GUVAVA J: Do the dead speak from beyond the grave? In my
view that is the question that this court must answer in order to determine
this case. This is a matter which has remained unresolved for the past 15
years. In spite of leaving a will the parties have tried, without success, to
ascertain the true intention of how the rights and benefits of the estate of
the late Amos John Chirunda who died on 8 December 1997 should devolve.
The facts of
this matter may be summarised as follows:
The applicant is the former wife of the late Amos John
Chirunda (the deceased). The first respondent married the deceased in terms of
customary law during in 1986.The second respondent is the Master of the High
Court and is cited in his official capacity. The third respondent is the
executor dative of the estate appointed by the second respondent.
It is common
cause that on 9 December 1977 the deceased executed a will appointing applicant
as the heiress of his estate. The will was never amended, varied or revoked
until his death in 1997. The will in question was a simple one being just four
paragraphs in length. For the sake of completion I will quote the will in
full;-
“ 1, AMOS JOHN CHIRUNDA, do
hereby revoke all past Wills and testamentary acts and declare this to be my
last will.
I appoint my wife MARGARET
CHIRUNDA (nee SUMBURERU) to be the Executor and Heiress to my estate.
In the event of my wife Margaret
dying at the same time with me, I appoint my nephew HASTINGS CHIRUNDA and my
sister ALICE CHIRUNDA to be joint Heir and Heiress to my estate in equal
shares.
I
reserve to myself the power from time to time and at all times hereafter to
make all such alterations in or additions to this my Will as I may think fit,
either by separate act or at the foot hereof, desiring that all such
alterations or additions so made under my own signature and duly witnessed
according to law, may be held to be as valid and effectual as if the same had
been inserted herein.
Given under my hand at SALISBURY
on this the 9th day of December, 1977.”
The deceased paid bride price under customary law for the
applicant on 11 September 1977 following which the marriage was registered
under the African Marriages Act. On 29 October 1978 the applicant and the
deceased entered into a civil marriage in terms of the Marriage Act [Cap 37].
They had three children. On 22 July 1986 after a lengthy and acrimonious battle
the applicant and the deceased divorced. In terms of their consent paper the
deceased made a financial settlement on the applicant. The deceased thereafter
married the first respondent in terms of customary law and they lived as
husband and wife until he died in 1997. In February 1998 the applicant was
invited to the Master's office to register his estate in terms of his will. The
applicant was issued with letters of administration in terms of the will. On 4
March 1998 the Master wrote to the applicant seeking to revoke the letters of
administration on the basis that at the time of his death she was divorced from
the deceased. The applicant declined to surrender the letters of
administration. The first respondent thereafter instituted proceedings seeking
to have applicant's appointment as executor set aside.The application was
dismissed by this court on the basis that the will was valid and the applicant
had been properly appointed as executor in terms of the will. On appeal the
decision of the court a quo was set aside by CHEDA JA on the basis
that the wrong law had been applied in determining the matter. The Supreme
Court held that the court should not have applied section 17 of the Wills Act [Cap
6:06] but that the proper law to be applied was the African Wills Act [Cap:
240]. Following this decision and on 19 April 2005 the Master decided to
appoint an independent executor being the third respondent in this matter.
The second
respondent proceeded to appoint the first respondent as the surviving spouse of
the deceased's estate. The children of the deceased objected to the appointment
and formally lodged an objection with the second respondent. They argued that
the first respondent was not married to the deceased and should not be
appointed as the surviving spouse. In order to get guidance on the matter the
second respondent requested a magistrate to conduct an inquiry into the matter
in terms of section 68(2) of the Administration of Estates Act [Cap 6:01].
The magistrate found that the first respondent had married the deceased in terms
of customary law and confirmed her as the surviving spouse. Dissatisfied with
the decision the matter was taken on appeal. This court determined that the
inquiry had been conducted in terms of legislation which had been repealed and
set aside the decision of the Magistrates Court as a nullity.
The applicant has now instituted these proceedings seeking
the following relief:
1.“That the last will and
testament executed by the late Amos John Chirunda on 9 December 1977 be and is
hereby declared to be a valid testamentary instrument.
2.That the Master of the High
Court be and is hereby directed to admit the said last will and testament to
probate.
3.That the appointment of
Wilbert Nyamupfukudza as Executor Dative by Letters of Administration issued to
him by the Master of the High Court on 19 April 2005 be and is hereby set
aside.
4.That the Master of the High
Court be and is hereby directed to re-issue fresh Letters of Administration to
Margret Sumbureru to enable her to Administer the Estate of the Late Amos John
Chirunda.
5.That First
Defendant (sic), being Prisca Chinamora, also known as Prisca Chirunda, pay the
costs of this application.”
The applicant outlines in her Heads of Argument what she
perceives as the issues for determination by this court as follows:
“(a) Which law should be applied in determining the
validity of the provisions of
Amos Chirunda's
will in relation to the applicant?
(b) What does the law provide for in
relation to the validity of the will?
(c) To what extent does the
Administration of Estates Act [Cap 6:06] apply to this
estate?
(d) What should be the next course of action in terms
of the law?
In my view the
first issue raised should not have been raised as an issue at all as it was
determined by the Supreme Court in case Number 55/02 wherein CHEDA JA
held that the law to be applied is the African Wills Act [Cap 240].
