Lesotho’s legal framework for the administration of deceased’s’ estates and inheritance has undergone a transformative overhaul with the enactment of the Administration of Estates and Inheritance Act, 2024 (“the Act”). This new Act which was operationalized on 2 April 2024, introduces significant reforms to the management and distribution of deceased estates; introducing a modernized approach to the administration of estates and addressing the limitations and prejudices previously imposed by customary law practices, ensuring a more inclusive approach to inheritance rights.
It also consolidates, renews and reforms the outdated and fragmented laws governing inheritance, succession, administration and distribution of deceased estates under civil and customary rites previously scattered across various statutes. The Act, therefore, is a unified framework, aiming to resolve issues of poor implementation and enforcement. To this end, it repeals the following outdated laws:
- Wills Ordinance Act No. 4 of 1843
- Law of Inheritance Act No. 26 of 1873
- Administration of Estate Act No. 19 of 1935
- Remuneration of Executors Act No. 163 of 1946
- Intestate Succession Act No. 2 of 1953
It applies to all estates in Lesotho reported after 12 July 2022 when the Administration of Estates (Amendment) Act 2022 came into operation and estates in the process of execution before the commencement of the 2024 Act. Estates of people who died before then are still subject to the old 1935 Act. The new Act applies to all wills executed before its commencement, estates of vulnerable people and estates of people certified as unable to manage their affairs.
Key Reforms and Benefits
- Expanded Inheritance Rights for Children: The 2024 Act advocates for equal inheritance rights for children regardless of whether or not they are born out of wedlock and regardless of whether their parents were married by customary law or not. It aims to address historical inequalities and promote fairness in inheritance. In terms of this Act, all children of gender can inherit from their parents.
- Enhanced Duties of the Master of the High Court: The Act solidifies the responsibilities of the Master of the High Court to administer intestate estates under both civil and customary systems. Under the old regime, the Master could only administer non-native Basotho estates and had to determine whether the deceased was native or not.
- Regulation of Beneficiaries and Inheritance Procedures and implications concerning the Land Act No.8 of 2010: The Act sets forth clear conditions for beneficiaries to inherit from the deceased’s estate and outlines the procedures for bequeathing and passing on estates including payments to creditors of the estate. This structured approach replaces the inconsistent practices of the past, providing clarity and consistency. Curiously, the Act allows for joint ownership of inherited land by the children of the deceased person. It will therefore be interesting to see which law will trump the other in determinations by the Courts.
- Accommodation of Diverse Family Structures: Recognizing the complexities of modern family arrangements, including blended families resulting from remarriage, the Act introduces a property regime based on the accrual system. This system protects inheritance rights across different marriages and ensures fair treatment of descendants in blended family settings. In terms of Section 71 of the Act, if a parent with minor children remarries in community of property, the interests of the minor children are protected by ensuring that the property from the previous marriage is excluded from the subsequent marriage. Therefore, disputes of succession in polygamous marriages concerning the property of each house are eliminated; confirming the principle of “Malapa ha a jane”, loosely translated to mean that one house is prohibited from inheriting from the other.
- Standardization of Wills and Written instructions: The Act establishes comprehensive rules for drafting, registering, and monitoring wills. It addresses previous inconsistencies in will registration and provides clear guidelines for eligibility and capacity to produce wills. This regulation aims to enhance the reliability and transparency of estate planning. It recognizes the rights of people practicing custom to bequeath their property through written instructions.
- Classification of Estates: To further develop the inheritance regime, the Act classifies estates based on their monetary value. This classification helps in the effective application of the proposed terms and conditions, ensuring that estates are managed according to their financial significance. Estates with smaller values can thus be summarily wound up by the Master.
- Protection for Vulnerable Individuals: The Act introduces provisions to better protect the estates of vulnerable individuals, including those who are mentally ill, critically ill, or intellectually incapacitated. It ensures that these individuals receive equal protection and proper management of their affairs, reflecting a more just approach to estate administration.
- Synchronization with the Harmonization of the rights of Customary Widows with the Legal Capacity of Married Persons Act No. 15 of 2022: The law on customary widows had in the past, been prejudicial to them. A woman’s share in the joint estate under customary law was not recognized at all, as previously shown in the Court of Appeal decisions of Khathala v Khathala in the 1950s to 1960s, and most recently in the case of Lepule v Lepule in 2016. The Harmonization of the rights of Customary Widows with the Legal Capacity of Married Persons Act No. 15 of 2022 allows the customary widow on the death of her husband, full ownership and control of the joint estate. Upon her death, the new Administration of estates and Inheritance Act 2024 kicks in to allow all the children of the deceased people (married either customarily or by civil rites), regardless of age and gender, to inherit in equal shares from the estate. The Act therefore upholds the rights of customary widows and thus ensures equal protection for both women and men in customary marriages.
- In conclusion, the Administration of Estates and Inheritance Act, 2024, marks a significant step forward in estate law in Lesotho. The new Act addresses the shortcomings of the old legislation by providing a more efficient, transparent and inclusive framework for estate administration and inheritance. It provides a clear line of succession under intestate customary inheritance, promoting fairness and equity in the administration of estates.
For further information or advice contact the Webber Newdigate Estates Department here
The information provided in this article does not, and is not intended to, constitute legal advice. All information, content and materials available in this article are for general informational purposes only. Readers of this article should contact us or any other attorney to obtain advice with respect to any particular legal matter.
