Roland Routh
Windhoek-Windhoek High Court Judge Shafimana Ueitele on Monday ordered that the Law Reform and Development Commission investigate the possibility of revising the Will Act that dates back to 1953 to address “the violation of the fundamental human rights that may be caused by the strict and unyielding interpretation of the 1953 Will Act”.
Among the provisions in the old Act are that a Last Will and Testament is only valid if it is signed on each page. Because of these provisions the Master of the High Court had refused to accept as valid the Last Will and Testament of the late Linea Peneyambeko Nuugwedha, who only signed the last page of the will and initialed on the other pages. The Master of the High Court reasoned that the will has not been completed in the manner prescribed in the Act. Nuugwedha’s children, who are the heirs, then approached the High Court to declare the will executed because it is a valid Last Will and Testatement of the late Nuugwedha.
The children Gina Nelao Wetutala Mwoombola and La-Toya Lucille Tweufi Mwoombola, the biological children of the late Nuugwedha, indicated that their mother made her will the day before she died and she was so frail that she only had the energy to initial the first three pages of the will and sign the last page. However this was in contravention of the rules and regulations of the 953 Act and the Master rejected the will as invalid.
After hearing arguments on the matter, Judge Ueitele directed the Master to accept and register the testament as the valid will and last testament of the late Nuugwedha for the purposes of the administration of Estates Act 66 of 1965.
He further ordered the Chief Registrar of the High Court to provide a copy of the judgement for the personal attention of the Chairperson of the Law Reform and Development Commission for her to investigate the issues raised in the judgement.
These issues involve the question of whether the strict application of statutory provisions are not a violation of fundamental human rights as enshrined in the Namibian Constitution.
According to Judge Ueitele the matter is of such a distressing nature, not because of any wrongdoing on anyone’s part, but simply because the law was followed to the letter. The judge quoted from an article which in part said: “Our law relating to the execution of wills has retained many forms which are relics of its Roman and Dutch past.”
“In my view the question that confronts me has arisen at a different historical period in our development,” the judge said. “The issue has arisen at a period when Namibia as a nation became a constitutional state and where constitutional supremacy has replaced parliamentary supremacy or sovereignty. It is therefore no longer appropriate for courts to simply defer to what parliament of the legislature says, but to go further and ask the question whether the statutory provisions, in question, promote the spirit of the constitution and whether the strict application of the statutory provision will or will not amount to the violation or negation of a fundamental human right,” said the judge.
He said he is of the view that the first principle of wills enshrined in the constitution is the freedom of testation. The judge went on to say although the legislature limits the power of testation in various ways within the province that remains to the testamentary power, virtually the entire law of wills derive from the premise that a person has the fundamental right to dispose of his or her property as he pleases in death as in life.