Linah Ndoro v Evidence Ndoro and The Master of the High Court

The applicant was married to the late Robert Ndoro who died intestate on 20 July 2009. They were married under the Marriage Act on 10 May 1990. The first respondent was the executor dative of the deceased's estate and the deceased's son from an earlier relationship. The deceased was the registered owner of Stand 2986 Westview Kadoma (4 Mimosa Road). The applicant claimed entitlement to the whole property as the surviving spouse. The first respondent opposed, arguing that the applicant had separated from the deceased and was no longer residing at the property at the time of his death. The applicant testified she left the matrimonial home in 2007 following a dispute but claimed they reconciled. She was transferred to Norton for work and stayed with relatives in Chegutu and Chinhoyi from February 2008 onwards due to ill health. Evidence showed she only visited the property once in June 2009 to collect belongings, and she had issued divorce summons in October 2008. The first respondent testified that the applicant only returned to the property twice after moving out, both times to collect belongings, and was only present on the night the deceased died.

• Whether the applicant was residing at the matrimonial property immediately before the deceased's death as required by section 3A of the Deceased Estates Succession Act
• Whether a surviving spouse who has separated from the deceased and is not physically living at the property at the time of death is entitled to inherit the matrimonial home under intestate succession laws
• The standard of proof required to establish residence for purposes of inheritance under section 3A of the Deceased Estates Succession Act

The application was dismissed with costs.

For a surviving spouse to inherit the matrimonial home under section 3A of the Deceased Estates Succession Act, the spouse must establish that they actually lived in the house immediately before the deceased's death. Actual physical residence is required, not merely legal or constructive residence. A single brief visit to collect belongings does not constitute living at the residence. Where a spouse has separated from the deceased and instituted divorce proceedings, and has not been physically present at the property for an extended period (in this case from February 2008 to July 2009), the requirement of living "immediately before the person's death" is not satisfied, regardless of whether the marriage was still legally subsisting at the time of death.

The court observed that if there had been only a couple of months between the alleged reconciliation and the issuing of divorce summons, the applicant's explanation that lawyers caused the delay might have been plausible, but a delay of almost a year made this explanation implausible. The court also noted that it would have been reasonable to expect documentary evidence of serious illness (sick leave forms, doctor's letters, or hospital records) when illness is relied upon as the explanation for prolonged absence from the matrimonial home. The court commented that the first respondent's testimony that he loved the applicant as a mother (having been raised by her from age ten) but still testified against her claim added credibility to his evidence.

This case provides important guidance on the interpretation of section 3A of the Deceased Estates Succession Act in Zimbabwe (and similar provisions in South African law). It establishes that for a surviving spouse to inherit the matrimonial home under intestate succession laws, actual physical residence immediately before death is required, not mere constructive or legal residence. The case demonstrates that separation, even without formal divorce, combined with absence from the property, can defeat a surviving spouse's claim to the matrimonial home. It emphasizes the importance of factual evidence and credibility assessment in determining residence. The case also illustrates that work commitments or illness alone will not excuse complete absence from the matrimonial home if the underlying relationship has broken down, as evidenced by divorce proceedings.