Effect of Chigwada v Chigwada on matrimonial property and testamentary rights.

The case of Chigwada v Chigwada dealt with a situation where parties were married in terms of the Marriages Act [Chapter 5:11] and acquired a house in which they resided. Upon the death of Mrs Chigwada’s husband she came to realize that he had left a will in which he bequeathed his 50% share in the property to his youngest son from his previous marriage.

Aggrieved by the same, she approached the High Court for an order declaring the will unlawful to the extent that it violated her right to inherit her late husband’s share of the matrimonial property, and the 50% share of the home in particular. The High Court, and subsequently the Supreme Court, was then tasked with determining if the late husband could disinherit his surviving wife of his share of the matrimonial property.

The High Court found that the late Mr. Chigwada, in his will, acted in a manner that prejudiced his surviving spouse and was in contradiction of section 5(3) of the Wills Act [Chapter6:06]. The Court in the herein mentioned proceedings went on to state that the surviving spouse would have continued to enjoy the matrimonial home had the deceased died intestate (without a will) in terms of section 3A of the Deceased Estates Succession Act [Chapter 6:02], and the herein stated mischief is what section 5(3) of the Wills Act intended to curtail. As a result of the above, the High court found that the will was null and void.

The matter was then appealed to the Supreme Court before a bench of five Judges, who assessed the accuracy of the judgment of the High Court. The Supreme Court went on to determine, unanimously, that the law regulating matrimonial property and the law regulating testamentary dispositions did not in any way bind the testator (person writing the will) to bequeath his or her right in an estate to their surviving spouse.

In reaching the above determination, the honourable Chief Justice Luke Malaba stated that parties married out of community of property were entitled to own and dispose of property in their individual capacity. He went on to state that;

           “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.”

The above ruling by the Supreme Court will no doubt raise intense debate for the foreseeable future, however, the law in regard to the question before the courts is now set in stone. Unless constitutional issues are raised, the ruling creates a framework going forward for the ability of a husband or wife to disinherit their Chapter 5:11 partner from his or hers deceased estate.

The above goes to great lengths to mitigate situations where partners disagree on the disposition of jointly owned assets, and in particular, matrimonial homes. Each party can now rightfully, in my view, create their own will – which will codify how they intend their share of any jointly owned assets to be disposed of, which is in line with section 71(2) of the Constitution and section 5(1) of the Wills Act as accurately concluded by the Supreme Court.

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