KUDYA J:
On
24 March 2003, three of the beneficiaries of the estate of the late
Job Bruno Kadengu filed this application seeking the variation of
certain clauses of the Last Will and Testament of the testator.
The
application was served on the respondents on 2nd
April 2003, 17 April 2003 and 16 March 2005 respectively.
The
1st
respondent opposed the application on 18 August 2003 while the 2nd
respondent did so on 1st
September 2003.
The testator died testate on 25 March
1990. He executed his 9 paged Will on 20 February 1990. It contains
20 clauses.
One
Gregory Slater of Gollop and Blank legal practitioners
of Harare was appointed the executor testamentary and was issued with
letters of Administration by the Master on 14 June 1990 in line with
clause 3 of the Will.
Slater
attempted to administer the estate DR No. 665/90 but by 30 September
1998 he had not finished doing so. He fled the country under
allegations of misappropriation of funds. Messrs
Gollop and Blank
proceeded to renounce their appointment as Executors of and trustees
to the estate on 5 September 1997.
The
Master then appointed the 2nd
respondent as Executor Dative on 2nd
July 1999.
The
new executor failed to remedy the problems that Slater
left unresolved. By 28 September 2000 the 1st
and 2nd
applicants together with Martin Kadengu, another beneficiary, wrote
to the Master complaining of the inaction of the 2nd
respondent and his resultant failure in winding up the estate in
accordance with the wishes of the testator.
The desired result was not achieved.
The applicants instituted the present
application in the belief that:-
“This
estate can no longer be wound up in terms of the will as some of the
clauses have become irrelevant with the passage of time whilst others
have been overtaken by events.”
They
referred to clause 9 which dealt with the formation of a trust whose
trustee was to be senior partner in the law firm of Messrs
Gollop & Blank
which law firm had renounced their appointment as trustees and
executors even before the trust had been formed.
They pointed out that the beneficiaries
had not and could not agree on a suitable substitute. In any event
to them the trust would not achieve its intended purpose as some of
the beneficiaries could not be located while others had left
Zimbabwe.
They
sought the dispensation of the formation of the trust and the
liquidation of the estate in a way consistent with the overall
intention of the testator that a commodious enough house be purchased
for 1st
respondent and the residue be shared equally to all the deceased's
children.
The only assets belonging to the estate
were given as 4,000 shares in Paradise Park Motel (Pvt) Ltd and
certain piece of land situate in the district of Makoni called Alloa
Farm.
They
therefore prayed for the disposal of the 4,000 shares in Paradise
Park Motel (Pvt) Ltd by private treaty, and that clause 6 of the will
be implemented for “a large enough and commodious enough house be
purchased for 1st
respondent in the Northern suburbs of Harare” from the proceeds and
that the residue be shared equally amongst the beneficiaries. They
further prayed for the registration of Alloa Farm, in the names of
all the beneficiaries, as a family home which would not be sold and
that costs be borne by the Estate in the event of the 1st
and 2nd
respondents did not oppose the application.
On
23rd
July 2003 a default judgment was entered by this court. It was
ordered that:-
1. The Trust which was to be set up in
terms of clause 9 of the will be and is hereby abandoned.
2.
The deceased's 4,000 shares in the Paradise Park Motel (Pvt) Ltd
shall be sold to the best advantage of the beneficiaries.
3. “A
large enough and commodious enough” house shall be purchased for
the 1st
respondent and her minor children from the proceeds of the sale of
the Paradise Park Motel (Pvt) Ltd. The Master of the High Court (3rd
respondent) shall determine whether or not the house which the estate
shall be purchasing for the 1st
respondent and her children is large enough and commodious enough.
4.
After purchasing the house described above for the 1st
respondent and her children, the residue shall be equally distributed
among the surviving beneficiaries. The shares of beneficiaries who
are outside the country or who are not part of these proceedings
shall be deposited with the Master of the High Court.
5. The immovable property situate in
Makoni District, namely Alloa Farm, held under Deed of Transfer
7689/81 shall not be sold. It shall be retained as a family home to
be registered in all the beneficiaries' names or to be registered
in the name of the nominated beneficiary in trust for the rent of the
beneficiaries.
