MWAYERA
J:
The
applicant approached the court seeking invalidation of a will by his
late wife Caroline Majuru. The will was accepted by the fifth
respondent on 25 April 2013.
The
applicant was married to the testator the late Caroline Majuru, in
terms of the Marriage Act [Chapter
5:11]
in 1999. The applicant argued that the will dispossesses the
applicant as a surviving spouse and it also fell short of fulfilling
the formalities set out in section 8 of the Wills Act [Chapter
6:06].
The
applicant presented argument that the failure to sign on all pages by
the testator and failure to acknowledge signatures by the witnesses
rendered the will void abintio.
Further
bequeathing of all property to other people to his exclusion rendered
the will invalid. He argued his dispossession as a surviving spouse
was contrary to public policy.
The
application was opposed.
The
respondents argued that the application was out of time as the
applicant became aware of the acceptance of the will in April 2013.
A
perusal of the record shows the application and not appeal as alluded
by the respondents was filed in October 2015. The application is for
setting aside a will, as such the point in
limine
raised therefore cannot be sustained.
The
applicant sought to rely on violation of section 8 of the Wills Act
[Chapter
6:06]
and that his dispossession as a surviving spouse was contrary to
public policy.
Section
8(1) on formalities provides:
“Subject
to subsection (3) and (5), a will shall not be valid unless -
(a)
it is in writing;
(b)
the testator, or some other person in his presence and at his
direction, signs each page of the will as closely as may be to the
end of the writing on the page concerned; and
(c)
each signature referred to in paragraph (b) is made or acknowledged
by the testator in the presence of two or more competent witnesses
present at the same time; and
(d)
each competent witness either -
(i)
signs each page of the will; or
(ii)
acknowledges his signature on each page of the will, in the presence
of the testator and one witnesses”……..
(5)
where the Master is satisfied that a document or an amendment of a
document which was drafted or executed by a person who has since died
was intended to be his will or on amendment of his will the Master
may accept that document, or that document as amended, as a will for
the purposes of the Administration of Estates Act [Chapter
6:01]
even
though it does not comply with all the formalities
for-(underlining my emphasis)
(a)
The execution of wills referred to in subsection (1) or (2); or
(b)
The amendment.”
A
close look at Annexure A p11, the Will clearly shows compliance with
formalities as required by the Act. The testator signed the will and
so did the witnesses. The second witness signed on the second page
for want of space. Even the address for the second witness is on the
second page. The “will” annexure A appears to be in compliance
with all formalities for making a will. In an event the Master has a
discretion to accept a will even if it does not comply with all
formalities. Section 8(5) the Master has to be satisfied that the
document was intended to be the testator's will. Annexure 'A'
clearly spells out the intention of the late Caroline Majuru nee
Chikuku. The Master's decision of acceptance of the will in the
circumstances cannot be faulted on allegation of the will not
complying with formalities of making a will.
The
other ground for seeking invalidation of the will as presented by the
applicant is that the will is contrary to public policy as it
excluded him as a surviving spouse.
Section
5(3) of the Wills Act seems to buttress this position. It reads:
“No
provision, disposition or direction made by a testator in his Will
shall operate as to vary or prejudice the rights of –
(a)
Any person to whom the deceased was married is entitled 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”.
On
the face of it a will which disposes a spouse of his right to a joint
estate and/or his right to matrimonial assets would not be valid. It
is important to note that the wording of the provision of section
5(3)(a) does not seek to usurp the freedom of testation vested in a
testator. The wording does not include property to which the testator
has real rights. The testator has the freedom of testation hence the
right and freedom to bequeath his or her assets to any person of
their choice.
The
testator in
casu
bequeath assets and/or shareholding in which she held title as well
as bequeath property to which the applicant had contingent, personal
and real rights. For instance it was conceded by the respondent's
counsel that the deceased bequeath the matrimonial home to the
exclusion of the applicant. It is the latter scenario which section
5(3)(a) of the Wills Act seeks to redress.
Section
5(3)(a) of the Wills Act states that:
“No
provision, disposition or direction made by a testator in his will
shall
(my
emphasis) operate so as to vary or prejudice the right of any person
to who 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 person”.
It
is apparent from the wording of 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 and not in sync
with public policy.
In
this case the applicant was legally married in terms of the Civil
Marriage. The freedom of testation is recognised in so far as it does
not infringe on rights of a legally recognised surviving spouse.
Section 5(3)(a) of the Wills Act gives warning to a testator at the
time of making a will not to delve into disposing property to which a
legally recognised beneficiary such as a surviving spouse has
personal, real and contingent rights and at the same time the section
seeks to protect a surviving spouse from being disinherited under the
realm of freedom of testation.
It
is apparent that although much of what happens in writing a will
predates the moment of someone's death, the moment of death marks
the beginning of the administration of the deceased estate. The will
has to be in conformity with the prevailing laws. Section 5(3)(a) of
the Will Act refers to the person to whom the deceased was married as
the one who ought not be prejudiced.
Further
it is apparent from the evidence that the will bequeaths one of the
properties to a none existent person Faith Munjeri and even further
gives a life usufruct right of that same none existent person. Such a
situation taints the will with impropriety. That when read together
with the exclusion of a surviving spouse on property in which he has
rights negates the validity of a will.
Our
laws on inheritance are clear on the rights and entitlement of a
surviving spouse and beneficiaries. The Administration of Estates Act
[6:02] and the Deceased Estates Succession Act [Chapter
6:02]
are instructive. Further the Constitution makes it clear that in the
spirit of protection of marriages and family the spouses have equal
rights and obligations during marriage upon divorce and at death.
Section
26(c) and (d) of the Constitution of Zimbabwe Amendment (No.20) Act
2013 is instructive it states that:
“The
State must take appropriate measures to ensure that:
(a)
there is equality of rights and obligations of spouses during
marriage and its dissolution; and
(b)
in the event of dissolution of a marriage, whether through death or
divorce provision is made for the necessary protection of any
children and spouses.”
To
then turn around and sanction a will which disinherits and disposes
the surviving spouse of not only assets but the matrimonial home
would in my opinion not only be contrary to public policy but ultra
vires
the Constitution and thus invalid.
It
is common cause the applicant is the surviving spouse of the late
Caroline Mujuru. It is also not in dispute that as a surviving spouse
the applicant qualifies as a beneficiary to the late Caroline
Majuru's estate. Further from evidence it is apparent property
distributed by way of Will included that to which the applicant has
rights. The dispossession of the applicant in the circumstances is
contrary to public policy and unlawful rendering the will invalid.
Accordingly
it is ordered that:
1.
The application be and is hereby granted.
2.
The will of the late Caroline Majuru accepted by Master of High Court
on 25 April 2013 be and is hereby set aside.
3.
The estate of the late Caroline Majuru who died on 17 March 2013 be
dealt with as intestate.
4.
Each party is to bear its own costs.
Kajokoto
and Company,
applicant's legal practitioners
Nyamayaro
Makanza & Bakasa,
3rd
& 4th
respondents' legal practitioners
