The law of testamentary disposition is one of the key aspects under inheritance law. The Constitution of the Republic of Zimbabwe, 2013 provides for property rights under section 72(2), 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. This article seeks to critically analyse the Supreme Court case of CHIGWADA V CHIGWADA & 2 ORS SC 188/20 on testamentary disposition of estates in light of marriage and property rights laws in Zimbabwe. 


This was an appeal before the Supreme Court against the whole judgment of the High Court. The question for determination was whether the law governing the property rights of married persons, or the law of testamentary disposition of estates, binds a testator to bequeath his or her right in an estate to the husband or wife.


BRIEF FACTS
As a brief background, the 1^st Respondent was married to the deceased in 1971 in terms of customary law. The parties later solemnized their union in 1975, in terms of the Marriage Act [Chapter 5.11]. During subsistence of their marriage, the parties acquired a house, which became the matrimonial house, registered in their joint names. Each party owned half share in the said property. Before the deceased died, he made a will in terms of which he bequeathed his half share to his son (from the deceased’s previous marriage), the Appellant. However, the 1^st Respondent approached the High Court challenging the  Appellant’s right to succeed to the half share as per the will.


THE FINDINGS OF THE COURT
The provision that has created the confusion on testamentary disposition amongst surviving spouses is section 5(3)(a) of the Wills Act [Chapter 6:06]. This provision states that, “no provision, disposition or direction made by a testator in his will shall operate so as to vary or prejudice the rights of any person to whom the deceased was married to a share in the deceased’s estate or in the spouse’s joint estate in terms of any law governing the property rights of married persons”.    The interpretation of this provision has given rise to conflicting judgements in the High Court on the question whether a person married out of community of property in Zimbabwe enjoys freedom of testation or is bound to dispose of his or her estate by will to the surviving spouse.


To articulate this position, there has been two schools of thoughts in the High Court. The first school of thought was enunciated in the case of ESTATE LATE WAKAPILA V MATONGO 2008 (2) ZLR 43 (H) in which Kudya J held that it would be absurd to hold that a person who could dispose his or her property without the other spouse’s consent would lose the right to dispose of it by will to whomsoever he or she wishes. The Court further held that if the Legislature intended such a radical departure from the common law, it could have enacted express provisions to that effect. Another school of thought  which departed from the Wakapila decision and followed in the court a quo, was  established in the case of CHIMBARI NO V MADZIMA & ORS HH/325/13 where the Court held that, section 5(3)(a) of the Wills Act  prohibits a testator from disinheriting a surviving spouse. This thought was followed in the CHIMINYA V ESATE LATE CHIMINYA & ORS 2015(1)ZLR 450 (H) AND MAJURU V MAJURU HH404/16 case that the said provision was meant to cure the mischief by testators who wanted to disinherit their surviving spouses. It was based on the fact that the surviving spouse has a right of inheritance protected by section 5(3)(a). This confusion had created uncertainty in the minds of the unsuspecting public as to the correct position of the law.  


A five-member Bench of the Supreme Court of Zimbabwe had to set the record straight through the case in question, of GERALD CHIGWADA V PENELOPE CHIGWADA & 2 ORS which washanded down on the 28^th of December 2020. The Chief Justice held that, parties to a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities. 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. Decisions of the High Court to the effect that a testator is bound to leave his or her property to the surviving spouse are inconsistent with the law and should no longer be followed.  


The Supreme Court went on to clarify that the provisions of section 3A of the Deceased Estates Succession Act which entitles the surviving spouse to inherit the matrimonial home and household goods and effects in it did not apply to the 1^st Respondent.   It is not any spouse who is entitled to inherit in this manner but it is the spouse of a person who died wholly or partly intestate (without a will). In the present case the 1^st Respondent’s husband had died estate.  


In summation, the law regarding testamentary disposition has been set. A person married out of community of property, that is in terms of Chapter 5:11 has a right to dispose of his or her property by will to whomsoever he or she chooses.