6. The costs of this application shall be
borne by the estate.
Both parties were agreed that this order
was rescinded by consent.
The
1st
respondent in her opposition averred that the will was valid and
effectual and that the 2nd
respondent be afforded the opportunity to administer it and give
effect to the deceased's wishes. She averred that improper conduct
by Slater
or delays and inaction by 2nd
respondent were not recognized grounds for setting aside the will.
She
further averred that the shares in Paradise Park Motel did not belong
to the estate as the deceased had not paid for them at the time of
his demise. An open invitation was extended to those beneficiaries
willing to participate in the purchase of these shares to do so but
only the 1st
defendant responded positively.
She produced a letter written to the
applicant's then legal practitioners of 23 April 2002 which
indicated that a dispute existed as to the ownership of the shares.
Further she averred that Alloa Farm be
dealt with in terms of the will.
The
2nd
respondent on the other hand in his opposition noted that the estate
was illiquid and this hampered his ability to discharge his mandate.
He believed that the issue of the ownership of the 4,000 shares be
determined first before the estate could be wound up.
Three issues were argued before me. These
are:-
1. Whether or not the estate can no
longer be wound up in terms of the will because some clauses have
become irrelevant.
2. Whether or not the 4,000 shares in
Paradise Park Motel (Pvt) Ltd form part of the deceased's estate.
3. Whether or not Alloa Farm can still be
dealt with in terms of the will.
It
seems to me however, that a more fundamental point, which
unfortunately was not addressed, arises. It is whether or not the
applicants have locus
standi,
that is a direct and substantial interest in seeking variation or
alteration or rectification of the will.
In
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953 (2) SA 151 (O) at pages 166H-169H, HOROWITZ AJP dealt with the
question of direct and substantial interest with respect to joinder
and discussed at 167C-F the meaning that may be ascribed to the term
with reference to a lessor, lessee and sub-lessee. At 169H he held
that:-
“'the
direct interest required' by the Appellate Division decision must
be an interest in the right which is the subject matter of the
litigation and is not merely a financial interest which is only an
indirect interest in such litigation.”
In
Zimbabwe, as far as I am aware, the question of a beneficiary's
direct and substantial interest in a will was considered by MORTON J
in Clark
v Barnacle N.O. and two others
1958 R & N 348 (SR).
In that case two executors sued a third
executor in the estate of one Henry Douglas Clark to recover assets
of the estate. The third executor's functions as such had been
suspended by a court order pending the determination of the suit. The
applicant was one of four residuary heirs who sought to be joined in
as a co-plaintiff with the other two executors in order to protect
his interests.
He
held that while an executor was the only person who had locus
standi
to bring a vindicatory action relative to property alleged to form
part of the estate, the residuary heir could seek the intervention of
the court for the proper performance of the executor's duty or to
seek his removal. The application for joinder was dismissed both in
terms of Common law and Rule 7 Order 12 of the Rules of Court in
existence at the time.
See
(1) Fischer
v Liquidators of Union Bank
8 SC 46 at 54 and Liquidators
of Union Bank v Watsons Executors
8 SC 200 at 306 where in both cases which were decided in 1890, DE
VILLERS CJ the executor alone is looked upon as the person to
represent the estate of a deceased person.
In the later case at 306 he stated:-
“As
between the executor and the heirs he (the executor) acts, in a
certain sense, as their mandatory, but towards the rest of the world
the occupies the position of legal representative of the deceased,
with all rights and obligations attaching to that position.”
(2)
Estate
Smith v Estate Follet
1942 AD 364 at 383 and Commissioner
of Inland Revenue v Estate Crewe and Anor
1943 AD 656 at 692.
In both cases WATERMEYER JA held that an
heir or legatee is entitled to claim his inheritance from the
executors of the estate after confirmation of the executor's
account. In the latter case he stated:-
“The
right to make such a claim no doubt vests in the heirs on the death
of the deceased, and may be said to have dominium of the right,
although it is not immediately enforceable.”
