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CAN ONE DISINHERIT THEIR SPOUSE IN A
WILL?
Home \ CAN ONE DISINHERIT THEIR SPOUSE IN A WILL?
First Published: November 17, 2017
CAN ONE DISINHERIT THEIR SPOUSE IN A WILL?
On the 18th October 2017 Justice Matanda-Moyo handed down a judgment in the case of Lily Lilian
Nyamushanya, Michele Shamiso Nyamushanya & Prosper Z Nyamushanya & Denations
Nyamushanga Vs Rodgers Matsikidze & Lawrence Nyamushanya; Kingstone Nyamushanya,
Pythias Takudzwa Nyamushanya, Astrid Nyamushanya & The Master of The High Court HH
693-17 in which she held that,
“The present will by the testator had the effect of disinheriting the widow of such a matrimonial home.
The will thus prejudices the rights of such widow which disinheritance is contrary to the law. It is
against that very mischief that section 5 (3) (a) of the Wills Act was enacted”
The facts giving rise to the case were that the late Pythias Nyamushanya executed at Mutare on 29th
November 2006 a will in which he disinherited his wife and the fourth and fifth Applicants who are his
biological children born out of Wedlock. The deceased who died possessed inter alia of a property
known as number 7 Bain Drive, Morningside, Mutare was married to the first Applicant following the
death of his first wife. At the time of his death, the first Applicant was living at the property in question
which she considered to be the parties’ matrimonial home. In his will the deceased disinherited the first
Applicant of the matrimonial home. The Applicants then approached the High Court seeking the setting
aside and nullification of the deceased’s Will on the basis that the disinheritance was contrary to
section 5 (3) (a) of the Wills Act [Chapter 6:06] which 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:
a) Any person whom the deceased was married to a share in the deceased’s estate in terms of any law
governing the property rights ,of married persons”
The Respondents opposed the application They contended that the house in question was bought by the
deceased and his late wife, that the first Applicant had not contributed anything towards its acquisition
and that the Will represented the deceased’s wishes .They urged the Court to uphold the principle of the
freedom of testation. In her judgment Justice Matanda-Moyo held that the portion of the deceased’s
will disinheriting his surviving spouse of the matrimonial home should be set aside. Her reasons for so
saying were these:
a) The Will contravened section 5 (3) (a) of the Wills Act [Chapter 6:06] which section places
limitations on the right to freedom of testation.
b) The surviving spouse in generally entitled to the house or other domestic premises in which the
spouses or surviving spouses as the case may be, lived immediately before the person’s death. See
section 3A of the Deceased Estates succession Act (Chapter 6:02). The first Applicant was living in the
matrimonial home at the time of the deceased’s death.
c) Section 80 (3) of the Constitution provides that
“All laws, customs, traditions and cultural practices that infringe the rights of women conferred by this
Constitution are void to the extent of the infringement”
It is my respectful submission that section 3A of the Deceased Estates Succession Act applies where
one dies wholly or partly intestate (i.e. without a Will). It does not apply where one dies testate (with a
will). The said section reads in part:
“The surviving spouse of every person who, on or after the 01st November 1997, dies wholly or partly
intestate shall be entitled to receive from the free residue of the estate…”
The deceased in this matter died testate. He did not die wholly or partly intestate. It is also my
respectful submission that section 80 of the Constitution does not apply in this matter as the
deceased’s Will did not in any way infringe the rights of women conferred by the Constitution. In fact
the deceased executed his will in terms of section 5 (a) of the Wills Act which provides that:
“Subject to this Act and any other enactment, any person who has capacity in terms of Section four to
make a Will may in his Will (a) Make provision for the transfer ,disposal or disposition of the whole or
any part of his estate”
Justice Matanda-Moyo’s judgment was widely reported in the media as a landmark ruling. Was this
judgment a landmark ruling? No it was not. I say this because way back in 2013 in the case of Freddy
Chimbari N.O v Simbarashe Godwin Madzima & Nigel Masimba Madzima, Kenias Mutyasira,
The Registrar of Deeds N.O & the Master of the High Court HH 325/13 Justice Uchena dealt with
a similar matter. In that case the deceased left a Will in which he disinherited his wife. The learned
Judge held that the deceased’s Will was a nullity as it contravened Section 5 (3) (a) of the Wills Act. In
that matter the learned Judge referred to an earlier judgment by Justice Hungwe in which the Judge
declared the deceased’s Will as void ab initio on the basis that it contravened section 5 (3) (a) of the
Will’s Act.
Surprisingly, both Justice Matanda-Moyo in her 2017 judgment & Justice Uchena in his 2013 judgment
do not comment on an earlier conflicting judgment by Justice Kudya in Estate Late Wakapila V
Dennia Matongo ,Director of Housing & Community Services of City of Harare and The Master
of The High Court HH 71/08. This matter was similar to the cases which Justices Uchena and
Matanda-Moyo dealt with in that the deceased had in his will disinherited his spouse. In handing down
his judgment on the 31st July 2008 Justice Kudya held that one can disinherit their spouse in a Will and
that such disinheritance does not contravene section 5 (3) (a) of the Wills Act. His reasoning was that
our marriages are out of community of property. The effect of this is that a spouse who owns a property
is free to dispose of the property or to deal with it the way they want. They can sell it or donate it
without their spouse’s consent. This is consistent with section 72 of the Constitution which provides
that:
“Every person has the right in any part of Zimbabwe, to acquire, hold, occupy, use, transfer,
hypothecate, lease or dispose of all forms of property, either individually or in association with
others”
It was Justice Kudya’s view that:
“The provisions of section 5 (3) (a) of the Wills Act prevents the testator from eroding the property
rights vested in his spouse by law in either his or their joint estate. Those rights, in my view, are those
that the spouse has at the time the Will is executed as opposed to future or contingent rights that arise
on the death of the testator… It would be absurd to allow the spouse to dispose of his or her property
during his lifetime but take away that power from him or her to dispose of it by will.”
As the deceased’s widow was not a joint owner of the property in question the learned Judge opined
that:
“In casu, at the time the testator wrote the Will, Bridget did not have any legal rights in the immovable
property. He did not therefore deprive her of any rights when he bequeathed them to another in a Will”
So where do all these judgments leave us? Well, the effect of these judgments is that we have
conflicting High Court judgments on whether one can disinherit their spouse in a Will. We have on the
one hand the judgments by Justices Uchena, Hungwe and Matanda-Moyo which hold that one cannot
disinherit their spouse in a Will. On the other hand, we have a judgment by Justice Kudya which holds
that it is lawful for one to disinherit their spouse in a will. What is the correct Legal position? Can one
disinherit their spouse in a Will? It is submitted that there currently is confusion on this point. There is
need for the Supreme Court to clarify the legal position. Until that happens, it is not safe for one to
disinherit their spouse in a will as such disinheritance may be set aside on the basis that it contravenes
section 5 (3)(a) of the Wills Act.
By: DAVISON KANOKANGA BL, LLB, AA ARB, CIArb
Disclaimer: While care has been taken to ensure that this publication is accurate, Kanokanga &
Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise
from reliance on any of the information published herein. The contents of this publication are for
general information purposes only. The purpose of this publication does NOT constitute our legal or
professional advice. Readers are advised not to act on the basis of the information contained herein
alone. Every situation depends on its own facts and circumstances.
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