CHITAKUNYE
J:
This
is an application seeking an order that:-
1.
The estate Anita June Bruk-Jackson and that of the late Chester
Bruk-Jackson be declared joint; and
2.
The Will by the late Chester Bruk-Jackson should apply to half of the
joint estate.
In
the alternative, applicant seeks an order that:
1.
The property known as section 8 in the building known as St. James
Terrace, St.
James,
Cape Town, South Africa be excluded from the estate late Chester
Bruk-Jackson.
2.
The 1st
respondent to return to estate of Anita US$225,000-00 being rentals
expended by the deceased from Anita's immovable property and
US$100,344.00 being an equivalent of the devaluation of the immovable
property.
3.
1st
respondent to return 25 thousand pounds and R110,000-00 deposited in
the deceased's accounts by Anita.
The
applicant is a daughter to Anita June Bruk-Jackson. On 8 April 2013,
the applicant was appointed the Curator Bonis of Anita June
Bruk-Jackson as the said Anita was bedridden and mentally
incapacitated.
The
first respondent is a nephew to the late Chester John Bruk-Jackson
who died at Harare on 22 October 2012. The first respondent was
appointed testamentary executor in terms of the late Chester
Bruk-Jackson's will.
The
brief facts leading to this case are that on 23 September 1987, Anita
June Bruk-Jackson married the late Chester Bruk-Jackson in South
Africa. A day before the marriage the parties entered into an
antenuptial contract wherein they agreed that there would be no
community of property as between them for the duration of their
marriage. That antenuptial contract provided, inter
alia,
that:
First…..
that there shall be no community of property between the said
intended Consorts, but that he or she shall respectively retain and
possess all his or her estate and effects, moveable and immovable, in
possession, expectancy or contingency, or to which he or she has or
may have any eventual right or title, as fully and effectually as he
or she might or could have if the said intended marriage did not take
place.
Fourth…
that each of the said intended Consorts shall be at full liberty to
dispose of his or her property and effects, by will codicil or other
testamentary disposition, as he or she may think fit.
Fifthly….
that there shall be no community of profit and loss between the said
Consorts, but that each of them shall, respectively retain the
profits made by or accruing to him or her, and shall in like manner
separately and solely bear and sustain the losses happening to him or
her during the subsistence of the said intended marriage.
These
are some of the terms the parties expressly agreed to.
In
July 1988, the late Chester Bruk-Jackson, herein after referred to as
the deceased, purchased an immovable property, namely, No. 24
Woodholme Road, Emerald Hill, Harare. The property was registered in
his sole name. Later on Anita June Bruk-Jackson, herein after
referred to as Anita, also purchased an immovable property namely,
No. 49 Quorn Avenue, Mt. Pleasant and registered it in her sole name.
Thus each had a house registered in their respective sole names.
Both
Anita and the deceased were directors in a company called ALCON
Agencies (Pvt) Ltd. As at 15 December 1989 virtually all the shares
in the company were held by The John Bruk-Johnson Family Trust. (see
Share Certificate @ p74).
They
also jointly owned an immovable property in South Africa known as
Section No. 8 St. James Terrace, St. James, Cape Town. In 1996 they
had executed a joint will to govern this particular property.
The
couple lived together in the deceased's house as their matrimonial
house until the demise of the deceased on 22 October 2012.
In
the year 2001 Anita was diagnosed with mental dementia as a result of
which in June 2001 the deceased took over the administration of
Anita's estate. Anita's estate comprised mainly the immovable
property No. 49 Quorn Avenue, Mt. Pleasant. The deceased did not seek
the appointment of a curator in terms of the Mental Health Act
[Chapter
15:12].
On
25 July 2011, the deceased executed a Will in terms of which he
bequeathed his immovable property to his daughter, Ashlea Mercia
Brunette, subject to a usufruct in favour of Anita as the surviving
spouse in these terms:-
“I
give and bequeath my immovable property described as 24 Woodholme
Road, Emerald Hill, Harare to my daughter, ASHLEA MERCIA BRUNETTE,
with representation per stirpes, subject to a usufruct in favour of
my wife until her death, but subject expressly to my daughter's
written consent, or her remarriage or until she decides to quit the
aforesaid immoveable property, whichever occurs the soonest.
I give and bequeath my billiard
table to LIAM BRUK-JACKSON.
I give and bequeath the remainder
and residue of my Estate wheresoever situate to my daughter ASHLEA
MERCIA BRUNETTE and my son BRENDAN CHESTER BRK-JACKSON, in equal
shares, with representation per stirpes.”
It
is clear that he virtually left nothing for the Anita serve for
usufruct right over the matrimonial house.
