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, the applicant seeks an order that:
1.
The property known as section 8 in the building known as St. ...
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, the 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 first
respondent
to return to estate of Anita US$225,000= being rentals expended by
the deceased from Anita's immovable property and US$100,344= being
an equivalent of the devaluation of the immovable property.
3.
The first respondent to return 25 thousand pounds and R110,000=
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 ante nuptial 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, movable 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 June Bruk-Jackson and the late Chester Bruk-Jackson 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….,.
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 June Bruk-Jackson was diagnosed with mental
dementia as a result of which, in June 2001, the deceased took over
the administration of Anita's estate. Anita June Bruk-Jackson'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
June Bruk-Jackson, 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 immovable 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 BRUK-JACKSON,
in equal shares, with representation per stirpes.”
It
is clear that he virtually left nothing for Anita
June Bruk-Jackson serve
for the usufruct right over the matrimonial house.
The
applicant's case was to the effect that from the time the deceased
took de
facto
control of Anita June Bruk-Jackson's estate he had solely
administered Anita's Mt Pleasant property and other financial
interests with proceeds therefrom accruing to him. He had, in effect,
merged his estate with that of Anita June Bruk-Jackson.
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
June Bruk-Jackson's
estate for statutory administration in terms of the Mental Health Act
and alleged breach of the terms of the ante-nuptial contract.
On
failure to submit Anita's estate for statutory administration,
counsel argued that in failing to submit the estate, the 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 the 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
June Bruk-Jackson'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 subsection (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 ante
nuptial
contract.
In
his submissions, the applicant's 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 ante-nuptial
contract terminated. Thus, for the 11 years that the deceased
administered Anita's estate he did so in the absence of an ante
nuptial
contract
and in his capacity solely as an un-authorised 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
applicant's 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
June Bruk-Jackson.
After the disposal she then had a misunderstanding with the executor
of the 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 the late Chester Bruk-Jackson's estate? She brings nothing.
The only asset to be declared joinder is essentially the deceased's
house.
The
other point to note is that some of the evidence the applicant
alluded to as justification for joinder occurred before Anita
June Bruk-Jackson became
mentally incapacitated. Such aspects as the rebuilding of the Emerald
Hill house after its purchase and the opening of the
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 ante-nuptial
contract.
The
deceased's conduct, after Anita June Bruk-Jackson became mentally
incapacitated, did not equally alter the terms of the ante
nuptial
contract. As a spouse, he was expected to take charge of Anita's
estate pending the appointment of a curator
bonis.
If
at all the applicant believes that Anita
June Bruk-Jackson's
estate has a genuine claim against the estate late Chester
Bruk-Jackson 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….,.
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
June Bruk-Jackson'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
June Bruk-Jackson's
estate would have brought onto the joint estate.
