A guest contribution by Andreen Moncur BA (Law)

Ordinarily, in the case of two contradictory statutes, the most recently promulgated Act would amend the earlier Act, unless otherwise provided in the most recent Act or there is an entrenched clause in the earlier Act or in another Act. While the Administration of Estates Act 66 of 1965 (the Estates Act) appears to conflict with the Child Care and Protection Act 3 of 2015 (the Child Care Act), a closer examination of both statutes will show that this is not the case. The Estates Act as amended on 31 December 2018 does not amend the age of majority in Namibia; it merely deems a minor to be a person younger than age 21 for purposes of the Estates Act. While the Child Care Act, effective from 30 January 2019, amended s72 of the Estates Act, it did not amend s1(2) of the Estates Act. Section 1(2) is the section deeming a minor to be a person under age 21 for purposes of the Estates Act. While it is true that the Child Care Act repealed the Age of Majority Act 57 of 1972 and reduced the age of majority from 21 to 18 years, there are certain exceptions:

1. Section 10(4) provides that in the absence of a contrary intention being indicated in a law (whether the law was enacted before or after 30 January 2019), then the age of majority is 18 years. However, since the Estates Act clearly intends the age of majority to be age 21, the age of majority for purposes of the Estates Act is 21 years and not 18 years. The same applies in the absence of a contrary intention being indicated in a will, document or other instrument made on or after 30 January 2019;
2. Section 10(5) expressly provides that nothing in s10 affects the construction of a document or other instrument executed or made before 30 January 2019 or a will of a testator who died before such date;
3. Section 10(6) expressly states that nothing in s10 affects a reference in a law or document or instrument to an age expressed in years. Since the Estates Act describes minority as an age expressed in years, the reference in the Estates Act to a minor being someone under 21 years of age is unaffected.

Can a death claim become unclaimed?

Death benefits cannot become unclaimed as the trustees must ascertain who the beneficiaries are or were at the time of death and must allocate the benefit as envisaged in section 37C. A person who cannot be traced within 12 months of date of death, cannot be awarded an allocation as the trustees will not be able to establish existence or dependency of the person. Once the trustees have awarded a benefit to nominees and dependants, a beneficiary can pass away or disappear. Where a beneficiary has passed away after a benefit was awarded to him/ her, the benefit must be paid into his/ her estate or to the guardians fund if no testament has been registered with the Master of the High Court. Where the beneficiary has disappeared and cannot be traced for the purpose of effecting payment, the relevant benefit will become an unclaimed benefit to eventually be paid to the Master after having remained unclaimed for 5 years.