In a matter involving a dispute concerning the validity of a will, the respondent argued that the action had been improperly brought because the plaintiff had failed to note an appeal against the decision of the Master of the High Court within 30 days as required by s 8 (6) of the Wills Act [Chapter 6:06] therefore the plaintiff's challenge to the validity of the will was out of time and the court had no jurisdiction to entertain it.

Held, that the role of the Master in the administration of an estate should not be misread to oust the court's jurisdiction where there is a challenge on the validity or otherwise of a will. What was before the court was not an appeal against the Master's decision to accept the will but a challenge to the validity of a will. The 30 days limit stipulated under was therefore not applicable.

Cases cited:

Chijaka v Taguta HH 308-15 (unreported), referred to

Clark v Barnacle NO and Others 1958 (3) SA 41 (SR); 1958 R & N 348 (SR), referred to

Le Roux and Another v Griggs Spall 1946 AD 244, distinguished

Mhlanga v Ndlovu HB 54-04 (unreported), referred to

Nyandoro & Anor v Nyandoro & Ors 2008 (2) ZLR 219 (H), referred to

Legislation considered:

Administration of Estates Act [Chapter 6:01], s 25

Wills Act [Chapter 6:06], s 8 (5) and (6)

High Court Rules, 1971 (RGN 1047 of 1971), O 13 r 87

JB Wood, for the plaintiff

T Zhuwarara, for the respondent

MWAYERA J:

The matter came up for trial before me on 26 July 2016 following which the respondent made an application for summary dismissal of the matter based on two preliminary points. The application was opposed. The preliminary points raised being:

1. That the plaintiff brought the matter up after 30 days as is required by
s 8 (6) of the Wills Act [Chapter 6:06].

2. That the deceased estate was improperly cited.

Mr Zhuwarara argued that the plaintiff's matter was not properly before the court because the infraction relating to statute rendered the plaintiff's claim fatal. The plaintiff was aware of the Master's decision which she seeks to impugn but failed to note an appeal within 30 days as is statutorily required in the Wills Act s 8 (6). The respondents argued that the plaintiff was statute barred as there was no compliance with a peremptory statutory provision. Mr Zhuwarara referred the court to the case of Le Roux and Another v Griggs Spall 1946 AD 244.

The brief facts of this case are clearly reflective of a statutory infringement. The Board had no jurisdiction to entertain the application for review because it was out of time stipulated for review that is 21 days of the order of the Rent Board.

Le Roux (supra) is distinguishable from the circumstances of this case where the plaintiff who initially approached the court on application basis had proceedings converted to action because of apparent disputes of facts and need to adduce evidence. The plaintiff did not approach the court on appeal against the Master's decision such that the time limit of appeal having to be lodged within 30 days of the Master's decision is not applicable. What is before the court is whether or not the will presented and accepted by the Master in terms of s 8 (5) of the Wills Act is a genuine will or not. Section 8 (5) of the Wills Act reads –

"Where the Master is satisfied that a document or an amendment of a document which was drafted or executed by a person who has since died was intended to be his will or an amendment of his will, the Master may accept that document, or that document as amended, as a will for the purposes of the Administration of Estates Act [Chapter 6:01]. Even though it does not comply with all the formalities for –

(a) the execution of wills referred to in subsection (1) or (2); or

(b) the amendment of wills referred to in subsection (2), (3) or (4) of section 9." (my emphasis)

The plaintiff in approaching the court in this case is not seeking an appeal against the Master's decision to accept and register the will but is seeking redress on an aspect which as a matter of fact and law cannot be determined by the Master. The determination of whether or not a will is genuine is a dispute which can only be decided by the court. The issues which fall for determination would entail determination of the genuineness or otherwise of the will and whether or not the deceased at the time of making the will was married. The Master is not empowered to determine the marital status of the deponent of the will and from the papers filed of record that aspect also falls for determination hence the approach to court for hearing of the action and not an appeal against the Master's decision to accept and register the will as reflected on page 11. It can easily be discerned from the founding affidavit of the plaintiff that the issue of whether or not the deceased had mental capacity to depose to a will was raised. Mental capacity challenge, of necessity goes to the validity of a will which is a matter for determination by the court. It is important for the administrative function of the Master in so for as acceptance and registration of a will is concerned to be understood. Further the role of the Master in administration of an estate should not be misread to oust the court's jurisdiction where there is a challenge on the validity or otherwise of a will. Such a dispute falls for determination by the court hence the approach by the plaintiff to court is properly before the court. Initially the matter was brought by way of application and same was converted to action proceedings for the obvious reasons that the nature of dispute is contentious and requires full ventilation including adduction of evidence which would require testing of its veracity by cross examination. The preliminary point raised cannot be sustained given what is before the court is not an appeal against the Master's decision but determination of a dispute on the validity or otherwise of the registered will. The plaintiff is therefore not statute barred as the 30 days' time limit for an appeal is not applicable under the circumstances.

