In
this application the applicant, a widow and surviving spouse to the
late Dennis Chiminya, approached the court seeking an order that the
Will by the late Dennis Chiminya, her husband, be disregarded and set
aside and that the only property of the estate, House Number 2421
Egypt, Highfield be and is hereby awarded to the applicant who is the
surviving spouse.
The
brief background to the case is that the applicant was customarily
married to the late Dennis Mhirimo Chiminya on 24 August 1971 as per
the marriage certificate attached as annexure A...,. Before the death
of Dennis Mhirimo Chiminya he executed a Will on 5 November 2005.
Upon Dennis Mhirimo's death, on 11 June 2013, the Will was
subsequently registered and accepted by the Master of the High Court
who directed that the estate be wound up in terms of the accepted
Will. The Will bequeathed
the matrimonial home, House Number 2421 Egypt Line, Highfield to the
grandson of the deceased, one Tapiwanashe Dennis. It also bequeathed
other property, like a shop in Chivhu, to the stepson of the
applicant, that is the son of the deceased, and, further bequeathed
two bicycles to the other son, Hupenyu Chiminya. Further, there was
distribution of cattle. The shop was not an issue for it was disposed
of by sale before the death of the testator.
The
applicant sought to challenge the validity of the Will on the basis
that;
(1)
Assets acquired in 2006 appeared on the Will which was executed in
2005, namely, the bicycles.
(2)
That the deceased bequeathed the only matrimonial home to her
exclusion.
(3)
That she was the surviving spouse in terms of section 3A of the
Deceased Estate Succession Act [Chapter 6:02] she ought to be awarded
the matrimonial home as the surviving spouse.
The
first and second respondents opposed the application on the basis
that there is a valid Will whose provisions thereof are capable of
being carried out as long as they are not contrary to law and/or
public policy.
The
respondents also sought to rely on an argument that a wife married
customarily cannot inherit from the husband's estate if the husband
dies testate.
This
argument, from the legal practitioner, in my view, found no support
in law and precedent as will be demonstrated.
First
and foremost, the supreme law of this country outlaws any legal
provisions that are discriminatory. Section 56(1) and (3) of the
Zimbabwe Constitution Amendment (No.20) Act 2013 is instructive. It
reads:
“56.
Equality and non-discrimination
(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.
(2)…,.
(3)
Every person has the right not to be treated in an unfairly
discriminatory manner on such grounds as their nationality, race,
colour, tribe, place of birth, ethnic or social origin, language,
class, religious belief, political affiliation, opinion, custom,
culture,
sex,
gender,
marital
status,
age, pregnancy, disability or economic or social status, or whether
they were born in or out of wedlock.”
The
supremacy of the Constitution is clearly confirmed in Chapter 1
section 2 of the Constitution which reads:
“1.This
Constitution is the supreme law of Zimbabwe and any law, practice,
custom or conduct inconsistent with it is invalid to the extent of
the inconsistency.”
The
respondent sought to rely on the fact that the applicant was
customarily married and that the husband, in his Will, did not
bequeath the matrimonial home to her hence she had no right or
entitlement to the home.
This
position, in my view, is inconsistent and ultra
vires
the Constitution.
It
is important, in the determination of this matter, for one to look at
the circumstances of the case and
juxtapose
them to the Constitutional provisions and relevant legislative
provisions.
The
Deceased Estates Succession Act [Chapter
6:02]
buttresses entitlement of surviving spouses and outlines inheritance
principles on matrimonial home and household effects. Section 3A is
apposite, it reads:
“The
surviving spouse of every person who on or after the 1st
November 1997, dies wholly or partly intestate shall be entitled to
receive from the free residue of the estate:
(a)
The house or other domestic premises in which the spouses or
surviving spouses, as the case may be, lived immediately before the
person's death; and
(b)
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) where such house, premises, goods and
effects form part of the deceased's estate.”
I
am alive to the fact that the Deceased Estates Succession Act
[Chapter
6:02]
deals with intestate succession. Suffice to mention, at this stage,
that I have alluded to it in so far as it is in conformity with the
Constitution and in so far as it recognises the surviving spouse
right to inheritance.
In
the same manner, the Wills Act [Chapter
6:06]
recognises the surviving spouse's rights by having provisions such
as section 5(3)(a) which recognises rights of a surviving spouse and
seeks to protect inheritance right of a surviving spouse - even where
the other spouse dies testate.
Section
5 of the Wills Act [Chapter
6:06]
deals with power to make dispositions by Will. Section
5(3)(a) reads;
“No
provision, disposition or direction made by a testator shall operate
so as to vary or prejudicing the rights of any person to whom the
deceased was married to a share in the deceased's estate or in the
spouse's joint estate in terms of any law governing the property
rights of married persons; or...,.”
Women,
regardless of marital status have a right to equal protection by the
law and also have a right to own property.
The
legislature has made commendable inroads on deceased estates such
that one failed to understand how the respondent's legal
practitioners sought to justify dis-inheritance of a surviving spouse
on the basis of having a registered customary law marriage. Even an
unregistered customary law union is recognised for inheritance and
proprietary right purposes.
The
Administration of Deceased Estates Act [Chapter 6:01], Part 2A
thereto, deals with estate of persons subject to customary law.
Section 68(3) of
the
Deceased Estates Act [Chapter 6:01] reads;
“A
marriage contracted according to customary law shall be regarded as
valid marriage for the purposes of this Act notwithstanding that it
has not been solemnized in terms of the Customary Marriage Act
[Chapter
5:07]
and any reference to spouse shall be construed accordingly.”
A
beneficiary in the same Act, in section 68, includes surviving
spouses.
