For the last 10 years, judges of Zimbabwe’s high court have been surprisingly divided about what you might think is a fairly straightforward question: does a spouse married out of community of property have the right, in making a will, to leave his or her property to someone who is not the other spouse?
For example, is a husband obliged to leave a house he owns to his wife, or is he free to bequeath it to someone else? And what if the husband and wife own a half share each? In such a case, would a will be valid if the deceased spouse left his or her share to someone other than the surviving spouse?
The answer may seem pretty obvious, especially given that in Zimbabwe, like most countries, there is freedom of testation so that someone making a will may dispose of their property as they wish. But the possibility that many women will be negatively affected if a husband may leave his property, for example, his share of a jointly owned house, to someone other than the widow, means this has become a matter for widespread discussion.
High court judges have given decisions that go both ways on the question. While some have agreed that a spouse is free to bequeath their own property to whomever they should see fit, other judges have held that property, in particular the family home, must be left to the surviving spouse. Otherwise, according to this view, the will would be invalid.
Faced with this growing divide, the supreme court has stepped in to give a final answer. A court of five supreme court judges was specially constituted to hear the case. The bench included Chief Justice Luke Malaba who wrote the decision with the unanimous agreement of the other four.
Right up front the court spells out the essence of its finding: ‘The law of testamentary disposition, which is based on the universal principle of equality of men and women, gives a right to a person married out of community of property to dispose of his or her estate by will to whomsoever he or she chooses. Decisions of the high court to the effect that a testator is … bound to leave his or her property to the husband or wife and declaring [wills] to the contrary to be void are inconsistent with the law. They should no longer be followed.’
The case that brought the dispute into sharp focus involved the will of twice-married Aaron Chigwada. He and his first wife had six children together. After they divorced, he married for a second time. He and his new wife, Penelope, became the joint owners of a house in Harare, each owning a half share in it.
Some four years before his death in 2011, the husband made a will leaving his half share in the joint property to a son from his first marriage.
Following Aaron’s death and the discovery of his will, the widow asked the high court to intervene. According to ‘teachings at her church’, the widow believed that she had a ‘right’ to inherit the estate regardless of the provisions of her deceased spouse’s will.
The crucial question was whether the will was valid, given its provision that the husband’s share in the house be left to a child from the first marriage. The widow argued that the will was surely void because her husband did not leave his share of the house to her.
The high court found in favour of the widow but the son, due to inherit under the will, appealed to the supreme court.
The five supreme court judges disagreed with the high court. They said the section of the Deceased Estates Succession quoted by the high court only related to intestate estates and had ‘nothing to do with the … right of a testator to dispose of his or her property to whomsoever he or she chooses’.
Section 5 of the Wills Act said that no provision in a will should prejudice the rights of anyone to whom 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 persons.’
But, said counsel for the son who had ostensibly inherited the father’s half of the house, the mother’s half share had not been bequeathed to anyone. If parliament had meant the law to take away the right to testamentary freedom, it would have been such a radical departure that express provisions would surely have been used to spell it out.
Counsel for the widow said that most of those who challenged wills in such cases were women. It might appear to be gender neutral that any testator could disinherit a surviving spouse of a share of the matrimonial house, but it most adversely affected women. To interpret the law to permit effective disinheritance was inconsistent with the constitution and its concern to protect the vulnerable.
The court said the law made clear that a spouse was entitled to inherit the matrimonial house and its chattels where this was the surviving spouse of someone who died without a will. That was not what happened in the Chigwada case as the deceased in this matter had left a valid testament.
* 'A matter of justice', Legalbriefs, 26 January 2021