The Supreme Court of Zimbabwe's Chigwada Decision and Its Implications for Testamentary Dispositions and Enforcement of Section 26 of the Constitution of Zimbabwe

Abstract

The Supreme Court of Zimbabwe recently handed down a judgment on the determination of whether the law that governs testamentary dispositions of estates binds a testator to bequeath his or her share of property to the surviving spouse. This was an appeal case against the judgment of the High Court which had held that a testator is bound to leave his or her property to the surviving spouse. Albeit the fact that section 5(1) of the Wills Act establishes the doctrine of freedom of testation, section 5(3)(a) of the Wills Act prohibits a testator to execute a will that disinherits a surviving spouse. The provision has been interpreted inconsistently by the High Court for the past years. One category of judgments held that a testator could disinherit a surviving spouse based on freedom of testation and that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In contrast, the other set of dissenting judgments held that a will that disinherited a surviving spouse was invalid. Further, the courts held that the provisions of the Deceased Estates Succession Act, in particular section 3A which grants a surviving spouse the right to inherit the matrimonial home applies to testate succession. In overturning the High Court decision, the Supreme Court authoritatively held that section 5(3)(a) of the Wills Act could not be interpreted to mean that a surviving spouse cannot be disinherited in a will. The Court based its decision on the doctrine of freedom of testation entrenched in the Wills Act and the Constitution. The Supreme Court also conclusively held that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In arguing her case in the Supreme Court, the surviving spouse among other arguments contended that section 26 of the Constitution of Zimbabwe provides for equality of rights of spouses and the protection of children and spouses upon the dissolution of marriage through death or divorce. The Supreme Court disapproved the previous High Court decisions which held that a will that disinherited a surviving spouse was invalid as it contravenes section 26 of the Constitution. The Court held that section 26 of the Zimbabwean Constitution is not directly enforceable, does not bestow rights on individuals and does not prohibit the disinheritance of a surviving spouse. The Court held that the provisions of section 26 are found under the  National Objectives which are intended to guide the state in the formulation of laws relating to dissolution of marriage through death. In this article, I argue that the Supreme Court decisively answered the discordant questions on whether a surviving spouse can be disinherited through a will and whether the provisions of the Deceased Estates Succession Act apply to testamentary dispositions. However, the Court missed an opportunity to develop the Zimbabwean jurisprudence on the enforcement of National Objectives, in particular section 26 of the Constitution.