CAN ONE DISINHERIT THEIR SPOUSE IN A WILL?

CAN ONE DISINHERIT THEIR SPOUSE IN A WILL?

On the 18th October 2017 Justice Matanda-Moyo handed down a judgment in the case of Lily Lilian Nyamushanya, Michele Shamiso Nyamushanya & Prosper Z Nyamushanya & Denations Nyamushanga Vs Rodgers Matsikidze & Lawrence Nyamushanya; Kingstone Nyamushanya, Pythias Takudzwa Nyamushanya, Astrid Nyamushanya & The Master of The High Court HH 693-17 in which she held that,

“The present will by the testator had the effect of disinheriting the widow of such a matrimonial home. The will thus prejudices the rights of such widow which disinheritance is contrary to the law. It is against that very mischief that section 5 (3) (a) of the Wills Act was enacted”

The facts giving rise to the case were that the late Pythias Nyamushanya executed at Mutare on 29th November 2006 a will in which he disinherited his wife and the fourth and fifth Applicants who are his biological children born out of Wedlock. The deceased who died possessed inter alia of a property known as number 7 Bain Drive, Morningside, Mutare was married to the first Applicant following the death of his first wife. At the time of his death, the first Applicant was living at the property in question which she considered to be the parties’ matrimonial home. In his will the deceased disinherited the first Applicant of the matrimonial home. The Applicants then approached the High Court seeking the setting aside and nullification of the deceased’s Will on the basis that the disinheritance was contrary to section 5 (3) (a) of the Wills Act [Chapter 6:06] which 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 whom the deceased was married to a share in the deceased’s estate in terms of any law governing the property rights ,of married persons”

The Respondents opposed the application They contended that the house in question was bought by the deceased and his late wife, that the first Applicant had not contributed anything towards its acquisition and that the Will represented the deceased’s wishes .They urged the Court to uphold the principle of the freedom of testation. In her judgment Justice Matanda-Moyo held that the portion of the deceased’s will disinheriting his surviving spouse of the matrimonial home should be set aside. Her reasons for so saying were these:

a) The Will contravened section 5 (3) (a) of the Wills Act [Chapter 6:06] which section places limitations on the right to freedom of testation.

b) The surviving spouse in generally entitled to 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. See section 3A of the Deceased Estates succession Act (Chapter 6:02). The first Applicant was living in the matrimonial home at the time of the deceased’s death.

c) Section 80 (3) of the Constitution provides that

“All laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement”

It is my respectful submission that section 3A of the Deceased Estates Succession Act applies where one dies wholly or partly intestate (i.e. without a Will). It does not apply where one dies testate (with a will). The said section reads in part:

“The surviving spouse of every person who, on or after the 01st November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate…”

The deceased in this matter died testate. He did not die wholly or partly intestate. It is also my respectful submission that section 80 of the Constitution does not apply in this matter as the deceased’s Will did not in any way infringe the rights of women conferred by the Constitution. In fact the deceased executed his will in terms of section 5 (a) of the Wills Act which provides that:

“Subject to this Act and any other enactment, any person who has capacity in terms of Section four to make a Will may in his Will (a) Make provision for the transfer ,disposal or disposition of the whole or any part of his estate”

Justice Matanda-Moyo’s judgment was widely reported in the media as a landmark ruling. Was this judgment a landmark ruling? No it was not. I say this because way back in 2013 in the case of Freddy Chimbari N.O v Simbarashe Godwin Madzima & Nigel Masimba Madzima, Kenias Mutyasira, The Registrar of Deeds N.O & the Master of the High Court HH 325/13 Justice Uchena dealt with a similar matter. In that case the deceased left a Will in which he disinherited his wife. The learned Judge held that the deceased’s Will was a nullity as it contravened Section 5 (3) (a) of the Wills Act. In that matter the learned Judge referred to an earlier judgment by Justice Hungwe in which the Judge declared the deceased’s Will as void ab initio on the basis that it contravened section 5 (3) (a) of the Will’s Act.

Surprisingly, both Justice Matanda-Moyo in her 2017 judgment & Justice Uchena in his 2013 judgment do not comment on an earlier conflicting judgment by Justice Kudya in Estate Late Wakapila V Dennia Matongo ,Director of Housing & Community Services of City of Harare and The Master of The High Court HH 71/08. This matter was similar to the cases which Justices Uchena and Matanda-Moyo dealt with in that the deceased had in his will disinherited his spouse. In handing down his judgment on the 31st July 2008 Justice Kudya held that one can disinherit their spouse in a Will and that such disinheritance does not contravene section 5 (3) (a) of the Wills Act. His reasoning was that our marriages are out of community of property. The effect of this is that a spouse who owns a property is free to dispose of the property or to deal with it the way they want. They can sell it or donate it without their spouse’s consent. This is consistent with section 72 of the Constitution which provides that:

“Every person has the right in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others”

It was Justice Kudya’s view that:

“The provisions of section 5 (3) (a) of the Wills Act prevents the testator from eroding the property rights vested in his spouse by law in either his or their joint estate. Those rights, in my view, are those that the spouse has at the time the Will is executed as opposed to future or contingent rights that arise on the death of the testator… It would be absurd to allow the spouse to dispose of his or her property during his lifetime but take away that power from him or her to dispose of it by will.”

As the deceased’s widow was not a joint owner of the property in question the learned Judge opined that:

“In casu, at the time the testator wrote the Will, Bridget did not have any legal rights in the immovable property. He did not therefore deprive her of any rights when he bequeathed them to another in a Will”

So where do all these judgments leave us? Well, the effect of these judgments is that we have conflicting High Court judgments on whether one can disinherit their spouse in a Will. We have on the one hand the judgments by Justices Uchena, Hungwe and Matanda-Moyo which hold that one cannot disinherit their spouse in a Will. On the other hand, we have a judgment by Justice Kudya which holds that it is lawful for one to disinherit their spouse in a will. What is the correct Legal position? Can one disinherit their spouse in a Will? It is submitted that there currently is confusion on this point. There is need for the Supreme Court to clarify the legal position. Until that happens, it is not safe for one to disinherit their spouse in a will as such disinheritance may be set aside on the basis that it contravenes section 5 (3)(a) of the Wills Act.

By: DAVISON KANOKANGA BL, LLB, AA ARB, CIArb

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