Deceased Estates (Wills, Inheritance and Protection) Act, 2011

This section gives the Act’s short title.

This section says the Act applies to estate administration for people who die domiciled in Malawi or leave property there, subject to a pension-fund exception.

This section defines terms used in the Act, including key estate-administration words and the small-estate value threshold.

Except as provided in this Act, no person may inherit property under customary law or any other written law if the deceased owned it at death.

This section says who may make a will, who may be appointed in a will, and what powers a will can give to a guardian or court.

This section says a will must be in writing, signed by the testator, and signed by at least two competent witnesses present with the testator and each other.

A will witness, and that witness’s spouse, cannot take a benefit under the will, but they may serve as executor. A court can still validate a benefit for a witness in the testator’s immediate family if the stated conditions are met, and the benefit only takes effect after a court order.

A living person may deposit a will for safe custody with specified officials, and may also deposit it with other persons.

A testator may revoke a will at any time.

A will is revoked if the testator marries after making it, unless it was made in contemplation of that marriage. Divorce also revokes gifts to the spouse and spouse appointments under the will, unless the will says otherwise.

A court construing a will must try to give effect to the testator’s intention, and should not reject that intention just because it is not fully effective.

If a will clause can be read two ways, the meaning that has some effect must be preferred.

A will must be read as if it took effect immediately before the testator’s death, and a gift to someone who dies before the testator lapses.

A will does not have to use technical words or terms of art, as long as the testator’s intention can be understood from the wording.

A court may order reasonable provision from a testator’s estate for an immediate family member not adequately provided for in the will.

If a person dies without a valid will, their property is treated as intestate property. If a will exists but does not cover all property, the undisposed property is also intestate.

This section sets how intestate property is shared among immediate family and dependents, including spouses, children, and parents.

If there are no beneficiaries under section 17, the intestate estate is distributed to surviving relatives in a set order, and the Government takes title only if the listed relatives do not survive.

If it is uncertain which of two or more deceased people survived the others, the law presumes they died in order of age, with the younger treated as surviving the elder, unless a court orders otherwise.

The High Court has probate powers, and certain magistrate courts may handle small estates.

This section lets a consular officer deal with a deceased foreign national’s estate in Malawi in defined cases, including taking possession of property, applying for letters of administration, and receiving money or property with a valid discharge.

The Chief Justice may make Probate Rules, and those rules may require a person granted letters of administration to provide security by bond and sureties and to furnish accounts to court.

If a person dies leaving property in Malawi, the court may appoint a receiver for probate or letters of administration when there is a risk the property may be wasted or dealt with against the Act.

The court may order a sale of all or part of the property if a receiver or an interested person applies and the sale would benefit the estate.

A person aggrieved may bring a suit against a receiver appointed under section 23 for acts or intended acts involving the deceased’s property while the receiver is exercising, or intended to exercise, vested powers.

The Chief Justice may make rules to guide the court when hearing an application to appoint a receiver under section 23.

A person entitled to probate may renounce that right, either orally at a court application hearing or in a signed, attested writing.

A claimant or creditor may ask the court to issue a citation to executors to accept or renounce the executorship.

Renouncing under section 27 or 28 removes the person's right to probate, but the court may still grant probate if that would likely benefit the estate or interested persons.

A corporation, company, or trust corporation may be granted probate or letters of administration, alone or with another person.

Probate or letters of administration cannot be granted to more than four people for the same property. In minority or life-interest cases under a will or on intestacy, they must be granted to at least two people, and the court must appoint another executor or administrator if only one person is acting.

A beneficiary under a will or on intestacy may apply to court to oppose the appointment of an executor or administrator.

Probate may be granted only to an executor appointed by the will, and not to a minor or person of unsound mind.

An application for probate or letters of administration must include an estate duty affidavit copy and a certificate from the Secretary to the Estate Duty Commissioners.

Probate may be granted for a preserved copy or draft of a will, or for the will’s contents if they can be proved, when the original has been lost, mislaid, or destroyed by accident or wrongdoing not solely by the testator.

After probate has been granted, a codicil may be admitted to probate; if the codicil expressly revokes an executor’s appointment, the earlier probate must be revoked and a new probate granted for the will and codicil together.

If a will was proved and deposited in a court outside Malawi, and an authenticated copy is produced, probate or letters of administration may be granted.

Probate of a will, once granted, establishes the will and proves the executor’s title from the testator’s death.

If an executor is unavailable or has renounced, the court may grant letters of administration with the will annexed; it must not do so while a living, known, unrenounced executor is still eligible, unless the citation process has been completed.

If an executor is absent from Malawi and no other local executor is willing to act, letters of administration with the will annexed may be granted to that executor’s lawfully constituted attorney who ordinarily lives in Malawi.

If a person who could be granted letters of administration is absent from Malawi, their duly constituted attorney who ordinarily lives in Malawi may be granted letters of administration with the will annexed, subject to section 40 limits.

Section 36 also applies when administration is granted with the will annexed, the same way it applies on a grant of probate.

The court may grant letters of administration for an intestate estate, choosing among eligible applicants and, if no eligible person applies, a creditor.

If a person entitled to letters of administration is absent from Malawi and no equally entitled person will act, letters of administration may be granted to that person’s lawfully constituted attorney who ordinarily lives in Malawi.

If no will is found but a will is believed to exist, letters of administration may be granted only on a limited basis until the will or an authenticated copy is produced.

While litigation about a deceased person’s will or probate is pending, the court may appoint an administrator for the estate.

If a person dies in the described trustee situation and there is no general representative able or willing to act, limited letters of administration may be granted to the beneficiary or someone acting for them.

