Tessy Zvemisha v Eunice Zvemisha and Others

The applicant and deceased Kennedy Zvemisha customarily married in 1972 and registered their marriage on 12 January 1990, having five children together. In 1985, the deceased acquired Stand 2957 Dangamvura Township, Mutare through cession in his name. The family moved there in 1988. In 1989, the deceased customarily married the first respondent, Eunice Zvemisha (second wife), registering that union in 1992, with whom he had two children. The applicant (first wife) and her children resided at the Dangamvura property while the second wife lived in Chiredzi. The title deed was processed on 5 July 1995 in the deceased's name. The deceased executed a will in 1993 bequeathing the Dangamvura property wholly to his second wife, Eunice Zvemisha. He passed away on 30 September 1995. Following his death, the Mutare Regional Magistrates Court in January 1999 granted the applicant and her children usufructuary rights over the property until the youngest child reached majority. The first respondent later transferred the property to the second respondent, Marita Makahwi, in 2021. The applicant refused to vacate despite no longer having legal rights and not paying rentals since 2021.

• Whether a testator can disinherit a surviving spouse through a will
• Whether section 5(3)(a) of the Wills Act prohibits a testator from bequeathing property solely owned by him to someone other than the surviving spouse
• Whether the will should be declared invalid and set aside
• Whether the transfers under Deeds of Transfer numbers 8277/99 and 541/21 should be set aside
• Whether the applicant had sufficient locus standi for a declaratory order
• Whether freedom of testation applies to solely owned property

The application was dismissed without costs (with consent of the second respondent). The applicant and her family were ordered to vacate the property by 30 June 2025.

A testator who solely owns property has freedom of testation and may bequeath that property to anyone, including persons other than a surviving spouse, without the will being invalidated. Section 5(3)(a) of the Wills Act [Chapter 6:06] relates to jointly owned property and does not prohibit a testator from disinheriting a surviving spouse where the property is solely owned by the testator. A person seeking a declaratory order must have a direct or substantial interest in the subject matter; where usufructuary rights have expired and property has been lawfully transferred, a former beneficiary of limited rights has no standing to challenge the will or subsequent transfers.

The court noted that previous High Court decisions (Chimbari NO v Madzima and Ors HH 325-13, Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H), and Majuru v Majuru HH 404-16) which held that section 5(3)(a) of the Wills Act prohibits disinheriting a surviving spouse were inconsistent with the law and should no longer be followed. The court also observed with implicit disapproval that the applicant had been occupying the property without paying rentals since 2021 when it was transferred to the second respondent. The court affirmed the correctness of the interpretation of freedom of testation in Wakapila's Est v Matongo NO & Ors 2008 (2) 43 (H).

This case reinforces the principle of freedom of testation in Zimbabwean law as clarified by the Supreme Court in Chigwada v Chigwada SC 188/2020. It confirms that a testator who solely owns property is entitled to bequeath it to anyone, including disinheriting a surviving spouse, without the will being invalidated. The case demonstrates the court's correction of earlier High Court misinterpretations of section 5(3)(a) of the Wills Act and clarifies that this provision relates only to jointly owned property, not solely owned property. It establishes clear boundaries on when declaratory relief will be granted in succession disputes and emphasizes that academic or moot questions will not be entertained where the legal position is settled and property has been lawfully transferred.