¹ No. 36 of 1964.

² Constituted under the Local Courts Ordinance, No. 8 of 1962.

³ See Philip P. Durand, “A note on new provisions for the making of wills and inheritance by intestate succession in Malawi”, [1964] J.A.L. 109.

^{page 22 note 1} Under the Africa Order in Council, 1889; see Articles 13 and 19.

^{page 22 note 2} As amended by the Wills Act Amendment Act, 1852.

^{page 22 note 3} These difficulties were forcibly put by the then Acting Secretary for African Affairs to the Legislative Council in 1960. See p. 34 of the Revised Edition of the Proceedings of the First Meeting of the 75th Session of Legislative Council (July 4th, 1960).

^{page 22 note 4} No. 13 of 1902.

^{page 22 note 5} S. 40 under the Revised Edition of the Laws, 1957.

^{page 22 note 6} On the meaning of “intestate” in this context, see Mtemanyama v. Kitty, 1957 R. & N. 234.

^{page 23 note 1} S. 37.

^{page 23 note 2} 5 Ny. L.R. 74.

^{page 23 note 3} This could not arise in the case of a marriage actually celebrated under the Ordinance, because it is incumbent upon the Registrar to explain to the parties the effect of the provisions as to the succession to property before issuing his certificate: s. 40 (b).

^{page 23 note 4} See, for example, the speech of the Acting Attorney-General at the 27th Session of the Legislative Council, April 16th, 1923. Reported in a Supplement to the Nyasaland Government Gazette of April 30th, at p. 12. The same criticism was made in the Report of the Commission on Native Christian Marriages, in paras. 4 and 11. The Commission was appointed by the Governor in 1945 and reported on February 20th, 1948 (Government Printer, Zomba).

^{page 23 note 5} No. 15 of 1912.

^{page 23 note 6} This piece of legislation was introduced on the advice of the Secretary of State, who had suggested a statute along the lines of the Uganda Marriage of Africans Ordinance (No. 14 of 1903). See the speech of the Deputy Governor on the second day of the 10th Session of Legislative Council, November, 1912, reported at p. 14 of the supplement to the Nyasaland Government Gazette of November 30th, 1912.

^{page 24 note 1} S. 6 (1).

^{page 24 note 2} S. 7.

^{page 24 note 3} S. 8.

^{page 24 note 4} Some are offered in the speech of Dr. Hetherwick at the 27th Session of the Legislative Council, 1923, reported at p. 14 of the supplement to the Nyasaland Government Gazette of April 30th, 1923.

^{page 24 note 6} This reason was offered by the Acting Attorney-General. See p. 12 of the supplement to the Nyasaland Government Gazette of April 30th, 1923.

^{page 24 note 6} No. 7 of 1923.

^{page 24 note 7} S. 3; it was provided that: “Notwithstanding anything contained in the Marriage Ordinance, 1902, it shall be permissible for any Minister and at any place to celebrate marriage according to the Church, Denomination or Body to which he belongs between two natives. Provided that the celebration of marriage under this Ordinance shall not as regards the parties thereto alter or effect their status or the consequences of any prior marriage entered into by either party according to native law or custom or involve any other legal consequences whatever.” But cf. Local Courts Ordinance, 1962, s. 11 (b).

^{page 24 note 8} See in this connexion the judgment of SPENSER-WILKINSON, C.J., in Gombera v. Kumwembe (1958), R. & N. 849.

^{page 24 note 9} The Report of the Committee on Native Christian Marriages was published on February 20th, 1948.

^{page 24 note 10} Paragraph 4.

^{page 25 note 1} Paragraph 5.

^{page 25 note 2} Ibid.

^{page 25 note 3} Clause 9 of the draft Bill.

^{page 25 note 4} No. 13 of 1960.

^{page 25 note 5} See the speech of the Acting Secretary for African Affairs (Mr. Winnington-Ingram) at the First Meeting of the 75th Session of the Legislative Council, 1960 (at p. 34 of the Revised Edition of the Proceedings, printed and published by the Government Printer, Zomba).

^{page 25 note 6} Ibid., at p. 35. See also the speech of Mr. E. M. Mtawali at p. 151.