The
applicant's case was to the effect that from the time deceased took
de
facto
control of Anita's estate he had solely administered Anita's Mt
Pleasant property and other financial interests with proceeds there
from accruing to him. He had in effect merged his estate with that of
Anita.
In
the circumstances this court should grant a joinder of the estates.
The
applicant's counsel argued that in conducting himself as he did and
despite the existence of an ante nuptial contract, the deceased
merged the two estates. The two factors he cited are the deceased's
failure to submit Anita's estate for statutory administration in
terms of the Mental Health Act and alleged breach of the terms of the
antenuptial contract.
On
failure to submit Anita's estate for statutory administration,
counsel argued that in failing to submit the estate deceased merged
the two estates at the time Anita was incapacitated. In this regard
he cited section 85 of the Mental Health Act as support for his
argument.
As
aptly counter-argued by the respondent's counsel that section does
not seem to support applicant's case. That section states that:
“Until
the appointment of a curator in terms of section eighty-six to care
for and administer a patient's estate -
(a) the patient's spouse; or
(b) failing the patient's
spouse, any child of the patient who is over the age of eighteen; or
(c) failing any child of the
patient over the age of eighteen, any other of the patient's close
relatives; or
(d)
failing any of the patient's close relatives, the person who had
charge or control of the house or place where the patient was living
when he was removed in terms of this Act to an institution, special
institution or other place;
shall take charge of all property
of whatever description belonging to the patient in the house or on
the premises concerned and, subject to any directions given to him in
terms of subsection (2), shall retain such property in his custody
until delivery of the property is demanded by the curator or by any
other person lawfully entitled to receive it.”
It
is thus clear that the above provision is for the interim protection
and safe keeping of a patient's property whilst a curator is
appointed. It does not provide for the joinder of estates were one
spouse takes charge of another's estate.
The
deceased as the spouse could thus look after Anita's property
without being deemed to have merged the estates.
The
failure to thereafter take the case before a magistrate for
directions in terms of subs (2) would in my view not be fatal to the
marriage regime the two had opted for.
The
respondent on the other hand contended that the estates were never
merged and that there was no breach of the antenuptial
contract.
In
his submissions applicants counsel also argued that the antenuptial
contract became ineffectual when Anita was mentally incapacitated by
illness as by then Anita was disposed of the legal capacity to
contract. By virtue of this incapacity the antenuptial
contract terminated. Thus for the 11 years that deceased administered
Anita's estate he did so in the absence of an antenuptial
contract
and in his capacity solely as an unauthorised husband. As a
consequence the marriage became a marriage of community of property
regime whose incidence arise joint holding of matrimonial property.
I
however did not hear counsel to allude to any legal principle that
converts an out of community marriage regime to an in community of
property marriage regime simply because one spouse has become
mentally incapacitated.
The
applicants claim that the estates were merged is also defeated by her
own action upon being appointed curator
bonis.
It
is common cause that upon being appointed curator in 2013 she
disposed of the only immovable property that was solely owned by
Anita. After the disposal she then had a misunderstanding with the
executor of estate late Chester Bruk-Jackson on how and where Anita
should be cared for. She made demands for Anita's maintenance by
the estate late Chester Bruk-Jackson. It was only after failure to
reach agreement that she approached court seeking a joinder of the
estates. Had she been bona fide in her belief that the estates had
been merged she surely would not have disposed Anita's immovable
property before approaching court. Now that she has disposed the only
valuable property Anita had, what does she bring to the table to be
merged with late Chester Bruk-Jackson's estate? She brings nothing.
The only asset to be declared joinder is essentially deceased's
house.
The
other point to note is that some of the evidence applicant alluded to
as justification for joinder occurred before Anita became mentally
incapacitated. Such aspects as the rebuilding of the Emerald Hill
house after its purchase and the opening of deceased's offshore
Bank account using money from Anita's account.
It
is my view that only the two spouses were privy to their financial
arrangements. Such arrangements did not terminate the antenuptial
contract or alter any terms thereof. They maintained the marriage
regime of their choice as evidenced by the fact that even after
rebuilding the deceased's house, Anita went on to buy a property in
her own name in 1996. In November 1996 Anita executed a Notarial Deed
of Donation and Trust in which she stated herself as being married
out of community of property to Chester John BRUK- JACKSON.
I
am thus of the view that the manner in which the parties dealt with
their properties pre 2001 did not alter the terms of the antenuptial
contract.
The
deceased's conduct after Anita became mentally incapacitated did
not equally alter the terms of the antenuptial
contract. as a spouse, he was expected to take charge of Anita's
estate pending the appointment of a curator bonis.
