Jefferson Tsuro Mhanda v Martha Mufaro Mhanda and Master of the High Court

Wilfred Mhanda died intestate on 28 May 2014. The applicant and first respondent are siblings of the deceased. The Master of the High Court (second respondent) appointed the first respondent as executrix dative of the deceased's estate on 15 April 2016. The applicant, who is a brother to both the first respondent and the deceased, challenged this appointment on the basis that there was substantial conflict and bad blood within the family, such that only a neutral person should have been appointed as executor. The applicant made various allegations against the first respondent, including that she owed the estate money, had dissipated estate assets, and did not enjoy good relations with the deceased during his lifetime. These allegations were raised with the Master, who did not see justification to remove the first respondent from her position.

• Whether the Master erred in appointing the first respondent as executrix dative given alleged family conflict
• Whether the first respondent's appointment should be reviewed and set aside under section 26(3) of the Administration of Estates Act
• Whether the first respondent should be removed from her position as executrix dative on the grounds of misconduct or unsuitability
• What constitutes sufficient grounds for removal of an executor at common law and under section 117 of the Administration of Estates Act

The application was dismissed with costs.

Potential bias on the part of an executor is not sufficient ground to set aside the appointment of an executor. For removal of an executor to be justified, the applicant must prove positive misconduct, acts or omissions that endanger the estate property, or demonstrate a want of honesty, proper capacity to execute duties, or reasonable fidelity. Mere allegations without supporting evidence, particularly where they amount to one party's word against another's in the context of family conflict, are insufficient to meet the onus of proving that an executor has failed to perform duties satisfactorily or has acted prejudicially to the estate.

The court observed that the parties' pleadings revealed nothing more than a deep-seated family conflict in which members had taken positions and thrown missiles at each other, with each group claiming superiority. The court noted that the parties seemed to have built oceans between themselves and their differences appeared to widen by the day. The court commented that whatever their differences, the law relating to removal of executors is fairly settled. The judgment also noted that while the Master can approach the court for removal of an executor under section 117 of the Administration of Estates Act, any interested person can equally approach the courts for the same purpose under common law, citing Katirawu v Katirawu & Ors HH 58/07.

This case reinforces the principle that removal of an executor from office requires more than mere allegations or family conflict. It clarifies that potential bias alone is insufficient grounds for setting aside an appointment as executor, and that applicants must provide concrete evidence of misconduct, failure to perform duties, or actual prejudice to the estate. The judgment emphasizes the high threshold required for removal of executors and the court's reluctance to interfere with the Master's decision absent clear proof of unfitness or misconduct. It serves as authority for the proposition that family disputes and allegations unsupported by evidence will not justify removal of an appointed executor.