GUVAVA J: This is an
application in terms of section 52(9)(i) of the Administration of
Estates Act [Cap 6:01].
The trial of this matter has
taken a long time to finalize for various reasons. The matter was
initially filed in this court as a court application in July 2003.
When the matter was set down on the opposed roll the parties realized
that there were disputes of fact which could not be resolved on the
papers. By consent it was referred to trial. The trial commenced in
July 2007 with Mr Dembure representing the plaintiff. The matter was
postponed sine die
before the plaintiff had finished testifying. The matter could not
proceed as the parties required a transcript because the plaintiff
was now being represented by Mr Nhemwa as Mr Dembure was said to have
left the country.
The facts giving rise to this matter which are not in dispute are as
follows.
The late Victor Doit Mujaji died on 10 June 1998 (the deceased). He
is survived by the first defendant, whom he had married in terms of
customary law in 1996, and eight children.
At the time of his death he owned three motor vehicles, an immovable
property where he resided and household goods.
Prior to his death the deceased
instructed a legal practitioner to draw up a will. He however died
before he had signed it. For convenience I will refer to it as a
draft will in this judgment. At his funeral the deceased's legal
practitioner Mr Warara
read the draft will to the gathering. Family members agreed to adopt
the draft will for the purpose of distributing the estate.
At an edict meeting attended by members of the family and first
defendant the plaintiff was appointed as executor of the deceased's
estate.
A first and final distribution account was lodged with the second
defendant awarding the deceased's immovable property to his four
children in equal and undivided shares. The first defendant lodged an
objection to the account as she was of the view that she was entitled
to a share in the immovable property.
The second defendant, acting in terms of section 52 of the
Administration of Estates Act directed that the estate should be
distributed by giving the first defendant 50% and the four minor
children 12,5% share in the immovable property as the deceased had
died interstate.
The second defendant proceeded to issue new letters of administration
in favour of the first defendant in the same estate and authorizing
her to transfer the property into her name and the names of the minor
children in the shares already stated.
It is against the directions of the second respondent that the
plaintiff complains and has lodged this claim in order to have them
set aside.
The plaintiff in his claim seeks the following order:
(a) The appointment of the first respondent as executor dative on 5
of April 2002 be and is hereby declared null and void.
(b) The plaintiff is hereby declared executor dative of the estate
late Doit Victor Mujaji.
(c) The deceased estate be administered in terms of the family
agreement and the will.
(d) That first defendant pays the costs of suit.
The basis of plaintiffs claim is that members of the deceased's
family and first defendant's family had entered into an agreement in
terms of which the deceased's draft will would be used for the
purpose of the administration of the estate. The plaintiff stated
that the agreement was legally binding and the deceased's estate
should be administered in terms of this agreement. The plaintiff also
alleged that the appointment of first defendant as executor after he
had been so appointed was unlawful.
The dispute between the parties relates to what transpired at the
meeting following the burial of the deceased when the beneficiaries
are alleged to have agreed to adopt the draft will.
The issues that were referred to trial were as follows:
1. Whether there was an agreement by the beneficiaries to adopt the
contents of the deceased's invalid will.
2. Whether such agreement, if any, is legal.
3. Whether such agreement, if any
supersedes the provisions of section 68 of the Administration of
Estates Act [Cap 6:01].
The plaintiff gave evidence and testified that at the time of
deceased's death he owned an immovable property known as 3 Vickers
Road, Ridgeview Harare (the property). The deceased had three wives
during his lifetime. The first was Benedict Kambasha. She did not
have any children with the deceased and he then married his second
wife Susan Zulu. The three lived together in a flat in town until
they built the house at 3 Vickers Road. Susan Zulu had three children
with the deceased. Benedict died and deceased entered into an
arrangement with his in laws that the property they had accumulated
during the marriage would be left intact for the benefit of the
children. In 1994 Susan Zulu also died. The deceased then married the
first respondent in June 1996 in terms of customary law.
The plaintiff stated that when
his brother fell ill he then came to him for advice on how to deal
with his property taking into account that he had accumulated this
property with his wives whom were now late. The plaintiff then
referred him to Mr
Warara so that he
could assist him in drafting a will. However, the deceased died
before signing the will.
