The applicant was appointed as executrix in the estate of the late Marie Joan McKelvey. The respondent was an employee of the deceased who occupied property at 68 Central Avenue, Harare solely in his capacity as employee. The deceased died on 6 March 2009. The respondent's employment ceased three months after the employer's death, and his right to occupy the property ceased one month after the end of his employment (on 6 July 2009). The applicant sought to evict the respondent from the property, which was an asset of the estate. The respondent brought proceedings under Case No. HC 2573/14 claiming to nullify the deceased's last will and testament, alleging that the deceased had shown him a different will naming him as a beneficiary. The respondent alleged fraud in the current will and claimed to be the rightful heir. The applicant applied for summary judgment on the basis that the respondent's defence was frivolous, vexatious, and an abuse of process. The respondent appeared in person and could not produce any copy of the alleged alternative will, and his witness who allegedly saw it had migrated to South Africa.
Summary judgment was granted in the applicant's favour. The Sheriff or his Deputy was directed to eject the respondent and all persons claiming occupation through him from the premises at 68 Central Avenue, Harare. The respondent was ordered to pay the applicant's costs of suit.
An employee cannot become an heir to an employer's estate unless specifically named in a valid will. A defendant will only defeat an application for summary judgment if he raises a bona fide defence with sufficient clarity and completeness, alleging facts which, if established, would entitle him to succeed. Contradictory averments that are demonstrably insincere do not constitute a bona fide defence. A person who is not related to the deceased, not entitled to be maintained by the deceased, and not an heir on intestacy lacks locus standi in judicio to challenge the validity of a will. Nothing less than a valid will executed in accordance with the Wills Act can make such a person a beneficiary of an estate. Verbal assurances or alleged sightings of alternative wills, without substantiation, do not create valid testamentary dispositions or enforceable rights to estate property.
The court observed that the respondent appeared to be prolonging litigation merely to extend his wrongful occupation of the premises, from which he was deriving benefit by running a private business, thereby depriving the rightful beneficiaries of their rights. The court noted that even if the respondent were to prove that the deceased's will should be invalidated (which he had no locus standi to do), the invalidation would not have entitled him to any benefit since he was not an heir on intestacy, and any alleged verbal statement by the deceased would not have changed that fact.
This case clarifies the principles governing summary judgment applications in Zimbabwe, particularly where a defendant presents contradictory and unsubstantiated defences. It reinforces the principle that an employee has no automatic right to inherit from an employer's estate in the absence of a valid testamentary disposition. The case also addresses locus standi requirements for challenging the validity of a will, establishing that a person who is not a beneficiary or heir on intestacy lacks standing to challenge a will. It demonstrates the court's approach to dealing with vexatious litigation aimed at prolonging the administration of estates and the occupation of estate property.