GUEST ARTICLE: Widows Family Can’t Inherit House – Court
By Dickson Jere
A Livingstone man divorced his wife whom he had a daughter with. He then married another woman and lived with her until his death. After his passing, his new wife (widow) took over the matrimonial house and lived in it as a surviving spouse who had a life interest in the property. However, as fate had it, she also passed on. Both did not leave the Will.
The daughter of the deceased man appeared and claimed ownership of the house on the grounds that she had an interest in the house absolutely upon the death of her stepmother. But the brother of the late stepmother moved in the house and refused to surrender it to the daughter. He claimed the house belonged to the late sister and it formed part of the estate of the late sister.
This prompted the daughter to seek judicial intervention in the High Court at Livingstone.
She argued that the stepmother had a life interest as a widow in the property as per law but that interest was determined on death or remarriage. Simply, she argued that the house reverts to the children who had an interest absolutely upon the death of the widow.
The High Court heard the two parties and ruled that the brother of the widow – in whatever capacity – cannot takeover the house after the death of the widow. The house legally reverts to the children – in this case daughter – who had an absolute interest.
The Court explained that while the widow remains in the house upon the death of the husband, she however, does not get absolute ownership to the exclusion of the children. In short, the interest of the children still remains even when the widow is living in that house.
It was further contended that the house does not inform part of the estate of the widow at her death as her property and estate is separate from the late husband estate. The two estates are distinct and must be treated separately as such.
The Judge ordered that the house be returned to the daughter of the deceased after the death of the widow who was the stepmother of the applicant.
Case citation – Ngosa v Sapangwa – 2005/HL/25.
Lecture Notes:
1. As can be seen, section 9 of the Intestate Succession Act provides for the widow to have a life Interest in the property until he dies or remarried. When any of the two happens, the children takes over the house as the same section 9 also gives them an absolute interest in the property. Therefore, the house cannot move to the family or the widow as it is not part of her estate.
2. This case underscores the legal position that the ‘matrimonial’ house or indeed one house is not distributable if there is a surviving widow and children after the death of the owner. If there are no children, then the house will form part of the estate and be distributed as per formula in the law.