Federated Properties (Private) Limited v O Masomera (In his capacity as the executor of the Estate Late Selestino Chada) and Others

Selestino Chada died and Miriam Chada was appointed executrix of his estate on 1 May 2008. On 2-3 June 2009, Miriam entered into an agreement of sale with the applicant for property number 727 Glen Norah A. Both Miriam and Ropafadzo Chada were married to Selestino under the African Marriages Act and both had children with him. On 24 September 2009, Ropafadzo instituted proceedings (HC 4474/09) to remove Miriam as executrix, alleging that Miriam had misrepresented facts at estate registration by excluding Ropafadzo and her children as beneficiaries, and was not acting in the beneficiaries' interests. Default judgment was granted, Miriam was removed as executrix, and a new executor (the first respondent) was appointed. The applicant sought validation of the sale agreement and transfer of the property.

• Whether an agreement of sale entered into by an executor whose appointment was procured by fraud is valid and enforceable
• What is the legal effect of removal of an executor on acts conducted during their tenure when the appointment was obtained fraudulently
• Whether acts performed by a fraudulently appointed executor are void ab initio or merely voidable

The application was dismissed with costs ordered against the applicant in favor of the first respondent.

An appointment as executor of an estate that is procured by fraud is null and void ab initio. All acts performed by a fraudulently appointed executor, including agreements of sale of estate property, are tainted with the same illegality and are automatically void without need for a court order to set them aside. Third parties who transact with fraudulently appointed executors acquire no valid rights, as nothing of legal consequence can flow from or be founded upon a fraudulent act.

The court noted that it was unnecessary to determine whether Miriam had entered into the agreement in her personal capacity or representative capacity, and whether she had obtained the requisite authority from the Master of the High Court under section 120 of the Administration of Estates Act [Cap 6:01], given the finding that the appointment itself was fraudulent and void ab initio. The court also observed that the applicant's potential remedy would have been to sue the previous executor personally for her acts, had the appointment been valid.

This case is significant in Zimbabwean (and relevant to South African) jurisprudence as it reinforces the principle that fraud vitiates all acts flowing from it. It establishes that when an executor's appointment is procured by fraud, all acts performed during their tenure are void ab initio and not merely voidable. The case provides important protection for estate beneficiaries and third parties dealing with estates by emphasizing the consequences of fraudulent appointments and the nullity of all subsequent transactions. It demonstrates the application of the principle ex turpi causa non oritur actio (no action arises from a shameful cause) in the context of estate administration.