Online Reporter
Trust Maanda
Legal Position
AN executor is responsible for managing, protecting, and distributing a deceased person’s estate according to the Administration of Estates Act [Chapter 6:01] and the will if one exists.
His or her duties include protecting the estate by taking physical possession of assets, secure property, and ensure assets are maintained, and prepare a detailed account detailing the estate’s financial status and the proposed distribution of assets among beneficiaries.
He or she submits that to the Master of the High Court.
An executor must act in good faith and with due care.
An executor can be removed from office on the grounds provided for in terms of Section 117 of the Administration of Estates Act. This section empowers the Master of the High Court to apply to the High Court for the removal from office of an executor who fails to perform his or her functions.
The other way for the removal of an executor is for the beneficiaries or interested persons to make an application for the removal of the executor.
In making the application, they apply the common law, whereas the Master approaches the court via a statutory provision that empowers him or her to do so.
Although any interested party can apply for removal of an executor, the courts have always held that it is incumbent upon them to first exhaust domestic remedies availed by statute before approaching the court.
This means that the one who seeks the removal of the executor has to follow what the statute says before he or she takes it upon himself or herself to go to court if such grounds fall within what is provided for in the Administration of Estates Act as the basis for which the Master may seek the removal of an executrix.
In the words of MAKARAU JP (as she then was) in Katirawu v Katirawu 2007 (2) ZLR 64 at 69D-G:- “While Section 117 (1) empowers the Master to approach the court for the removal of an executor for the listed grounds, in my view, such a power granted 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 power granted to the Master by Section 117 is, in my view, complementary to the inherent power of the court at common law”.
The beneficiary in the estate has the capacity to approach the court at common law to move for the removal of an executor.
Section 116 (1) of the Administration of Estates Act empowers the Master to inquire into the conduct of an executrix if it appears to the Master that any executor, tutor or curator is failing or neglecting to perform satisfactorily his or her duties or to observe all the requirements imposed upon him or her by law or otherwise in regard thereto, or if any complaint is made to the Master by any creditor, legatee or heir in regard thereto.
If the master is of the opinion that such person is no longer suitable to hold such office, he or she may apply for his or her removal from his office.
It is to the Master that complaints pertaining to the conduct of an executor should be directed at the first instance, who will decide whether to apply for their removal from office or not.
In Matsinde v Nyamukapa 2006(2) ZLR 200(H) the court said: “I pause here to observe that the removal of an executor dative in my view should primarily be done by the Master on good cause shown. The appointment of an executor is an administrative function in the hands of the Master.
It is therefore to him that allegations of unbecoming conduct by an executor should be made in the first instance.
The decision of the Master to remove or to retain the executor after complaints have been lodged with him is then brought on review to this court on the recognised grounds of review of an administrative decision.”
Where a statute has provided domestic remedies, a litigant should resort to such unless there are good and sufficient reasons for not utilising the remedy.
The Master is better placed to inquire into and to attend to the principal basis of the complaint.
Section 116 is clear on what someone with a complaint on the conduct of an executor in the administration of an estate can do.
A beneficiary who approaches the court under common law for the removal of an executrix, where grounds for seeking such removal fall within the ambit of Section 117, must first exhaust the domestic remedies provided.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or [email protected]
