Henrietta Nyanyiwa v Master of the High Court and Others

The applicant was a beneficiary of the Estate of the Late Edward Nyanyiwa. The second respondent was appointed executor of the estate on 21 March 2019. On 25 August 2020, the applicant's legal practitioners wrote two letters of complaint to the first respondent (Master of the High Court) concerning: (1) the valuation of shares held by the deceased in various companies, arguing that proper valuation had not been done as required by the Estate Duty Act, Chapter 23:03; and (2) the executor's fee of 15% of the estate's gross assets, which the applicant contended should be the statutory 5%. The first respondent called upon the second respondent to comment on the complaints and subsequently dismissed them for want of substance. The applicant challenged this decision, seeking to set aside the interim liquidation and distribution accounts and have the executor removed from office.

• Whether the interim distribution account for the Estate of Late Edward Nyanyiwa should be set aside
• Whether the valuation of the deceased's shares in companies not listed on the stock exchange complied with section 6(1)(g) of the Estate Duty Act [Chapter 23:03]
• Whether the Master's decision to confirm the liquidation and distribution accounts constituted gross irregularity or illegality warranting judicial review
• Whether the executor's fees of 15% were lawful, fair and reasonable, or should be limited to 5%
• Whether the executor should be removed from office under section 117 of the Administration of Estates Act [Chapter 6:01]
• The proper interpretation of 'brought to account' in the Estates Administrators (Registration and Examination) (Amendment) Regulations, S.I. 50/2017 as read with S.I. 59/2018

1. The first respondent's decision to confirm the second respondent's interim liquidation and distribution accounts in the estate of the late Edward Nyanyiwa under DR Number 471/19 was set aside. 2. The interim liquidation and distribution accounts filed by the second respondent were set aside. 3. The second respondent was removed from the position of executor dative for Estate Edward Nyanyiwa DR 471/19. 4. The first respondent was ordered to appoint an impartial person within ten days to carry out a proper valuation of the shares held by the late Edward Nyanyiwa in all companies. 5. It was declared that the executor for Estate late Edward Nyanyiwa shall charge fees at five percent (5%) of the gross value of the estate. 6. Costs were awarded against the second respondent.

The binding legal principles established are: (1) Section 6(1)(g) of the Estate Duty Act requires that shares in companies not listed on a securities exchange must be valued by sworn valuation by an impartial person appointed by the Master - this is a mandatory requirement and non-compliance renders the valuation invalid. (2) The Master has a statutory duty under section 56 of the Administration of Estates Act to assess whether an executor's remuneration is fair and reasonable when objections are raised by beneficiaries, and cannot simply accept the executor's proposed fees without such assessment. (3) The phrase 'brought to account' in the Estates Administrators Regulations means assets actually recovered or added to the estate by the executor's efforts, not merely all assets listed in the estate accounts. Therefore, an executor cannot charge both the basic 5% fee and the additional 10% fee on the same assets - this constitutes impermissible 'double dipping'. (4) An executor commits a gross irregularity by commissioning unnecessary audits of companies (separate legal entities) rather than simply valuing the deceased's shares in those companies, and cannot charge such expenses to the estate. (5) Removal of an executor is justified under section 117 of the Administration of Estates Act where the executor has failed to perform duties satisfactorily, including charging unreasonable fees and conducting the estate administration in a manner that shows brazen disregard for proper procedures and beneficiaries' interests.

The court made several important observations: (1) It noted that the second respondent's fee of 15% would make him the major beneficiary of the estate ahead of the deceased's own family, receiving more than the deceased's junior wife and children and almost as much as the senior wife's share - running into several million US dollars for a few months' work. (2) The court observed that a 5% fee would still translate to a very substantial amount by any standard and would constitute more than reasonable remuneration for the executor given the value of the estate. (3) The court commented on the 'brazen attitude' displayed by the second respondent in disposing of estate assets with the Master's consent despite pending court challenges. (4) The court noted the 'partisan approach' adopted by the first respondent (Master) in supporting what was 'an obvious misinterpretation of the law'. (5) The court observed that it is trite that what is not disputed in affidavits is taken as admitted, and noted that neither the first nor second respondents dared to argue that the 15% fee was reasonable or fair. (6) The court commented that the first respondent's interpretation of the regulations appeared to be based on his personal understanding rather than being supported by any law or court decision.

This case is significant in Zimbabwean estate administration law as it clarifies: (1) the strict requirements for valuation of shares in unlisted companies under section 6(1)(g) of the Estate Duty Act, emphasizing that only a sworn valuation by an impartial person appointed by the Master will suffice; (2) the Master's duty to actively assess the reasonableness of executor's fees under section 56 of the Administration of Estates Act when objections are raised, rather than passively accepting the executor's claims; (3) the interpretation of 'brought to account' in the executor's fee regulations, establishing that the additional 10% fee applies only to assets actually recovered or added by the executor's efforts, not to all estate assets; (4) that executors cannot charge expenses for unnecessary work (such as auditing companies that are separate legal entities) to the estate; and (5) the circumstances justifying removal of an executor, including overcharging beneficiaries and showing a brazen disregard for proper procedures. The case serves as an important protection for estate beneficiaries against executor overreach and emphasizes the Master's gatekeeping role.