A DISCUSSION ON THE CHIGWADA V CHIGWADA & ORS CASE.
By Bianca Mahere, Associate.
In December 2020, there was an outcry over the Supreme Court judgment that held that a person could disinherit their spouse in a will. The supreme court case of Gerald Chigwada v Penelope Chigwada & Ors SC 188/20– is a well reasoned judgment by the Honourable Chief Justice Luke Malaba. The reasoning behind the judgment is discussed in this article.
The brief background of the case is that the Appellant was the son of the deceased who was the testator of the will in question. The first Respondent was the wife and surviving spouse of the deceased. The issue was that the deceased bequeathed his half share beneficial interest in the matrimonial house to the Appellant, his son from another marriage. The first Respondent, as the surviving spouse challenged this position and sought for the will to be deemed void by the courts of law.
A will is a legal document in which a person specifies his or her wishes and the method to be applied in the management and distribution of his/her estate in the event of death. Wills in Zimbabwe are governed by the Wills Act [Chapter 6:06]. However, besides the fact that a will is a deceased person’s way of managing his estate, there was deviation from the wishes of the deceased at times. In fact, the Wills Act provides for instances upon which certain acts could be done contrary to the deceased person’s wishes. Section 5 (3) of the Wills Act 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— (a) any person to whom the deceased was married to a share in the deceased’s estate or in the spouses’ joint estate in terms of any law governing the property rights of married persons; or (b) any person to receive any property, maintenance or benefit from the testator’s estate in terms of any law or any award or order of court; or (c) any creditor in respect of any debt or liability payable from or attaching to the testator’s estate; except in so far as such variation or prejudice is brought about with the consent of the person or creditor concerned or through the exercise by him of a right of election..”
Therefore, pursuant to the provisions of s 5 (3) (a) of the Wills Act, a spouse could challenge being disinherited by their spouse in a will. This position can be noted in cases like Chiminya v Estate Late Chiminya & Ors 2015 (1) ZLR 450 (H), Majuru v Majuru HH-404-16 and also the decision in the court a quo in Chigwada & Ors v Chigwada.
The Supreme Court is the highest court of appeal in Zimbabwe in cases where a constitutional issue is not to be determined. Thus the appeal in the Chigwada case overrides all the other decisions in the High Court and sets precedence on the matter. The Supreme Court ruled that a proper reading of s 5(3) (a) of the Wills Act means that a testator must not include in the disposition by will property belonging to the other spouse except with his or her consent. The testator must only include in the disposition by will assets belonging to them only. If they include their spouse’s assets in the disposition, such would inevitably have the effect of varying or prejudicing the property rights of the other spouse contrary to the provision.
Another reasoning by the Court was that there are certain requirements for the validity of a will (see previous article on Estate Planning). None of the essential requirements include the fact that the testator must leave his/ her estate to the surviving spouse. Therefore, a will can still be valid even if it disinherits the testator’s spouse. That is the deceased’s wish and that has to be upheld.
The Supreme Court also clarified on s 3A of the Deceased Estates Succession Act [Chapter 6:02] which was relied on in most similar cases. The provision stipulates that the surviving spouse of every person who dies wholly or partly intestate shall be entitled to receive from the estate, the house or other domestic premises among other assets. The court held that the provision only relates to persons who die wholly or partly intestate, which means that the deceased would not have left a will. Thus it is different from the Chigwada case where the deceased left a valid will.
The law governing married persons’ property under a civil marriage [Chapter 5:11] is the Married Persons Property Act [Chapter 5:12]. This is premised on the law of testamentary disposition, which is based on the universal principle of equality of men and women and gives a right to a person married out of community of property to dispose of his/her estate by will to whomsoever he/she chooses. That was the basis of the ruling. A person can dispose their property in any way they wish. This also includes distribution of their assets in a will.
In conclusion, we note that the Chigwada case has clearly illustrated the position of the law with regards to a testator’s wishes in a will. A will is considered as an embodiment of the actual wishes of a deceased person concerning the disposition of his/ her property. Wills silence family disputes relating to the inheritance of the deceased spouse’s estate. They should not be lightly interfered with. In the circumstances, one can shield themselves from disinheritance from jointly acquired property by insisting in a half share of the property. At least one is assured there will have a share if the property is also in their name. the spouse can do as he/she pleases in their share of property. This is the position unless the law-makers change this position.
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