Following the burial of the
deceased a family meeting was convened. Present at the meeting were
members of the Kambasha family, members of the Zulu family, members
of the Mataruse family (deceased had children with them), members of
the Mushoriwa family, the first defendant and all members of the
Mujaji family. The meeting was chaired by a nephew named Zex
Moritari. He advised the gathering that the deceased had left a will.
He then invited Mr
Warara to read the
contents of the draft will by the deceased. He stated that Mr
Warara advised the
gathering that what he was reading was an unsigned will.
The deceased's draft will in essence acknowledged four of his
children as his heirs and bequeathed the house to his four children
in equal shares. To the first defendant he gives a life usufruct over
the property which would terminate in the event that she remarries.
The plaintiff stated that after
the draft will was read out by Mr
Warara, various
persons stood up and stated the will should be adopted for the
purpose of distributing the estate. The first defendant's brother
also stood up and stated that the provisions of the will should be
followed. He stated that the first defendant also addressed the
gathering. She said she was happy to stay and look after the children
as that is what she had discussed and agreed to with the deceased
before he died. He testified that she had also stated that she agreed
with the adoption of the draft will for the purpose of administering
the estate.
The plaintiff stated that following this event he was appointed as
executor of the deceased's estate in terms of the provisions of the
draft will.
He stated that the first defendant was awarded a motor vehicle in
terms of the draft will. Another motor vehicle was given to the
Kambasha family in terms of an agreement they had had with the
deceased and the third car was given to Tafadzwa the deceased's
eldest son. The first defendant was also given half of the pension
with the other half being given to the four children. They also
distributed the insurance money in the same way with half going to
the first defendant and the other half to the children.
He stated that in this respect he departed from the provisions of the
draft will as it bequeathed the full insurance to his children in
equal shares leaving out the first defendant.
The plaintiff stated that he decided to give the first defendant this
money so that she could purchase her own house since the draft will
did not give her a share in the immovable property.
On 13 June 2000 the plaintiff in his capacity as executor and acting
through Mr Warara, filed a first and final distribution account with
the second defendant in which he awarded the immovable property to
the four children in equal shares in terms of the draft will and the
agreement.
On 4 September 2000 the first defendant formally lodged an objection
with the second defendant on the basis that the executor had not
consulted her when he filed the account and that she was entitled to
the immovable property in terms of the Administration of Estates Act.
The plaintiff stated that he was surprised by the objection as they
had been working well together with the first defendant all along.
Mr Charles
Warara also gave
evidence for the plaintiff.
He stated that he is a legal
practitioner and at the relevant time was practicing in the law firm
of V. Nyangulu & Associates. He testified that he received
instructions from the deceased during his lifetime dealing with the
distribution of his estate in the event of his death. He confirmed
that the deceased did not sign the final draft as he died before it
was ready. He said that following the burial of the deceased he was
invited to a family gathering and asked to read out the draft will.
After he read the draft will a number of persons stood up and spoke
in support of following the wishes of the deceased. It was his
evidence that the first defendant was present at the gathering and
she stated that she was happy to follow the terms of the draft will.
He said that following the registration of the estate she was in
constant contact with him until he filed the distribution account. He
said he was surprised by her objection as she had hitherto proceeded
as if she was in agreement with what they were doing.
Mutsa Mujaji, a brother of the deceased, also gave evidence.
He said the deceased was his
elder brother. When the deceased died he was buried two days later at
Warren Hills Cemetery. The day following the burial a family
gathering took place in the morning at about 10:00am. Mr
Warara attended the
meeting and read the draft will which was made by the deceased. He
stated that Mr Warara
advised the meeting that the document he had was not signed by the
deceased. After he read the draft will the chairman then invited
comments from the people gathered. He said that his elder brothers
Gerald and Witmore spoke in support of adoption of the will and
thereafter the first defendant and her brother also spoke. He stated
that the first defendant stated that she was happy with the will and
that she would stay and look after the children.
With this evidence the plaintiff closed his case.