It
defies logic therefore for one to distinguish the applicant's
spousal status on the basis that she contracted a registered
customary marriage. The fact that it is even registered makes it
certain she is a surviving spouse. The applicant certainly does not
derive her rights from the survival of the deceased but has rights by
virtue of being a surviving spouse.
Interestingly,
the respondents accept that the applicant is a beneficiary but argued
she cannot inherit because the testator disposed of his property in
the manner he liked.
The
argument was presented that the applicant's right as a beneficiary
was prefixed on survival of her spouse and that the moment he died
she was not clothed with any right as regards the matrimonial home.
I
found these submissions as not only unpalatable but not in sync with
the progressive 21st
century legislation.
The
case of Estate
Wakapila v Matongo
and Others 2002 ZLR 43 sought to illustrate that a spouse customarily
married would not inherit where the deceased spouse would have died
testate and made dispositions by way of Will.
Whereas
it is important to uphold Wills, in the interest of fulfilling of a
testator's wishes, the mischief of disinheriting the legal and
rightful beneficiary is what section 5(3)(a) of the Wills Act
[Chapter
6:06]
is about and seeks to cure.
I
respectfully do not agree with the reasoning in that case, Estate
Wakapila v Matongo
and Others 2002 ZLR 43, where it sought to emphasize that only rights
existing at the time a Will is executed may not be eroded.
It
is my considered view that a spouse, though not an owner, has
personal rights against the owner of the house. The provisions of a
Will can only be struck out at the time of implementation and not at
the time of execution. The legislative intention in enactment
of section 5(3) of the Wills Act cannot be ignored for clearly the
section gives warning bells and pre-warns a testator not to touch or
interfere with the right of a spouse or legally recognised
beneficiary.
In
Estate
Wakapila v Matongo
and Others 2002 ZLR 43 there seems to be an assumption that
contingent rights are not included because the only time which
matters is the execution of the Will.
On
the contrary, all rights, personal, real, and contingent,
are covered in the manner section 5(3) of the Wills Act [Chapter
6:06]
is couched. The use of the words deceased's
estate
instead of testator's estate suggests that contingent
rights were considered by the legislature. It is apparent that the
mention of any
person
to whom
the deceased was married
denotes it happens at the time the deceased is dead. Equally, mention
of share in the deceased's estate that happens only when the spouse
is deceased.
It
is appreciated that marriage regimes in Zimbabwe, in the absence of
antenuptial contract, are out of community of property.
The
wording of section 5(3) of the Wills Act [Chapter
6:06]
falls for scrutiny here.
The
relevant section outlaws any disposition in a Will which prejudices
the rights of a person to whom the deceased was married. The section
does not seek to define marriage. It is trite a customary law
marriage is a recognised marriage for proprietary, inheritance and
maintenance rights. The section further talks of a share in
the deceased's estate.
Naturally, a surviving spouse, by virtue of being a surviving spouse,
is entitled to a share of the deceased's estate.
Finally,
the section talks of right in terms of
any law governing the property rights of married persons.
The relevant section does not seek to distinguish the law, as such,
it is inclusive of customary law. To this extent, therefore, the
circumstances of the applicant are distinguishable from Estate
Wakapila v Matongo
and Others 2002 ZLR 43.
In
casu,
the applicant was customarily married to the deceased under the
African Marriage Act [Chapter
5:07].
She, in her capacity as a surviving spouse, has rights to the
deceased's estate or in the spouses joint estate.
It
is clear from section 5(3)(a) of the Wills Act that any provision
made by a testator to the extent that it prejudices the rights of a
legally recognised beneficiary is invalid. Section 5(3)(a) of the
Wills Act [Chapter
6:06]
states:
“No
provision, disposition or direction made by a testator in his will
shall
operate so as to vary or prejudice the right of any
person to who the deceased was married to 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…,.”
It
is clear from a reading of this section that a testor cannot make a
disposition that affects the other spouse's rights.
The
Will, as it stands, is not in sync with public policy and the legal
position as far as marriages and deceased estates are concerned.
There is no legal basis for holding a Will, which seeks to
dis-inherit a legally recognised beneficiary, as valid.
Our
Constitution and legislation on deceased estate and inheritance, in
so far as it recognises the rights of a surviving spouse in the
deceased estate, tallies to a great extent with convention of the
elimination of all forms of discrimination against women, in
particular, the protocol to the African Charter on Human and Peoples
Rights on the Rights of Women in Africa - article 20 and 21. Article
21(1) on rights to inheritance reads:
“A
widow shall have the right to an equitable share inheritance of the
property of her husband. A widow shall have the right to continue to
live in the matrimonial house.”
To
this end, the right and freedom to testation cannot be viewed as
absolute to the extent of eroding the proprietary and inheritance
rights of a legally recognised surviving spouse.
Section
5(3)(a) of the Wills Act [Chapter
6:06],
in my view, protects a surviving spouse from being disinherited under
the realm of a testator disposing of his property the way he deems
fit regardless of the surviving spouse's personal and contingent
rights….,.
The
applicant has revealed that the acceptance of the Will dis-inherited
her as a surviving spouse. Such a scenario has no legal basis on
which to stand on, and, as such, the Will
cannot be held as valid.
In
casu
it is not in dispute House Number 2421 Egypt is the only matrimonial
home which the surviving spouse is, at law, entitled to. Any
disposition against that would be an illegality and also contrary to
public policy.
Accordingly
it is ordered that:
1.
The provision of the Will of Dennis Mhirimo Chiminya which disposes
of House Number 2421 Egypt, Highfield, Harare be and is hereby
declared invalid.
2.
The only property of the estate, the matrimonial home, 2421 Egypt,
Highfield, Harare be and is hereby awarded to Venencia Chiminya, the
surviving spouse.
3.
The second respondent pays the costs of the suit.
