Patience Zaranyika v The Master of the High Court and Others

Abraham Zaranyika died on 4 February 2001 leaving a will (LW 412/99). In the will, he bequeathed his Milton Park property and other assets to his wife Maud Zaranyika, subject to conditions that upon her death or remarriage (including customary marriage or cohabitation), the property would devolve to the Abraham Zaranyika Trust for the benefit of his children. The will also bequeathed shares in Day and Nite TV sales and repairs (Pvt) Ltd to his nine children including Patience, and directed that no bequeathed property should be sold. In 2012, the Milton Park property was sold to the Kabelo Family Trust for US$350,000. After 16 years, the Master approved the first and final liquidation and distribution account on 23 March 2017. The approved account omitted several assets including the Seke property, the Company, motor vehicles, and did not mention the disposal of the Milton Park property. Patience sought to review the Master's approval. Maud filed a counter-application seeking to have the conditions in the will declared invalid as they related to the matrimonial property.

• Whether the Trust was properly cited in the proceedings
• Whether the executor properly accounted for all bequests and conditions in the will in the final liquidation and distribution account
• Whether the agreement of sale between the executor and the Trust should be invalidated through review proceedings
• Whether the conditions in the will relating to remarriage and testamentary trust were valid and enforceable
• Whether the will created a fidei commissary substitution or a usufruct
• Whether freedom of testation is absolute or limited by public policy and constitutional considerations

1. The final liquidation and distribution account approved by the Master on 23 March 2017 was set aside. 2. The executor was ordered to draw up a proper first and final liquidation and distribution account taking into account all conditions and estate assets listed in the will, to be advertised and lie for inspection per section 52(6) of the Administration of Estates Act. 3. The condition in Clause 5 relating to loss of bequest upon remarriage (including customary marriage or cohabitation) was declared invalid. 4. Each party to bear its own costs. 5. The Registrar was directed to bring the judgment to the attention of the Master of the High Court.

The binding legal principles are: (1) Under Order 2A rules 7 and 8 of the High Court Rules, a trust may sue and be sued in its own name. (2) An executor must compile a true and correct estate account reflecting all assets and liabilities, with explanations for any variances from the will, in accordance with section 52 of the Administration of Estates Act. (3) The Master's approval of a final liquidation and distribution account that omits substantial assets without explanation constitutes a gross irregularity reviewable under section 27(1)(c) of the High Court Act. (4) Review proceedings are confined to examining the decision-making process and cannot be used to set aside contracts such as agreements of sale. (5) Testamentary conditions prohibiting remarriage (including customary marriage or cohabitation) are contra bonos mores and invalid as they constitute an unreasonable restraint incompatible with modern values and constitutional principles. (6) A condition that property passes to a trust upon the death of a beneficiary creates a valid fidei commissary substitution, giving the fiduciary ownership during their lifetime with the property passing to the fidei commissary upon death. (7) A testamentary trust comes into existence upon the testator's death when the will clearly identifies the trust property, trustees, and beneficiaries, regardless of formal registration. (8) Legal practitioners appointed as executors are entitled only to executor's fees under section 56 of the Administration of Estates Act, not legal fees.

The court made several non-binding observations: (1) Family feuds often defy rationality and litigation invariably ends in costly trench warfare with no sensible resolution. (2) Freedom of testation includes the power to create testamentary trusts and impose conditions, but is not absolute and must yield to public policy and constitutional considerations. (3) The Master should be stricter in supervising the winding up of estates to prevent undue delays that prejudice beneficiaries. (4) Delays in winding up estates can cause complications when beneficiaries die before receiving their inheritance. (5) The court expressed hesitation about declaring the remarriage condition unconstitutional, suggesting this matter should be fully considered as a constitutional issue, though it had no hesitation finding it contra bonos mores. (6) The court criticized the practice of legal practitioners discouraging parties from opposing applications based on costs considerations, stating every person has the right to approach courts. (7) The court noted that conditions in wills can be seen as attempts to "rule from the grave." (8) Courts remain reluctant to interfere with testators' wishes despite logical reasons to do so, reflecting the doctrine of freedom of testation. (9) The concept of matrimonial property is not directly relevant to devolution under testate succession. (10) Non-registration of a testamentary trust does not invalidate it; registration is merely a matter of form.

This case is significant for: (1) Clarifying that trusts can be cited in their own name under Order 2A of the High Court Rules. (2) Emphasizing the duties of executors under section 52 of the Administration of Estates Act to properly account for all estate assets and provide explanations for any variances from the will. (3) Holding that conditions in a will prohibiting remarriage (including customary unions and cohabitation) are contra bonos mores and invalid, reflecting modern societal values and constitutional principles of equality and non-discrimination. (4) Distinguishing between fidei commissary substitutions and usufructs in testamentary dispositions. (5) Confirming that freedom of testation, while a cornerstone principle, is not absolute and can be limited by public policy considerations. (6) Establishing that testamentary trusts come into existence upon the testator's death regardless of whether formally registered. (7) Limiting review proceedings to decision-making processes and not the validity of contracts such as agreements of sale. (8) Addressing concerns about legal practitioners acting as executors charging legal fees rather than executor's fees.