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Will without wife null, void: High Court

By Daniel Nemukuyu

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.

High Court of Zimbabwe
High Court of Zimbabwe

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.

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. The Herald

  • So what is a will then?

    • A document whose contents r reasonably acceptable by all stakeholders kkkkkkkkk

    • Reasonable, by whose standards?

    • I think the judge who gave that judgment was a lady

    • Amwe anozviti mawives. As I vachiziva zvavari

    • a will can be contested ronald some of u men may even have kids out the with side chics who also deserve something

    • jelas it was a man

    • You cant distribute everything ka coz marriage is a partnership with your wife and children. Saka ukati waakugova zvese iwewe who are u to distribute what you dont own??
      You can only distribute your share only.

    • U cant distribute what u dont own.some woman are lazy they want to be given things ivo vagere.

    • U cant distribute what u dont own.some woman are lazy they want to be given things ivo vagere.

    • admire if u die everything belongs to the wife automatically u r one flesh

    • i dont know y u r saying women this women that as if marriage is forced come guys man up

  • What if the reasons of excluding wife and children are because I suspect the kids are not mine. That’s my constitutional rights being violated to the grave

  • Then it’s no longer a Will

    • That’s true because everyone now knows it’s basic contents

    • a will is never absolute it can always be contested if its unreasonable

    • Anashe Mlambo then it’s no longer a WILL. Unreasonable to who?If he excludes people who may have brought misery into his/her life and you expect them to get a dine just bcos of being a spouse.Then the whole will thing is shit.

    • a will can be contested shamwari read law books educate yourself before making one so that u can die with no wife and no kids s kuti i at least u wont face the pain of leaving your precious money to kids and wife coz at least unenge usina so be wise gara uri tsvimborume

    • Hahahahaha Anashe Mlambo no pain in the grave.

    • Tafadzwa Paul Mutasa that simply shows the power of being a spouse. people then ought to be more careful on who to marry than how they’ll write their will

    • Taura hako Desmond Musiyanga

  • Thats your own version of a will

  • A Will is a Wish something you would like to happen/done
    If it goes the other way its no longer a WILL

  • Give it another name then and not a “will” thank you.

  • Mambokadzi Perfect Pat

    Nice one selfish goat

    • mutongigava

      I think its not a fair judgment because if the wife decides to remarry and she dies also the house will then go to the new surviving husband and its the children who will suffer again. chances are the kids will be chased away and end up it the streets.The house should have been put into a trust for the kids and the wife so much that no one has a right whatsoever to sell it, it stay in the family for ever and everyone having to stay there as much as they want. what the judge doesn’t know is what will happen in the next years to come, this is a mistake.

      • Mambokadzi Perfect Pat

        Kids can’t be trusted 👑

      • Believe

        You’re very right it needs both wife and children and it will benefit next generation vachingoti imba yasekuru vedu

  • So it is no longer a will. Yatoo tsamba yemagetsi chaiyo!! How can you ammend something without the consent of the writer??? What if the wife was a cheat and i knew the children were not mine???

    • CORRECT

    • u have to make it clear urimupenyu u cant make a will to exclude wife and kids thats demonic kkk

    • plus u can always contest a will anyway

    • Deal with that while you are still alive, only a coward leaves such a strange arrangement to be delt with by the Will!!!

    • thats very true my bru,its no longer a a will.

    • If truth be told: some of us are living “married” for convenience’s sake not because they are our wives and children!! You know your wife is a cheat and the kids are not yours but you dont complain because you are a gentleman. The wife knows you know but she continues doing what she does!!! What do you expect?? These are the kind of people who realise your value when you are dead but when you are alive you are just a “foolish husband”. Handiti vanenge vachitoti pamawhatsapp group “wangu hubby akapusa uya. Rinongochengeta vana vasiri varo nekutenga sipo yekuti ndigezere Sam zvangu!!””

    • Kana uine mkadzi wausingade uye uchiziva kuti vana havasi vako gara wazvigadzirisa uchiri mupenyu. Pamutemo, vana ndevako kusvika waita DNA so ukafa usina kuita saizvozvo the kids deserves a share. Why is it mukarambana nemkadzi nyangwe ainge asingashande asi dare rinoti u must share maproperty zvakafanana? I support zvaitwa neCourt apo. Kana uine madoubts ako gara wazvigadzirisa uchiri mupenyu. Being a gentleman pane maIssues ari sensetive so hazvibhadhare.

    • @ tawanda vabaya dede nemukanwa

    • nicholas since u r living for convinience thats your own problem mukadzi iyeye wont be debied her inheritance coz u r too cowardly to divorce and share property and move on!! u cant fix someone ne will coz a will can be contested if its unreasonable

    • Ndoigadzirisa ndakafa kudaro!!! Hahaaada vanhu havadi munhu ane tsitsi futi!! Unenge uchitonzwira munhu tsitsi kuitira kuti azvigadzirise apa watoonemhosva futi”! Aaaa nxa

  • That has always been the case, a will can be contested in a court of law. It’s not absolute in its current form and wording because in death the deceased can still be controversial

  • So it’s no longer a last will and testament then????

