By Chipo Mahlangu*
1. Background
On the 28th December 2020 the Supreme Court of Zimbabwe, the highest Appellate Court in the country delivered a critical judgment involving testamentary disposition of properties in terms of the Zimbabwean laws thus putting to rest the question whether or not there is a law which binds a spouse desirous of disposing his or her estate by will to leave the property to the surviving spouse.
Previously, the High Court had given conflicting judgments with the first school of thought holding that in a testamentary disposition of property a spouse can dispose his or her property to whomsoever he or she wishes.
It held that it would be absurd to allow a spouse to dispose of his or her property during her lifetime but take away that power from him or her to dispose it by will.1
On the other hand, other decisions from the same court emerged which held that section 5(3) (a) of the Wills Act [Chapter 6:06] prohibits a testator (spouse) from disinheriting a surviving spouse.
The reasoning behind these decisions was based on the assumption that the surviving spouse has a “right of inheritance” emanating from section 5(3) of the Wills Act as well as section 3A of the Deceased Estates Succession Act.2
It was further argued in these line of cases that a will that disinherited a surviving spouse was in contravention of section 26 of the Constitution which recognizes equality of spouses during marriage and at dissolution either through death or divorce.
So important was the question such that a five-member bench of the Supreme Court had to be constituted to answer the decisive question once and for all.
2. Facts of the case
The 1st Respondent (Penelope Chigwada) was married to the late Aaron Chigwada in terms of the Marriage Act [Chapter 5:11]. Before marrying the 1st Respondent, the deceased had been married to Appellant’s mother and they had divorced. The deceased had six children with his first wife, the Appellant being the fifth and youngest son.
The house in question was however acquired by the deceased and his second wife (1st Respondent) and it was registered in their joint names as husband and wife. It was their matrimonial home. Each spouse owned half of the beneficial interest in the house.
The deceased died on the 19th July 2011 and a will surfaced wherein he had bequeathed his half share of the beneficial interest in the immovable property to his son, the Appellant.
The surviving spouse then approached the High Court seeking to nullify the will challenging the right of the Appellant (son to the deceased) to inherit the half share of the beneficial interest in the immovable property left to him by the deceased in terms of the will.
The High Court concluded that a spouse is bound to dispose his property /estate by a will to his wife or husband and thus a will disposing property to a person other than the surviving spouse was void. It sought to rely on section 3A of the Deceased Estates Succession Act and section 5(3) (a) of the Wills Act.
The Supreme Court held that the High Court had erred.
3. The position of the law as confirmed by the Supreme Court on the 28th December 2020
The following was the take-away from this ground-breaking Judgment.
3.1. Since 1929 marriages in Zimbabwe are out of community of property. Spouses in a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities.
If a spouse has an immovable property registered in his or her name, be it the house used as the matrimonial home, he or she has the right to dispose of it by will to whomever he or she chooses.
This right is one of the rights constituting ownership of property. It is not correct to assert that a spouse, by virtue of a marriage, is entitled to own property that is owned and registered in the name of the other spouse. A marriage and one contracted out of community of property does not afford such rights.
3.2. Section 5(3) (a) of the Wills Act does not require a husband or wife to bequeath his or her property to the surviving spouse. A valid will cannot be set aside because one thinks that the testator ought to have bequeathed his or her property to the surviving spouse.
The law of wills imposes an obligation on all who deal with the deceased’s property, including the surviving spouse, to give effect to the intention of the deceased regarding the disposition of his or her property as expressed in a valid will.
3.3. The right of every person to freely dispose of his or her property is a fundamental right for every person regardless of gender enshrined in section 71(2) of the Constitution.
3.4. Decisions of the High Court holding that a testator desiring to dispose of his or her estate by will is bound to leave his or her property to the husband or wife are inconsistent with the law and thus should not be followed.
4. WHERE TO NOW?
The position of the law has been settled.
This in the view of the author is very progressive and in line with the legal and Constitutional provisions of the country.
A marriage is a legal arrangement. It must be recognized that two autonomous individuals are involved in a marriage. This basic realm of freedom of both partners encompasses the right to decide what to do with one’s own estate. The other questions which may arise are as follows:
4.1. Can a spouse during the subsistence of marriage unilaterally dispose of their property?
The answer is in the affirmative. A spouse married out of community of property can deal with property in any way he or she wishes including alienating his or her rights therein or encumbering such property.3
While the Chigwada case did not directly deal with this issue, a reading of same suggests it also confirmed this position.
Even during the subsistence of their marriage, husband or wife is free to also dispose of their property registered in their names without getting consent from the other spouse.4
This again is in line with section 71(2) of the Constitution, that is the right to decide what to do with one’s own estate and to dispose of his or her property in the manner he or she chooses.
4.2. What about on dissolution of marriage?
Distribution of assets (including immovable property) at the dissolution of marriage (divorce) is governed by section 7 of the Matrimonial Causes Act [Chapter 5:13] The distribution must be just and equitable and generally the issue of ownership of the property in question has not been on its own a determining factor precluding the courts from awarding the property to either spouse.
Division of immovable matrimonial property between a divorcing couple is made by courts irrespective of whose name the property may be registered.
If the same principles and reasoning expounded in the Chigwada case were to be applied and relying on section 71(2) of the Constitution, the author’s view is that section 7 of the Matrimonial Causes Act can be challenged based on being inconsistent with the property rights provided for in the Constitution.
Once it is accepted that a spouse has no real right in immovable property that is registered in the other spouse’s name even if he or she contributed directly and indirectly towards the acquisition of that property, the same principle must be adopted upon divorce, death (testamentary disposition) and during the subsistence of marriage.
To hold otherwise and when it comes to divorce creates a serious inconsistency and lacks justification. One hopes the Supreme Court will one day make a determinative ruling on this point.
5. CONCLUSION AND POSSIBLE WAY FORWARD
The position of the law is now settled that a spouse desirous to dispose of his or her estate by will may do so with no obligation at law requiring him or her to bequeath same to the surviving spouse.
Also, a spouse during the subsistence of their marriage can dispose of his or her property without seeking consent from the other partner.
One circumstance that may constitute an exception to the principle and yet now controversial would be the division of immovable matrimonial property between a divorcing couple.
It is against this background that spouses are encouraged to register Family Trusts with the Deeds Registry so that their contributions and interests are protected.
It is also advisable to do joint wills and finally whilst it may still be problematic spouses are also encouraged to ensure their properties are jointly owned.
*Chipo, a Partner at Maposa Mahlangu Attorneys, is a practicing Attorney, Conveyancer and Notary Public registered with the Law Society of Zimbabwe. She has vast experience in dealing with Commercial Law, Family Law, Constitutional Law and Property Law matters. She is also the past Chairperson of the Law Society of Zimbabwe Compensation Fund. Chipo is also a registered Estate Administrator with the Council of Estate Administrators and Insolvency Practitioners of Zimbabwe.
Contact Details: +263 776 359 635
The information set above is by way of guidance. Specific advice should be sought in all cases.
Footnotes
1 See the cases of ESTATE LATE WAKAPILA V MATONGO &ORS 2008(2) ZLR 43 (H) AND ROCHE V MIDDLETON HH 198-16
2 See the cases of CHIMBARI NO V MADZIMA AND ORS HH325-13 ; NYAMUSHAYA AND ORS V NYAMUSHAYA AND ORS HH693-17;
3 See the case of ISHEMUNYORO V ISHEMUNYORO AND 3 ORS SC14/19
4 MUSWERE V MAKANZA HH 16-2005
