Goodwill Nkala v Nomsa Hazel Ncube N.O. and Others

The late Alice Nkala died testate on 10 February 2010, bequeathing a house (stand 44908 Mzilikazi Township, Bulawayo) to her four children - the applicant and his three sisters - in equal 25% shares each. The will directed that the house be sold and proceeds shared equally. She nominated Nomsa Hazel Ncube (1st respondent), a Senior Partner at Lazarus and Sarif legal practitioners, as Executrix Testamentary. The applicant initially claimed $8,000 for improvements he made to the house, which was granted by consent order, but he was also ordered to pay $2,500 in arrear rentals and outstanding utility bills. For over 10 years, the applicant obstructed the administration of the estate by withholding consent for the sale, frustrating two potential sales (including one to Berthi Moyo in December 2013), disputing property valuations, insisting on a Section 120 certificate, and refusing to cooperate despite being given opportunities to buy out his sisters' shares. The executrix instituted multiple court proceedings to execute the will and sell the property. The applicant brought this application challenging the executrix's actions.

• Whether the Executrix Testamentary properly administered the estate in accordance with the Administration of Estates Act and the testator's will
• Whether a certificate in terms of Section 120 of the Administration of Estates Act was required before the property could be sold
• Whether the consent of all beneficiaries was required before the property could be sold pursuant to the will
• Whether the executrix acted fraudulently, recklessly, or improperly in her administration of the estate
• The proper duties and powers of an executor in administering a deceased estate

The application was dismissed with costs.

1. An executor must administer and distribute an estate according to law and the provisions of any will relating to that estate (Section 52(1) Administration of Estates Act). 2. There is no legal requirement that a certificate in terms of Section 120 of the Administration of Estates Act must always be issued before estate property can be sold. 3. Section 120 authority is only required when the Master is of the opinion that it would be advantageous to sell property otherwise than by public auction, and only where the will contains no provision to the contrary. 4. Where a will specifically directs that property be sold, the executor has the authority to execute that direction without obtaining a Section 120 certificate. 5. There is no legal requirement for beneficiaries' consent before a Section 120 authority is granted or before property is sold pursuant to a testamentary direction. 6. An executor, particularly one who is a legal practitioner and officer of the court, occupies a position of trust and must administer the estate with good faith, diligence, timeously, and for the benefit of all beneficiaries. 7. Individual beneficiaries cannot obstruct the proper administration of an estate by withholding cooperation or consent where the executor is properly executing the testator's wishes as expressed in the will.

The court observed that the estate administration taking over 10 years was "undesirable" from the onset. The court noted that "one could well say that another child would probably not have made a claim against his own mother's estate for such improvements" - commenting on the applicant's claim for improvements. The court observed that the applicant "unwittingly behaves as if the property is in fact his or should be his" and appeared never to have intended to actually pay his sisters their shares when proposing to "buy them out." The court distinguished the case from Katsande v Katsande 2010 (2) ZLR 82 (H), noting that case involved minors and a will that specifically prohibited sale except in certain circumstances, whereas the present case involved adult beneficiaries and a will that directed the sale. The court clarified that Section 120 is silent on the form of the authority and there is no law requiring the Master to issue written authority - verbal authority to sell may suffice. The court noted that strict provisions apply under Section 122 where minors are involved as beneficiaries, in which case the executor must approach the Master for Section 120 authority, and the Master must properly exercise discretion and may need to approach a Judge in Chambers for guidance.

This case is significant in Zimbabwean law (applicable to South African jurisprudence given similar legislative frameworks) for clarifying the scope and application of Section 120 of the Administration of Estates Act. It dispels the common misconception that a Section 120 certificate is always required before estate property can be sold, and establishes that where a will specifically directs the sale of property, the executor may proceed without such authority. The case also reinforces the principles governing the duties of executors, emphasizing that they occupy positions of trust and must act in the best interests of all beneficiaries, not be obstructed by individual beneficiaries acting in self-interest. It demonstrates the court's willingness to protect the efficient administration of estates against beneficiaries who use technical objections and litigation to frustrate the executor's legitimate execution of testamentary wishes. The judgment provides important guidance on the interpretation of estate administration statutes and the balance between beneficiary rights and efficient estate administration.