The applicant was the surviving spouse of the late Samson Maseko who died on 13 August 2013. The first to fourth respondents were sisters of the late Samson Maseko. They were all siblings born of the late Ellen Sikwayara who died intestate on 20 March 1996. The respondents registered their late mother's estate 18 years after her death as DRBY 692/14 and administered it to the exclusion of the applicant and her children. The main asset was a house (stand 44539, K27 Mzilikazi, Bulawayo). The first respondent, acting as executrix, drew up a distribution account confirmed on 25 February 2015 that parceled out the house to the four surviving daughters only, excluding the estate of the late Samson Maseko. The applicant argued that she and her late husband had developed the house and that as the only son, her late husband was entitled to inherit from his mother's estate. The first respondent had registered the estate while the applicant had approached the court in HC 2012/14 seeking registration of the estate. The applicant alleged fraudulent conduct by the first respondent.
1. The winding up of the estate of late Ellen Sikwayara in terms of the letters of administration issued under DRBY 692/14 is declared null and void and is set aside. 2. The estate in question is re-opened for administration de novo. 3. The fifth respondent shall appoint an independent executor to wind up the estate in question. 4. Each party shall bear its own costs.
Intestate heirs must be ascertained at the date when the intestacy occurs (i.e., at the date of death of the deceased), not at the date when the estate is subsequently administered. Where a person was alive at the time of the intestacy and therefore inherited under the applicable law at that time, their subsequent death before the formal winding up of the estate does not disentitle their own estate from inheriting. A deceased estate can inherit from another estate where the heir survived the deceased and therefore acquired inheritance rights before their own death. This is distinguishable from situations where the intestate heir dies before the intestacy occurs, in which case the common law principle that a deceased estate cannot inherit ab intestato would apply.
The court made observations about the ongoing animosity between the applicant and her sisters-in-law, noting that "brickbats have been flying" between them and there was "no love lost between them as they threaten to annihilate each other over the estate in question several years after Ellen Sikwayara met her maker." The court found it prudent in such circumstances to appoint an independent executor who is not one of the beneficiaries to undertake the winding up of the estate. The court also made a critical observation about legal practitioners not reading notices of set down, noting that the applicant's lawyer Mr Shenje was late for court because he thought the hearing commenced at 10am rather than 9am, commenting "So much for serving parties with notices of set down. Some of them do not bother reading the notices."
This case clarifies an important principle in Zimbabwean succession law regarding the timing of determination of intestate heirs and the distinction between situations where an heir dies before versus after the intestacy occurs. It confirms that intestate heirs are ascertained at the date of death (when intestacy occurs), not at the later date when the estate is administered. The case also demonstrates the application of customary law principles that applied before the statutory reforms of 1997, particularly regarding male primogeniture in intestate succession. It establishes that where an heir has already inherited (because they were alive when intestacy occurred), their estate retains that inheritance even if they subsequently die before the estate is formally wound up. This prevents the disinheritance of estates of heirs who died after the deceased but before estate administration.