Why delays on death benefits?

Recently, there have been accusations against government departments relating to delays in disbursing funds to beneficiaries of deceased estates. Our Mzuzu Bureau Supervisor JOSEPH MWALE talks to Ministry of Justice spokesperson FRANK NAMANGALE on this and other issues.

What does distribution of property belonging to a deceased person entail?

This is an area which is regulated by a wide range of pieces of legislation. They include the Deceased Estates (Wills, Inheritance and Protection) Act, which requires that there must be an administrator appointed by the High Court to administer the estate. We also have the Estate Duty Act, which requires that the estate should be assessed first to determine whether or not tax is payable out of the estate.

Are these laws applicable to every deceased estate?

Not necessarily. These pieces of legislation treat different categories of properties differently. For example, the Pension Act states that if the estate is comprised of pension money, it should be paid out directly without obtaining letters of administration from the High Court.  The law has entrusted different institutions with the duty of distributing properties of deceased persons. Among the institutions is the department of Administrator General, which is under the Ministry of Justice. For so many years, to date, government has been using the Administrator General as an administrator who distributes death benefits of civil servants to beneficiaries.

What are death benefits?

These comprise pension money and gratuity. And we are dwelling much on death benefits of civil servants because thus the major estate which the Administrator General, backed by the law, has been administering for so many years.

But there have always been delays in processing these benefts to the extent that we recently saw a beneficiary holding a vigil at the Accountant General’s office. What causes these delays?

You see, after the death of a civil servant, beneficiaries are required to undertake the following steps in order to access the death benefits: apply for and get a death certificate from the National Registration Bureau (NRB); apply for and get a list of beneficiaries from the district commissioner of the district of origin of the deceased and complete forms of application for death benefits and submit them to the Accountant General. Once the Accountant General completes the processes and, depending on availability of funds, they are disbursed to the Administrator General. Beneficiaries are informed to go to the Department of Administrator General and access their benefits. The Administrator General will pay beneficiaries upon production of a valid and acceptable identity document such as the National ID or passport.

What happens when the funds consist of pension money only?

In that case the Administrator General pays to the beneficiaries directly without further processes as indicated in the Pension Act. Where the funds received consist of gratuity, the law requires that the Administrator General should first apply for letters of administration from the High Court and once granted, they will pay the beneficiaries.

Why is accessing death benefits a long and tedious process?

Beneficiaries are required to go to various institutions to get different kinds of documents. By the time they are accessing the funds, they would have spent a lot of money moving from one institution to the other. These delays are in two categories, and for the purposes of this response, I will categorise them as pre- and post- disbursement delays.  The pre-disbursement delays are those that happen after beneficiaries have submitted their application to the Accountant General and it is taking long for them to disburse the money. We will not talk much about this delay because it is the Accountant General’s office that is better-placed to know causes of such delays. The post-disbursement delays are the ones that happen at the Administrator General’s office, after the funds have already been disbursed. But since the coming into force of the Pension Act, there are no more delays with respect to pension money because the Administrator General pays pension money directly. But the delay comes in where the estate is comprised of gratuity, which requires a beneficiary to obtain letters of administration from the High Court. The application has to be taken first to the office of the Registrar General for assessment and then to the High Court. The High Court may grant or decline the application. It is in the course of this process of moving from the Registrar General to the High Court that delays are occasioned.

What could be the lasting solution to these delays?

It is the view of the Administrator General that drafting the applications with speed may not be a solution because the applications have to be taken to other institutions which that office cannot control the speed at which they handle those applications. Again, it is the Administrator General’s observation that talking to the judges to handle such applications with speed is not a solution. The High Court is always overwhelmed with a backlog of cases. The Malawi Law Society has for so many years lamented about judges delaying to give out judgments, but to no avail. The problem is not with judges, rather there is too much work for them. The Administrator General is of the view that the solution lies in removing the requirement of obtaining letters of administration on gratuity so that it can be paid directly as is the case with pension money. In 2022, when the Pension Act was being taken to Parliament for amendment, the Administrator General took this as an advantage to do away with delays and submitted its proposal to the Ministry of Finance to incorporate gratuity so that it can be paid directly, but the proposal was never taken to Parliament. These are issues the office must still pursue.

Your last words?

The Administrator General would like to admit that there are some unreasonable delays in the payment of gratuity. The delays are occasioned by the need to obtain letters of administration from the High Court before administering such estates. The Administrator General submits that the real solution lies in amending the law so that gratuity should be paid out directly without obtaining letters of administration from the High Court as is the case with pension money.