Sipho Leonard Bulle v Bekithemba Bulle and Abdullah Esmail Kassim and Master of the High Court of Zimbabwe

The applicant sought to remove the first and second respondents as executors and testamentary trustees of the estate of the late Ernest Leonard Bulle who died in 1996. He also sought revocation of their letters of administration and appointment of two new executors. The estate had been wound up according to the Master, though the Master later indicated in a report that closure had not been achieved since no proof of transfer of inheritance had been furnished. The first respondent (one of the executors) resided in Australia. The applicant became a major in 2004, and the estate was finalized in 2008. The applicant was not a beneficiary of the estate itself but was a beneficiary in a testamentary trust created by the will.

• Whether the applicant had locus standi to bring the application as a beneficiary of the testamentary trust rather than of the estate itself
• Whether proper procedures under sections 116-117 of the Administration of Estates Act were followed for removal of an executor
• Whether service on the first respondent in Australia was valid
• Whether the Master's report should be factual or include opinions on how the court should decide
• Whether there was fatal non-joinder of interested parties
• Whether the claim had prescribed

The points in limine were upheld and the application was dismissed with costs.

The binding legal principles established are: (1) A beneficiary of a testamentary trust (as opposed to a beneficiary of the estate itself) lacks locus standi to bring an application for removal of executors of the estate; where a trustee is unable to act, section 7 of the Companies and Trusts Act provides the remedy through appointment of a trustee who can then litigate. (2) Applications for removal of executors must follow the statutory procedures set out in sections 116-117 of the Administration of Estates Act, which require the Master to investigate complaints and, where appropriate, apply to a judge in Chambers for removal; direct applications by third parties that bypass these procedures are incompetent. (3) When a Master's report is requested in the context of a dispute before the court, the report should contain factual processes and procedures that took place in the estate administration, not the Master's opinion on how the court should decide the matter.

The court made observations critical of the practice where the Master is quick to adopt a position in reports rather than confining the report to factual matters. Tsanga J stated: "where the Master's report has been sought in circumstances which require him or her to outline what transpired in the official process with respect to the winding up of an estate, it is the factual processes and procedures that took place that should form the ambit of the report. Where such report is requested in view of a dispute already before the court, it is certainly not for the Master to conclude how a court should decide." The court also commented that an earlier order from May 2021 directing appointment of executors was incompetent as it had not followed proper procedures for removal of the existing executors. The court also noted but did not decide additional points in limine regarding prescription (noting the applicant became major in 2004, the estate was finalized in 2008, but the application was only brought much later) and fatal non-joinder of other interested parties, as these were unnecessary given the two upheld points in limine.

This case clarifies important procedural requirements in Zimbabwean estate administration law, particularly: (1) the proper scope and content of Master's reports to courts (they should be factual, not opinionated); (2) the distinction between estate beneficiaries and trust beneficiaries for purposes of locus standi in estate litigation; (3) the mandatory procedures under sections 116-117 of the Administration of Estates Act for removal of executors, which require the Master's involvement rather than direct application by interested parties; and (4) the proper application of section 7 of the Companies and Trusts Act when trustees are unable to act.