The second preliminary point raised pertains to the citation of the parties. It is fairly settled that an estate can only sue or be sued through the executor. Section 25 of the Administration of Estates Act, [Chapter 6:01] makes it clear that a deceased estate is represented by the executor or executrix duly appointed by the Letters of Administration by the Master. The law is abundantly clear that no relief can be obtained against an estate unless it is sued through the executor or executrix. Kudya J in Nyandoro & Anor v Nyandoro & Ors 2008 (2) ZLR 219 (H) underscored the need on bringing an action on behalf of an estate to bring action through the duly appointed executor. The Honourable Kudya J just like Morton J in Clark v Barnacle NO and Others 1958 (3) SA 41 (SR) emphasised the need for an executor dative or testamentary to be appointed as only the executor can sue and be sued for and on behalf of the estate.

See also Mhlanga v Ndlovu HB 54-04 (unreported) and Chijaka v Taguta HH 308-15 (unreported). Worth noting in all the cases referred to above is the fact that the estate was improperly cited in that no executor testamentary or dative was appointed or even cited as a party to the proceedings. In the Chijaka case (supra) the appellant was assumed to be liable by virtue of marriage yet she was not legally appointed an executrix. That scenario is distinguishable from the circumstances of this case in that there are Letters of Administration Annexure E page 19 appointing the first respondent Gregory Graham Hall as the executor testamentary of the Estate late Norreece Lesly Hall. What falls for determination in the main matter is the validity of the will which occasioned the appointment of the executor testamentary the first respondent Gregory Graham Hall. Given the circumstances of this case, one cannot say the proceedings are fatally defective and a nullity for want of existence of respondents because the first respondent is the executor per the Letters of Administration and is a party to the proceedings given the cause of action and nature of relief sought in the main. In this case the executor per the Letters of Administration is Gregory Graham Hall, the first respondent. The second respondent is the Estate late Norreece Lesly Hall which as a matter of law is represented by the executor duly appointed by Letters of Administration and the third respondent is Master of the High Court. It is apparent from a reading of the papers that the first respondent is sued in his personal capacity and that he is the appointed executor of the estate of the second respondent. What is before the court is a dispute as regards validity or otherwise of the will which occasioned the nomination and appointment of the first respondent as Executor Testamentary. The first respondent Mr Gregory Graham Hall is being sued in his personal capacity and by virtue of being Executor Testamentary which is what is being challenged on dispute over validity or otherwise of the will. The omission of reflection of the second respondent as Estate late Norreece Lesley Hall duly represented by Gregory Graham Hall in the circumstances of this case is not fatal. Firstly, because the first respondent is cited personally and he is the executor. The misjoinder alleged is not material given the nature of dispute before the court and the fact that the plaintiff has indicated in their Heads of Argument intention to amend pleadings so as to reflect second respondents as represented by the first respondent the executor per Letters of Administration. In any event, there is no prejudice that will be occasioned to the plaintiff by spelling out that the estate is represented by the first respondent, given the first respondent is the appointed executor per the challenged will. It is also apparent that the first respondent accepts in papers filed of record page 31 that he is cited as a beneficiary and executor of the estate late Norreece Lesley Hall. Order 13 r 87 (1) of the High Court Rules, 1971 (RGN 1047 of 1971) is instructive on misjoinder and nonjoinder it states:

"87 Misjoinder or nonjoinder of parties

(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interest of the persons who are parties to the cause or matter."

Rule 87 (2)(b) is also relevant, it states:

"(2) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application –

(a) ...

(b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party."

Clearly the circumstances of this case are such that the application to have the matter dismissed under the umbrella of being statute barred in absence of prejudice nor statute bar is misplaced. It is my view that the matter should be properly ventilated on merit as the technicality sought to be clutched on by the respondent has not been substantiated and sustained.

The preliminary points raised are accordingly dismissed.

Atherstone & Cook, plaintiff's legal practitioners

Gill Godlton & Gerrans, first and second respondent's legal practitioners