If the case requires an exception, probate or letters of administration must be granted subject to that exception.

If a grant has already been made with probate or letters of administration excepted, another grant may be made for the part of the estate that was excepted.

Letters of administration give the administrator the deceased’s rights, subject to stated limitations and special-purpose grants, and they do not validate intermediate acts that harm the intestate estate.

If probate or letters of administration were granted to more than one executor or administrator and one dies, the estate representation passes to the surviving executor or administrator, unless section 31 or the will or grant says otherwise.

If a sole or surviving executor or administrator dies, the court may grant letters of administration for the unadministered estate, subject to section 31 and with specified exceptions.

If a limited grant has expired and part of the deceased’s estate remains unadministered, letters of administration may be granted to persons who could have received the original grant.

The court may correct certain errors in probate-related records and amend the grant accordingly.

The court may revoke or annul probate or letters of administration, and may also suspend or remove an executor or administrator, when the listed grounds are met.

If probate or letters of administration are revoked, good-faith payments made to the executor or administrator before revocation remain legally effective, and the executor or administrator may reimburse themselves from the deceased’s assets for certain payments made under the revoked grant.

If a probate or letters of administration is revoked, the person who received it must return it to the court that granted it; failure to do so willfully and without sufficient cause is an offence with a fine and possible imprisonment.

A court of probate may seal certain probate or letters of administration granted outside Malawi if the required grant document is produced and a copy is deposited.

This Part applies only to small estates unless another provision expressly says otherwise.

For resident magistrate courts and first grade magistrate courts, Parts VIII, IX, X and XII do not apply; this Part applies instead. Part XI applies to them as if certain administration grants were probate or letters of administration.

Certain family members may agree on how to distribute and manage a small estate, and the agreement must be recorded at the District Commissioner’s office.

If a small estate includes private land, dealings with that land are not lawful until an administration grant is made under section 65, subject to Part VIII.

Institutional money linked to a deceased person must be handled under this section, including notice to the District Commissioner, court certification where needed, and payment within 30 days after a request.

This section says who must produce or forward a will to court, when the Registrar must send certified copies, and when a person may apply for a certified copy and an administration grant.

A person interested in a small estate may apply to court for an administration grant, and the court must notify the immediate family and any named executors to attend the hearing.

An administration grant gives the administration entitlement to all inheritable property of the deceased, subject to section 63.

If an administrator dies or becomes unable to act, the other joint administrators may finish administering the estate. The court may appoint a replacement on application by an interested person, and must do so if only one administrator remains.

If a court knows a minor already has a guardian appointed by will, it must not appoint someone else except under section 73. The court may also transfer or vest the minor’s property in the guardian, or authorize its sale. A guardian appointed by will or under the Act may represent the minor’s interests in court over estate administration matters.

Administrators or executors must pay the deceased’s debts and funeral expenses, pay estate duty if due, and distribute estate property according to a valid will or intestacy rules.

An administrator or guardian may spend money on acts needed to properly care for and manage property in a deceased person's estate or a minor's property.

An administrator or guardian must not take a personal financial benefit from the office unless the will expressly allows it.

If there are several administrators, the majority may exercise all administrators’ powers unless the will or administration grant says otherwise. If there are only two administrators, the court may appoint a third administrator on application by either or both of them.

A court may hear disputes about a deceased person’s estate if an interested person applies in the prescribed manner.

An administrator or guardian who wrongfully deprives a beneficiary of entitled property to benefit themselves or another person commits an offence. The court must order restitution for the minor, and conviction can lead to a fine and up to three years’ imprisonment.

If an estate handled as a small estate is later found to exceed the small-estate limit, the administrator and court officer must report it, and the court officer cannot keep acting under this Part without written directions from the High Court.

The Chief Justice may make rules for small-estate applications, including the procedure, forms, fees, and other matters under this Part.

Courts must preserve original wills in the court registry, keep a register of deposited wills, and allow inspection subject to court control and rules; the court may also give certified copies and may send the will to the High Court registry for preservation if it decides to.

The court is not required to grant probate or letters of administration applications, but it may decide them at its discretion. If it refuses an application, it must give reasons within 30 days; otherwise the application is treated as granted, unless the interests of justice require otherwise.

Employers must immediately pay certain unpaid salary and wage amounts after an employee’s death to the surviving spouse, or if there is none, to a responsible family member.

A sane murderer cannot benefit from the victim’s estate.

The Trustee Act applies to executors and administrators of small estates, and they have the same investment powers as trustees.

An executor or administrator may require a claimant to prove a claim by court proceedings or affidavit, and may later distribute the estate if the claimant does not comply.

An executor or administrator in Malawi may pay the balance of an estate to another person in these cross-border probate cases, after debts and funeral/administration expenses are paid, and is not liable for how that balance is used.

A person who is not entitled to a deceased person’s estate property must not take, use, or dispose of it; doing so is an offence.

The Minister responsible for gender and community affairs may design and run civic awareness programmes under the Act, and must enlist chiefs, other traditional authorities, and NGOs to help spread information and carry out related activities.

The Minister may make regulations to help carry out this Act.

Executors and administrators must periodically report and update estate beneficiaries in the form and manner set by the Minister.

Executors or administrators must not wrongfully deprive a beneficiary of property or a share in property the beneficiary is entitled to, especially if doing so to benefit themselves or someone else.

This section repeals the Wills and Inheritance Act, but keeps certain existing subsidiary legislation in force if it was already in force before commencement and does not conflict with this Act.

Except where expressly provided, this section says the Act does not affect the rights and duties of executors and administrators, or the law on administration of estates.

An application to the court for probate, letters of administration, or re-sealing made before this Act started may continue as if it had been made under this Act.