(3)
Meyerowitz
in The
Law and Practice of Administration of Estates and Estate Duty 1995
at page 18:12 in
fine
is in agreement with WATERMEYER JA's statement of the law as it
applies in South Africa.
It
seems to me therefore, that the applicants in casu
are obliged to show the direct and substantial interest that they
have in the subject matter before me of seeking the variation of
certain clauses of the will. In terms of the will they are residuary
heirs. They will only be able to benefit from the will after clause 9
thereof has been fulfilled.
Clause 9 reads:-
“After
discharging my debts and taxes and paying the legacies and providing
for the aforesaid usufruct and generally dealing with my directives
detailed hereinabove, my Executor shall sell and liquidate and turn
into cash the entire balance of my Estate and my Executor shall hold
the resultant monies in his own name as Trustee of a Trust Fund and
he shall apply the income and capital thereof as hereinafter
directed. The successor in office as Trustee of my Trust Fund shall
be the Senior Partner for the time being of the said Messrs
Gollop and Blank.”
The
executor's primary duty is set out in clause 5. He was to gather
all the testators' property, pay debts and taxes and expenses for
administering the Estate. This was to be followed up by the
purchasing of a large enough and commodious enough house for the 1st
respondent (surviving spouse and her progeny by him) in the Northern
suburbs of Harare, in the Executor's discretion. The house was to
be hers. She was to receive all household furniture and effects in
the house they lived in together at time of his death. The executor
was to ensure the testator's mother received all the farming
implements, livestock and other movables at Alloa Farm and that she
exercised a life usufruct over the said farm.
He was also to implement the subdivision
of the portion of the farm.
The clear language of clause 8 indicates
that the portion to be hived off the farm was known especially by Mr
JRF Walker of Rusape who was involved. It was to be smaller than the
remainder. If any difficulties arose, the Executor was to have the
determining and final say. This hived off portion together with
$50-000 was to be given to the testator's sister Rosa Chimambo.
The ownership of the farm occupied for
life by the testator's mother was to vest in the Trustee.
The Trust would be formed after the
payment of debts, taxes and administration expenses and after the
purchase of the house for the surviving spouse and her progeny by
him.
The subdivision of the farm and the life
usufruct would not hold up the formation of the Trust.
It is clear from clause 9 that the Trust
would be formed from the residue funds which remained after the major
bequests had been done. A corollary to that phrase was that if no
such residue remained then the Trust would have no funds until after
death of the testator's mother when the farm was to be sold and the
proceeds there from devolved to the Trust.
It was envisaged by the testator that the
provisions of clause 10 with regards to maintenance, education and
advancement of the surviving spouse, his mother, and all his progeny
including the 14 persons mentioned therein were to be implemented
from the income of the Trust.
Death of the mother, remarriage of the
surviving spouse and the age of 25 of the minor beneficiaries were to
be the outer limits of the maintenance.
The surviving spouse was in addition to
have a reliable motor vehicle from the Trust income. If the income
was insufficient he could utilize the capital of the Trust Fund.
When the youngest of the minor children
reached 25, the Trustee was to dissolve the Trust and share all
proceeds amongst the surviving beneficiaries.
In my view, there is no ambiguity about
the clauses relating to the formation, operation and dissolution of
the Trust.
The accession of the envisaged benefits
by the beneficiaries was obviously dependant on the existence of
surplus income after the major items had been provided for.
The
interest of the applicants in the present matter would arise once the
Trust was formed and once it was liquid. It is only in these
circumstances that they would have an expectation of benefit. That
is also when they would have vesting.
Once
vesting was achieved, it seems to me, only then would they have a
direct and substantial interest in the provisions of the will. They
would then have the entitlement to claim under the provisions of the
will. In other words before vesting
was achieved, they had no business seeking the alteration of the
will.
In my
opinion, even at vesting
they would not have a direct and substantial interest in the
alteration of the will. All they would have would be a direct and
substantial interest to seek compliance with the provisions of the
will, that affected them, by the Executor either through the Master
of by bringing an application if so advised for review to this court,
if dissatisfied by the Master's decision.