^{page 25 note 7} “African” for these purposes was defined in the Interpretation and General Clauses Ordinance, 1953, s. 3. The term included at least some persons of mixed descent as it covered “any member of aboriginal tribes or races of Africa and includes any person having the blood of any such tribe or race and habitually residing among and after the manner of any such tribe or race.”

^{page 26 note 1} See the speech of Mr. E. M. Mtawali at the First Meeting of the 75th Session of the Legislative Council, 1960, cited above.

^{page 26 note 2} Section 9.

^{page 26 note 3} Section 11.

^{page 26 note 4} Section 51 (1).

^{page 26 note 5} Section 8.

^{page 26 note 6} Sections 12, 13.

^{page 26 note 7} Section 14.

^{page 26 note 8} Section 29.

^{page 26 note 9} Section 1.

^{page 26 note 10} The Ordinance, enacted prior to the Nyasaland Constitutional Conference in 1960, proved unacceptable to the incoming Government for political reasons.

^{page 27 note 1} Section 24.

^{page 27 note 2} Published in a supplement to the Nyasaland Government Gazette of April 3rd, 1964.

^{page 27 note 3} No. 36 of 1964.

^{page 27 note 4} Section 1.

^{page 27 note 5} Section 2(1).

^{page 27 note 6} Section 3(1).

^{page 27 note 7} See Art. 110 (1) of the Constitution contained in Schedule 2 to the Malawi Independence Order, 1964, S.I., 1964/916.

^{page 27 note 8} No. 13 of 1929, where it is provided that the succession to the property of non-Christian Asiatics shall be regulated by the law of the religion professed by the deceased at the time of his death (s. 6 (1)).

^{page 28 note 1} The provisions of the Ordinance are expressed not to apply to land other than that held “under a freehold or leasehold title recognized as such under the law of Malawi” (s. 2 (2)). This makes it clear that African Trust Land is excluded from the operation of these provisions.

^{page 28 note 2} Section 4.

^{page 28 note 3} Section 5 (2).

^{page 28 note 4} Section 5 (1), (4).

^{page 28 note 5} Section 6 (1).

^{page 28 note 6} Ibid.

^{page 28 note 7} Section 6 (2).

^{page 29 note 1} Section 6 (3). It has been noted above that oral declarations of this kind were recognized in some areas before the enactment of the African Wills and Succession Ordinance. The possibility of giving statutory sanction to such declarations was rejected when the Ordinance was being considered on the ground that they were likely to be made in the presence of interested beneficiaries at a time when the balance of the testator's mind was bound to be disturbed. (See the speech of the Acting Secretary for African Affairs at p. 35 of the Revised Edition of the Proceedings of the 75th Session of the Legislative Council, 1960.)

^{page 29 note 2} Section 10 (1).

^{page 29 note 3} Section 10 (2).

^{page 29 note 4} Ibid.

^{page 29 note 5} Section 10 (6).

^{page 29 note 6} Section 11 (1) (a).

^{page 30 note 1} Section 11 (1) (6).

^{page 30 note 2} Section 11 (1) (c) (i).

^{page 30 note 3} Proviso to s. 11 (1).

^{page 30 note 4} Section 11 (1) (d).

^{page 30 note 5} Section 11 (2).

^{page 30 note 6} Where minor children are entitled to property under the intestacy provisions, the mother (or if she is dead, the child's nearest surviving relative) holds it as trustee (s. 11 (1) (e)).

^{page 30 note 7} This injustice was drawn attention to by the Prime Minister when he proposed the second reading of the Bill. See p. 37 of the Unrevised Edition of the Proceedings of the First Meeting of the First Session of the National Assembly, May 27th, 1964.

^{page 30 note 8} Section 11 (1) (h).

^{page 31 note 1} Section 11 (1) (c) (i).

^{page 31 note 2} Section 13 (2).

^{page 31 note 3} Section 8.

^{page 31 note 4} Section 12 (1).

^{page 31 note 5} Section 12 (3).

^{page 31 note 6} Section 12 (6).

^{page 32 note 1} As a further concession to tradition, it was provided in the Bill as originally published that one of the witnesses to the will of a married man must be an nkhoswe of his marriage: clause 5 (4). This rule does not appear in the Ordinance as enacted.

^{page 32 note 2} The coming into force of the Ordinance had not been notified in the Gazette by November 17th, 1965.