The
six applicants are all children of the late Fanuel Karimanjonda
Muzungu and the late Laurenta Muzungu. The late Fanuel Karimanjonda
Muzungu (hereinafter referred to as the late Fanuel) died intestate
at Wedza on 17 June 2004. The late Laurenta Muzungu died intestate on
30
November
2008.
The
first respondent was the second wife to the late Fanuel Karimanjonda
Muzungu. The
late Fanuel married the two wives in terms of customary law. The
marriages were registered in terms of the Customary Marriages Act
[Chapter
5:07];
the marriage to the late Laurenta Muzungu was solemnised on 24 July
1974 whilst the marriage to first respondent was solemnised on 27
April 1995.
The
circumstances giving rise to this matter were that upon his demise
the late Fanuel Karimanjonda Muzungu was survived by the two wives
and about eight children, six (6) from the first wife and two (2)
from the second wife.
Neither
of the wives nor any of the late Fanuel's close relatives
registered his estate. The family continued with their family life.
In 2010, the first respondent, outside the knowledge of the
applicants, registered the estate of the late Fanuel Karimanjonda
Muzungu.
On
20 September 2012, the applicants approached the Master of the High
Court seeking to register the estate of the late Fanuel Karimanjonda
Muzungu. The applicants were then advised that the first respondent
had already registered the estate and had been appointed executrix.
They were further advised the first respondent had in fact submitted
the administration and distribution account which the second
respondent had confirmed after the usual advertisement. In the
administration of the estate the first respondent had awarded herself
the only immovable property in the estate, namely, House Number 1145
Rutenga Road, Cherutombo, Marondera.
Faced
with the above, the applicants approached this court seeking:-
1.
The setting aside of the amended first and final distribution account
in the estate late Fanuel Karimanjonda Muzungu DR1122/10 which the
second respondent had confirmed on 20 September 2011;
2.
That the said estate be reopened;
3.
That the first respondent be removed from the office of executrix
and a neutral executor be appointed by the second respondent to
administer the estate in accordance with the Administration of
Estates Act [Chapter
6:01];
and
4.
That the cession of rights into first
respondent's name be reversed such that the property be registered
in the estate late Fanuel Karimanjonda Muzungu's name.
The
applicants' basis for seeking the above order was that the first
respondent had misrepresented to the Master of the High Court that
she was the only surviving spouse as the late Fanuel
had divorced his first wife, Laurenta Muzungu, after which he had
proceeded to marry her. She also misrepresented that as at the time
of the demise of the late Fanuel
Karimanjonda Muzungu she
had been living at the property in question as her matrimonial home
when that was not so. Through her misrepresentation she was appointed
executrix and proceeded to administer the estate without the
knowledge and participation of the applicants as family members and
beneficiaries in the estate. The applicants are in fact alleging
fraudulent conduct on the part of the first respondent in the process
of seeking appointment as executrix and in the manner she
administered the estate.
The
first respondent opposed the application.
In
her opposition, she contended that the property in issue had been
acquired by the late Fanuel
Karimanjonda Muzungu and
herself. It is pertinent to note that in her opposition she does not
deny that the late Fanuel
Karimanjonda Muzungu was
in fact married to two wives and this was the situation at the time
of his demise. It thus follows the first respondent was not candid
with the Master of the High Court when she represented that the late
Fanuel
had divorced his first wife. It is also apparent that in response to
allegations of misrepresentation the first respondent merely alluded
to the fact that she advertised the estate's first and final
distribution account and no one raised objections to it. There is no
denial that she was appointed executrix as a result of a
misrepresentation and that she deliberately left out the applicants
in her administration of the estate. She in fact did not deny that in
the registration and administration of the estate she used her
daughter's Harare address and not the family address in Marondera
where she alleged she was residing or the rural home address.
The
Master of the High Court submitted a report in terms of Rule 248 of
the High Court Rules, 1971. In that report the Master virtually
confirms that the first respondent misrepresented to him leading to
the appointment of the first respondent as Executrix Dative and the
subsequent confirmation of the final distribution account. The Master
of
the High Court confirmed
that the first respondent declared herself as the only surviving
spouse as at the time of the late Fanuel
Karimanjonda Muzungu's
death when, as he subsequently learnt, there were two wives who
survived the deceased.
It
is also apparent, as alleged by the applicants, that first respondent
only provided names of her daughter and her other relatives not well
known to the applicants as relatives to be invited for an edict
meeting. She thus deliberately left out the applicants.
Section
68B of the Administration of Estates Act enjoins the Master of the
High Court to summon the deceased person's family, or such members
of the family as are readily available, for the purposes of
appointing a person to be the executor of a deceased person's
estate. The Master would, to a large extent, depend on the
information provided by the person or persons who would have come to
register. If, therefore, such person does not provide the correct
information, or deliberately conceals the true state of the
deceased's family, the Master will invite those persons he has been
advised of and appoint an executor therefrom. The Master of
the High Court,
in his report, in effect confirms the fraudulent conduct of the first
respondent.
Despite
the findings by the Master of the High Court,
on the conduct of the first respondent, the Master did not proceed to
act in terms of section 117 of the Administration of Estates Act on
the removal of an executor. That should, however, not bar this court
from proceeding with the removal where, as alluded to above, the
ground advanced is one of fraud. Under common law this court has
inherent jurisdiction to remove an executrix. See Katirawu
v Katirawu Others
2007 (2) ZLR 64 (H).
The
appointment, having been influenced by the fraudulent conduct of the
first respondent, cannot stand.
The
first respondent's ill conduct did not end there.
She
proceeded to administer the estate without consulting the other
beneficiaries. Section 68D(2) of
the Administration of Estates Act mandates
the executor to consult the deceased's family and beneficiaries.
That subsection states that:-
“When
drawing up a plan in terms of subsection (1), an executor shall -
(a)
Pay due regard to the principles set out in
subsection
(2) of section sixty-eight
F,
to the extent that they are applicable; and
(b)
So far as is practicable, consult the deceased person's family and
the beneficiaries and endeavour to obtain the beneficiaries'
agreement to it.”
In
casu,
the executrix, instead of consulting the late Fanuel Karimanjonda
Muzungu's family in its polygamous nature, deliberately avoided the
applicants who are children from the first wife and so beneficiaries
in the estate.
I
am of the view that the first respondent's conduct cannot be
condoned. I thus conclude that a case has been made for the setting
aside of the inheritance plan. The first respondent has shown herself
not to be an honest and worthy executrix. She has certainly put her
selfish interests above those of the estate. She cannot be an
executrix in this estate. As a spouse, she is a beneficiary and
should be duly awarded her entitlement in terms of the law once the
estate has been properly administered.
The
second respondent must appoint an independent executor to administer
the estate. In the meantime, the transfer or cession of rights in the
immovable property in question, which may have been effected at the
instance of the first respondent, must be reversed.
Accordingly,
it is hereby ordered that:-
1.
The amended First and Final Distribution Account in the Estate Late
Fanuel Karimanjonda Muzungu DR1122/10, confirmed by the
second
respondent on 20th
September 2011, be and is hereby set aside.
2.
The Estate late Fanuel Karimanjonda Muzungu shall be re-opened for
administration by an independent executor to be appointed by the
second
respondent in terms of the law.
3….,.
4….,.
5….,.
6.
Each party shall bear their own costs of suit.
