Glenda Paballo Moyo and Beatrice Joyce Moyo v Sinini Moyo and Others

The late Seiso Moyo was first married to the late Constance Moyo, with whom he had two daughters (the applicants). They acquired immovable and movable properties including house number 6 Mangwe Lane, Newton West, Bulawayo. Upon Constance Moyo's death, her estate was wound up and the applicants were each awarded a 25% share of the house, with their father retaining 50%. In 2002, Seiso Moyo married the 1st respondent (Sinini Moyo) and they acquired immovable and movable property during their marriage, including stand 7702 Nketa 7, Bulawayo and stand 290 Justicia Road, Beitbridge. The 1st respondent also purchased a Land Rover Discovery vehicle issued to Seiso Moyo as a Government Minister for US$2,679.20 (paid by Seiso's brother) and later sold it for US$82,000.00. When Seiso Moyo died, the 2nd respondent (executor) prepared a final liquidation and distribution account that excluded several assets and awarded the entire 50% of Seiso Moyo's share in the Newton West house to the 1st respondent, despite her not living there at the time of death. The 3rd respondent (Assistant Master) confirmed this account on 3 July 2015.

• Whether the application for review was competent despite being filed outside the 30-day period stipulated in section 52(9)(1) of the Administration of Estates Act
• Whether the executor erred in excluding certain assets (Land Rover Discovery vehicle, stand 7702 Nketa 7, and stand 290 Justicia Road, Beitbridge) from the estate
• Whether the executor and Master erred in awarding the entire 50% of Seiso Moyo's share in the matrimonial home to the surviving spouse in contravention of section 3A of the Deceased Estates Succession Act
• Whether property registered in the surviving spouse's name acquired during the marriage constitutes matrimonial property subject to distribution

1. The final liquidation and distribution account in the Estate of the Late Seiso Moyo DRB 34/13 prepared by the 2nd respondent and confirmed by the 3rd respondent on 3 July 2015 was set aside. 2. The 3rd respondent (Assistant Master) was ordered to convene a special meeting with due notice to the applicants and all interested parties for resolution of the disputes affecting the estate. 3. Costs were awarded against the 1st respondent on the ordinary scale (not attorney and client scale as requested).

1. The use of 'may' rather than 'shall' in section 52(9)(1) of the Administration of Estates Act renders the 30-day limitation period for review applications directory rather than peremptory, allowing the court discretion to condone non-compliance. 2. Property acquired during a marriage constitutes matrimonial property subject to distribution in the deceased estate, regardless of which spouse's name it is registered in. 3. Section 3A of the Deceased Estates Succession Act only entitles a surviving spouse to the matrimonial home if they were living in it immediately before the deceased's death. 4. Where a deceased is survived by a spouse and descendants from a previous relationship, and the marriage was out of community of property, the children are entitled to inherit part of the deceased's estate pursuant to section 3(b) of the Deceased Succession Act. 5. Personal rights to acquire property held by the deceased at the time of death must be exercised by the executor for the benefit of the estate, not appropriated by individual beneficiaries.

The court observed that the executor and Master's acceptance of the 1st respondent's personal enrichment through registration of the Land Rover Discovery in her name (after it was paid for by the deceased's brother for the estate's benefit) without legal justification amounted to 'gross irregularity and bias'. The court also noted that it was 'absurd' to conclude that the deceased did not jointly own property acquired during the marriage merely because it was registered in the surviving spouse's name, particularly where documentary evidence showed the deceased had applied for the property.

This case is significant in South African/Zimbabwean succession law as it clarifies several important principles: (1) The interpretation of 'may' versus 'shall' in statutory time limits for review applications relating to estate administration; (2) The proper treatment of matrimonial property in deceased estates, particularly where property is registered in one spouse's name but acquired during the marriage; (3) The application of section 3A of the Deceased Estates Succession Act regarding entitlement to the matrimonial home, emphasizing that the surviving spouse must have been living in the property immediately before death; (4) The rights of children from a previous marriage to inherit from their parent's estate when there is a surviving spouse from a subsequent marriage; (5) The duty of executors and the Master to properly investigate and include all estate assets, including personal rights that should be exercised by the estate.