DZOMONDA & ORS v CHIPANDA & ORS 2014 (2) ZLR 473 (H)

Flynote

Administration of estates — intestate succession — spouse — entitlement to matrimonial home — descendants of deceased — only entitled to specified portion of remainder of estate — agreement between heirs on alternative distribution — only applicable to remainder of estate

Succession — intestate — spouse — entitlement to matrimonial home — descendants of deceased — only entitled to specified portion of remainder of estate — agreement between heirs on alternative distribution — only applicable to remainder of estate

Headnote

The applicants were the children of N, who died intestate in 2011. She had divorced the applicants' father. In 1995 she was granted a stand in Harare. In the same year she married the first respondent under customary law and solemnised a civil marriage in 1997. A house was built on the stand as a joint endeavour by both spouses. The applicants stated that they and the first respondent concluded an agreement after N's death, in terms of which the property was to be sold, with 30 per cent of the proceeds going to the first respondent and the balance to the applicants. The first defendant averred that he was coerced into signing this agreement. In any event, the executrix distributed the property in accordance with the Deceased Estates Succession Act [Chapter 6:02], the result being that the first respondent got the house.

The applicants sought to enforce the agreement with the first defendant, arguing that the house could not be considered as "free residue" for inheritance by the first respondent only.

Held, that where a party dies intestate and had a civil marriage, the Deceased Estates Succession Act recognises the rights of the surviving spouse to inherit, as well as those of the children, if any. In the absence of children,

the blood relatives who are entitled to inherit are also spelled out. The first enquiry is whether or not there is a surviving spouse. If there is, the spouse's share is prioritised in inheriting from the free residue of the estate. Where the estate has excess assets after the surviving spouse has received what is mandated by the law, then the spouse, together with the children, are accorded certain stipulated legacies. These depend on whether the marriage was in or out of community of property. If, as here, the marriage was out of community of property, and the deceased spouse leaves any descendants entitled to inherit ab intestato, the surviving spouse is entitled, in terms of s 3A, to receive the house or other domestic premises, as well as the household goods and effects.

Held, further, that the primary thrust of the Act is spouse-centred. A spouse inherits the household goods and effects as well as the domestic premises. If the estate still has residue after this has been done, then the spouse and the children inherit specified statutory legacies. Inheritance by the children, therefore, clearly depends on the size of the estate. Where the marital home is the only asset, as here, then the law is clear: it should go to the surviving spouse.

Held, further, that the context in which these provisions of the Act were introduced is important in deciding the effect of the legislation. The intention was clearly that the spouse should inherit the matrimonial home to allow for a continuation of the life the spouse was accustomed to living. The benevolence of the family could no longer be assumed, as evidenced by reports of property grabbing. The heir under customary law, in particular, who was supposed to act as a father figure and protect the widow, had increasingly, in modern society with its money based economy, become a dying breed. More often than not, his own interests became paramount. In any event, women had by then made significant strides in society in terms of pressing for the recognition of both their economic and non-economic contributions in the marital union and in present day society. They rightly expected to benefit from the sweat of their brows instead of being cast aside as insignificant "others" upon the death of a spouse.

Held, further, that the applicants' argument that s 3A should be read as inferring that, where the house is the only asset it must be sold and the spouse together with the children must inherit a share, is not supported by a reading of the section, nor by the history and context that led to its adoption. It must also be borne in mind that this was not a divorce, where the courts are enjoined to evaluate the extent of each spouse's contribution.

Held, further, that even if the Act only applies to assets acquired during the subsistence of the marriage, the property in this matter was so acquired.

Held, further, that the "agreement" purportedly drawn up between the applicants and the first respondent was invalid. In terms of s 5 of the Act, there must be property devolved on the heirs in undivided shares. If there is, they can enter into an alternative distribution arrangement. Here, the only asset was the house and that had to be inherited by the surviving spouse. Nothing remained to be distributed to the heirs.