If
at all applicant believes that Anita's estate has a genuine claim
against estate late Chester, which should be on well-founded legal
basis and not on the basis of joinder.
I
thus conclude that no case has been made out for joinder.
The
claim that the deceased's Will be held to apply to half the
deceased's estate may also not be sustainable.
As
alluded to above the major asset deceased had and which is dealt with
in the Will is the Emerald Hill house. It is common cause that that
house is registered in deceased's name and was thus his property.
As
aptly noted in Takafuma
v Takafuma
1994 (2) ZLR 103 (S) 105 H-106 A:
“The
registration of rights in immovable property in terms of the Deeds
Registries Act…. is not a mere matter of form. Nor is it simply a
device to confound creditors or the tax authorities. It is a matter
of substance. It conveys real rights upon those in whose name the
property is registered…”
As
the owner of the property, deceased had the right to dispose of the
property in a manner he pleased in the Will.
As
regards the rights of a spouse in a situation of a conflict between
family law rights and property law rights property law rights tend to
take precedence.
In
Muswere
v
Makanza
2004 (2) ZLR 262 (H) court held that:
“A
wife cannot stop her husband from selling the matrimonial home or any
other immovable property forming the joint estate if it is registered
in his sole name even if she contributed directly and indirectly
towards the acquisition of that property. Anachronistic as it is, the
legal position at present is the right of a wife to the matrimonial
estate, as determined by the principles of family law, are inferior
to the rights of her husband in the same property as determined by
the principles of the law of property.”
Clearly
therefore deceased had the right to bequeath his property to whoever
he wished in his Will.
The
applicant also argued that the Will disinherits the surviving spouse
and so, in terms of section 5(3) of the Wills Act, it is invalid to
that extent.
Section
5(3) of the Wills Act provides that:
“No
provision, disposition or direction made by a testator in his Will
shall operate so as to vary or prejudice the rights of:
(a)
Any person to whom the deceased was married to a share in the
deceased's estate or in the spouses' joint estate in terms of any
law governing the property rights of married persons; or …”
In
Estate
Wakapila v
Matongo
N.O and Ors
2008 (2) ZLR 43 (H) at p.47 D-E KUDYA J had occasion to analyse the
import of this section and this is what he said:
“The
provisions of section 5(3)(a) of the Wills Act prevent the testator
from eroding the property rights vested in his spouse by law in
either his or their joint estate. These rights, in my view, are those
that the spouse has at the time the Will is executed as opposed to
future or contingent rights that arise on the death of the testator.
After all, the variation or prejudice does not arise on the demise of
the testator but at the time the Will is written, notwithstanding
that the Will only commences to operate on his death.”
The
learned judge went on to hold that:-
“It
is fallacious to argue that at the time of death the surviving spouse
is vested with rights in a deceased estate in which a testamentary
disposition has been made. The first reason is that the divested
property, subject to acceptance by the beneficiary, no longer belongs
to the testator. The second reason is that to give such a meaning to
the provision in issue would result in a radical alteration of the
common law power of a spouse to dispose of his or her property to
whomsoever he wishes. If the lawmaker intended such a radical
departure from the common law, it would have said so in clear
language. It would be absurd to allow the spouse to dispose of his
property during his or her lifetime but take away that power from him
to dispose of it by Will.”
The
above explains the correct application of the section.
It
would not have been intended to interfere with a spouse's sole
rights in a property, which rights he had the power to dispose
without the consent of the other spouse during his lifetime.
In
casu,
the deceased's right to dispose of the property as he pleased is
further confirmed by the antenuptial
contract the spouses executed. A careful reading of the provisions of
the antenuptial
contract shows that the parties intended to exclude community of
property and of profit and loss. To this extent clause four of the
antenuptial
contract
provides as follows:-
“That
each of the said intended consorts shall be at full liberty to
dispose of his or her property and effects, by Will, Codicil or other
testamentary disposition, as he or she may think fit.”
It
is important to appreciate that antenuptial
contracts must be interpreted in accordance with the ordinary rules
applicable to bona fide contracts. Where the intention of the parties
is clear, that should be adhered to.
At
common law, under this form of antenuptial
contract, the general capacity and property rights of the parties
remain unaffected by the marriage. They retain their separate
estates. They are not liable for each other's debts, with the
exception of debts contracted for household necessities.
The
contracts and other juridical acts of one spouse are not binding on
the other. If the husband alienates or encumbers his wife's
property without her consent, she may recover it from the third party
with the rei
vindication…
In
addition, the spouse whose property was improperly alienated
hypothecated or otherwise disposed of has a personal action for
damages against the other. The South
African Law of Husband and Wife,
5th
ed, H. R. Hahlo, p 287-288.
