Otilia Mpepereki v Diana Nyaradzo Mpepereki (In her capacity as executrix testamentary of the Estate of the Late Sheunesu Mpepereki DR 1631/21) and Others

The applicant, Otilia Mpepereki, was the surviving spouse of the late Sheunesu Mpepereki who died in July 2021. The first respondent, Diana Nyaradzo Mpepereki, was the only surviving child and was appointed executrix testamentary in terms of a will registered under DR 1631/21. The will directed that an immovable property at 22 Dulverton Drive, Glen Lorne, Harare be sold and that the applicant be given USD 50,000 to purchase her own property. The property was sold in January 2022 with the Master's consent. The applicant challenged the authenticity of the will through a separate action (HC 2782/22) alleging it was fraudulent. Upon learning in October 2022 that transfer of the property was imminent, the applicant brought this urgent chamber application seeking to interdict the transfer and suspend the first respondent's letters of administration pending determination of the action challenging the will. The first respondent disputed that the property was ever the matrimonial home, claiming the deceased had acquired it with his former wife and that he and the applicant had been tenants elsewhere from 2010 to 2021.

• Whether the matter was urgent despite the sale having been concluded in January 2022
• Whether the court has jurisdiction to suspend (as opposed to remove) an executrix testamentary
• Whether the relief sought was competent under the Administration of Estates Act
• Whether the purchaser should have been cited as a party
• Whether the applicant established the requirements for an interim interdict: (a) a prima facie right though open to some doubt, (b) well-grounded apprehension of irreparable injury, (c) absence of ordinary remedy, and (d) balance of convenience

The court granted a provisional order with interim relief: (1) interdicting the first, second and third respondents from transferring the property at 22 Dulverton Road, Glen Lorne pending determination of HC 2782/22; (2) temporarily suspending the letters of administration issued to the first respondent and interdicting her from performing any functions as executrix testamentary pending determination of HC 2782/22; (3) interdicting all respondents from performing any administrative functions on the estate and suspending all consents to sale issued by the Master pending determination of HC 2782/22. The respondents were given 10 days to file notice of opposition and opposing affidavits, failing which the matter would be set down as an unopposed application for confirmation of the provisional order. Costs were reserved.

The High Court has inherent jurisdiction to order the temporary suspension of an executrix testamentary pending determination of a challenge to the validity of the will under which she was appointed, as this is distinct from removal of an executor and is not forbidden by law. In applications for interim interdicts in the estate administration context, a surviving spouse who challenges the authenticity of a will establishes a prima facie right (though open to doubt) where there is a pending action seeking a declaration that the will is fraudulent. Where most estate assets have been disposed of and only one immovable property remains, there is a well-grounded apprehension of irreparable harm if that property is transferred before the challenge to the will is determined. The balance of convenience favours granting interim relief to preserve the status quo where the executor would merely be temporarily suspended and other parties (such as a purchaser in occupation) can be compensated if necessary.

The court observed that the question of whether the property in dispute was the matrimonial home was a matter going to the merits rather than being properly raised as a preliminary point. The court noted inconsistencies in the applicant's evidence regarding why the spouses were renting rather than living at the property, whether there were children of the marriage, and when she first became aware of the will, though these did not prevent the granting of interim relief. The court commented that in matters seeking interim interdicts, all that is required is a prima facie right, and the various considerations (strength of right, prejudice, balance of convenience) are interrelated and not individually decisive - the stronger the prospects of success, the less need to rely on prejudice, and conversely the more the element of doubt, the greater the need for other factors to favour the applicant.

This case is significant in Zimbabwean law for confirming the High Court's inherent jurisdiction to suspend (as distinct from remove) an executrix testamentary pending determination of a challenge to the validity of the will under which she was appointed. It illustrates the court's willingness to use its inherent powers under the principle that the High Court may do anything not forbidden by law. The case also demonstrates the application of interim interdict principles in the context of estate administration, particularly where there are allegations of fraud in relation to a will. It confirms that where a prima facie right is established, even if open to considerable doubt, and irreparable harm may result from inaction, the court will exercise its discretion to preserve the status quo pending determination of the substantive dispute.