NYATHI & ANOR v NCUBE NO & ORS 2011 (2) ZLR 156 (H)

Flynote

Succession — intestate — heirs ab intestato — deceased dying intestate — widow dying intestate thereafter but before deceased's estate wound up — intestate heirs to be ascertained at date when intestacy occurs — entitlement of widow's estate to inherit not erased by her death notwithstanding that her husband's deceased estate had not been wound up — Deceased Estates Succession Act [Chapter 6:02] — s 3A

Headnote

Intestate heirs are, in all cases, to be ascertained at the date when the intestacy occurs.

The applicants were the surviving children of the late DN who died intestate.At the time of his death he had been married to SN. She, however, survived him by only five months before she too died intestate. At the time of her death, she was the executrix dative of the estate of her late husband and had been in the process of winding up that estate, which included various immovable properties. After her death, the first applicant and the first respondent were appointed as joint executor and executrix dative respectively. A dispute, however, arose between them, concerning who was to benefit under the law of intestate succession. At the hearing, it was argued on behalf of the applicants that a deceased estate cannot inherit ab intestato and, therefore, the estate of SN was incapable of inheriting from the estate of the late DN. The respondents, however, placed reliance upon s 3A of the Deceased Estates Succession Act [Chapter 6:02] and submitted that the intestacy of DN occurred as at the date of his death, and not at any subsequent date, and that, in terms of provisions of the Act, SN did inherit from his husband's estate.

Held that the respondent's argument was correct. Upon the death of DN, his widow, SN, became entitled, in terms of the Deceased Estates Succession Act Act to inherit. This entitlement could not be wiped out by her death, five months after the death of DN, so as to allow the applicants to inherit from their father's estate as if SN had pre-deceased him.