Death and Discord, Law and emotion in Inheritance Disputes: Zimbabwean Case Law on Inheritance Issues

Succession laws affect all families inevitably at an emotionally vulnerable time. As families struggle to adapt to the loss of a loved one, estate distribution are a frequent source of conflict .Sadly death unravels a number of secrets and baggage that our loved were hiding  from us and we have to deal with all this when the estate is being distributed.

They are several family law cases in the Zimbabwean judicial that has taken up the task to resolve some of these family conflicts upon the distribution of an estate. The following are some of the cases:

  1. BHILA V MASTER OF HIGH COURT AND OTHERS (HC 4396/13)

 

The woman making the application to the court was married to a man under the civil law; they had four children. Her husband died without leaving a will. After his death it was found that he had another three children born outside the marriage. These children, sought to inherit a child’s share each from their late father’s estate. Her argument upon application was that they were not entitled to inherit because they were born out of wedlock.

 

The Court held that the common law position of excluding children born out of wedlock violated the constitutional rights to protection of the law and freedom from discrimination. To seek to discriminate the children on basis of them being born out of wedlock would not only be unfair and unjust but undemocratic, for it would amount to punishing innocent children in an inhuman manner for an iniquity beyond their control, an “iniquity” by the man who fathered them.

 

The Court made specific reference to Section 56(3) of the 2013 Constitution which provides that

 

“Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as … whether they were born in or out of wedlock.”

 

It went on further to provide that discrimination occasioned on basis of being born out of wedlock to exclude children or descendants of a deceased man from inheriting from the estate of their father is ultra vires the Constitution. Hence the children were entitled to inherit from their father’s estate that had died intestate.

 

It is very important as an individual to have a will in place in the event of death to have your wishes expressed. More so important in Zimbabwe where there is a plural marriage system such as the customary law marriage and union which allows a man to marry more than one wife.

The following case will show that indeed application of the law can prove to be unjust in some cases. The only way that we can avoid this is to put our issues down on paper ad have a will in place.

 

  1. Peter Nyandoro v Christopher Mukowamombe and Julia Mukowamombe and The Master of High Court

 

In this case a woman died without leaving a will behind and was survived by 3 children. She was marred in terms of customary law and separated with her husband and he then moved out of the matrimonial home and married another woman.

 

During her life she had purchased a house by virtue of her being a police officer. Upon her death her brother was appointed as the executer of the estate and he sought to distribute the house to himself and the children.

 

The husband was aggrieved by this distribution plan and made an application to the court for an order to be declared as the surviving spouse and to remove the brother as executer. Even though he had moved out and married another wife he claimed that he was well within his rights under customary law to get another wife. Hence he was claiming that he is entitled to the matrimonial home as the surviving spouse of the deceased.

 

The children and the brother were called as witnesses and gave testimonies to the fact that their father had abandoned them as he was leaving with another wife and was not available at the when their mother was alive.

 

The Court held that since the deceased had not been given a token of gupuro to dissolve their marriage it still existed under customary law. Hence the husband under law was regarded as the surviving spouse and was entitled to the matrimonial home as the deceased had died intestate.

 

 

  1. Majuru v Estate, Late Caroline Majuru & Others (HH 404/16 HC 9123/13

 

In this case the Applicant was the surviving husband to Caroline Majuru who had died and left a will behind with her wishes. The Applicant was married to the deceased in terms of the Marriages Act. The will left behind by the deceased sought to disinherit the Applicant of the properties that they had acquired together.

 

The Applicant sought for an order for the will to be regarded as invalid in that it dispossesses him as a surviving spouse hence contrary to public policy. He made reference to Section 5(3) of the Wills Act which provides as follows:

 

 

“No provision, disposition or direction made by a testator in his Will shall operate as to vary or prejudice the rights of –

 

         

  1. 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”.

 

The Court held that it  is apparent from the wording of s 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 recognized 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 recognized in so far as it does not infringe on rights of a legally recognized 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 recognized 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 to be prejudiced.

 

The Court further held that to turn around and sanction a will which disinherits and disposes the surviving spouse of not only assets but the matrimonial home would not only be contrary to public policy but ultra vires the constitution and thus invalid. The Application was therefore granted and the will was termed invalid.