- Introduction
The relevance of a Last Will and Testament (Will) as an estate distribution tool has often been questioned1 due to its contestability and conflicting court judgements that have been given in the past. At the core of conflicting rulings is the aspect of disinheritance of spouses through the Will with one school of thought arguing that a Will/clause in a Will disinheriting a spouse is void2 and the other saying the Testator has freedom of testation and can disinherit whoever they wish to, including a spouse. The position was clarified and settled in the ‘infamous’3 Chigwada v Chigwada4 landmark ruling. The ruling has significant implications for estate planning as it confirmed the position that spouses can indeed disinherit each other in their Wills. The main issue in the case concerned the validity of the Will left by the late Aaron Chigwada, which gave Gerald Chigwada, rather than his wife Penelope, half of the marital residence. Penelope Chigwada’s claim to the property was granted by the High Court’s ruling that the Will was invalid, citing the deceased’s inability to disinherit his spouse through a Will. This decision was overturned by the Supreme Court5 which ruled in favour of Gerald Chigwada based on the doctrine of freedom of testation. The focus of this article is the Chigwada v Chigwada Supreme Court decision and its contribution to the discourse of Estate Planning. This paper looks at the following: – Definition of Estate Planning and Will, Overview of the Chigwada v Chigwada case, Conflicting High Court Rulings, Clarity brought by the Chigwada case and Implications on Estate Planning.
2. Definition of Estate Planning & Last Will and Testament
Estate Planning is a process of planning and arranging one’s assets in anticipation of incapacitation/death, to ensure that one’s heirs are legally and financially catered for. It involves the acquisition, preservation, and the distribution of wealth, in a way that minimizes the costs associated with administering an estate. The Chigwada case focused on a Will as an estate distribution tool, which
1 Mainly by the female, women’s rights activists, and the Christian community.
2 No force of law and cannot stand.
3 The judgement became ‘infamous’ amongst the female populace, who despite their significant contribution to acquisition of properties within the home, often, their names are excluded on the title deed, but enjoyed the comfort of thinking the law protected them from disinheritance. The fear that was invoked was of the possibility of having most spouses sway towards the Aaron Chigwada route to their disadvantage.
4 See Chigwada v Chigwada SC 188/20.
5 See Chigwada v Chigwada SC 188/20
is a legal document that records how an individual (Testator) chooses to distribute property, care for minors and other beneficiaries, and make special after death wishes, such as a preferred place of burial. It should specify an Executor, entrusted with making sure the estate is distributed in accordance with the Will. It is encouraged that the Will is registered with the Master of High Court (3 original copies are submitted) and another copy can be kept in safe custody (for example, a bank) with instructions to a trusted person (for example, an Executor) on how to access it in the event of the death of the Testator.
3. Overview of the Chigwada v Chigwada Supreme Court Decision
The judgment was delivered by MALABA CJ, through an appeal against the whole judgment of the High Court, interrogating the determination of whether the law that governs the property rights of married persons binds a testator to bequeath their estate to their spouse. Penelope Chigwada was married to the late Aaron Chigwada in 1971 and solemnized their marriage under the then Marriage Act6, in 19757. The Late Aaron was once married (then divorced) to Gerald Chigwada’s mother with whom he had six children, Gerald being the youngest. During the subsistence of their marriage, Penelope and the late Aaron acquired a matrimonial home in Harare and registered it in both their names. In 2007, the late Aaron made a Will bequeathing his half share to his son Gerald. Penelope, as the surviving spouse challenged the right of Gerald to inherit her late husband’s half share. The issue before the High Court was whether the Will that disinherited Penelope was valid under the Wills Act8. In the High Court, NDEWERE J had ruled that the bequeathing of 50% of the house to Gerald prejudiced Penelope of her rights to a fair share in the deceased estate. NDEWERE J held that section 3A of the Deceased Estates Succession Act9, compelled a married person to dispose their estate by a Will to the surviving spouse. Commenting on the provisions of the Deceased Estates Succession Act, he opined that section 3A of the Act included situations where part of the estate was covered by a Will as evidenced using the phrase “dies wholly or partly intestate”. This was also held to be in conformity with section 56 of the Constitution, which prohibits discrimination based on marital status and promotes equality before the law. Accordingly, the bequest of 50 % of the matrimonial home to the son was considered an obstacle and prejudiced the plaintiff from the enjoyment of her matrimonial home and could not stand.
