WHO is the father of the child? This was the question that confronted the High Court for Zambia in an interesting case involving the sharing of assets of the deceased “child” who died intestate.
It appears the case is the first of its kind in Zambia and the High Court had to borrow authorities from the US jurisdiction to solve the puzzle.
You see, a man fathered a child whom he did not recognise or support throughout his life even though the birth certificate carried his surname. But when obtaining the NRC, the mother of the child changed his surname to hers because the father of the child was nowhere to be seen. In short, the biological father disappeared!
At 35 years, the “child” died and left some property forming his estate. The biological father reappeared and demanded for his share in line with the Intestate Succession Act of Zambia. Parents are entitled to benefit from the child’s estate under the Zambian law.
So, the man sued in the High Court demanding for his share of his son’s estate whom he did not support in the first place.
“Child support is a factor because parents or a parent as a matter of duty is lawfully and naturally expected to support his/her child,” High Court Judge Charles Zulu said in his judgment.
But the question that the court needed to answer was whether such a father who abandoned his child can benefit from the estate of the same child on account that he was the biological father.
“The Applicant cannot now make a U-turn and unjustly enrich himself from the estate of the child he unceremoniously disowned and deserted,” the Judge ruled.
“Fishing out documents evidencing that he was recorded as the biological father, does not negate his paternity denials…” the Court further held.
I agree with the decision of the Court on this matter. To be a father, one has to prove beyond just being biological. More must be adduced.
This latest case can be contrasted with another one involving a Kenyan man who died Intestate in Zambia but had a longtime girlfriend whom he was looking after. She sued under the Intestate Succession Act claiming to be entitled to the share of the estate as a “dependent” and the High Court ruled in her favour. (See Oparacha case).
Anyway, to avoid such drama, just write a Will!
Read the full judgment in the case of Nicholas Quintino Chavunga v Stephanus Roos and Janet Roos – 2020/HPF/519