Margaret Sumbureru v Prisca Chinamora and Others

On 11 September 1977, the appellant was married to Amos Chirunda according to customary rites. On 9 December 1977, Amos Chirunda executed a will appointing his wife Margaret Chirunda (the appellant) as executor and heiress to his estate. The customary union was registered under the African Marriages Act [Chapter 238]. Subsequently, on 29 October 1978, the appellant and Amos Chirunda entered into a civil union under the Marriage Act [Chapter 37]. Eight years later, on 23 July 1986, they divorced by decree of the High Court. The appellant and Amos Chirunda had three children during their marriage. After the divorce, Amos Chirunda customarily married the first respondent, Prisca Chinamora, and they lived together as husband and wife until his death on 8 December 1997. Their customary union was not registered and they did not contract a civil marriage. In February 1998, the appellant was invited to register the estate in terms of the will, but the Master later sought to have her return the letters of administration on the basis that she had divorced the deceased and was disqualified by s 17 of the Wills Act. This led to protracted litigation about whether the will remained valid and who was entitled to administer the estate.

• Whether a will executed by an African prior to a civil marriage becomes null and void upon marriage where there is no endorsement preserving its validity
• Whether divorce invalidates a will made during a prior customary marriage under the African Wills Act
• Whether the deceased's intention at the time of making the will was relevant to determining its validity after divorce
• Which statute applied to determine the validity of the will - the Wills Act [Chapter 6:06], the African Wills Act [Chapter 240], or the Deceased Estate Succession Act [Chapter 302]
• Whether the appellant remained validly appointed as executor and heiress after her divorce from the deceased

The appeal was dismissed with costs.

A will executed by a person prior to contracting a civil marriage becomes null and void upon that marriage unless the testator endorses the will with a statement that it should remain in full force and effect, as required by s 2 of the Deceased Estate Succession Act [Chapter 302]. Where the African Wills Act applies but contains no express provision regarding the effect of divorce on a will, the court may determine validity by examining the testator's intention at the time of making the will and whether the purpose for which the will was made has been frustrated by subsequent events such as divorce and property settlement.

The court expressed the view that the deceased's intention in making the will was to circumvent the mischief whereby a customary law wife would be unable to inherit from her husband's estate and would be at the mercy of his relatives. Once the appellant ceased to be his wife through divorce and had received a settlement, this mischief no longer applied and the will became incapable of enforcement. The court also noted that earlier proceedings had raised questions about the Master's power to make rulings on who qualifies as a surviving spouse, though this was not definitively resolved.

This case is significant in Zimbabwean succession law as it addresses the complex interaction between customary law marriages, civil marriages, divorce, and the validity of wills executed at different stages of marital status. It clarifies that: (1) a will executed prior to a civil marriage becomes void upon marriage unless expressly preserved by endorsement under s 2 of the Deceased Estate Succession Act; (2) in the absence of express statutory provisions under the African Wills Act regarding the effect of divorce on wills, courts may consider the testator's intention at the time of making the will to determine whether changed circumstances (such as divorce) render the will unenforceable; (3) the protective purpose of a will made during customary marriage (to ensure a customary law wife inherits) may fall away when that marriage ends in divorce with a settlement. The case illustrates the legal complexities arising from transitions between different forms of marriage and the application of different statutory regimes to wills made at different times.