The
object of an antenuptial
contract is to exclude the normal legal consequences of marriage,
particularly community of property, and to replace them with the
consequences desired by the spouses and which the law allows them to
choose.
In
Introduction
to Family Law,
P J Visser and J M Potgieter at p 118 the esteemed authors stated
that:-
“The
most important characteristic of an antenuptial
contract is that it regulates the matrimonial property system of the
parties. Only in so far as an antenuptial
contract, for example, also provides for donations between spouses
can it be regarded as a contract which creates obligations. In other
words, an ante nuptial contract primarily determines the nature of
the legal principles which govern the financial position of the
spouses and it does not actually lead to contractual claims against
each other.”
At
the demise of one of the spouses the estate of the first dying spouse
devolves upon his or her heirs, while the surviving spouse retains
his or her estate unaffected by the dissolution of the marriage by
death.
It
is also a principle of such ante nuptial contract that if one of the
spouses had during the marriage disposed of the property of the other
without the latter's consent, the latter may now, if he has not
done so before, claim damages. The same holds true if, owing to the
fault of one of the spouses, property of the other spouse was
destroyed, damaged or lost.
I
am of the view that based on the above, applicant's claim both in
the main and in the alternative cannot succeed.
On
the main claim no legal justification has been made, based on the
facts placed before me, to warrant the relief sought. The applicant
disposed of Anita's property and now seeks to have a bite at the
deceased's property. Had she been bona fide in her claim she would
have sought joinder before disposing of Anita's property as that
was the only valuable property Anita's estate would have brought
onto the joint estate.
I
also find that no legal justification has been established for the
deceased's Will to be tampered with by restricting it to only half
of his estate.
Regarding
the alternative relief sought, I am of the view that it is not
sustainable.
In
clause 1 applicant seeks that the property known as No. 8 in the
building known as St. James Terrace, St. James, Cape Town, South
Africa be excluded from the estate of the deceased. As already
alluded to that property is governed by a joint Will that the
deceased and Anita executed. Clause 1 of that Will states that:
“We
place on record that we jointly own section no. 8 in the building
known as St. James Terrace, St. James, Cape Town. Notwithstanding
anything contained in any other Wills heretofore made by us, on the
death of the first dying of us, we bequeath the first dying's share
in the said property to the survivor of us.”
Clearly
therefore that property is bequeathed to the surviving spouse, in
this case Anita. I was at a loss to understand why applicant wished
that clear provision to be tampered with. That Will remains extant.
In
Clause 2 applicant seeks an order that the first respondent returns
to the applicant's estate US$225,000.00 being rentals expended by
the deceased from Anita's immovable property and US$100,344.00
being an equivalent of the devaluation of the immovable property.
The
sums were derived from what applicant said were rentals for the
period deceased took de
facto
administration of Anita's house to the time of his demise.
It
is common cause that most of that time, 2001 to 2009 February, the
official currency was the Zimbabwe dollar. If at all deceased
received rentals it would have been in that currency. In such a claim
applicant would have to show that the rentals were received and were
not utilised for Anita's benefit or the benefit of her estate. This
applicant could not show. She could not rebut the contention that
proceeds from rentals were used in seeking medical care for Anita
both locally and outside the country.
The
applicant was not clear on the conversion rate for rentals that could
have been received in the Zimbabwe dollar era to United States
dollars.
As
regards the claim for devaluation I found this astounding as I did
not hear applicant to deny that for about two years after the
property came under her administration, the property was vacant and
subject to adverse effects associated with a property left unoccupied
for such a long time. In her calculation of the devaluation applicant
did not seem to take account of her own role. Indeed even the cause
of action for such a claim was not clear. If at all she was seeking
damages for any wrongful act it was for her to prove the nature and
extent of such damages. This was not done.
In
clause 3 the applicant seeks that the first respondent return 25,000
pounds and R110,000.00 deposited in the deceased's accounts by
Anita.
This
claim is difficult to understand taking into account the period the
deposits are said to have occurred. It was a period well before Anita
became mentally incapacitated. The circumstances for the deposits
were privy to deceased and Anita. Only the two could shed light on
the reasons for the deposits into deceased's account and whether
the argument and counter argument by the applicant and the first
respondent vis-a
vis
these deposits has merit or not.
I
thus find that applicant has failed to make a case for the
alternative claim as well.
Accordingly
the application is hereby dismissed, both in the main and in the
alternative with costs.
Munangati
& associates,
applicant's legal practitioners
Atherstone
and Cook,
first respondent's legal practitioners
