ESTATE WAKAPILA v MATONGO & ORS 2008 (2) ZLR 43 (H)

Flynote

Succession — will — validity — disposition affecting property rights of surviving spouse — which rights are affected — only those existing at time will is executed may not be eroded

Headnote

? The provisions of s 5(3)(a) of the Wills Act [Chapter 6:06] prevent a testator from eroding the property rights vested in his spouse by law in either his or their joint estate. These rights are those that the spouse has at the time the will is executed, as opposed to future or contingent rights that arise on the death of the testator. This is because the variation or prejudice does not arise on the demise of the testator but at the time the will is written, notwithstanding that the will only commences to operate on his demise.

It is fallacious to argue that at the time of death the surviving spouse is vested with rights in a deceased estate in which a testamentary disposition has been made. The first reason is that the divested property, subject to acceptance by the beneficiary, no longer belongs to the testator. The second reason is that to give such a meaning to the provision in issue would result in a radical alteration of the common law power of a spouse to dispose of his property to whomsoever he wishes. If the lawmaker intended such a radical departure from the common law, it would have said so in clear language. It would be absurd to allow the spouse to dispose of his property during his or her lifetime but take away that power from him to dispose of it by will. The third reason is that a wife married under customary law can only inherit from her husband's estate if he dies intestate. Where he has disposed of his estate by a will, she does not inherit and thus has no rights in any property belonging to his estate.