as someone who is distant or indirect descendant of a particular ancestor.
“In many legal systems, including Zambia, the term remoter descendent typically refers to relatives who are more distantly related,” the Judges said.
“In our view, the term remoter descendant goes beyond the descendants who follow directly in lineage, so as to include even collateral descendants such as nephews, nieces, aunts and uncles,” the Judges observed
They went further and applied the Zambian cultural traditions.
“In fact, in the Zambia tradition setup, it is a notorious fact that nephews and nieces being the children of ones siblings are considered to be more closely related as near relatives,” the Judges said.
The Court said nephews and nieces are often considered as beneficiaries in distribution of assets when there are no closer relatives surviving the deceased.
The Judges said the law extends to nieces and nephews as part of the beneficiaries when there are no close relatives.
Case citation- Michal Piort Frannciszek Leja v Mercy Maria Benos – Appeal No. 406 of 2023 and Judgment rendered on 1st August, 2024.
Interesting case. Step child cannot inherit but nephew and nieces can!
