By Dickson Jere
A fatal road traffic accident took away life of a breadwinner. After his death, his wife was appointed as Co-Administrator of the estate of her late husband. The couple had one child.
However, another woman appeared later with a newly born baby claiming the deceased fathered the child. The wife refused vehemently to recognize the baby saying she was never told about her and that her late husband never admitted anywhere that he had impregnated another woman.
The dispute escalated to the High Court where evidence was presented that the child who was born out of wedlock was in fact the child of the deceased and entitled to inherit. The wife insisted that she cannot support this child because there was no evidence that her late husband was responsible.
The High Court Judge, after taking evidence from both sides, ruled in favour of the child and ordered that she be considered as child of the deceased.
Unsatisfied, the wife appealed to the Supreme Court, arguing that the lower Court erred by recognizing the child born out of wedlock and without any proof that her late husband was the father.
A penal of three Supreme Court Judges handled the appeal. The court observed that no person should be registered as after of an illegitimate child except on joint request of motte and father of the child under the Birth and Death Registration Act.
“The late died in a road accident five months before (child) was born,” the Judges observed.
“It was, therefore, practically impossible for him to acknowledge, in writing, that he was the father…” the Judges said, adding that the strict application of the law in this case would be unreasonable.
The Supreme Court noted that the family of the deceased, including the mother, testified and acknowledged that their son had impregnated another woman before he died. And that he was even taken to the Local Court over the same matter.
“Based on the facts of this case, the Appellant (wife) could not have known the existence of the child when her husband was alive since her late husband died before the child was born,” the Judges concluded.
The Court chided the wife for refusing to take care of the child left by the late husband saying she was being selfish. Consequently, she was removed as Administrator by the Court.
“Everything was just centered around her and her child. She consistently refused to accept (child) as the deceased’s child, even at the time we heard this appeal, because she did not want to share the money with this child,” the Judges noted.
Case citation – Zulu v Zulu and Others – Appeal No. 218/2012.
This case underscores the legal principle in Zambia that children born out of wedlock are entitled to inherit their portion from the estate of their late father. But, offcourse, there must be evidence to prove that the deceased was father of the child or children born out of wedlock.