Mary Phiri v Henry Phiri N.O. (In his capacity as the Executor Dative in the Estate Late Elmie Ebrahim) and Others

Elmie Ebrahim died on 6 May 2014. The estate was registered with the Master in 2016. The third respondent (deceased's son) was initially appointed Executor Dative but was later removed and replaced by the first respondent, an independent professional executor, appointed on 10 October 2016. On 29 August 2019, a first and final liquidation and distribution account was advertised, awarding an immovable property to the applicant (declared the deceased's surviving spouse) in terms of section 68 of the Administration of Estates Act. A document in the form of an affidavit by the deceased had been submitted to the Master's office from the outset but was not addressed. In October 2019, the third respondent's lawyers enquired about this document which appeared to be intended as the deceased's Will. The Master then made a determination on 11 March 2020 accepting the document as the deceased's last Will and Testament in terms of section 8(5) of the Wills Act, despite non-compliance with section 8(1) formalities (it was not witnessed). The applicant sought to review this decision.

• Whether the Master's decision to accept a non-compliant document as a Will under section 8(5) of the Wills Act was reviewable or appealable
• Whether the Master acted with gross irregularity in determining the status of a document that had not been previously adjudicated
• Whether the Master acted irrationally or unreasonably in accepting the document as a Will
• The distinction between review and appeal procedures in challenging administrative decisions
• Whether re-opening an estate matter after advertising the liquidation account constituted a gross irregularity

The application for review was dismissed with costs.

Where a party challenges the Master's exercise of discretion under section 8(5) of the Wills Act in accepting a non-compliant document as a Will, and the challenge relates to the substantive correctness of that decision rather than procedural irregularity or irrationality, the proper remedy is an appeal under section 8(6) of the Wills Act, not a review under section 27(1)(c) of the High Court Act. Review is concerned with the regularity and validity of proceedings, while appeal is concerned with the correctness of the decision. A decision is only reviewable for gross irregularity if it is so outrageous in its defiance of logic that no reasonable person properly applying their mind to the facts would have arrived at such a decision.

The court noted that the Master exercises quasi-judicial functions when discharging duties and therefore cannot determine a matter already determined as this would open the office to giving conflicting decisions (applying the functus officio principle by analogy). The court observed that it is only a competent court that can pronounce on the validity of a Will and nullify it where necessary. The court also commented that there was nothing in the applicant's conduct deserving of punitive costs, noting that the mere fact the court decided the matter should have come by way of appeal rather than review was no reason to mulct the applicant with punitive costs. The court referenced with approval the principle that the purpose of review is to ensure fair treatment at the hands of administrative authority, not to substitute the court's opinion for that of the administrative body.

This case clarifies the critical distinction between review and appeal in challenging decisions of the Master of the High Court, particularly under the Wills Act. It emphasizes that where a litigant is aggrieved by the substantive correctness of a Master's decision exercising discretion under section 8(5) of the Wills Act (accepting non-compliant documents as Wills), the proper recourse is appeal under section 8(6), not review. Review is limited to procedural irregularities, ultra vires acts, or decisions so irrational they defy logic. The case also reinforces the principle of freedom of testation established in Chigwada v Chigwada, confirming that testators are not bound to leave property to spouses. It provides guidance on the functus officio principle in the context of administrative decisions and clarifies that failure to initially address a matter does not constitute a prior determination.