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Trust Maanda
Post Correspondent
A PERSON who dies without leaving a will is said to have died intestate, while one who dies leaving a will dies testate.
A will is a document made by a person during his or her life time, in terms of which he or she bequeaths his or her property to persons he or she chooses and directing how he or she wishes the estate to be distributed.
The Deceased Estates Succession Act (Chapter 6:02) and Administration of Estates Act (Chapter 6:01) provide for how a estate of an intestate deceased person should be distributed.
All estates, whether the deceased died intestate or not are administered in terms of the Administration of Estates Act (Chapter 6:01).
The Wills Act (Chapter 6:06) governs the making of wills.
It provides for the format and formalities of a valid will.
If a person dies testate, his or her estate will be distributed according to what he or she directs in his or her will.
In terms of the Wills Act, a person can bequeath his or her property to anyone he or she chooses.
The contents of a will are left to the testator.
That is freedom of testation.
There is a generally held belief that for a will to be valid, if a person was married, he or she should bequeath his or property, particularly the matrimonial home, to his or her spouse.
That general belief was because the courts, in some cases, were of the position that Section 5 (3) (a) of the Wills Act prohibits a person from disinheriting his or her spouse by bequeathing the matrimonial home to a person other than the spouse.
Courts were of the view that a surviving spouse has a right to inheritance from their spouse.
Their views were that the surviving spouse’s right to inherit the deceased spouse’s estate was guaranteed by statutory provisions and that a will contravened that law, and was invalid, if it bequeathed the matrimonial house to a person other than the surviving spouse.
However, that is not the correct legal position.
Marriage does not confer a right on a spouse to inherit their spouse’s property.
Property owned by a spouse is not necessarily jointly owned by the spouses by virtue of their marriage.
Marriage in Zimbabwe is out of community of property, which means each spouse has the capacity and freedom to hold and dispose of property independent of the other spouse.
The correct legal position was confirmed in the case of C v C SC188/20.
In that case, a man and his wife each held 50 percent shares in their matrimonial property.
Before the man died, he bequeathed his half share in the house to his son with his former wife, thereby leaving his surviving spouse with the half share she owned in the house.
The wife went and sought the High Court to declare the will invalid because the deceased did not bequeath to her his half share of the matrimonial house, for her to become the sole owner of the house.
The High Court held that if the deceased had died without leaving a will, the surviving spouse would have been entitled to inherit the matrimonial house in terms of Section 3A of the Deceased Estates Succession Act.
The High Court decided that the surviving spouse could not be disinherited just because the deceased had executed a will. The court declared the will invalid.
The son was aggrieved by the decision. He appealed to the Supreme Court.
The Supreme Court reversed the decision of the High Court.
The Supreme Court held that Section 5(1) of the Wills Act, gives every person, possessed of the capacity to do so, a right to dispose of his or her estate by will to whomsoever he or she pleases.
The deceased had not disposed of the half share which was owned by his spouse.
He only disposed of his half share.
If a spouse has an immovable property registered in his or her name, whether that house was used as the matrimonial home, he or she has the right to dispose of it by will to whomsoever he or she chooses.
The right of a property owner to dispose of his or her estate by will to whomsoever he or she chooses is one of the rights constituting ownership of property.
In terms of Section 71 (2) of the Constitution of Zimbabwe, every person has a right to dispose of his or her property in any way and to whomever he or she wants.
A spouse in a marriage out of community of property has no right to inherit the other spouse’s property unless that other spouse has by will disposed of the property to him or her.
That is the exercise of freedom of testation.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
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