MOYO v NCUBE & ORS 2008 (2) ZLR 333 (H)

Flynote

Enrichment — will — wrong person paid in error under will and enriched thereby — right of true heir to recover his inheritance — extent of his recovery in terms of the condictio

Practice and procedure — parties — joinder — non-joinder of a party — not a basis for defeating the cause of action

Practice and procedure — parties — locus standi — beneficiary under a will — locus standi to claim recovery of inheritance wrongly given to another

Succession — will — beneficiary — locus standi to bring action to recover inheritance wrongly given to another — extent of recovery permissible

Headnote

Where the wrong person has been paid out as an heir, the true heir can recover the inheritance with a condictio from the wrong heir. Where the wrong heir acted in good faith, recovery will be limited to his enrichment as at the time of the action. Where he acted in bad faith, he will be accountable for all he has received, with interest. The late NM had died, leaving a will in which he had bequeathed his house to his son, the plaintiff, and his moveables to his wife. In error, however, it was believed by all that he had died intestate and, in the result, his widow had inherited the house in terms of s 3 of the Deceased Estates Succession Act [Chapter 6:02]. Thereafter, his widow died intestate and the first defendant, as the executor, obtained the permission of the Assistant Master, the fourth defendant, to sell the house by private treaty. The house was bought by the second defendant. Only thereafter was it discovered that NM had left a will. The plaintiff thereupon sought to assert his rights in terms of the will. While accepting that NM had indeed left a will, the second defendant entered appearance to defend the action. In filing an exception thereto, he argued that the plaintiff's failure to join the executor, or putative executor, to the estate of NM was fatal irregularity to the plaintiff's claim and that, in any event, as a mere beneficiary, and not the executor of his father's estate, the plaintiff lacked locus standi to bring the action.

Held, that there was no irregularity in failing to join the executor, or putative executor, of NM's estate, as there was no executor thereto. The deceased's estate had been finalized long before it was discovered that he had made a will. In any event, in terms of r 87(1) of the High Court Rules, non-joinder of a party will not defeat a cause of action.

Held, further, dismissing the exception with costs, that the plaintiff did have locus standi to bring the action, notwithstanding that he was only a beneficiary under the will and not the executor. At common law, he had a right, in terms of a condictio, to recover his inheritance from the second defendant.