John Bourchier Meyburg N.O. (In his capacity as Executor of The Estate of the Late Anthony Joseph Levey) v Chrispen Benjamin and Benhilda Benjamin

The applicant was appointed executor of the estate of Anthony Joseph Levey who died on 21 May 2007. The deceased owned property at 104 Rhodesville Avenue, Highlands Harare. Following the deceased's death, his ex-wife Moira Jane Whitfield entered into negotiations with the respondents (husband and wife) for the sale of the property. On 20 August 2009, before the applicant was formally appointed as executor, the respondents made an offer to purchase the property through Action Property Sales, which Whitfield accepted. The sale was subject to the Master's approval under s 120 of the Administration of Estates Act. Whitfield gave the respondents occupation from 1 September 2009. On 2 September 2009, Whitfield attended the applicant's office with an estate agent, where the applicant advised he had no authority to enter into a formal agreement as he had not yet been appointed executor. The applicant was only appointed executor by the Master on 22 January 2010. The respondents agreed to pay US$120,000 in installments and to pay US$200 per month rent until full payment. On 30 October 2009, Whitfield sought to revoke the agreement. The applicant then sought eviction and damages from the respondents.

• Whether a valid contract of sale was concluded between the parties when neither party had the legal capacity to enter into such a contract
• Whether Whitfield, as the deceased's ex-wife acting before the executor's appointment, had authority to bind the estate
• Whether the applicant was entitled to recovery of the property through rei vindicatio (actio vindicatio)
• Whether the applicant was entitled to damages for occupation of the property

The court declared that no valid agreement of sale was entered into between the applicant and the respondents. The respondents and all persons claiming through them were ordered to vacate the property within 30 days, failing which the Deputy Sheriff was authorised to evict them. The respondents were ordered to pay rent of US$1,200 for the period 1 September 2009 to 30 July 2010, plus holding over damages of US$200 per month from 1 August 2010 to the date of vacation. The respondents were ordered to pay costs of suit.

An executor must be formally appointed and issued with letters of administration in terms of s 25 of the Administration of Estates Act before he or she can act on behalf of the estate. Until such appointment and issuance of letters, the prospective executor lacks the requisite legal capacity to enter into contracts on behalf of the estate or to authorise others to do so. A contract of sale entered into in respect of estate property before the executor's formal appointment is void ab initio for lack of capacity, even if entered into by a person nominated as executor in the will. An agent cannot contract on behalf of a non-existent principal. In an actio vindicatio action, the possessor can only resist eviction by proving some right which is enforceable against the owner of the property.

The court noted that it would have been difficult for the respondents to dispute the quantum of US$200 per month as they had conceded in their opposing affidavits that they had agreed to pay this amount as rent. The court observed that the condition in the purported contract relating to the Master's approval was imposed in the erroneous belief that the parties who had entered into the agreement had the capacity to do so, which they clearly did not have, as at the time they entered into the contract it was not legally permissible for anyone to represent the estate.

This case reinforces the fundamental principle in the administration of estates that only a duly appointed executor with letters of administration has the legal capacity to act on behalf of a deceased estate. The judgment confirms that contracts entered into on behalf of an estate before the executor's formal appointment are void ab initio, regardless of testamentary nomination or pending appointment. It is significant in property and estate law for clarifying that third parties dealing with estate assets before formal appointment of an executor do so at their own risk, even where the prospective executor is known and appointment is anticipated. The case also demonstrates the application of the actio vindicatio remedy and the requirement that a possessor must prove an enforceable right against the owner to resist eviction.