Inheritance laws have evolved drastically over the last few years. Testate succession refers to a situation where one passes away with a valid Will and their estate is wound up in terms of the Will, and intestate succession refers to a scenario where one passes on without a Will and intestate laws are then employed. The major problem with intestate succession is that at times the deceased’s desires are not fulfilled. Testate succession laws have developed over the years and currently ensure that the deceased party’s wishes are met where they have left behind a valid Will.
In a Will one can elect the Executor of their estate; appoint a guardian or custodian for their children, state where they want to be buried and distribute their property, according to their plans and wishes. Prior to the case of Chigwada v Chigwada SC 188/20 a spouse could not disinherit their husband or wife. This position was supported in case law and statute, particularly Section 5(3) of the Wills Act [Chapter 6:06] hereinafter referred to as “the Act”, which states that:
(3) 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; or
(b) Any person to receive any property, maintenance or benefit from the testator’s estate in terms of any law or any award or order of court; or
The old position that a Will could be deemed invalid and annulled because the surviving spouse was denied inheritance is no longer applicable. The Supreme Court in the year 2020 handed down a judgement that changed the stance in relation to marriage and property rights in Chigwada v Chigwada SC 188/20. Marriages in Zimbabwe are out of community of property, the Constitution of Zimbabwe Amendment (No. 20) 2013 hereinafter referred to as “the Constitution” in terms of Section 71(2) states that;
71 Property rights
(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.
The Wills Act also provides that
(1)Subject to this Act and any other enactment, any person who has capacity in terms of section four to make a will may in his will—
(a) make provision for the transfer, disposal or disposition of the whole or any part of his estate; and
(b) Make provision for the custody or guardianship after his death of any of his minor children; and
(c) Make any other lawful provision, disposition or direction, whether in respect of his own or any other property or in respect of any other matter.
(2) 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.
A married person may dispose of their property as they please by virtue of the property and inheritance laws of the country. The law respects freedom of testation and as such a spouse may choose to disinherit their wife or husband and the courts respect this lawful act, in respect of the property registered in their name.
The public is encouraged to put their affairs in order in anticipation of one’s death to ensure that their wishes are met. Further, spouses are advised to register property in both their names, and also conduct estate planning exercises together to avoid disgruntled surviving spouses after death.
This is for general information purposes – Seek advice from an Attorney
