KARITAWU v KARITAWU & ORS 2007 (2) ZLR 64 (H)

Flynote

Administration of estates — executor — removal of — application for — C application under common law — who may make application — grounds on which application may be made

Headnote

The first respondent, one of the deceased's sons, by producing a fraudulent death certificate, induced the Master to appoint him as executor and sole beneficiary of his father's estate, which included a piece of land. He gave a false name to the Master. Using the same false name, he sold the piece of land to the second respondent. The applicant, the deceased's widow, filed an application for an order declaring the appointment of the first respondent as executor dative and the subsequent sale of the immovable property to the second respondent null and void and that the property be registered in the name of the estate of the deceased. The second respondent claimed to be an innocent purchaser of rights in the property and denied that she ever dealt with the first respondent. She also raised the point of whether the applicant had locus standi to bring an application for the removal of an executor and to compel reversal of the cession of rights in favour of the second respondent.

Held, that the applicant was clearly a beneficiary in the deceased's estate, as the surviving spouse. The issue was whether a beneficiary has any capacity at law to bring proceedings for the removal of an executor on any ground, because s 117 of the Administration of Estates Act [Chapter 6:01] gives the Master the power to approach a judge in chambers forthe removal of an executor. There was no doubt that the Master could act under the section as the appointment of the first respondent was induced by fraud.

Held, further, that an executor of an estate may be removed from office at common law. The grounds for doing so, inexhaustive as they are, are

based on a broad principle: the court possesses inherent power to remove a trustee or administrator (even one appointed under a will) on the ground that his continuance in office will prejudicially affect the future welfare of the estate entrusted to him. While no person other than the Master may proceed under s 117, granting such a power to the Master was not intended to take away the right of all those having an interest in the estate from approaching the court at common law to have the executor removed if they can establish to the satisfaction of the court that the continuance in office of the executor does not augur well for the future welfare of the estate and beneficiaries. The applicant, as a beneficiary in the estate, had the capacity to approach the court at common law to move the court for the removal of the first respondent as an executor. Her application was brought at common law as she was alleging fraud.

Held, further that because the first respondent's appointment was induced by fraud, it was null and void ab initio. It was as if it was never made. It was a nothing and upon which nothing of consequence can hang. This included the purported sale to the second respondent.