On the 28th of December 2020, the Zimbabwean Supreme Court delivered a landmark judgment in the case of Chigwada v Chigwada & Others SC188/20. The facts of the case are not disputed and stated that, Penelope Chigwada, the first respondent in the matter was married to the late Aaron Chigwada, they were married under the customary law however adapted their customary marriage to a Christian or Court marriage in 1975, under the Marriage Act, now Chapter 5:11. Gerald Chigwada, the Appellant, is the son of the late Aaron Chigwada from a previous marriage. The late Aaron Chigwada died in 2011, before the deceased died, he made a will, which he bequeathed his half share to his son (from the deceased's previous marriage), the Appellant. However, the 1st Respondent approached the High Court challenging the Appellant's right to succeed to the half share as per the will. Penelope Chigwada resides in this house which she has since effected developments to the matrimonial property.
The question for determination was whether the law governing the property rights of married persons, or the law of testamentary disposition of estates, binds a testator to bequeath his or her right in an estate to the husband or wife.
The exclusive and simple issue for the Court to decide was the meaning and application of section 5(3) (a) of the Wills Act. This provision has provided a lot of confusion to testamentary disposition amongst surviving spouses. For ease of reference, the provision provides that "no provision, disposition or direction made by a testator in his will shall operate so as to vary or prejudice the rights of any person to whom the deceased was married to a share in the deceased's estate or in the spouse's jointestate in terms of any law governing the property rights of married persons".
In an ordinary meaning disinheriting someone is preventing them from inheriting your property. This is exactly what the will of the late Aaron Chigwada executed. It disinherited Penelope Chigwada from their matrimonial property. It is precisely this disinheriting that section 5(3) (a) of the Wills Act was meant to remedy or avoid. The effect of the judgment is that marriages in Zimbabwe are out of community of property, meaning the person on the title deed/agreement of sale or cession is the only owner of the property, hence a spouse can give, through a will, all or part of his or her property to anyone who is not necessarily the surviving spouse. This means a spouse can bequeath the matrimonial home to a friend or any other family member. This has a huge impact on every marital relationship and has certainly raised eyebrows for debate.
In Zimbabwe, the law of testamentary disposition acknowledges the doctrine of freedom of testation and does not compel a testator to bequeath his or her property to the surviving spouse. The Supreme Court appropriates the role of Constitutional Court in Chigwada v Chigwada and 2 others SC 188/2020. This means the case was heard in the Supreme Court and thus, if left unchallenged, it will become a law. In other words the Supreme Court of Zimbabwe has summed it up, and has set the law regarding testamentary disposition. A person married out of community of property that is in terms of Chapter 5:11 has a right to dispose of his or her property by will to whomsoever he or she chooses.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
