Miriam Dziva Elias Dikinya v Precious Chakasikwa N.O. and Others

The applicant was the surviving spouse of George Dikinya who died on 16 March 2016. The deceased executed a will on 20 July 2006 in Nairobi, Kenya, at a time when he and the applicant were living together in an unregistered customary union. On 30 June 2009, the deceased and applicant were married under the Marriage Act [Chapter 5:11]. The first respondent was appointed Executrix Testamentary of the deceased's estate on 22 August 2016. The applicant sought to have the will declared null and void, the appointment of the first respondent set aside, and the letters of administration annulled on various grounds, including: (1) the will was not signed before a notary public in Kenya; (2) witnesses' names were not identified; (3) the will disinherited the surviving spouse; and (4) the will was invalidated by the subsequent marriage to the applicant.

• Whether the will was invalid for lack of a notary public seal
• Whether the will was invalid for failure to identify witnesses' full names
• Whether the marriage of 30 June 2009 constituted a 'subsequent marriage' within the meaning of section 16 of the Wills Act
• Whether the will became void upon the subsequent marriage of the testator to the applicant
• Whether the will was made in contemplation of marriage such that it would not become void under section 16(4) of the Wills Act
• Whether the first respondent should be removed as executrix on grounds of alleged misconduct
• Whether an unregistered customary union constitutes a valid marriage at law

1. The Last Will and Testament executed by the Late George Dikinya at Nairobi, Kenya on 20 July 2006 became void upon the marriage of the Late George Dikinya to the applicant on 30 June 2009. 2. The Letters of Administration issued by the second respondent on 22 August 2016 appointing the first respondent as Executrix Testamentary were declared null and void. 3. The appointment of the first respondent as Executrix Testamentary was declared null and void. 4. The second respondent was directed to set in motion the process for appointment of an Executor to administer the Estate. 5. Each party to bear its own costs.

A will executed during an unregistered customary union becomes void upon the subsequent marriage of the testator under the Marriage Act, as this constitutes a 'subsequent marriage' within the meaning of section 16(1) of the Wills Act [Chapter 6:06]. An unregistered customary union does not constitute a valid marriage at law, and when parties in such a union subsequently marry under the Marriage Act, their status changes from unmarried to married persons. The exception in section 16(4) of the Wills Act applies only where the will itself shows that: (i) the testator was expecting to be married when the will was made, and (ii) the testator intended that the will should not become void upon the expected marriage. Both requirements must be satisfied. The expectation of marriage must be gathered from the will itself, not from the parties' subsequent conduct. Where a testator mistakenly believed he was already married when executing the will, and married the same person years later, this does not satisfy the requirement that the will was made in contemplation of marriage.

The court noted that even if a will purports to donate matrimonial property to which a surviving spouse would be entitled at law, only the portions of the will contravening the law would be invalidated, not the entire will. The court also observed that it does not lightly remove an executor in the absence of evidence of serious misconduct that would prejudice the estate. Delays in paying maintenance and refusal to meet without prior appointment do not constitute misconduct warranting removal of an executor. The court remarked that costs against an executor personally are only justified where there is special conduct, which was properly conceded not to exist in this case. The court also noted that the inclusion of the law firm in the draft order seeking to set aside its appointment was misplaced as it was not cited as a respondent and was not appointed as executrix by the letters of administration.

This case clarifies the application of section 16 of the Wills Act [Chapter 6:06] regarding the effect of subsequent marriage on wills in Zimbabwe. It establishes important distinctions between: (1) unregistered customary unions and valid marriages at law; (2) conversion of an existing registered customary marriage to a civil marriage (which does not invalidate a pre-existing will per Savanhu) versus a marriage following an unregistered union (which does constitute a 'subsequent marriage' that invalidates a will); and (3) the strict requirements for the exception under section 16(4) to apply, namely that the will must show both an expectation of marriage and intention that the will survive that marriage. The case reinforces that unregistered customary unions are not recognized as valid marriages under common law, though certain consequences may be treated as if they emanated from marriage by express statutory provision for limited purposes.