The landmark case of Chigwada v Chigwada has yet again set the clock back for married women, mostly. The institution of marriage in Zimbabwe has been put under bad spotlight as the issue of spousal disinheritance has been brought to the fore. The Supreme Court has set the legal position straight and dealt with the confusion within the judiciary on the matter, as seen through the numerous conflicting High court cases discussed below. Section 71(2) of the Constitution highlights ones right to own property, which will be explored in this article.

THE JUDICIARY’S STANCE IN REGARD TO TESTAMENTARY DISPOSITION

Prior to this case there was no uniform approach to such matters with each judge passing a decision that contradicted the others. One may look at the Deceased Estates Succession Act, Section 3A which provides,

3. Inheritance of matrimonial home and household effects the surviving spouse of every person who, on or after the date of commencement of the Administration of Estates Amendment Act, 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
(b) the household goods and effects which, immediately before the person’s death, were used in relation to the house or domestic premises referred to in paragraph (a)where such house, premises, goods and effects form part of the deceased person’s estate.

It can be interpreted from the above, that one cannot disinherit their spouse. In the 2013 case of Chimbari NO v Madzima and Ors it was found that a spouse could not disinherit their significant other in terms of Section 5(3)(a) of the Will Act. However, The Wills Act provides for freedom of testation; and this interpretation was preferred in the 2016 matter of Roche v Middleton where it was held that a spouse could do as they please with their property. The Chigwada case has cleared any spousal inheritance related confusion by highlighting that real rights trump personal rights that a spouse has over property not in their names.

EFFECTS OF THE CASE

The case has set the precedent that a spouse, through a valid Will, may dictate whatever they wish regarding their property, including disinheriting their spouse.

SOLUTIONS

Married people, especially wives, are encouraged to heed the clarion call to safeguard their interests in matrimonial property. Given that a spouse can legally disinherit the other through a Will, spouses are encouraged to both own shares in the property to avoid exclusion from inheritance upon the death of the other.

The issue of estate planning comes into play, where spouses should consider their rights as well as those of their children and other dependents. The setting up of Family Trusts is a good way to safeguard such property interests, especially immovable property. It should be noted that an advantage of this is that the Courts are hesitant to interfere with property held in Trust, such property is usually excluded from legal battles and even divorce proceedings. Estate planning is encouraged, and couples are advised to also consider drafting joint Wills, to prevent any unwarranted surprises on the death of a spouse. It is concluded that investing in Estate Planning is crucial and cannot be over emphasised. Women are especially encouraged to be more proactive when it comes to the acquisition and registration of property rights to ensure that on the day of reckoning they will not be found wanting. When it comes to Estate Planning, you are better safe than sorry. Pause and ponder on these questions – “Have you thought about your inheritance?”, “Do you have a Will?” “Have you set up a family Trust?” If you have answered no to any of these, the best time to change to a yes is now!

The article has been produced for information purposes only – get in touch with us for assistance.