  • That’s a will

  • Zvakuitwa nechihure mukati izvo saka chinonzi will chacho chii manje how can you change decision yemufi

  • Good thing, if one has issues with spouse ..sort it out in the living …kids too

    • Correct

    • Ukaona munhu onyora will anenge atoona kt pamberi apo kana asisipo panoita problem. I think it has ti stand. Imagine a man maries a second yf today and dies tomoro. Then we edit the will for her to benefit

    • I am just of the opinion that, usamirire mangwana asvike kuti ugadzirise chakaipa, zviite nhasi, kana mukadzi asingachadiwe, ngaadzoserwe onzi x wife, otherwise kana wafa unechigumbu sorry, isu tonzwira vapenyu

  • WILL upgraded from version 1.001 to version 9.56.7(())2017)

  • So they are saying once you write your own will your lawyers have to verify if it’s constitutional.pakaipa saka

  • What is a will anyway from a legal point of view

  • Read the marriages Act and u will see that writing a will is utter nonsense

  • Confused Court

  • I agree with the law here

    • Tafara Tirivavi This is a bad precedence! It trumples on the freedom of testation principle in the name of the limitation clause. I hope someone could make an appeal for judicial review here.

    • kkkkkkkk but why should one leave out the wife in the will?

    • It’s a fundamental principle of the law that one has freedom to bequest their estate to anyone without any barrier!

  • Indeed. When you are two in a marriage you are co-owners. What makes you think death allows you distribute everything when “technically” half belongs to your spouse?
    Its “tantamount” to distributing your “business” partner’s share of a joint venture because you have died!! He can only distribute his share, certainly not everything.
    In a similar manner, what if the wife had died and distributed everything leaving him nothing?
    The point is, you can not independently distribute what you do not wholly own…
    This is common sense

  • Then its useless to write a will.

  • Vakadzi Maguire muriko here uko kkkkkkkk

  • Patinoshanda naadzimai paye tinemihoro yatinogoverana semhuri. Mdanga tagara tinemombe 6 ndakapihwa nababa pandakaroora pamihoro yedu iya ndakatora yangu ndotenga mhou mbiri dzaa8 nekukura kwemhuri 2 dziye dzaa6 then 6 dzekutanga dzaa12 ndonyora Will kuti pamombe 6 idzi 4ipai mwana nhingi or so and so ndofa moti my will is wrong hamusikuona here kuti murikundidzvinyirira nyangwe ndamuguva madii matsvaka a way b4 my dearth coz everyone at home has his personal savings asi kut most woman vanopa hama dzavo mari vodya at the end of life vanobuda nezero musatidzvanyirirewo ok vakadzi vamwe they are wiser vakafa mawill avo murikuaitao zvimwechete neevarume here?

  • Kungoita misha miviri umwe kuDande umwe beitbridge zviriright hapana anotorera umwe aah zvakaoma sey vapenyu mchida kugadzirisa zvakasiya zvaitwa nemufi which means paWill hapna anopiwa tisina kuita DNA test kna zvadaro

  • Zimbabwean laws are truly fucked up nyika ino yakadhakwa zveshuwa!

  • Zimbabwean laws are truly fucked up nyika ino yakadhakwa zveshuwa!

  • Chinjai yangu wiri muone….ndomuka chipoko chinotanga ku dealer naHigh court Judge wacho iyeye kusvika kuna iye anenge aita kuti a reverse my will.

  • Chinjai yangu wiri muone….ndomuka chipoko chinotanga ku dealer naHigh court Judge wacho iyeye kusvika kuna iye anenge aita kuti a reverse my will.

  • This is nonsense our courts are fast becoming rogue

  • This is nonsense our courts are fast becoming rogue

    • warwadziwa neyi apa kana wafa mari hayinakana basa unenge wakuto tongwa zvivi zvako na Mwari

  • very good.

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  • Ko will yemukadzi which excludes the husband inoitwa sei?

  • Chirungukaichi kkk.That’s lack of respect for the dead.In our culture we respect the dead

  • What kind of marriage was in operation? Assuming that it was marriage in community of property; here is the likely arrangement. Upon the death of a spouse; it is the deceased’s estate which is distributed… meaning half the estate; since the other half belong to the living spouse. On top of that; the living spouse is again entitled to a share in the deceased estate. #Lionshare

  • What kind of marriage was in operation? Assuming that it was marriage in community of property; here is the likely arrangement. Upon the death of a spouse; it is the deceased’s estate which is distributed… meaning half the estate; since the other half belong to the living spouse. On top of that; the living spouse is again entitled to a share in the deceased estate. #Lionshare

  • Why disenfranchise your wife 🙄

  • Yeeeee