Chigwada v Chigwada & Ors (HC 5545 of 2012) [2016] ZWHHC 69 (28 January 2016)

1 HH 69-16 HC 5545/12 PENELOPE CHIGWADA versus GERALD CHIGWADA and SHEPHERD KUSADA [N. O.] and MASTER OF THE HIGH COURT [N. O.] HIGH COURT OF ZIMBABWE NDEWERE J HARARE, 6 October 2015 & 28 January 2016 Civil trial L Rubaya, for the plaintiff P G Gijima, for the 1st defendant 2nd defendant in person 3rd defendant no appearance NDEWERE J: The plaintiff married the late Aaron Chigwada in terms of the Marriages Act [Chapter 5:11] on 25 August, 1975. Before solemnisation of their marriage in 1975, the couple had been customarily married in 1971 and they started living together in 1973. Before marrying the plaintiff, the late Aaron had been married to the first defendant’s mother and they divorced. The late Aaron had six children with his first wife, the first defendant being the fifth child and the youngest son. The eldest son was in Form 1 when the plaintiff married their father whilst the youngest child, a girl, was four years old. The plaintiff also brought her own daughter with her from a previous relationship. Thereafter, she had three children with the late Aaron, all girls. It was not disputed that the plaintiff looked after all her husband’s children from when she got married till they were grown up and married. They all lived at the disputed property while they were growing up. During the subsistence of their marriage, the plaintiff and her husband acquired a house, Stand No. 28181 Harare Township of Salisbury Township Lands, also known as No. 85 Vito Street. The acquisition process started in 1996 and in 1999 they obtained title deeds. HH 69-16 HC 5545/12 They registered the house in both their names, in equal shares. It was the sole immovable property which the couple owned. It was their matrimonial home as well as the family home for all their children till they left to form their own homes after they were married. In year 2000, the late, Aaron Chigwada suffered a stroke. His health deteriorated and he eventually died in 2011. Before his death, the late Aaron wrote a will on 20 September, 2007. In the will, he appointed the second defendant as executor. In para 5 of that will, in the second sentence of that paragraph, he bequeathed his half share in No. 85 Vito Street, the matrimonial home, to the first defendant. Initially, the plaintiff challenged the authenticity of the will but on the trial date, the parties agreed on the authenticity of the will and that indeed, it was written by the late Aaron Chigwada. The only issue left for the court’s determination was whether the will was valid when regard is had to the provisions of the Wills Act [Chapter 6:06] in relation to the right of the plaintiff to a share in the deceased’s estate in terms of any law governing the rights of married persons. The first defendant argued in favour of the implementation of the will. The second and third defendants did not defend the action. Section 5 (3) of the Wills Act [Chapter 6:06] provides as follows: “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 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; or – (b) any person to receive any property, maintenance or benefit from the testator’s estate in terms of any law or any award or order of court; or……” In my view, the bequeathing of 50 % of house No 85 Vito Street to the first defendant prejudices the rights of the plaintiff to a share in the deceased’s estate or the spouses joint estate since the 50% happens to be half a share of the only home the plaintiff has ever known since joining the late Aaron Chigwada in 1973 when they started to live as a couple. If the late Aaron had continued to live, the plaintiff would have continued to have a home at their jointly owned matrimonial home. If he had died intestate, the plaintiff would also have continued to have a home at No. 85 Vito Street as a surviving spouse in the jointly owned home in terms of s 3A of the Deceased Estates Succession Act, [Chapter 6:02]. Section 3A of the Deceased Estates Succession Act provides as follows: “The surviving spouse of every person who, on or after the 1st November, 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate- (a) the house or other domestic premises in which the spouses or the surviving spouse as the case may be, lived immediately before the person’s death; and ……” HH 69-16 HC 5545/12 The fact that s 3A above includes situations where part of the estate is covered by a will as evidenced by the use of the phrase “dies wholly or party intestate” is an indication that the intention of the legislature was to protect such spouses even in situations where there is a will. Section 3A of the Deceased Estates Succession Act [Chapter 6:02] is part of the law referred to in s 5 (3) (b) of the Wills Act which would have made the plaintiff obtain 50% of the house from the testator’s estate if the bequest to the first defendant had not been made by the testator in his will. This means that the bequest of 50% of the matrimonial home to the first defendant in the will by the late Aaron Chigwada is the obstacle which is now prejudicing the plaintiff from the enjoyment of the only home she has ever known since she got married. In my view, this is the mischief which the legislature intended to cure when it enacted s 5 (3) of the Wills Act [Chapter 6:06]. The intention was to intervene in situations where surviving spouses would be rendered homeless by the wills of their deceased partners in situations where the will bequeathed the spouses’ home, or part of it, to a third party as in the present situation Whilst the rest of the will is not contentious the provision bequeathing 50 % of No 85 Vito Street to the first defendant in the second part of para 5 of the late Aaron Chigwada’s will flies in the face of the provisions of s 5 (3) of the Wills Act and cannot be allowed to stand. Consequently, the bequest of 50% by Aaron Chigwada of No. 85 Vito Street to the first defendant is hereby declared null and void. In my view, the above conclusion invalidates the whole will. As a result the will of the late Aaron Chigwada of 20 September, 2007 is hereby set aside. The plaintiffs claim as amended against the defendants is therefore granted. The first defendant shall pay the costs of suit. Mandizha & Company, plaintiff’s legal practitioners F. G. Gijima & Associates, 1st defendant’s legal practitioners