Chigwada v Chigwada & 2 Ors (Civil Appeal SC 397 of 2017; SC 188 of 2020) [2020] ZWSC 188 (28 December 2020)

Key Facts

Deceased Name

Issues

• The court analyzed s 71(2) of the Constitution as a fundamental right protecting freedom of testation. It concluded that the right to dispose of property by will, including disinheriting a spouse, is constitutionally protected and cannot be curtailed by misinterpreting statutory provisions. This aligns with the principle that valid wills must not be set aside for contravening s 71(2) unless there is express legislative intent to restrict such rights.
• The court examined the incorrect use of s 3A of the Deceased Estates Succession Act in testate cases. It ruled that s 3A applies exclusively to intestate succession and cannot override the validity of a will that complies with s 5(3)(a) of the Wills Act. The court emphasized that testamentary freedom under the Wills Act is not subject to intestacy provisions unless explicitly stated by legislation.
• The primary issue was whether s 5(3)(a) of the Wills Act binds a spouse married out of community of property to leave their estate to the surviving spouse. The court addressed conflicting High Court decisions, clarifying that freedom of testation under s 5(1) of the Wills Act and s 71(2) of the Constitution permits a testator to dispose of their property to any chosen beneficiary, not mandating a bequest to the surviving spouse. This resolved disputes over the validity of wills that disinherited spouses and the misapplication of s 3A of the Deceased Estates Succession Act to testate cases.
• The court considered Zimbabwe's adherence to international treaties like CEDAW and the Maputo Protocol, which mandate gender equality in property rights. It affirmed that freedom of testation under domestic law does not conflict with these obligations, as they protect the right to dispose of property without gender discrimination. The court rejected arguments that disinheriting a spouse in testate cases violates international law, emphasizing that such decisions must not undermine valid testamentary intent.

Date of Death

Holdings

• The court held that the will was valid under the Wills Act, affirming that a person married out of community of property has the right to dispose of their own property by will to any person they choose. The High Court's decisions invalidating such dispositions were found inconsistent with s 71(2) of the Constitution and s 5(1) of the Wills Act, which protect the fundamental right to freedom of testation.
• The court emphasized that s 5(3)(a) of the Wills Act only protects existing property rights of married persons under the Married Persons Property Act (out of community of property). Since the deceased's will only disposed of his own half-share of the matrimonial property, it did not prejudice the surviving spouse's rights, rendering the court a quo's decision invalid.
• The court rejected the application of s 3A of the Deceased Estates Succession Act to testamentary cases, clarifying that it only governs intestate succession. The reasoning in Chiminya and subsequent cases was deemed erroneous as it conflated intestate and testamentary laws, violating the principle of statutory interpretation.

Remedies

• The appeal succeeds with costs.
• The decision of the court a quo is set aside and substituted with the following: the plaintiff's claim is dismissed with costs.

Will Type

Probate Status

Legal Principles

• The court applied a purposive interpretation of s 5(3)(a) of the Wills Act, aligning it with constitutional principles of gender equality (s 26(d)) and international obligations like CEDAW and the Maputo Protocol. This approach clarified that the law must protect existing marital property rights during the marriage, not create new inheritance rights for surviving spouses in testate succession.
• The court emphasized the literal meaning of s 5(3)(a) of the Wills Act, which limits its application to property rights existing at the time the will is executed under marital law (Married Persons Property Act). It explicitly rejected the court a quo's broad interpretation that conflated s 3A (intestate succession) with testamentary freedom.
• The Supreme Court affirmed that the doctrine of freedom of testation is a fundamental right protected by the Constitution (s 71(2)) and the Wills Act (s 5(1)), allowing a testator to dispose of their property to any chosen beneficiary, including disinheriting a surviving spouse in a marriage out of community of property. The court rejected lower court decisions that conflated intestate succession laws (Deceased Estates Succession Act s 3A) with testamentary freedom, emphasizing that s 3A applies only to intestacy and does not override a valid will.
• The court considered Zimbabwe's obligations under CEDAW and the Maputo Protocol, applying s 326 of the Constitution to ensure domestic law aligns with international human rights standards. However, it concluded that these obligations do not compel courts to invalidate valid wills but instead require the state to enact appropriate measures for surviving spouse protection in testate cases.

Succession Regime

Precedent Name

• Majuru v Majuru
• Chimbari N O v Madzima and Ors
• Estate Late Wakapila v Matongo & Ors
• Marckx v Belgium
• Nyamushanya and Ors v Nyamushanya and Ors
• Chiminya v Estate Late Chiminya and Ors
• Roche v Middleton

Executor Name

Cited Statute

• Wills Act [Chapter 6:06]
• Deceased Estates Succession Act [Chapter 6:02]
• Married Persons Property Act [Chapter 5:12]

Executor Appointment

Judge Name

• Garwe
• Bere
• Makarau
• Gowora
• Malaba

Passage Text

• It is difficult to understand how the court a quo found s 3A of the Deceased Estates Succession Act to be relevant in the interpretation and application of s 5(3)(a) of the Wills Act. The disposition of property of a spouse who dies without having written a will is not regulated by a 'law governing the property rights of married persons'.
• Section 5(3)(a) of the Wills Act does not require a husband or wife to bequeath his or her property to the surviving spouse.
• The law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act [Chapter 5:12], 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.

Beneficiary Classes