I
would therefore dismiss the application on the basis that the
applicants did not have locus
standi
to seek the variation of some of or any of the clauses of the will.
In
the event that I am wrong in finding that they have no locus
standi,
I proceed to deal with the issues that were extensively argued before
me.
(a)
Whether or not the estate can no longer be wound up in terms of the
will because some clauses have become irrelevant in particular clause
9
Mr
Zhou
for the applicant submitted that clause 3 which appointed Harold
Hillel Gollop
or the Senior partner for the time being of Messrs
Gollop and Blank legal practitioners
of Harare, Executor had been overtaken by events relating to the
renunciation of appointment to that office by the law firm in
question.
On
the other hand Mr Mutizwa
for the 1st
respondent submitted that an executor dative was appointed by the
Master in place of the said law firm. That submission by Mr Mutizwa
was common cause.
In
terms of section 23 of the Administration of Estates Act [Chapter
6:01],
all estates in this country are administered by an executor appointed
by the Master.
It is accepted that there have been
inordinate delays in winding up this estate, but the Act in section
53 permits any interested party to approach this court on one month
notice to the executor for such an executor to show cause why a
liquidation and distribution account has not been lodged with the
Master within 6 months after the grant of letters of administration.
The Master is empowered to make the decisions on whether or not to
grant the executor an extension of time. Where the interested party
is unhappy with the Master's decision he may subject that decision
on review.
The applicants have not demonstrated that
they have approached the Master with such a complaint.
In my view, they must first exhaust their
domestic remedies by invoking section 116 and if so advised section
117 of the Act before seeking the court's intervention. They
should seek that the executor winds up the estate in the manner set
out in the Act.
Mr
Zhou
further submitted with reference to clause 9 that the appointment of
a Trustee was now a practical impossibility. He submitted that the
will envisaged the appointment of Messrs
Gollop and Blank
as trustees. The Master appointed the 2nd
respondent as executor. The 2nd
respondent cannot assume the office of Trustee in terms of the will,
therefore the formation of a Trust was still-born by the renunciation
of Gollop
and Blank,
so his argument went.
Mr
Mutizwa,
on the other hand, referred to clause 2 of the will which defines
executors or executor as “meaning either executors and
administrators or trustees or any two or all of these offices as may
be appropriate in the circumstances and in the context thereof and
the term 'executors' includes the singular and plural” and
submitted that the testator foresaw problems such as the ones
experienced in his estate.
He further contented that in terms of the
will the executor could assume the office of Trustee. This was still
capable of implementation as the will did not have an expiration
date.
Mr
Zhou
retorted
that the testator wished the appointment of a testamentary trustee as
he had certain expectations about that trustee's duties. He
maintained that the trustee could only be from Gollop
and Blank.
It is clear from clause 3 that the
testator preferred the law firm he nominated to hold the office of
executor. Clause 4 reads:-
“Any
executor of this my will or any trustee of any Trust Fund hereinafter
created who is by a profession, a legal practitioner or conveyancer
or accountant or notary may charge the estate or any such Trust
Fund................”
This clause should be read in conjuction
with the first line in clause 10, clause 15(c), clause 17, 18 and 20.
They simply show that the testator did
contemplate the appointment of a trustee who was not from the
preferred law firm.
In fact particular attention should be
paid to the first line of clause 10. It reads:-
“My
executor as trustee”.
The first trustee was to be the first
executor.
In the second and last sentence of clause
9, the successor in office as trustee was to be a senior partner for
the time being of the preferred law firm.
My view is therefore that as far as the
testator was concerned the person who was the executor was to be the
trustee too. That executor could still appoint a trustee or trustees
regard being had to clause 2.
I
therefore agree with Mr Mutizwa
that the appointment of a trustee, even now, is not an impossibility.
The will decrees the appointment and spells out how this should be
done. The Trust is still capable of formation in line with the
provisions of the will.
The last clause that the applicants
contended was no longer capable of fulfillment was the disposal of
Alloa Farm.