The defendant testified that she had a very good relationship with
the deceased. When he fell ill the first defendant promised that she
would look after his children. She said that in her pleadings she had
denied that a meeting had taken place as she thought the plaintiff
was referring to a real meeting and not to the traditional gathering
which is held after a death.
She stated that on the day in question she was packing all the
deceased clothes when they were asked to come and attend to a lawyer
who had arrived. She said the lawyer advised the gathering that he
had a will and he had come to explain the deceased's wishes. She
testified that after reading the will she stood up and told the
gathering that she would remain and look after the children.
She stated that she was never shown the document and did not agree to
its contents. She denied having adopted the draft will for the
purpose of administering the estate as she had not had sight of the
document before the meeting. She stated that she was only asked
directly if she wished to stay and look after the children or whether
she wanted to leave and return to her family since her husband had
died.
The first defendant testified
that following this meeting, her interaction with Mr Warara
was not very frequent. During the first year she was busy sorting out
the issue of pension. She stated that she only discovered when she
went to find out why the estate was not being wound up that there
were actually two wills and that she was not a beneficiary in terms
of the wills. She also discovered at that stage that the wills were
not executed by the deceased. She stated that she asked Mr Warara
what she should do and
he advised her to go and see the Master.
The first defendant denied that her relationship with the plaintiff
was good. She said she only agreed to his appointment because she
thought he would follow the law in the administration of the estate.
She said the plaintiff did not discuss the estate with her and the
only time that he came to see her was to ask her to move out of the
main house into the cottage so that they could rent it out in order
to raise money for the children's upkeep. She stated that she has
since been chased out of the house and is living with her sister.
She stated that when her husband died their child was only 11 months
old.
In cross examination she denied that she was ever consulted privately
about the draft will before it was read out. She confirmed that she
had received her share of the pension benefits and a 50% share of the
insurance. She stated that she was entitled to these amounts as she
was the surviving widow of the deceased. She admitted that the
children's share of the insurance money was used to effect
renovations to the house. She said that she and the plaintiff
supervised the work.
She explained that when her brother stood up to speak at the funeral
it was merely to thank the Mujaji's for the manner that they had
conducted the funeral. She denied that when she spoke she commented
about the will. She stated that in any event the meeting took place
soon after the death of her husband she could not have been in a
position to make any decision at that time.
The first defendant called her
brother in law, Mr Dube, as a witness. He testified that he is
employed as a General Manager (human resources) for UTC Zimbabwe.
Mr Dube testified that on the day
following the burial of the deceased there was a family gathering to
distribute the deceased's property. An announcement was made that a
lawyer had arrived. He stated that prior to the announcement there
was no meeting between the families and they were not shown the draft
will. He was seated with the first defendant's brother whilst his
wife was with the first defendant. He testified that when the lawyer
arrived he was holding a sealed envelope which he said was the
deceased's will. He opened the envelope in the presence of everyone
and read out the contents of the will. He stated that the chairman
then invited comments from those present. He stated that first
defendant's brother stood up and thanked everyone for the manner
they conducted the funeral. He also thanked the deceased for having
left a will as it would assist in looking after the family.
In cross examination the witness confirmed that they did not see the
document prior to it being read out. He stated that the gathering was
not informed that the will was unsigned. He stated that as far as he
was aware the first defendant only found out later that the will was
unsigned. He stated that everyone at the meeting accepted that the
draft will was a valid will. He said all the speeches on that day
were about the will.
It was apparent from the evidence of all the witnesses that they gave
their evidence as well as they could in the circumstances. The events
had taken place almost ten years ago when the deceased died. In my
view it is not necessary for this court to make a finding of their
credibility in order to determine this matter.
In my view it is now settled that, where beneficiaries to a deceased
estate enter into a separate agreement that an invalid will should be
adopted for the purpose of administering the estate of the deceased,
such agreement is a legal and binding one.