The issues as raised in paragraphs (c) and (d) are seeking legal advice and it
is not the function of the court to proffer legal advice to parties.This
request for legal advice seems to emanate from the various issues and disputes
which have been presented in the papers by the applicant.Of particular concern
seems to be the issue of whether or not the deceased married the first respondent
under customary law. However when one has regard to the order sought by the
applicant it seems to me that these are not issues for determination in the
present proceedings and the sole issue before the court is whether or not the
will executed by the Late Amos Chirunda on 9 December 1977 is valid.
In order to
determine this issue the Supreme Court held that regard must be made to the
provisions of the African Wills Act. The relevant provisions which relate to
the execution of wills under that Act are sections 6 and 7 which provide as
follows:
“6.
Subject only to the
limitations imposed by this Act an African may, by will
freely dispose of the ownership
of immoveable property or any right
attaching thereto.
7.
The heir at African law of any
deceased African shall succeed in his individual
capacity to any immovable
property or any rights attaching thereto forming part of the estate of such
deceased African and not devised by will.”
It is
quite apparent from the above provisions that the African Wills Act gave an
African capacity to execute a will and to dispose of immoveable property. An
examination of the Act however shows that it does not have a provision which is
similar in wording to section 17 of the Wills Act [Cap 6:06]. It seems
to me therefore that this court must determine the intention of the deceased
when he made the will in order to ascertain its validity. In making such a
determination the court must look at the wording of the will. A reading
of the will shows that there can be no doubt that when the deceased made the
will his intention was to benefit his wife. The second sentence of the will
which is quoted in full above provides as follows:-
“I appoint my wife Margret Chirunda (nee Sumbureru) to be
my executor and Heiress to my estate.”
It is common
cause that the will was made soon after the deceased had paid customary bride
price for the applicant. At the relevant time when the will was executed,
customary law did not allow a wife to inherit from her husband. The deceased
was clearly intent upon circumventing that aspect of customary law which was
discriminatory of women and particularly wives. That was the mischief that he
wanted to avoid in the event of his untimely death. It is clear to me that the
deceased wanted to be certain that in the event of his death his property would
not fall into the hands of his male relatives to the exclusion of his wife.
However at the time of his death in 1997 the deceased and the applicant had
divorced. She was thus no longer his wife and they had been so divorced for a
period in excess of ten years. It is also common cause that upon divorce the
applicant had been awarded a significant settlement. Could it have been
deceased intention that the applicant would again inherit his estate upon his
death since he did not revoke his will? In my view this could not have been his
intention. The mischief that he had sought to circumvent in his will no longer
applied with regard to the applicant as she was no longer his wife. It seems to
me therefore that once the applicant ceased to be his wife the will became
invalid as it was no longer capable of enforcement.
On this basis
alone I would find that the will was no longer valid and dismiss the applicants
claim.
Even if I am
wrong in making such a finding based on the fact that applicant was no longer
deceased's wife it seems to me that I would still dismiss the application on
the basis that the deceased's will became void upon his marriage to the applicant
in terms of the general law in 1978. It is common cause that following
the applicant's marriage to the deceased under customary law they subsequently
registered their marriage in terms of the Marriage Act [Cap 37] (now Cap
5:11). Section 13 of the African Marriages Act [Cap 238] provided
that an African who married in terms of the Marriage Act and who disposed of
his property in terms of a will ceased to be governed by African customary law.
The relevant provision provides as follows:
“The
solemnization of a marriage between Africans in terms of the Marriage Act shall
not affect the property of spouses which shall be held and may be disposed of
unless disposed of by will shall devolve according to African law and custom.”
It seems to me that the import of the above provision
is that general law became applicable to the deceased.The law which was
applicable to wills at the relevant time was the Deceased Estate Succession Act
[Cap 302]. This explains in my view the reason why the African Wills
Act did not have a provision that is similar to section 17 of the Wills Act.
Section 2 of the
Deceased Estate Succession Act [Cap 302] provided as follows:
“Except in the case of a party to
a joint will who has adiated, a will, other than a joint will of an intended
husband and wife who thereafter married each other, executed by any
person prior to marriage shall become null and void on marriage unless such
person endorses on such a will that it is desired that the same shall remain in
full force and effect. Such endorsement shall be duly signed and witnessed in
the manner required in the case of a will”
Clearly the
above provision nullifies any will other than a joint will which is made by a
person before marriage. Although this provision was repealed by section
24 of the Wills Act the section goes on to state that the section shall
continue to apply in respect of wills that were made before the 1st
January, 1988 to the extent that the Wills Act does not apply to it.
The will by the
deceased was executed in 1977 and in my view clearly falls within the
provisions which were saved as the Wills Act does not apply to it. The deceased
executed the will prior to his marriage to the applicant in terms of the
Marriage Act. There is no evidence that the deceased endorsed the will as
required by section 2 of the Deceased Estates Succession Act thus making the
will null and void.
For the reasons stated above I make the following order:
The application
is hereby dismissed with costs.
Messers Atherstone & Cook, Applicants legal
practitioners
Messers Dube, Manikai & Hwacha,1st
Respondents legal practitioners
