eBusiness Weekly
Arthur Marara
You may have heard of people who disinherited the children or their spouses.
Have you heard of people who left their entire estate to charity organisations or to animal organisations, and left nothing for people who were close to them.
In other parts of the world you even hear of rich pets, that inherited an entire estate. I read a few cases were disinheritance actually happened in Zimbabwe.
Other wills disinherit silently by simply not providing for a particular person. Better ones, specifically point that a particular person shall not be entitled to inherit anything from the estate.
The question that arises is what is the legal position on disinheritance. When drafting your will it is possible to disinherit any member of your family but this should be done with an understanding of the provisions of the Deceased Person Family Maintenance Act and section 5 of the Wills Act (Chapter 6:06).
Disinheritance means that a person is not entitled to benefit from your estate. This should be avoided if possible as it usually results in conflicts amongst the survivors. (However, the will remains yours, and you are free to deal with your estate as you wish).
In some instances wills have been contested in court for the reason that they did not offer adequate provision for the immediate family.
The estate as a general rule should be responsible for the maintenance of the family particularly when there are minors involved even of school going age.
Children born after a will has been written can benefit in terms of the Deceased Person Family Maintenance Act. They would inherit to the extent which they would under intestate succession that is a situation where there is no written will.
In terms of the Deceased Person Family Maintenance Act an application can be made by dependants of the testator who are not provided for in the will but have a right to be maintained by the testator and these include children, spouses and dependants.
It is important therefore to make provision for such people in our wills to avoid a situation were individuals will have to go to court to derive maintenance from the estate.
This usually creates disunity in the family and results in unnecessary legal expenses.
Instances arise in some cases whereby a person has been married and the spouse has made a will. Later on the parties divorce but the will is still in existence.
Can the will be used for inheritance purposes? In the case of divorce or dissolution of a marriage any appointment of a former spouse as an executor falls away (1).
Similarly, in case of a subsequent marriage of the testator the will becomes void (2). In both scenarios it is trite that a person writes another will as the previous one would have been cancelled.
Disinheritance of spouses
This had been a contentious areas for a long period of time. The position of the law was settled by the Supreme Court in 2020 in Chigwada v Chigwada SC188/20.
The Court ruled that parties to a marriage are free to disinherit each other. The law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act (Chapter 5:12), which provides that since 1929, marriages in Zimbabwe are out of community of property.
The Honourable Chief Justice Luke Malaba held that; “The law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act (Chapter 5:12), which provides that since 1929 marriages in Zimbabwe are out of community of property.
Parties to a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities.
The law of testamentary disposition in Zimbabwe recognises the doctrine of freedom of testation and does not oblige a testator to bequeath his or her property to the surviving spouse.
The law of testamentary disposition, which is based on the universal principle of equality of men and women, gives a right to a person married out of community of property to dispose of his or her estate by will to whomsoever he or she chooses.
Decisions of the High Court to the effect that a testator is, in the circumstances, bound to leave his or her property to the husband or wife and declaring testamentary disposition to the contrary to be void are inconsistent with the law. They should no longer be followed.”
The Court further stated that, however, said where a spouse dies without leaving a will, the right to inherit the free residue of the estate devolves to the surviving spouse in terms of the law.
The doctrine of freedom of testation is a pillar of Will Writing law, hence the quote held that, “To deny a person married person out of community of property the right to dispose of his or her property by will to whomsoever he or she chooses is to erode the foundation on which the doctrine of freedom of testation lies”
The Court held further that the decision of the High Court based on the proposition that a person married out of community of property may not dispose of his or her estate by will to whomsoever he or she chooses, being bound to leave the property to the surviving spouse, are inconsistent with the fundamental right enshrined in the Constitution and the Wills Act.
I hope and trust that this article has shed some bit of thoughts on the subject of disinheritance.
The next articles will cover on the essential requirements for a valid will.
LEGAL DISCLAIMER
The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation.
No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate and family law attorney. As an attorney, he has worked over the years on matrimonial and inheritance matters including but not limited to drafting wills, and preparing, and lodging family trusts. Follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263718867255 or email [email protected]
