Online Reporter
Fidelis Munyoro
Chief Court Reporter
TWO women who claimed to be customary law wives of the late Pius Mutyasira have lost a dramatic High Court battle to overturn his will after the court ruled that the document remained legally valid despite technical defects in its execution.
Justice Amy Tsanga dismissed an application by Nhaka Chikoo and Zilpha Maunga, who had sought to have the estate declared intestate so that it could be distributed under customary law.
Instead, the court upheld the authority of the Master of the High Court to accept the disputed will, preserving the deceased’s decision to leave his estate primarily to his legally married wife, Villah Mutyasira, and their children.
At the heart of the dispute was a four-page will written in 2003.
The applicants argued that the document was fatally defective because the third page had not been signed by the testator and witnesses, as required under Zimbabwe’s Wills Act.
They also attacked the conduct of the Assistant Master, alleging impropriety after an initial recommendation to reject the will was later reversed.
But the court found that the flaw was merely technical and did not undermine the deceased’s clear intentions.
“The unsigned page is not dispositive, and there is no evidence of alteration, fraud, or incompleteness,” ruled Justice Tsanga. “Nor is there any indication that the deceased revoked the will; on the contrary, it remained operative until his death.”
The judge stressed that Zimbabwean law permits the Master to accept a will that does not strictly comply with every formality where there is sufficient evidence that the deceased intended it to operate as his final testament.
“The placement of signatures on a separate page does not, without more, invalidate the will,” the court said, particularly where “the signatures unmistakably relate to the preceding text.”
The applicants had argued that the assistant master became functus officio, legally barred from changing position, after initially recommending rejection of the will. However, the court rejected that argument, describing the earlier view as merely preliminary.
“An internal recommendation to reject a will does not create a legal bar,” Justice Tsanga said.
The ruling also underscored the principle of freedom of testation, the right of individuals to decide who inherits their property after death.
“Dissatisfaction arising from exclusion as a presumptive beneficiary … is not a basis to invalidate the will,” the judge held.
Court papers revealed that although the deceased allegedly entered into several customary unions after executing the will, there was no evidence that he ever amended or revoked it before his death in July 2023.
Justice Tsanga concluded that the challenge was less about the validity of the document and more about dissatisfaction with its consequences.
“The court cannot declare intestacy merely because certain parties would prefer the application of customary law.”
The application was dismissed with costs, leaving the will intact and the administration of the estate set to proceed according to the deceased’s wishes.
