Chronicle Editor
Sifelani Tsiko Senior Writer
A High Court decision handed down this week on an inheritance will has sparked debate on whether it is still relevant or not for one to write such a testament before one dies. The issue has been met with mixed reactions, with some legal experts and women’s rights lobbyists celebrating it as a great step in their fight for equality and justice while others condemned the decision outright as “judicial activism”.
Immediately following publication of the ruling in The Herald article titled: “Will without wife null, void: High Court,” the story topped the daily’s media charts with nearly 17 000 visitors online, making it a clear leader of this week’s headline-making events. In a ruling on a challenge made by a Mutare widow who had been excluded from her husband’s estate, Justice Loice Matanda-Moyo declared the woman the sole beneficiary of the matrimonial home in Morningside, a leafy suburb in this eastern border city.
She ruled that the right to distribute an estate through a will was not absolute if the writer disregarded the rights of beneficiaries as stipulated in the Constitution. In this case, Lily Lilian Nyamushanya was left out of a will crafted by her late husband, Pythias Nyamushanya, despite being the sole surviving spouse staying at the home in dispute, when the man died.
Her husband also disinherited his biological children in his will. Legal experts say any traditional or customary practice that infringes or violates women’s rights is contrary to the Bill of Rights which has been expanded under the Constitution.
“The ruling on this case is largely influenced by the expanded Bill of Rights under the New Constitution,” said an analyst.
“It will obviously come as a great relief to many women who for many decades have been losing when it comes to the distribution of estates.” Comments Harare lawyer Rumbidzai Zvimba-Mukono: “It is my considered view that the High Court ruling by Justice Loice Matanda-Moyo is a progressive ruling especially in this day and age where emphasis is being placed on women’s rights.
“Disinheriting women in a will because of traditions and cultural practices is not justifiable in a democratic society like Zimbabwe. Section 2(1 ) of the Constitution of Zimbabwe is very clear.” This section, she says, states that the Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. Further to that, she says, Section 80 of the Constitution has placed limitations on rights where those rights infringe on women.
“ln terms of our laws of inheritance, the surviving spouse is entitled to the matrimonial house or other domestic premises which the couple lived in immediately before death,” Zvimba-Mukono says.
“The children, whether male or female, are also entitled to benefit from the estate. l believe that declaring the will invalid and or amending it was in the best interest of the surviving spouse and immediate family.” A prominent family law expert Sylvia Chirawu argues differently.
“The issue falls under what is called freedom of testation. In other words one can make a will leaving items they so wish to anyone,” she says. So the Wills Act says they can disinherit a child or relative and they don’t even have to give a reason. The same Act, however, is silent on the disinheritance of a spouse.
“The courts of late have been setting aside wills that disinherit a spouse. This case is not the first where the court has set aside wills that disinherit spouses. We have Chiminya vs Chiminya, Mujuru vs Mujuru, Chigwada vs Chigwada and Chimbari NO vs Madzima.” However, the family law expert says there is also another decision in the Wakapila case which was made before the new Constitution where a court ruled that a spouse could be disinherited.
“The reasoning was that if someone acquired property and they can dispose of it during the subsistence of a marriage, why take away that right at death. The only instances where a spouse cannot be disinherited is if they are joint owners or if they are married in community of property. So the new decisions are based on the Constitution where it talks about equality and equal protection before the law,” she says.
“In my view this issue needs to be settled by the courts since we have two conflicting positions. So perhaps the Supreme Court or the Constitutional Court can settle this important issue once and for all.” In the Mujuru case cited above, Chirawu says it was actually a husband who was disinherited and the court set aside the will. Another Harare-based lawyer, Farai Chinhema said the ruling was “judicial activism”.
“The learned judge interpreted and applied the law, not as what it is, but what she believes it should be like,” he says. “That is judicial activism and in my respectful view, such activism can render wills irrelevant.” Apart from legal experts, a scrum of online readers jostled to give their opinions in either straight-talk or crowd-pleasing gestures as people reflected on this topical and emotive issue.
Commented one Marufu Chihwandire online: “Thank you Justice Matanda-Moyo.” Another says: “The ruling makes sense though. It’s a welcome development. Justice Matanda-Moyo’s ruling also sparked adverse reactions. I may be wrong but something does not sound right about this judgement,” says Rudeologist Chiqala in a comment online.
“First of all, what the man did was not good but he must have had what he considered to be very good reasons for excluding the people who are now beneficiaries of what he would have not given them if he was alive. It’s unfortunate (that) we have not been told why he excluded them but there was obviously a reason. Nevertheless, if the author of the will was the sole owner of the house and other property, including money, he had and still has the right (through his will) to decide what happens to his possessions.
“It does not sound right that a Constitution can take away someone’s rights just because he is no longer there to defend his decision, especially if the same court cannot make the same decision on his possessions if he was alive. That is exactly why wills exist in the first place.” Other readers were even more critical of the ruling.
“Suppose the woman then re-marries and possibly passes on first, that may mean the surviving hubby will inherit the house and the first man’s kids will completely have no take on that house anymore. This would be very unfair. It would be fair, in my view, to make such a property a family home, for the benefit of the kids as well,” comments Joseph Moto. Many people wondered if there was a reason anymore to write a will, if everything is prescribed by law.
“So what’s the whole point of a will then? queries one online reader, adding; “We should then consider a system where a will is approved before you die.” Others were suspicious and motivated by their cultural beliefs.
“The Constitution is a mere prejudice of the deceased’s aspirations. The deceased spirit will fight the judgment. Corrupting the dead,” wrote one reader.
Online Reporter