The
dispute between the applicant and the first respondent is on the inheritance of
House Number 6, 6th Avenue, Mbare.
The
applicant's daughter was married to the respondent's brother. Upon the death of
the respondent's brother, the applicant's daughter, Shingaidzo Makorondo, was
awarded the house in question as the surviving spouse. After she passed on, in
2007, the first respondent proceeded to register the deceased estate and was
issued with Letters of Administration as executor dative on DR683/07. The Letters
reflected that the said Shingaidzo Makorondo died on 17/11/1987. Thereafter,
the first respondent transferred House Number 6, 6th Avenue, Mbare
into his name. The applicant, the father of the deceased, Shingaidzo Makorondo,
also approached the Master and registered the estate of his late daughter and
was issued Letters of Administration DR874/07 reflecting the deceased died on
16 February 2007. It was during this process that the applicant realised that
the first respondent had proceeded to register and distribute the estate
without calling upon interested parties.
The
applicant, being the father of the deceased, Shingaidzo Mukorondo, then
approached the court to have the estate reopened since he alleged the first
respondent had misrepresented to the second respondent, the Master, and had
gone further to change ownership of the house into his name without involvement
of the other interested parties.
The
background to the matter being that the first respondent's brother was married
to the late daughter of the applicant. The couple was not blessed with
children. Upon the death of the first respondent's brother, the surviving
spouse, after going to court, was awarded the house in question. The husband is
the one who passed on, on 17 November 1987 and not the wife, as presented by
the respondent. After the death of the surviving spouse, the estate was then
administered in the manner occasioning the present dispute. The applicant's
basis of argument being that the first respondent misrepresented to the second
respondent, and, at the exclusion of the applicant as an interested party, the
estate was administered and distributed.
It
is this distribution which the applicant seeks to be reversed so that the
estate can be properly administered with involvement of all interested parties….,.
The
basis of the applicant's claim, as outlined, is that the first respondent
misrepresented the date of death of the late Shingaidzo Makorondo and gave on
the earlier date of 17/11/87, which is when the husband, that is, the
respondent's brother, had died. Further, that the applicant, as an interested
party, was not notified of the estate proceedings which culminated in the first
respondent transferring the applicant's daughter's house into the respondent's
name. The representation, as clearly conceded by the second respondent, were
bound to mislead to the prejudice of the applicant and those claiming through
him. As clearly spelt out in Stanbic Bank Zimbabwe Ltd v Duran HH54-07, in order to found
a cause of action on a claim premised on fraud it is essential that certain and
specific allegations of fraud be pleaded. The applicant being, a relative
of the deceased, discovered upon registering and seeking to pursue the estate
that the estate had been wound up to his exclusion on the basis of
mispresentation. The application is premised on fraudulent misrepresentation
and not review on the basis of gross irregularity and such finds support in the
Master's Report and existence of two Letters of Administration filed. The
anomaly of having two Letters of Administration in place for the same estate
can be redressed by reopening of the estate and fully ventilating on the estate
to appoint an executor with the involvement of all interested parties. Having
pointed out that there was a fraudulent misrepresentation of death date and on
position of interested relatives, the appointment of the executor dative is
void and as such a nullity having no basis on which to stand. The crux of the
matter is not as regards the duties or role of an executor dative as presented
in argument by the first respondent but that there was material non-disclosure
which led to the appoint of executor dative and subsequent transfer of property
without involvement of all the interested parties.
It
would be an absurdity to seek to perpetuate an illegality under the umbrella of
the need to finalise as quickly as possible the administration of an estate.
The basis of such need to finalise an estate as quickly as possible has to be
put in perspective and not just view it in the abstract. The intention behind
expedience in dealing with estates is to ensure that beneficiaries and
dependents of the deceased do not undergo unnecessary hardship which would be
occasioned by late processing of the estate. Dealing with the estate and
finalizing it as quickly as possible does not connote processing of the estate
in an underhand and illegal manner for such would defeat the whole purpose of
sound administration of estate as quickly as possible for the benefit of the
recognised beneficiaries and dependents. The circumstances of this case were on
executor dative, in the form of the respondent, was appointed through
mispresentation and he transferred the only asset of value of the estate into
his name without the involvement of the relatives of the deceased is not only unprocedural
but illegal for it was based on a misrepresentation. The aggrieved parties to
an estate have at their disposal open redress such as applying for review of
the process or objection to the distribution plan and making an application on
motion to the High Court for the court to make an appropriate decision.
Given
the circumstances of this case, the court cannot fold its arms and perpetuate
an illegality on the basis that the applicant should have approached the court
earlier. The applicant, upon registering the estate, was also issued with Letters
of Administration. However, on pursuing further process, he discovered the
estate had already been distributed with the first respondent, as executor
dative, taking over ownership of the house which forms part of the estate. The
first respondent, it has been shown, always desired such transfer - even upon
the death of his brother.
It is
with this background that the applicant rightly approached this court for
redress. Clearly, the transfer obtained by misrepresentation cannot stand and
as such it is ordered that:-
1.
Transfer of House Number 6, 6th Avenue Mbare, Harare effected into the first
respondent, Makufa Mugadzaweta, be and is hereby reversed to the estate late
Shingaidzo Makorondo.
2.
The second respondent be and is hereby ordered to reopen the Estate of the late
Shingaidzo Makorondo for appointment of Executor dative and Administration of
Estate with the involvement of all interested parties within 30 days of this
order.
