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‘You Can Now Disinherit Your Spouse’ – Supreme Court

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By Robert Tapfumaneyi  


THE Supreme Court Tuesday passed a landmark ruling, which allows spouses to disinherit one another.

The ruling follows an appeal by Gerald Chigwada challenging the decision of the High Court which nullified a will by his late father Aaron Chigwada bequeathing him his share of property in favour of the surviving spouse.

“To deny a person married out of community of property the right to dispose of his or her property by will to whomsoever he or she chooses is to erode the foundation on which the doctrine of freedom of testation lies,” Supreme Court ruled.

“The decision of the High Court based on the proposition that a person married out of community of property may not dispose of his or her will or estate to whomsoever he or he chooses, being alleged to be bound to leave the property to the surviving spouse, are inconsistent with the fundamental right of the Constitution and of the Wills Act.

“Subject to this Act and any other enactment, a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such disinheritance or omission.

“No provision, disposition or direction made by a testator in his will shall operate so as to vary or prejudice the rights of (a) any person 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,” the judgment, made by Chief Justice Luke Malaba, reads in part.

The first respondent was married to the late Aaron Chigwada in 1971 in terms of customary law.

In 1975, the parties had the union solemnised in terms of the Marriage Act. Before marrying the first respondent, the deceased had been married to Gerald’s mother. They had divorced.

The deceased had six children with his first wife, the appellant being the fifth child.

During the subsistence of their marriage, the first respondent and the deceased acquired a house in Harare which became the matrimonial house, and was registered in the joint names of the husband and wife.

Each spouse owned half of the beneficial interest in the house.

On 20 September 2007 the deceased made a will, in terms of which he bequeathed his half share of the beneficial interest in the immovable property to Gerald.

The deceased died on 19 July 2011 and the will surfaced after the deceased’s death.

The first respondent, who is the surviving spouse, approached the High Court challenging the right of the appellant to succeed to the half share of the beneficial interest in the immovable property left to him by the deceased in terms of the will.

The first respondent believed, from teachings at her church, the surviving spouse had a right to inherit the estate of the deceased husband or wife regardless of the existence of a will disposing of the property to a person other than the surviving spouse.

Motivated by the belief she held, she thought it was her late husband’s intention to bequeath the property to his child, he ought to have bequeathed it to all the children that survived him.

Sylvester Hashiti appeared for the applicant while Fadzayi Mahere and Lewis Uriri appeared for the defendant.