In Mashakada
v Master of the High Court & Anor
2001 (2) ZLR 311 at 321 CHINHENGO J faced with a similar case stated
as follows:
"I think the proper construction to be placed on the
beneficiaries contract in this case is that they merely adopted, for
the purpose of their contract, the contents of their father's
invalid will as the terms of their own contract. They were not
attempting to validate or seek validation of the will by entering
into the contract. Nor could they do so. This seems to me to be a
reasonable construction of the contract bearing in mind that the will
constituted the beneficiaries into legatees and therefore by agreeing
on the will's provisions, each of the beneficiaries was accepting
what, had the will been valid, would have been his or her legacy.
They contracted on that basis. There would be nothing wrong in
accepting such a contract."
It is apparent from what has been stated above that the beneficiaries
must adopt the terms of the invalid will as the terms of their own
contract.
It seems to me therefore that for the contract to be valid it must
relate firstly to a document which must purport to have been crafted
by the deceased which is invalid, and, secondly, it must be between
the beneficiaries themselves.
In the Mashakada
case
(supra)
the issue before the court was not whether or not there was an
agreement as it was admitted, the beneficiaries having written to the
Master confirming their decision to be bound by the will for the
purpose of distributing the estate. The issue was whether or not such
an agreement is legal.
In both cases there is no dispute that the will was invalid.
The issue to be determined in this case is whether or not there was a
valid contract as amongst the beneficiaries.
R.H. Christie in "The Law of
Contract in South Africa" 3rd
edition at page 249 states that each party entering into a contract
must have the capacity to do so. The parties to the contract must
also reach consensus ad
idem. In other words,
for an agreement to be binding, the parties must be identified and
the terms of their agreement ascertainable.
The evidence which was led by the parties in my view seems to
indicate that there was no agreement.
Firstly, it is not clear who the
parties to this agreement were. As earlier stated the beneficiaries
would have to enter into the agreement to adopt the deceased's
invalid will for the purpose of administering the estate. In this
case however, there is no evidence that the
beneficiaries
themselves entered into an agreement. The plaintiff in his
submissions was very much alive to this requirement as he submits
that an agreement between the beneficiaries had been entered into.
From the draft will the beneficiaries were Tafadzwa Mujaji, Fadzai
Mujaji, Jewet Mujaji, Tinotenda Mujaji and Francisca Mushoriwa.
R.H. Christie also states at page 254 that a child under the age of
seven has no contractual capacity at all and thus a guardian must
enter a contract on his behalf. Where the children's age is above
seven but under age of majority then they must be assisted by their
guardian.
It is not clear what the children's ages were at the time but it is
apparent from the evidence that the four children were minors. There
is no evidence that a guardian had been appointed to act for them at
that stage and that those who spoke for them could do so legally.
It also appeared from the plaintiff's evidence that he was stating
that the agreement was between members of the Mujaji family and the
Mushoriwa family.
Clearly such an agreement cannot be between the two families as they
would not be parties to the contract.
It seems to me that the import of the evidence shows that the real
parties did not participate in the agreement nor were they consulted.
If the plaintiff entered into the agreement on behalf of the minor
children there was no evidence that he had the mandate to do so as he
had not been appointed their legal guardian since both their parents
were deceased.
Secondly, it is not clear from the evidence which document was read
out to the gathering on the day in question and therefore which the
parties agreed to adopt for the purpose of their contract.
At the trial three documents exhibit 1, exhibit 2 and exhibit 3 were
produced as wills of the deceased. Exhibit 1 was a rough handwritten
draft which appears to be notes setting out the deceased's property,
the beneficiaries and a proposed plan of distribution. It appears to
have been drafted on 10 May 1998 and is initialed and signed by the
deceased and witnessed by the plaintiff and the first defendant.
Exhibit 2 is a typewritten, unsigned draft. It however leaves out
some of the property set out in exhibit 1 such as the motor vehicles
and leaves out a minor child of the deceased Tinotenda as a
beneficiary.
Exhibit 3 which is alleged by the plaintiff to have been read out is
again an unsigned typewritten draft will which incorporates Tinotenda
Mujaji as a beneficiary but still leaves out the motor vehicles.
The hurdle in my view is which document did the contracting parties
agree to be bound by as not all three documents were read out at the
gathering?
