DISINHERITING YOUR SPOUSE THROUGH A WILL

The Supreme Court (SC) delivered a groundbreaking judgment in December 2020, holding that through a WILL a spouse has a right to bequeath his/her estate, including the matrimonial home, to a person other than the other spouse! In other words, the spouse writing the will can provide in the will that someone else other than his or her surviving spouse will inherit the property.

Prior to the groundbreaking judgment, several judgments had come out of the High Court to the effect that a spouse was bound to leave his/her property to his wife or her husband, as the case may be, and that any testamentary dispositions bequeathing the property to someone else other than the spouse were void. These High Court judgments declared void the wills they dealt with on the basis that the testators had breached the law on property rights of married persons or the law of wills by leaving their properties to other people not their spouses. Judgments in cases such as Chiminya vs Estate Late Chiminya, Chimbari NO vs Madzima and Nyamushaya vs Nyamushaya, all set aside wills on this basis.

The reasoning behind these judgments had been that the law that governs the property rights of married persons is the Deceased Estates Succession Act, and that law binds a spouse intending to make a disposition of his or her property by will to leave the estate to the surviving spouse, so the judgments said.

On the other hand, there were also High Court judgments that recognized the right of the owner of property to dispose of it as he/she chose through his or her will. These judgments included the one in Estate Late Wakapila vs Matongo and Roche vs Middleton. In these judgments, the court held that disposition of property by will is an expression of an owner’s property rights arising from the common law of ownership. An owner is entitled to dispose of his or her property as he or she pleases.

In the groundbreaking judgment in the case of Chigwada v Chigwada and Others (SC188/20), the Supreme Court put the debate to rest by holding that the law governing the property rights of married persons is actually the Married Persons Property Act [Chapter 5:12] which provides that marriages in Zimbabwe are out of community of property. In other words, spouses are entitled to own and dispose of property in their individual capacities. Each spouse can own property in his or her own name. The Supreme Court went on to hold that the law of wills recognizes these property rights of men and women, and thus allows them to dispose of their property by will to whomsoever they choose. The decisions of the High Court to the contrary are inconsistent with law, and should no longer be followed.

The bottom line is that if a spouse owns the matrimonial home in his or her name, he or she can provide in his or her will that another person not the surviving spouse will inherit the house. In the Chigwada case, the will bequeathed the matrimonial home to the deceased’s son. That is THE law!

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