Christine Achitsongoreri v Mildred Hove and The Additional Assistant Master, Kwekwe

The deceased, Kidwell Achitsongoreri, died on 6 April 2023. He was customarily married to the 1st respondent, Mildred Hove, with whom he had three children. The applicant (the deceased's mother) alleged that prior to his death, the deceased had separated from the 1st respondent on 13 March 2022 due to suspected infidelity and had expressed doubts about the paternity of the three children. Following the deceased's death, disputes arose between the families concerning the administration of the estate. The Master's office appointed both the applicant and the 1st respondent as Co-Executrices Dative under case DRKK 77/23. The applicant alleged that the 1st respondent unilaterally prepared an inventory and published public notices to creditors and debtors in newspapers and the Government Gazette without the applicant's knowledge or consent. The applicant objected through her legal practitioners, and after receiving no response, filed submissions with the Master. On 2 December 2024, the 2nd respondent (Additional Assistant Master) issued a determination accepting and confirming the 1st respondent's unilateral actions. The applicant brought this review application under Rule 62 of the High Court Rules, 2021, to set aside the Master's determination.

• Whether the 2nd respondent erred in law or committed a gross irregularity by confirming and accepting the 1st respondent's unilateral administration actions despite the express requirement that co-executors must act jointly
• Whether the 1st respondent's unilateral actions in making an inventory and publishing public notices without consulting the applicant constituted a breach of fiduciary duty amounting to gross irregularities warranting review of the 2nd respondent's decision
• Whether the Master erred in allowing the administration process to proceed when the identity of beneficiaries remained contested

1. The application for review was granted. 2. The decision by the 2nd respondent to accept the 1st respondent's unilateral actions of making an inventory and public notices to creditors and debtors without the knowledge and consent of the applicant was set aside. 3. A new inventory shall be prepared and public notices to creditors and others be advertised by both applicant and 1st respondent within two months of the order. 4. The 1st respondent to pay costs of suit on an ordinary scale.

Where multiple executors dative are appointed to administer an estate, they hold a joint mandate and must act jointly in all fundamental steps of estate administration, including the preparation of inventories and publication of notices to creditors and debtors. Actions undertaken unilaterally by one co-executor without the knowledge or consent of the other co-executor are ultra vires and constitute procedural nullities. A determination by the Master of the High Court confirming such procedurally flawed unilateral steps as proper and legitimate amounts to judicial endorsement of a nullity and constitutes a gross irregularity subject to review. The Master has a supervisory duty to ensure that where reasonable doubt exists regarding the identity of heirs, particularly when raised by a co-executor acting in their fiduciary capacity, such matters must be investigated and resolved before the estate administration proceeds to distribution.

The court observed that while the failure to investigate contested heirship was not strictly the subject of review proceedings, it is advisable for parties to attend paternity tests to ensure that the assets of a deceased are distributed to the lawful and real beneficiaries. The court noted that in modern Zimbabwean law, where reasonable doubt exists regarding the identity of heirs rooted in the deceased's own actions (such as separation due to infidelity) and raised by a co-fiduciary under oath, the executor has a duty to take steps to clarify heirship before the Liquidation & Distribution account is finalized. The court commented that the 1st respondent's refusal to consent or cooperate with DNA testing appeared to be a deliberate attempt to evade accountability.

This case is significant in Zimbabwean law as it reinforces the principle that co-executors dative must act jointly in administering estates and cannot undertake unilateral actions in fundamental steps of estate administration. It clarifies the scope of judicial review of the Master's decisions in estate administration, establishing that the Master's endorsement of procedurally flawed unilateral actions by one co-executor constitutes a gross irregularity subject to review. The case also establishes that where there is reasonable doubt about the identity of heirs, particularly when raised by a co-executor acting in their fiduciary capacity, the Master has a supervisory duty to ensure that such matters are resolved before the estate administration proceeds to distribution. The judgment emphasizes the fiduciary duties owed by executors to estates and reinforces the Master's supervisory role in ensuring lawful and proper estate administration.