It is not in dispute that the
first defendant did not have sight of the any of the draft wills
before Mr Warara
read out one of them. No one explained to the first defendant the
fact that the will was unsigned or that it was invalid. It was not in
dispute that the first time that the first defendant learnt of a will
was when everyone was called and advised that a lawyer was in
attendance. It was also not in dispute that the first defendant only
had sight of the three exhibits at a later date after the draft will
had been read out.
In my view all these factors lead to the inescapable conclusion that
the parties themselves were unclear on the content of the agreement.
Had there been one document duly signed by the deceased it could have
been argued that the parties had agreed to adopt the signed will as
their agreement. In this case it is not clear to me which document
the parties agreed to be bound by.
Thirdly, the plaintiff in his evidence sought to show that the first
defendant's conduct was such that she must have entered into the
agreement. He explains how everything has been distributed in terms
of the unsigned will.
However this is not completely
true as exhibit 3 which he says was read out by Mr Warara
does not include the motor vehicles and one is at a loss as to the
basis of bequeathing a car to the Kambasha family who are not even
mentioned in any of the wills and to Tafadzwa the eldest son.
His argument is further defeated by his own evidence when he says
that he decided to deviate from the will by giving the first
defendant a half share in the insurance money.
The draft will specifically bequeath the money to the deceased's
children excluding the defendant.
Clearly in my view the
distribution was not being done in accordance with any of the wills
produced before the court and the first defendant cannot be said to
have been going along with the distribution in accordance with the
draft will which was read out by Mr Warara
as it did not have some of the provisions upon which the plaintiff
relied on for distributing the property.
It seems to me that where parties decide to be bound to a particular
document, especially in a case such as this where parties are relying
on an unsigned document which may not have been the will of the
deceased, there must be no doubt that the document is indeed what the
deceased intended to be his will. The parties must agree to be bound
by that document.
In this case there are three different documents.
The evidence before me in this case does not show that the
beneficiaries were party to the agreement or that there was consensus
on the content of the document which they were adopting. The parties
in my view did not reach consensus and thus there can be no valid
agreement.
The second defendant's directions on the distribution of the
immovable property were not challenged in any way during the trial.
The sole argument by the plaintiff being that there was an agreement
between the parties.
The issue of the applicability of
section 68 of the Administration of Estates Act was only raised, to
the extent that it would be applicable, in the event that the court
found that the agreement was binding.
In my view the directions given
by the second defendant awarding the first defendant the immovable
property together with the minor children was rationale and
reasonable as it recognized the rights of the surviving spouse to
inherit from her husband and also took into account the interests of
the minor children some of whom are not her children. The directions
in my view were also in terms of section 68 of the Administration of
Estates Act in so far as they made the distribution in accordance
with an interstate estate under an unregistered customary union.
The second defendant however
erred in giving the first defendant Letters of Administration in
circumstances where he had already appointed the plaintiff as
executor.
It is apparent from a reading of the Administration of Estates Act
that once an executor has been appointed another person cannot be
appointed at the same time.
In the event that the Master was
dissatisfied with the manner in which the plaintiff was administering
the estate his remedy was to have plaintiff removed in terms of
section 117 of the Act before appointing the first respondent.
It seems to me that first defendant's appointment cannot stand as
it is unlawful. The plaintiff remains as executor until he has been
lawfully removed.
In the absence of an agreement
the estate must be administered in accordance with the Administration
of Estates Act [Cap
6:01] as the deceased
died intestate. The directions by the second defendant are therefore
upheld in relation to the distribution of the estate.
I will not make an award of costs as none of the parties have been
completely successful in this case.
Accordingly it is ordered as follows:
1. It is declared that there was
no binding agreement between the beneficiaries of the Late Doit
Victor Mujaji regulating the distribution of his estate.
2. The appointment of the first
defendant as executor dative by second defendant on 5 April 2002 is
declared null and void.
3. The Masters Directions for the
distribution of the Estate of the Late Doit Victor Mujaji are hereby
upheld.
4. The Executor shall forthwith
submit an amended Inheritance Plan incorporating the Master's
Directions.
5. There shall be no order as to
costs.
C Nhemwa & Associates, plaintiff's legal practitioners
Mudambanuki & Associates, first defendant's legal
practitioners
