Paula Ndakaziva Munyukwi v The Late Estate of Abraham Rushambe Nduna (Represented by the executor testamentary Stephen Rugwaro) and The Master of the High Court

The applicant and the late Abraham Rushambe Nduna were involved in an unregistered customary law union. The late Nduna died on 26 May 2011, leaving a duly executed will that nominated Steven Rugwaro as executor. After his death, Rugwaro convened a meeting to read the will, at which it was revealed that the applicant was not one of the beneficiaries. Dissatisfied with her exclusion, the applicant launched an application seeking nullification of the will, distribution of the estate intestate, and her appointment as executrix dative. The applicant contended she was the surviving spouse in a customary law marriage. However, evidence from a previous case (HC 9974/11) showed that the late Nduna had given the applicant a divorce token per customary law on 18 October 2011, thereby ending their union before his death. The applicant had previously acknowledged this termination in that case, where she was claiming a share based on a tacit universal partnership, not matrimonial rights.

• Whether the application was premature given that letters of administration had not yet been issued by the Master
• Whether the applicant was still married to the late Nduna at the time of his death
• Whether section 5(3)(a) of the Wills Act applied to protect the applicant's rights as a surviving spouse
• Whether an unregistered customary law union falls within the definition of 'marriage' under the Wills Act
• Whether the will should be nullified on the basis that the applicant was excluded as a beneficiary
• Whether the applicant should be appointed as executrix dative of the estate

The application was dismissed with costs on a legal practitioner/client scale against the applicant.

1. Letters of administration must be issued by the Master before an executor can represent an estate. A testator's nomination of an executor does not automatically clothe that person with authority; the Master must still appoint and issue letters of administration as per sections 23, 24, and 25 of the Administration of Estates Act. Challenges to wills or executor nominations should first be raised with the Master. 2. Section 5(3) of the Wills Act, which protects the rights of surviving spouses to a share in the deceased's estate, applies only to marriages solemnized under recognized marriage legislation (including the Customary Marriages Act), not to unregistered customary law unions. 3. To be a surviving spouse for purposes of challenging a will, the parties must have been married at the time of the deceased's death. Where a customary law union has been terminated by divorce token before death, the former partner is not a surviving spouse. 4. Part IIIA of the Administration of Estates Act does not apply to estates disposed of by will, as expressly provided in section 68A(2).

The court observed that the applicant's claim in the related case HC 9974/11 was based on contributions during a tacit universal partnership and was thus in terms of general law, not customary law or matrimonial property law under the Matrimonial Causes Act. The court noted that such claims are foreign to customary law and distinct from claims based on joint ownership in marriage. The court also commented on the applicant's lack of good faith in bringing the application, noting that she had previously withdrawn an identical application (HC 6585/12) without disclosing this fact, and that she persisted despite having been advised she had no case and despite the stark reality that her relationship with the deceased had been terminated. The court observed that the Matrimonial Causes Act is not applicable to parties in unregistered customary law unions, citing Chapendama v Chapendama 1998 (2) ZLR 18.

This case clarifies important principles in Zimbabwean succession law regarding: (1) the procedural requirement that challenges to wills and executor appointments must be properly routed through the Master of the High Court before court intervention; (2) the distinction between registered and unregistered customary law unions for purposes of the Wills Act; (3) the interpretation that section 5(3) of the Wills Act only protects surviving spouses in recognized marriages (civil or registered customary marriages), not unregistered customary law unions; (4) the importance of consistency in legal positions - the applicant could not claim to be a surviving spouse after having acknowledged the termination of the union in prior proceedings; and (5) the distinction between claims based on tacit universal partnership and matrimonial property rights.