Will without wife null, void: High Court

last_will_and_testament_shutterstock_434570134Daniel Nemukuyu Senior Court Reporter—
An Inheritance Will — which many believe is sacrosanct — can be declared invalid and overturned or amended in the best interest of the deceased’s immediate family if it excludes the surviving spouse and, or children, the High Court has ruled. In a landmark ruling on a challenge made by a Mutare widow who had been excluded from her husband’s estate, Justice Loice Matanda-Moyo declared the woman the sole beneficiary of the matrimonial home in one of the leafy suburbs in the eastern border town.

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Justice Matanda-Moyo said the right to distribute an estate through a Will was not absolute if the writer disregarded the rights of beneficiaries as enshrined in the Constitution. In the case which prompted her ruling, Ms Lily Lilian Nyamushanya was left out in the Will authored by her late husband, Mr Pythias Nyamushanya, despite being the sole surviving spouse staying at the home in question when the man died.

Mr Nyamushanya also disinherited his two biological children in his Will. Justice Loice Matanda-Moyo ruled that disinheriting the surviving spouse and the two children was unconstitutional. She disregarded the Will in that particular respect and declared the woman as the sole beneficiary of the matrimonial home stated as Number 7 Bain Drive, Morningside, Mutare. Justice Matanda-Moyo also directed that the two children, who had been left out of the Will, should benefit from the estate.

“In the result, I order as follows:

1) The portion of the Will dealing with the matrimonial home is set aside and the first applicant (Mrs Nyamushanya) is declared the sole beneficiary of the matrimonial property; namely stand Number 1716 Umtali Township, also known as Number 7 Bain Drive, Morningside, Mutare,” she said.

“2) The fourth and fifth respondents (the two children) are to benefit as per the distribution plan presented.” In the court application brought before the High Court, Ms Nyamushanya sought to be awarded the matrimonial home. She also sought an order for the rest of the estate to be shared equally among all the beneficiaries listed in the Will, including her two children. Justice Matanda Moyo said the right to distribute estate as the owner pleases through writing a Will was not absolute.

“Like any other rights, this right is not absolute,” she said. “Section 86 of the Constitution places limitations on these rights. 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.” The Court held that any practice or right that infringed on the rights of women could be interfered with. Where women are concerned, Section 80 of the Constitution has placed limitation to rights where those rights infringe the rights of women,” said Justice Matanda-Moyo.

“It provides that ‘’traditions and cultural practices that infringe the rights of women conferred by the Constitution, are void to the extent of the infringement.’’ Justice Matanda-Moyo said the surviving spouse was generally entitled to the house or other domestic premises in which the couple lived immediately before the death.

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  • Apokaaopo

    the point of the will be for you to state how your remaining assets will be distributed after you have taken care of your wife and any dependent children. you cannot have a situation where a divorced woman can enjoy 50% of your net assets but your widow is left with nothing. you cannot have a situation where a living father is forced to pay maintenance but a dead one can leave nothing to dependents just because it is his ‘will’.

  • Muzambiringa

    Standard. You made your bed; now lie in it!

  • yowe

    What its slow murder yekushushwa woita BP leading to other complications kkkk

    • Chamunorwa

      She will inherit. Marriage is never ideal.

  • Kabius Kekedu

    The ruling is OK. Why stay with a person you dont love until death. There are ways of solving that problem when you are still alive. Kudzidza hakuperi.

  • Danai Pazvagozha

    What an awful adjudication. This ruling is grossly illegal and not based on law. The judge refers to ‘infringements on women rights by cultural and customary practices’ and yet this case is about a written will which has nothing to do with cultural issues. I think the judge’s femininity has misdirected her to rely on emotions and facts. A will is the writer’s instruction as to who gets what the writer has acquired during his lifetime. The duty of the judge is to interpret it rather than change it. Can the judge please refer to the judge’s ruling where Edson Zvobgo left out some of his children,and referred to it as “legal issue’. I have lost confidence in this judge

    • JAMES GUNIKE

      That’s why I maintain they make subjective judgements against the very reasonable and fair tenets of our customary law which is recognised by the Constitution. These are the dangers of applying the the stupid Roman-Dutch law. All other laws in the world are not stupid. It’s only Roman Dutch law whose principles change conveniently.

  • sky

    American law says the surviving spouse will automatically get 50% – 75% of the dead spouse’s possessions regardless of what the will says. I forgot which % it is. I think the same law applies in South Africa.

  • Zvipiko

    Ndo Application yezvipoko iyi

  • SirH

    Thats the missing part

    • shasha

      Nothing is missing here

  • Hacha Duke of Enkeldoorn

    Not so simple. What if you die before the divorce? You will should stand in place of the divorce papers. You want her to get nothing – so be it.

  • Hacha Duke of Enkeldoorn

    If a will can be subverted why bother to have one in the first place. The court should have interrogated the reasons why the wife was left out of the will. Surely if there are valid reasons such as;
    1. Estrangement
    2. Separation for a prolonged period
    these are very valid reasons to exclude the wife. If a husband has not stayed with the wife for – say 10 years – the house no longer qualifies to be termed a matrimonial home.

  • stavo

    At the time of the husbands death,this woman was staying at the same house,probably the whole of her life she has been staying there,now where do u want her to go.
    This will could have been tempered with.

  • shasha

    The Will has to comply with the law. What’s the purpose of the law then?

  • shasha

    Its not tricky. The Will has to comply with the law. If you leave out your family in the Will and give your property to animals, courts Will reverse that. Even a first year law student would interpret the law the same way. This was the simplest judgment the court has ever done.

    • JAMES GUNIKE

      Then the your law should write the wills for all of us if that is the case

  • shasha

    When it comes to the matrimonial home there is no point.

  • shasha

    It doesnt matter. What matters is that the Will did not comply with the law

  • shasha

    She goes to jail. What ur u talking about?

  • shasha

    What ur u talking about?

  • Pankidzo

    Knowing this family personally I agree with the judgment. The woman worked with the husband to build an empire and someone wants to come and just take. I even doubt the authenticity of the will. I am related to late husband so don’t think I am supporting the surviving spouse coz she is my relative. She deserves that house not the brother of the deceased who was chasing her away.

    • John Bhogo

      Thank you baba could you kindly shed a birt6 more light as to what transpired leading to the wife’s excluision. why did the deceased leave out his wife and children from his will/

  • Ushe

    What if the will was fake?

  • JAMES GUNIKE

    You are right. African life is more complex than the tenets of the letter of the stupid Roman Dutch Law