NO INHERITANCE FOR STEPCHILDREN – COURT
By Dickson Jere
A widow had two children from her previous marriage. She later got married to another man but the two had no children during the subsistence of their marriage. Her children even changed their names and started using the stepfather’s surname.
As fate had it, the couple died a day apart.
The Administrators of the Estate were appointed and on distribution of the properties, they contended that the two children cannot benefit as they were not legally adopted by their stepfather.
The matter ended up in the High Court in which the Judge ruled that stepchildren can only be consisted as children of the family when formally adopted.
Dissatisfied, the children appealed to the Court of Appeal. They argued, among others, that under customary law, when parents get married their children automatically become children of the family. Simply, there was no need of formal adoption through the Court process as they had even changed their names.
A panel of three Judges looked at the appeal and decided thus:
“The Appellant’s reliance on moral reasoning and unrelated laws does not establish a legal right to inheritance,” the Judges said.
“The deceased’s marriage to the Appellant’s mother does not automatically confer adoption,” the Court said, adding that a formal process of adoption ought to have been done.
The Judges said being kept by the stepfather and changing of the surname does not confer any right of being the child of the family.
“Zambian case law consistently upholds that stepchildren are not automatic heirs, they must be legally adopted to inherit from their stepparents under the Intestate Succession Act,” the Court said.
However, the Judges said since the two were kept by their stepfather and looked after by him, they can be considered as dependents.
“The Appellant and her brother fall under the category of dependents under the Intestate Succession Act as they were not legally adopted and are entitled to a share of 10% of the deceased’s estate,” the Court ruled.
Case citation – Kaela Kanswe v Evaristo Mfuta (Appeal No. 69/2023) and Judgement delivered last month on 26th February, 2025.
This case underscores the need to write a Will and Last Testament as it will avoid such problems. This argument only comes in when there is no Will.
Further, this case also demonstrates why we need to synchronize our laws. Under the Zambian customary system, there is no classification of children once the parents get married.
NO INHERITANCE FOR STEPCHILDREN – COURT
