Margaret Sumbureru v Prisca Chinamora and Others

The applicant was the former wife of the late Amos John Chirunda (the deceased). On 9 December 1977, the deceased executed a will appointing the applicant as the heiress of his estate, shortly after paying customary bride price for her on 11 September 1977. On 29 October 1978, the applicant and deceased entered into a civil marriage under the Marriage Act. They divorced on 22 July 1986 with a financial settlement. Thereafter, the deceased married the first respondent (Prisca Chinamora) under customary law in 1986, and they lived together until his death on 8 December 1997. The will was never amended, varied or revoked. Following the deceased's death, the applicant was initially issued letters of administration, but the Master sought to revoke them on the basis she was divorced. This led to multiple legal proceedings including appeals. The Supreme Court had previously determined that the African Wills Act, not the Wills Act, should apply. The applicant now sought to have the 1977 will declared valid and to be re-appointed as executor.

• Whether the will executed by the late Amos Chirunda on 9 December 1977 remained valid at the time of his death in 1997
• Whether the will became invalid when the applicant ceased to be the deceased's wife following their divorce in 1986
• Whether the will became void upon the deceased's marriage to the applicant in terms of the Marriage Act in 1978 under section 2 of the Deceased Estates Succession Act
• Which law applies to determine the validity of the will - the African Wills Act or general law provisions

The application was dismissed with costs.

A will appointing a spouse as heir becomes invalid when that marriage is dissolved by divorce, where the testator's clear intention was to benefit his wife and the will is not subsequently amended or revoked. Alternatively, under section 2 of the Deceased Estates Succession Act, a will executed prior to marriage becomes null and void upon the testator's subsequent marriage under the Marriage Act, unless the testator endorses the will indicating it should remain in force. When an African marries under the Marriage Act (after a customary law marriage), general law provisions regarding wills apply rather than customary law, pursuant to section 13 of the African Marriages Act. Repealed legislation continues to apply to wills executed before the repeal where saved by transitional provisions.

The court observed that the African Wills Act gave Africans capacity to execute wills and dispose of immoveable property, but noted it did not contain a provision similar to section 17 of the Wills Act regarding automatic revocation upon divorce. The court also commented that requests for legal advice are not properly before the court - the court's function is to determine legal disputes, not to proffer legal advice to parties. The court poetically framed the central question as 'Do the dead speak from beyond the grave?' emphasizing that the court must determine the true intention of the testator despite the passage of 15 years since death.

This case provides important guidance on the validity of wills in Zimbabwe (and relevant to South African jurisprudence on similar issues) regarding: (1) the interpretation of testamentary intention when circumstances change fundamentally (such as divorce); (2) the interaction between customary law and general law in relation to wills and succession; (3) the effect of subsequent marriage on pre-existing wills under the Deceased Estates Succession Act; and (4) the application of transitional provisions when legislation is repealed. It demonstrates the courts' approach to ascertaining testator's intention and the principle that a will may become invalid when the fundamental circumstances and purposes for which it was made no longer exist.