LANDMARK: Inheritance Will without wife null, void

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.

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.