Alex Chimhowa and Others v Joyce Chimhowa (nee Masukwedza) and Others

Lloyd Chimhowa died intestate on 3 December 2007. He was first married to Mary-Maria Mabwe under customary law in 1971, and they acquired a house at 7447, 6th Way, Glen View 7, Harare in 1979, which they jointly developed. Mary-Maria died intestate in October 1987, survived by her husband and six children (the applicants). Her estate was never registered or administered. Lloyd subsequently married the first respondent, Joyce Chimhowa, in a customary law union later solemnized on 14 June 1991. They had four children and the entire family resided at the Glen View house acquired during the first marriage. When Lloyd died, the first respondent was appointed executor but was later replaced by the second respondent after allegations of falsification. The parties initially agreed to share the property equally ("family tree" agreement) but the first respondent resiled, demanding 50% of the matrimonial home. The executor submitted a distribution account awarding the entire property to the first respondent, which the Master confirmed despite the applicants' objections.

• Whether a surviving spouse's statutory entitlement to the matrimonial home extends to property acquired during a deceased's previous marriage
• Whether the Master properly applied his mind to the applicants' objections to the distribution account
• The proper interpretation of section 3A of the Deceased Estates Succession Act and section 68F of the Administration of Estates Act regarding surviving spouses' rights
• Whether the estate should have accounted for the unadministered estate of the first wife Mary-Maria Mabwe

The court ordered: (1) The immovable property at house No. 7447 – 6th Way, Glen View 7, Harare be awarded to the first to sixth applicants in equal shares; (2) The first respondent be granted a life usufruct over the said immovable property; (3) The final order of the third respondent given under DR 15/08 Estate late Lloyd Chimhowa be amended to the extent of paragraphs (1) and (2) above; (4) No order as to costs.

The statutory protection afforded to surviving spouses under section 3A of the Deceased Estates Succession Act and section 68F of the Administration of Estates Act in terms of inheritance is limited to those assets that were acquired during the course and subsistence of that spouse's marriage to the deceased person. Surviving spouses cannot by right claim any entitlement to matrimonial property acquired outside their own marriage to the deceased. To allow otherwise would be against public policy and conscience as it would deprive children of deceased persons of their common law right to inherit from their parents merely because the surviving parent remarried.

The court observed that it would be of paramount importance that the legislature revisit the relevant legislation in order that its intention be expressed in clearer terms than is presently the case. The court also noted that the office of the Master generally followed proper procedures outlined in the Administration of Estates Act in handling the estate, and that the second and third respondents could not be faulted in the manner they handled the deceased estate procedurally. The court provided hypothetical examples to illustrate potential absurdities that would result from an overly broad interpretation of surviving spouse protections, including scenarios involving subsequent remarriages and disinheritance of children from first marriages.

This case establishes important principles in Zimbabwean succession law regarding the limits of a surviving spouse's statutory entitlement to matrimonial property. It clarifies that the protective provisions for surviving spouses under section 3A of the Deceased Estates Succession Act and section 68F of the Administration of Estates Act are limited to property acquired during the subsistence of the marriage to the deceased, and do not extend to property acquired in previous marriages. The judgment balances the protection of surviving spouses with the inheritance rights of children from previous marriages, preventing the unintended disinheritance of children. The case also demonstrates the creative use of usufruct rights to balance competing interests between ownership and occupation rights.