MUCHINI v ADAMS & ORS 2011 (2) ZLR 219 (H)

Flynote

Administration of estates — estate property — disposal of before executor appointed — when property may be disposed of — purposes for which property may be disposed of

Headnote

The appellant bought a house which was part of a deceased estate. The deceased had died intestate and his widow sold the house, although no executor had by then been appointed. The appellant moved in but did not pay for the house. The widow then sought an eviction order, on the grounds that the sale was invalid.

Held, that in terms of s 21 of the Administration of Estates Act [Chapter 6:01], it was the widow's duty to keep custody of the property until the appointment of an executor or executor dative. In terms of s 41 of the Act, a person who takes it upon himself to administer a deceased estate outside the provisions of the Act becomes personally liable to the creditors for all debts due by the estate should there be a shortfall in the payment of such debts. That person is only excused from such personal liability if his actions were "absolutely necessary" for, among other things, the subsistence of the family or household. It would thus be permissible to use estate property for, inter alia, providing a suitable funeral for the deceased, providing for the subsistence of the deceased's family or household, or the safe custody or preservation of any part of such property, e.g, it may be necessary to purchase feed for cattle. In this case, the facts did not show that the house was sold in circumstances which satisfied the exception provided by s 41 of the Act. The sale thus violated s 21 of the Act.