NDEWERE
J:
The
plaintiff married the late Aaron Chigwada in terms of the Marriages
Act [Chapter
5:11]
on 25 August, 1975. Before solemnisation of their marriage in 1975,
the couple had been customarily married in 1971 and they started
living together in 1973.
Before
marrying the plaintiff, the late Aaron had been married to the first
defendant's mother and they divorced. The late Aaron had six
children with his first wife, the first defendant being the fifth
child and the youngest son. The eldest son was in Form 1 when the
plaintiff married their father whilst the youngest child, a girl, was
four years old. The plaintiff also brought her own daughter with her
from a previous relationship. Thereafter, she had three children
with the late Aaron, all girls.
It
was not disputed that the plaintiff looked after all her husband's
children from when she got married till they were grown up and
married. They all lived at the disputed property while they were
growing up.
During
the subsistence of their marriage, the plaintiff and her husband
acquired a house, Stand No. 28181 Harare Township of Salisbury
Township Lands, also known as No.85 Vito Street. The acquisition
process started in 1996 and in 1999 they obtained title deeds.
They
registered the house in both their names, in equal shares.
It
was the sole immovable property which the couple owned. It was their
matrimonial home as well as the family home for all their children
till they left to form their own homes after they were married.
In
year 2000, the late, Aaron Chigwada suffered a stroke. His health
deteriorated and he eventually died in 2011. Before his death, the
late Aaron wrote a will on 20 September, 2007. In the will, he
appointed the second defendant as executor. In para 5 of that will,
in the second sentence of that paragraph, he bequeathed his half
share in No.85 Vito Street, the matrimonial home, to the first
defendant.
Initially,
the plaintiff challenged the authenticity of the will but on the
trial date, the parties agreed on the authenticity of the will and
that indeed, it was written by the late Aaron Chigwada.
The
only issue left for the court's determination was whether the will
was valid when regard is had to the provisions of the Wills Act
[Chapter
6:06]
in relation to the right of the plaintiff to a share in the
deceased's estate in terms of any law governing the rights of
married persons.
The
first defendant argued in favour of the implementation of the will.
The second and third defendants did not defend the action.
Section
5(3) of the Wills Act [Chapter
6:06]
provides as follows:
“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 spouse's 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……”
In
my view,
the
bequeathing of 50% of House No.85 Vito Street to the first defendant
prejudices the rights of the plaintiff to a share in the deceased's
estate or the spouses joint estate since the 50% happens to be half a
share of the only home the plaintiff has ever known since joining the
late Aaron Chigwada in 1973 when they started to live as a couple.
If
the late Aaron had continued to live, the plaintiff would have
continued to have a home at their jointly owned matrimonial home. If
he had died intestate, the plaintiff would also have continued to
have a home at No.85 Vito Street as a surviving spouse in the jointly
owned home in terms of section 3A of the Deceased Estates Succession
Act, [Chapter
6:02].
Section
3A of the Deceased Estates Succession Act provides as follows:
“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 the
surviving spouse as the case may be, lived immediately before the
person's death; and ……”
The
fact that section 3A above includes situations where part of the
estate is covered by a will as evidenced by the use of the phrase
“dies wholly or party intestate” is an indication that the
intention of the legislature was to protect such spouses even in
situations where there is a will.
Section
3A of the Deceased Estates Succession Act [Chapter
6:02]
is part of the law referred to in section 5(3)(b) of the Wills Act
which would have made the plaintiff obtain 50% of the house from the
testator's estate if the bequest to the first defendant had not
been made by the testator in his will.
This
means that the bequest of 50% of the matrimonial home to the first
defendant in the will by the late Aaron Chigwada is the obstacle
which is now prejudicing the plaintiff from the enjoyment of the only
home she has ever known since she got married. In my view, this is
the mischief which the legislature intended to cure when it enacted
section 5(3) of the Wills Act [Chapter
6:06].
The intention was to intervene in situations where surviving spouses
would be rendered homeless by the wills of their deceased partners in
situations where the will bequeathed the spouses' home, or part of
it, to a third party as in the present situation.
Whilst
the rest of the will is not contentious the provision bequeathing 50%
of No.85 Vito Street to the first defendant in the second part of
para 5 of the late Aaron Chigwada's will flies in the face of the
provisions of section 5(3) of the Wills Act and cannot be allowed to
stand.
Consequently,
the bequest of 50% by Aaron Chigwada of No.85 Vito Street to the
first defendant is hereby declared null and void.
In
my view, the above conclusion invalidates the whole will. As a result
the will of the late Aaron Chigwada of 20 September 2007 is hereby
set aside. The plaintiffs claim as amended against the defendants is
therefore granted.
The
first defendant shall pay the costs of suit.
Mandizha
& Company,
plaintiff's legal practitioners
F.G.
Gijima & Associates,
1st
defendant's legal practitioners
