Robert Thomas Zawaira v W Nyamupfukudza (in his capacity as executor dative in the Estate late Thomas Tavagwisa Zawaira) and Others

The late Thomas Tavagwisa Zawaira died intestate on 5 September 2003. He was married to the late Felistas Jimisayi Zawaira under the Marriages Act [Cap 5:11] on 21 August 1958 at Chirumanzu. The marriage produced six children, including the applicant, all now adults. The deceased also had ten children born out of wedlock with different women, including the fourth to ninth respondents. The first respondent was appointed executor dative and lodged a second and final Administration and Distribution Account distributing the estate equally to the surviving spouse and all children (both legitimate and illegitimate). The account was advertised and lay for inspection from 27 February 2009 to 20 March 2009. The applicant objected, contending that under general law, children born out of wedlock cannot succeed ab intestate to their father. The Master of the High Court (second respondent) dismissed the objection, citing sections 3 and 3A of the Deceased Estates Succession Act and section 10 of the Deceased Persons Family Maintenance Act.

• Whether children born out of wedlock can succeed ab intestate to their father under general law
• Whether customary law or general law applies to the estate of a person married under the Marriages Act [Cap 5:11]
• Whether the children born out of wedlock are legitimate intestate beneficiaries of the estate
• Whether the legislative amendments removed the distinction between legitimate and illegitimate children for purposes of intestate succession under general law

The application was granted. The court declared that the only lawful intestate beneficiaries of the Estate of the late Thomas Tavagwisa Zawaira are the children born out of his union with the late Mrs F J Zawaira (his wife married under the Marriages Act). The costs of suit were to be borne by the estate of the late T.T. Zawaira.

Under general law, children born out of wedlock cannot succeed ab intestate to their father or their father's relatives. Where a deceased was married under the Marriages Act [Cap 5:11], there is a presumption that general law applies to the administration and distribution of the estate. This presumption can only be rebutted by showing that, despite the civil marriage, the surrounding circumstances demonstrate that the deceased was subject to customary law. The fact of siring children out of wedlock, standing alone, is insufficient to rebut this presumption. The legislative amendments to succession and maintenance statutes (including sections 3 and 3A of the Deceased Estates Succession Act and section 10 of the Deceased Persons Family Maintenance Act) have not altered the general law position on intestate succession regarding legitimate versus illegitimate children.

The court observed that although illegitimate children cannot succeed ab intestate to their father under general law, they may have recourse to the Deceased Persons Family Maintenance Act as dependants. The court noted that depending on the individual circumstances of each respondent, they may be able to claim maintenance from the estate under that Act. The court also commented that the Amendment Act (Administration of Estates Amendment Act No. 6 of 1997) validated customary law marriages for purposes of estates of persons subject to customary law, but such marriages are not valid if contracted when either party was already married under the Marriages Act [Cap 5:11].

This case is significant in Zimbabwean succession law as it clarifies that the traditional general law distinction between legitimate and illegitimate children for purposes of intestate succession remains unchanged despite various legislative amendments. It establishes that marriage under the Marriages Act [Cap 5:11] creates a strong presumption that general law applies to succession, which can only be rebutted by clear evidence of the deceased's subjection to customary law. The case confirms that sections 3 and 3A of the Deceased Estates Succession Act and section 10 of the Deceased Persons Family Maintenance Act do not remove the general law distinction between legitimate and illegitimate children for intestate succession purposes. It also distinguishes between succession rights (which illegitimate children lack under general law) and maintenance rights (which illegitimate children may claim as dependants under the Deceased Persons Family Maintenance Act).