5 Wives, 17 Children, 1 Civil Wife Takes Mutare Man’s Estate Via A 20-Year Old Will
The Will That Ended Polygamy
By Fanuel Viriri
Two women claiming to be customary wives of a late Mutare man have lost their High Court bid to throw away his will and share his property under customary law, with the court upholding the will that awarded it to the civil law wife.
The customary wives claimed he had 5 wives in total and 17 children and that they should also get their share.
For ordinary people the difference is this. Civil marriage is the one-man-one-wife marriage registered at court. Once you are in it you cannot legally marry another wife.
Customary marriage is the traditional marriage where lobola is paid and a man can have more than one wife, but it cannot exist at the same time as a civil marriage. If a man is civilly married any later customary marriage is not valid at law.
That is what this case turned on.
Pius Mutyasira was civilly married to Villa Mutyasira. In 2003 he wrote a will and lodged it with the Master on 9 June 2003 leaving his estate to Villa and her children.
He died 20 years later on 7 July 2023. The will stayed at the Master unrevoked all those years. After his death, two woman Nhaka Chikoo and Zilpha Maunga came forward saying they were also his customary wives and that he had 5 wives and 17 children and the estate should be shared under customary law.
Their main argument was that the will had 4 pages but page 3 was not signed by the deceased and his witnesses. Only pages 1, 2 and 4 were signed. They said that violates the Wills Act and must be rejected. On 8 August 2023 the Assistant Master recommended that the will not be accepted for that reason.
The following day after a family member complained the same office accepted the will. Chikoo and Maunga then went to the High Court saying the Master cannot change his mind and cannot accept a defective will that disinherits them.
Justice Amy Tsanga sitting at the High Court in Harare dismissed their application. The judge said the first position was just a recommendation not a final decision and the Master is allowed to reconsider after hearing the other side.
The final decision communicated on 10 August 2023 was to accept the will. On the defective signature the judge said the law allows the Master to accept a will that does not comply with all formalities if he is satisfied the deceased wrote it and intended it to be his will.
The will was largely compliant, there was no fraud or alteration, page 3 was not a page that changes the meaning of the will, and it stayed at the Master for 20 years showing it was his final intention.
On being left out the judge said a person can leave his property to whoever he wants even if he excludes others, and those excluded cannot cancel the will but must claim maintenance if they qualify.
On the 5 wives claim the court said a customary union cannot be valid while a civil marriage still exists. The will therefore remains valid and the estate will be administered according to it in favour of the civil law wife.
#family #FamilyDrama