7 Now known as a Civil Marriage under Chapter 5:17.
Aggrieved by the High Court decision, Gerald appealed to the Supreme Court where MALABA CJ, disregarded the reasoning in Chiminya v Estate Late Chiminya and Ors10, which the High Court relied on, as illogical, as there had been an admission that section 3A of the Deceased Estates Succession Act was irrelevant to the matter under discussion. The attempt to draw similarities between the purpose of section 5(3)(a) of the Wills Act and that of section 3A of the Deceased Estates Succession Act was considered unnecessary. The Supreme Court confirmed that the law governing the property rights of married persons in Zimbabwe was the Married Persons Property Act11 which provides that, since 1929, marriages in Zimbabwe are out of community of property. Parties to a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities. More so, the law of testamentary disposition in Zimbabwe recognizes the doctrine of freedom of testation and does not oblige a testator to bequeath his or her property to the surviving spouse and was not discriminatory (as it simply recognized vested rights12).
4. Two schools of thought that existed before the Chigwada Supreme Court Ruling
There are two schools of thought that existed before the Chigwada Supreme Court ruling and these resulted in confusion as regards the actual position of law on spouses’ rights to inherit through the Will and protection of freedom of testation.
- In Estate Late Wakapila v Matongo & Ors13 KUDYA J indicated that it was absurd to allow a spouse to dispose of their property however they wished, during his or her lifetime but take away that power from testament disposal. Allowing that, it was considered a serious departure from the Common Law doctrine of freedom of testation.
- In Roche v Middleton14 CHITAKUNYE J confirmed the Estate Late Wakapila v Matongo’s decision and indicated that it was based on the correct interpretation and application of section 5(3)(a) of the Wills Act. The court further held that if the Legislature intended such a radical departure from the common law (the stripping away of the right to freedom of testation) it would have enacted express provisions to that effect.
10 2015 (1) ZLR 450 (H) (“the Chiminya decision”).
12 Vested rights refer to a legal concept where a person possesses a complete and unconditional right related to property or other interests. These rights cannot be impaired or taken away, even though retroactive legislation, without the consent of the owner. It therefore follows that such rights cannot be taken away through contestation of a Will.
13 2008 (2) ZLR 43 (H) (“the Wakapila decision”)
- In Chimbari NO v Madzima and Ors15, the reasoning championed by Estate Late Wakapila v Matongo was rejected, and the new position was that a Will which does not bequeath the matrimonial house to the surviving spouse was void (invalid), for the same reasoning as advanced in the Chigwada High Court ruling. The same reasoning was followed in Chiminya v Estate Late Chiminya and Ors16, where the court went on to rely on section 3A of the Deceased Estates Succession Act, notwithstanding the fact that the Act applied to intestate succession17, whilst section 5(3)(a) of the Wills Act addresses requirements for the validity of disposition of estates of married persons by Will.
- The approach adopted in Chiminya v Estate Late Chiminya and Ors was further followed in Majuru v Majuru18 and Nyamnshanya and Ors v Nyamnshanya and Ors19.
- All decisions that stripped the Testator’s right to freedom of testation were overturned through the Supreme Court ruling in Chigwada v Chigwada.
5. The Certainty brought by the Chigwada v Chigwada Supreme Court decision
The Supreme Court answered and settled the questions on the interpretation of section 5(3)(a) of the Wills Act considering the concept of freedom of testation and the disinheritance of a surviving spouse through a Will and the application of the provisions of the Deceased Estates Succession Act to testamentary dispositions. People wishing to dispose of their estates through the Will are sure that their freedom of testation is protected by the law and that their wishes will be upheld. The following are specific confirmations and clarity brought by the ruling.
