Zimbabwe Diaspora News (Newsletter No. 2)
By Davison Kanokanga SC
Here is some food for thought. You are married in terms of the Marriage Act (Chapter 5:11) formerly Chapter 37, you have a house in Zimbabwe, you are living abroad, the house in Zimbabwe is registered in your spouse’s name, your spouse does not have a Will in place, there is probably a tenant who is staying at the house . It so happens that your spouse, the registered owner of the house dies. Where does your spouse’s death leave you vis-à-vis the Zimbabwean house? To answer this question here is a case which was decided by the Harare High Court;
Lindah Ndoro v Evidence Ndoro & Anor HH 198-12
The Applicant (Lindah) was married to the deceased Robert Ndoro in terms of the Marriage Act (Chapter 5:11) in 1990. The deceased died intestate in July, 2009. The deceased owned a house in Kadoma. The Applicant was a teacher in Norton where she lived. She took a month’s leave to nurse the deceased when he fell ill. She then fell ill and was taken by her brother to live in Chinhoyi. In June, 2009 she went back to work. On her way to work she passed by the Kadoma house to pick up some of her things. In July, 2009 her husband died whilst she was at work. She used her funeral policy to bury him.
When it came to the issue of the house, the court held that she could not inherit the house because she was not living at the house immediately before her husband’s death. In so ruling, the court relied on the provisions of section 3A of the Deceased Estates Succession Act (Chapter 6:02) which provides that;
“The surviving spouse of every person who, on or after 1st November, 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate, the house or other domestic premises in which the spouses or the surviving spouse, as the case may be lived immediately before the person’s death”.
The same approach was used in the case of Elsie Bhila v The Master of The High Court & Ors HH 549-15;
The Applicant (Elsie) was married civilly to the late Hillary Huyini Bhila. Four children were born of the marriage. In 1999 the Applicant’s husband died. The Applicant was appointed the Executrix of the estate. In the course of administering the estate she discovered that the deceased had three children born out of wedlock. Those children wanted to inherit from their late father’s estate. When the deceased died, although he had a house in Borrowdale, he was living in his other house in Houghton Park with the Applicant.
The court held that the Applicant would inherit the Houghton Park house and not the Borrowdale house because she was living in the Houghton Park house immediately before the deceased’s death.
It follows that by virtue of the aforesaid law, you may not be able to inherit the Zimbabwean house. You may be at very serious risk. So be warned!
While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.
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