In 1968, four years after independence, the High Court of Zambia was asked a question that reached into the foundations of the country’s plural legal system:
- Could an adult African make a will under the English Wills Act 1837 and, by doing so, direct that his property should pass in a manner inconsistent with the customary law that might otherwise govern his estate?
Hwalima was already dead when the question reached Whelan J. What remained was a document through which he had attempted to decide what should happen after his death.
The Court answered emphatically in favor of testamentary choice. An adult African could make a will under the Wills Act, and a valid will could operate notwithstanding inconsistency with customary succession rules, subject to the qualifications imposed by law, particularly in relation to land. The significance of the case therefore extended beyond probate procedure.
A will is an unusual legal document because it becomes fully operative when its maker can no longer explain, amend or defend it. During life, the testator writes instructions for a future in which he will be absent.
The detail is historically interesting because it shows the presence of formal banking institutions within private succession arrangements in Zambia in the 1960s. A testator could nominate a commercial bank to administer his estate, but where the institution declined to act, the High Court had to reconstruct the machinery necessary to carry the will into effect.
What makes this case worth remembering is the principle behind the story:
- The Court allowed that document to speak. An adult African could make a will under the inherited statutory law and, subject to the law’s limits, could direct his estate even where the result differed from customary rules.
In 1968, the High Court of Zambia recognized a principle at once technical and deeply personal:
- A man could choose the legal language through which his property would continue speaking after he was gone.
For lawyers, the value of the case is not only the rule it states, but the way the facts make the rule memorable.
For everyone else, it is another reminder that Zambia’s legal history is also Zambia’s social history.
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