Introduction
In this article I look at inheritance through valid wills in the event that one of the spouses in a marriage passes on. This article is largely based on the Supreme Court case of Chigwada versus Chigwada & Others, case reference SC397/17, Judgement No. SC 188/20, commonly referred to as Chigwada v Chigwada.
Testate versus intestate situation
A person dies testate if he or she leaves behind a valid will at the time of his or her death otherwise he or she is intestate. Where a person dies testate the deceased estate is dealt with in terms of the will. In Zimbabwe wills are regulated by the Wills Act (Chapter 6:06). In intestate cases the Deceased Estates Succession Act (“Chapter 6:02) or “DESA” applies.
Brief facts of Chigwada v Chigwada
The deceased had left a valid will bequeathing 50% of his share in a matrimonial home he jointly owned with his wife to his son. The wife challenged the will on the basis that as the surviving spouse she had the right to inherit the 50% share of her deceased husband. The High Court ruled in her favour but the son then appealed to the Supreme Court which then ruled in his favour.
Law of testamentary disposition
This concerns the freedom of testation or inheritance through a will. The Supreme Court clarified that the law of testamentary disposition, which is based on the universal principle of equality of men and women, gives a right to a person married out of community of property to dispose of his or her estate by will to whomsoever he or she chooses.
Marriages out of community of property
Marriages in Zimbabwe are out of community of property. This entails that persons married in terms of the laws of Zimbabwe have the right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property individually unlike if the marriages were in community of property.
Wills Act as it relates to inheritance
Section 5 of the Wills Act provides a critical position of the administration of the deceased’s estate through their will. It provides that any person who has capacity to make a will may in his will make a provision for the transfer, disposal or disposition of the whole or any part of his estate.
Furthermore, it states that a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such disinheritance or omission.
It also provides that no provision, disposition or direction made by a testator in his will shall operate so as to vary or prejudice the rights of any person to whom the deceased was married to a share in the deceased estate or in the spouse’s joint estate in terms of any law governing the property rights of married persons.
Deceased Estate Succession Act (“DESA”)
According to section 3A of DESA the surviving spouse of every person who on or after the first of November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate:
- The house or other domestic premises in which the spouses or surviving spouse, as the case may be, lived immediately before the person’s death, and
- The household goods and effects, which immediately before the person’s death were used in relation to the house or domestic premises referred to in paragraph (a).
The two Acts compared
In Chigwada v Chigwada, both Acts apply on the dissolution of marriages through death. Section 5 of the Wills Act gives the freedom of testation through a valid will whereas section 3A of DESA applies where there is no will.
The Supreme Court determined that the purpose of the Wills Act is to provide protection for the property or estate belonging to the other spouse from being disposed of by the testator by will as if it is part of his or her estate.
The superior court also determined that the DESA gives rights to surviving spouses, which accrue upon dissolution of a marriage through the death of the intestate husband or wife. The rights do not accrue during the subsistence of the marriage but after one of the spouses has died without leaving a valid will.
Conclusion
The Wills Act gives the freedom of testation in inheritance where there is a valid will. Where one dies intestate the Deceased Estates Succession Act applies.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his personal capacity. He can be contacted on +263 772 246 900 , ghofisi@hofisilaw.com or gohofisi@gmail.com