- Status of Marriages in Zimbabwe
The case confirmed that the law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act, which provides that, since 1929, marriages in Zimbabwe are out of community of property. Parties to a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities. There was general misconception that marriage, especially a Civil Marriage (Chapter 37, and later Chapter 11- as they were then) entitled spouses to an automatic 50% share of the property owned by the other.
16 2015 (1) ZLR 450 (H) (“the Chiminya decision”)
17 Intestate succession refers to succession done in the absence of a Will.
- Discrimination in terms of Section 56 of the Constitution
It was held that protection of freedom of testation had no relationship to Section 56 of the Constitution, which prohibits discrimination based on marital status and promotes equality before the law.
- Application of the Deceased Estates Succession Act where there is a Will
It was confirmed that the Deceased Estate Succession Act did not apply to testamentary dispositions of estates.
- Freedom of Testation
The law of testamentary disposition in Zimbabwe recognizes the doctrine of freedom of testation and does not oblige a testator to bequeath their property to the surviving spouse. The law of testamentary
disposition, which is based on the universal principleof equality of men and women, gives a right to
a person married out of community of property to dispose of their estate, by Will, to whomsoever they choose. There are however limitations to the doctrine, for example, restrictions based on social justice, public policy, and economic considerations and those found in Statutory and Common Law principles. Moreover, a provision in a Will is not executed if it is unlawful, immoral, or impossible. Property rights of parties also preclude freedom of testation, where for example, someone distributes 100% of a property jointly owned with a spouse, in his estate (as they should only distribute their share).
6. The implications of the Decision on Estate Planning
- A Will is a reliable and valid estate distribution tool and is protected by the doctrine of freedom of testation, as such people are encouraged to have one as a basic estate planning tool.
- There is a need to seek the assistance of professionals when drafting a Will to ensure that it is watertight and not contestable. As an example, there are people who, when included as beneficiaries, give ground for contestation of a Will, such as someone who writes it/part of it (even under the direction of the testator), and someone who signs the Will/amendment as a witness.
- As all marriages in Zimbabwe are out of community of property, when acquiring properties couples need to be aware of the implications of having/not having their names on assets they may have contributed to purchasing.
- Due to the doctrine of freedom of testation spouses can write their Wills independent of each other and make bequests of their wealth to anyone of their choice. It is, however, advisable that couples plan their estates together for the ultimate benefit of their vulnerable children and other dependents as agreed.
- Planning an estate is essential as the law is not always interpreted in black and white and may not be on our side. When planning to amass assets such as a home, it is always advisable to seek the assistance of financial and tax advisors for proper guidance.
- Estate Planning is key and essential. Families need to adopt a more inclusive estate planning approach, which ensures that a family asset does not only benefit a single person to the disadvantage of everyone else. The Chigwada house only benefited Gerald, when it could have benefited all the children in varying shares and left a legacy for future generations. The disadvantage of only benefiting one child was also espoused in the aftermath of Magaya v Magaya case20 where the son sold the family home immediately after inheriting it to the disadvantage of everyone else, especially the sister, who not only stayed there but contributed to its improvement.
7. Conclusion
The relevance of a Will as an Estate Planning mechanism has never been an issue throughout the conflicting court decisions, it has been cemented by the Chigwada v Chigwada Supreme Court ruling. It is contestable for purposes of giving effect to exceptions to freedom of testation (as indicated above) and to prevent acceptance of fraudulent Wills. All this is meant to protect the wishes of the Testator as highlighted in this paper. It is not automatic that every contestation sails through as the courts thoroughly interpret the law for protection of the Testator’s wishes. It is, however, essential to seek the assistance of professionals such as Lawyers, Estate Administrators and Tax Advisors to ensure that the Will is not only legal but watertight and reasonable.
ABOUT THE AUTHOR
Mercia Monica is a holder of an MBA, LLBS, Diploma in Insurance, Associateship in Insurance and Certificate in Adapt Leadership. She has over 14 years of experience as a Lawyer and Estate Planner. The views expressed herein are exclusively those of the author.