Matthews Tichaona Kunaka (N.O) (In his capacity as the Executor Dative of the Estate of the Late Ephraim Kunaka) v Chipo Evangelista Gudza (nee Kunaka) and Others

The Late Ephraim Kunaka died on 17 November 1997. His estate (DR 1211/21) comprised one asset: Stand number 3525 Mbare. The applicant was the executor dative of the estate. The applicant, first and second respondents were children of the deceased, while the third and fourth respondents were grandchildren. All beneficiaries were to inherit in equal shares. Between May and June 2025, the applicant proposed selling the estate property by private treaty to meet estate expenses and maximize benefits for beneficiaries. All beneficiaries except the second respondent consented to the sale. The applicant alleged that the first and second respondents had been collecting rentals from tenants at the property for their own benefit, and that the second respondent's son had occupied the property rent-free since 1997. The applicant applied to the Master for consent to sell, but was advised to approach the court due to lack of consensus. The second respondent opposed the application, claiming she had renovated the property at her own expense, that her uncle had declared her the sole beneficiary at a family meeting, and that her son occupied the property as a caretaker. She also raised a preliminary objection based on alleged non-compliance with section 120(2) of the Administration of Estates Act.

• Whether the application complied with section 120(2) of the Administration of Estates Act [Chapter 6:01] regarding the requirement for an affidavit from the Master
• Whether the second respondent had shown good reason under section 120(3) of the Administration of Estates Act for refusing to grant the executor authority to sell the estate property by private treaty
• Whether a liquidation and distribution account must be filed and approved before estate property can be sold
• Whether claims of property renovation and alleged declarations at family meetings constitute good reason to refuse sale authorization

The application succeeded. A provisional order was issued allowing the applicant to sell Stand Number 3525 Mbare, Harare by private treaty for a minimum price of USD 15,000.00.

Under section 120(3) of the Administration of Estates Act [Chapter 6:01], the court must grant provisional authority to an executor to sell estate property by private treaty unless a person with an interest in the estate shows good reason not to grant such authority. Good reason does not include: (1) unsupported claims of sole entitlement based on alleged family meeting declarations without confirmatory evidence; (2) claims for compensation for renovations made without authority and without evidence of nature and cost; (3) arguments that sale is premature because a liquidation and distribution account has not been filed, as section 120 does not impose such a requirement. Following the Administration of Estates Amendment Act No 3 of 2024 (section 10), the Master has discretion whether to file an affidavit in support of applications under section 120, and absence of such affidavit does not render an application defective where the Master exercises discretion not to file one.

The court observed that once a person dies, only the executor is authorized to deal with the deceased person's property, implicitly criticizing the second respondent's unauthorized interference with estate property by conducting renovations before the legal process was finalized. The court also noted that the second respondent's failure to lodge a claim when creditors and debtors were advertised exposed the falsity of her renovation claim. The court made an implicit observation about the importance of proper estate administration procedures and the need for beneficiaries to follow legal processes rather than taking matters into their own hands.

This case clarifies the application of section 120 of the Administration of Estates Act [Chapter 6:01] in Zimbabwean law, particularly: (1) the discretion of the Master to file or not file an affidavit in support of applications for sale of estate property following the Administration of Estates Amendment Act No 3 of 2024; (2) the interpretation of 'good reason' under section 120(3) to refuse authorization for private treaty sales; (3) confirmation that a liquidation and distribution account need not be filed before estate property can be sold; and (4) the principle that unsupported claims of entitlement or renovation costs do not constitute good reason to prevent estate property sales where other beneficiaries consent.