Talkmore Chigwiko v Leonard Chigwiko and Others

The applicant (Talkmore Chigwiko) and first respondent (Leonard Chigwiko) are half-brothers, sons of the late Lenos Chigwiko who died on 1 January 1993. The immovable property at No. 5 Gura Way, Marondera (Stand No. 2503) formed part of the deceased estate. The first respondent was appointed heir to the estate. Following a maintenance claim by the deceased's widow Ennie Chigwiko (applicant's mother) under the Deceased Persons Family Maintenance Act, the parties reached a settlement agreement whereby the property would belong to the applicant and first respondent in equal shares. The widow and minor children had right of occupation until the youngest child attained majority, at which point the two brothers would decide whether to sell, let out or continue occupying the property, with proceeds to be shared equally. On 17 March 2010, the first respondent entered into an agreement with the second respondent (Pose Dahwa) to sell the property for US$9,800. On 18 March 2010, the first respondent was appointed Executor Dative and given authority by the Master to dispose of the property otherwise than by public auction. The applicant disputed the sale and sought to have it set aside.

• Whether a sale of estate property concluded before the seller was appointed executor and before receiving the Master's authority under section 120 of the Administration of Estates Act is valid
• Whether the sale could be set aside on the basis that it breached an agreement between co-beneficiaries that created personal rights
• Whether the sale could be set aside on the basis that the purchase price was significantly lower than the market value

1. The sale and cession of rights, title and interest in the property known as 5 Gura Way, Marondera, in favour of the second respondent by the first respondent be and are hereby set aside. 2. The costs shall be paid by the first and second respondents jointly and severally the one paying the other to be absolved.

A sale of property belonging to a deceased estate that is concluded before the seller is appointed as executor and before the Master grants authority under section 120 of the Administration of Estates Act to dispose of the property otherwise than by public auction is a legal nullity and void ab initio. Such authority can only be given by the Master and only to an executor. A void act is incurably bad and cannot be validated by subsequent events or conduct, including complaints about the purchase price or other matters that might suggest acceptance. Any proceedings or transactions founded upon a void act, including cessions of rights, are equally void.

The court observed that an agreement between co-beneficiaries regarding the disposal of estate property creates only personal rights between those parties and does not, on its own, invalidate a sale to a third party. The court also noted that where property is sold at a price significantly lower than market value, in the absence of fraud by the purchaser, the prejudiced co-beneficiary's recourse would be against the co-beneficiary who executed the sale rather than against the purchaser or the sale itself. The court further observed that raising concerns about the purchase price does not constitute acceptance of a sale when the party has consistently disputed the validity of the sale on other grounds.

This case establishes important principles regarding the administration of deceased estates in Zimbabwean law, particularly concerning the strict requirements for executors to dispose of estate property. It reinforces that compliance with section 120 of the Administration of Estates Act is mandatory and that sales concluded before proper appointment as executor and before receiving the Master's authority are void ab initio and incurably bad. The case also clarifies the distinction between personal rights created by agreements between beneficiaries and real rights in estate property, and demonstrates the application of the principle that void acts cannot be validated by subsequent conduct or acceptance.