Ivy Ndadzungira v John Gonese (In his capacity as the Executor of the Estate of late Edmond Gonese DR 1720/06) and The Master of the High Court N.O

The late Edmond Gonese passed away intestate on 8 July 2006. He had been involved with three different women during his lifetime. He was first married to Lucky Gonese under general law, which marriage was dissolved by consent on 7 April 1993. They had acquired a property at No 110 Lomagundi Road, Avondale (the Avondale property), with the deceased retaining a 50% share under the divorce settlement. He then married Senia Philemon in customary law (1993) later solemnized under general law (1995), who predeceased him in 2002/2004. They acquired property at No 4 Christonbank, Mazoe (the Christonbank property). The applicant claimed she entered into a customary law union with the deceased on 10 January 2004 and lived with him at the Christonbank property until his death in 2006. The first respondent, the deceased's brother, was appointed Executor Dative on 14 May 2007. At the edict meeting on 21 November 2006, the applicant was listed as "wife". The First and Final Liquidation and Distribution Account was prepared excluding the applicant as a beneficiary and omitting the Avondale property. This plan was approved by the Master on 3 March 2009. The applicant only discovered this exclusion on 29 November 2011 when she visited the Master's office.

• Whether the applicant had locus standi to bring the review application
• Whether it was appropriate to approach the court by way of review rather than appeal under section 68J of the Administration of Estates Act
• Whether the applicant was validly married to the deceased under customary law and thus qualified as a surviving spouse
• Whether the Executor's omission of the applicant as a beneficiary and exclusion of the Avondale property from the distribution plan constituted gross irregularity
• Whether the Master's approval of the defective distribution plan was improper

1. The distribution plan authorised on 3 March 2009 by the second respondent was set aside. 2. The inventory of immovable properties was amended to include the deceased's interest in property number 110 Lomagundi Road, Avondale, Harare. 3. The Master of the High Court was directed to administer the estate of the late Edmond Gonese in accordance with section 68F of the Administration of Estates Act [Cap 6:01]. 4. The first respondent was ordered to pay the costs of the application.

An unregistered customary law union constitutes a valid marriage for purposes of succession under Part IIIA of the Administration of Estates Act [Cap 6:01], by virtue of section 68(3). A surviving spouse in such a union has locus standi as a beneficiary and must be consulted by the executor in drawing up the inheritance plan in terms of section 68D(2)(b). The executor must include all assets of the deceased in the distribution plan and be guided by section 68F of the Act. The failure to consult a surviving spouse, the omission of a surviving spouse as a beneficiary, and the exclusion of estate assets from the distribution plan constitute gross irregularities justifying review under section 27(1)(c) of the High Court Act [Cap 7:06]. The Master's approval of a defective distribution plan that violates statutory requirements is improper and subject to review.

The court observed that while it did not make a definite finding on whether section 68J of the Administration of Estates Act (which provides for appeals against decisions of the Master) might be the more appropriate remedy, the provisions of section 68J do not necessarily preclude a party from approaching the court by way of review. The court noted that it was unfortunate that neither counsel could meaningfully address this procedural point. The court also commented that the first respondent's conduct in opposing the application was inappropriate given the clear evidence and the Master's concessions, noting that the first respondent "has not demonstrated the objectivity expected of an executor in such matters."

This case is significant in Zimbabwean succession law as it affirms the rights of spouses in unregistered customary law unions under Part IIIA of the Administration of Estates Act. It establishes that customary law unions are valid marriages for succession purposes even without formal registration under the Customary Marriages Act. The judgment reinforces the duty of executors to act objectively and inclusively in administering estates, particularly in consulting all potential beneficiaries including surviving spouses. It also demonstrates the court's willingness to intervene by way of review to protect the rights of beneficiaries where there has been gross irregularity in the administration of estates, and confirms the Master's duty to properly scrutinize distribution plans before approval. The case highlights the importance of procedural fairness in estate administration and the protection of vulnerable beneficiaries, particularly surviving spouses under customary law.