The
fate of the farm rests with the executor to whom dominium
passes on the death of the testator's mother. The applicants have
no power to direct the executor cum
trustee on how to exercise his untrammeled powers, which are, as
regards the farm subject to clause 12 which directs that the farm
shall be sold and the proceeds added to the Trust Fund.
I am not satisfied that this wish is
incapable of fulfillment.
There is therefore is my judgment no
basis for seeking to vary the testator's desired intention on the
basis of delay or even impossibility of performance.
It is true that inordinate delay has
occurred. It is however the duty of the beneficiaries to approach the
Master for the speedy winding up of the estate.
In so far as my determination of the
first issue touches on Alloa Farm I have disposed of the third issue.
I would decide the first and third issue against the applicants.
The last issue for determination revolves
on the ownership of the 4,000 shares in Paradise Park Motel (Pvt)
Ltd, that is whether these shares are part of the deceased's
estate.
The
applicants referred to affidavits by the 1st
respondent in which she stated that the shares belonged to the
Estate.
They
also attached the First Interim Liquidation and Distribution Account
laid for inspection on 4 December 1992 and the subsequent First and
Final Liquidation and Distribution Account of 1st
November 1996 in which the shares are reflected as being assets
belonging to the estate as proof that they are estate property.
In paragraph 13 of the Founding Affidavit
the applicants aver that the shares belong to the Estate.
In
response in her opposing affidavit the 1st
respondent averred that those shares in Paradise Park Motel (Pvt) Ltd
had not been paid for at the time the testator died and that he never
owned them. She then goes on to state that they never became part of
the estate.
Apparently
the sellers of the shares invited interested beneficiaries to
participate in Paradise Park Motel (Pvt) Ltd. None was interested
save the 1st
respondent who negotiated transfer to herself and who took transfer.
In
their answering affidavit the applicants insisted that the shares
form part of the Estate, no doubt on the basis of the earlier
statements on oath to this effect by the 1st
respondent.
The
applicants did not dispute the averment that the letter of 23 April
2002 by Messrs
Gill, Godlonton and Gerrans
was written in response to the one by their then erstwhile legal
practitioners Messrs
Musunga and Associates
over the transfer of an immovable property associated with Paradise
Park Motel (Pvt) Ltd.
This letter, on page 74 of the record,
indicated that the agreement referred to was entered into between
Auto Export/Import (Pvt) Ltd and Auto Import/Export (Pvt) Ltd as
purchaser and that transfer could only be effected to Paradise Park
Motel (Pvt) Ltd and not the Estate.
The
applicants did not lay facts before this court on the status of
Paradise Park Motel (Pvt) Ltd other than averments of the 1st
respondent's sworn affidavit to the effect that that she would
become co-director with the testamentary executor in this company
which was part of her late husband's estate.
The
letter from Gill,
Godlonton and Gerrans
seems to suggest that post payments of the purchase price were paid
by 1st
respondent.
There would be need to lead evidence on
the true circumstances surrounding the shares in question.
It
may very well be that the shares belong to the estate notwithstanding
that in terms of section 104(1) of the Companies Act [Chapter
24:03]
the holder of a certificate duly signed and with the seal of the
company is presumed to be the owner of the shares on a prima
facie
basis.
This however is an area where further
evidence will be needed.
If so
advised, it seems to me that this is an issue to be pursued by the
2nd
respondent with the Motel and the 1st
respondent.
When
the applicants brought the application it must have been in their
contemplation from the contents of the letter from Gill,
Godlonton and Gerrans
that a dispute of fact would arise on the question of shares.
They did not cite the company.
These factors are fatal to the present
application.
I would thus dismiss the request to hold
that the 4,000 shares belong to the estate in the absence of further
evidence.
I however dismiss the application with
costs on the basis that the applicants have not established that they
have a direct and substantial interest in the subject matter to bring
the present application.
It is accordingly ordered that:-
The application be and is hereby
dismissed with costs.
Messrs Hungwe & Partners,
applicants legal practitioners
Chihambakwe, Mutizwa & Partners,
1st
respondent's legal practitioners
