The Deputy Master N.O v Barbra Lunga N.O (in her capacity as the Executrix Dative of Estate late Mariana Moyo) and Estate Late Mariana Moyo

The late Mariana Moyo died intestate and Barbra Lunga was appointed as Executrix Dative on 19 March 2012. The beneficiaries of the estate subsequently lodged numerous complaints against the first respondent (the Executrix), including: wanton disposal of estate assets (immovable properties) without their consent, delay in winding up the estate, abuse of rentals collected from leased properties, lack of financial and medical support to a mentally challenged beneficiary, failure to pay for a beneficiary's studies in Cyprus, charging fees at 6% instead of the statutory 4.3% of the gross value of the estate, and failure to file distribution accounts within the time stipulated by the Act. The first respondent attempted to sell estate property (stand 631 Gwanda Township) by private treaty without the Master's consent and while investigations into her conduct were ongoing. The Deputy Master brought an application in terms of section 117(1)(b) and (d) of the Administration of Estates Act [Chapter 6:01] for the removal of the first respondent as Executrix.

• Whether the application should be dismissed for non-compliance with section 117 of the Administration of Estates Act (i.e., whether it should have been brought as a chamber application rather than a court application)
• Whether the first respondent violated section 120 of the Administration of Estates Act by disposing of estate property without the Master's consent
• Whether the first respondent's conduct justified her removal as Executrix Dative under section 117(1)(b) and (d) of the Administration of Estates Act
• Whether the Master's consent under section 120 requires due inquiry before being granted
• Whether the loss of confidence by beneficiaries in an executor justifies removal

1. The first respondent is removed as the Executrix Dative of the estate of the late Mariana Moyo. 2. The beneficiaries of the estate are authorized to appoint another Executor/Executrix of their choice, failing which the applicant shall appoint one. 3. The first respondent is ordered to pay costs.

An executor may be removed from office under section 117(1)(b) and (d) of the Administration of Estates Act where there is evidence of: (1) disposal of estate property without the Master's consent in violation of section 120; (2) overcharging statutory fees; (3) contemptuous treatment of the Master's supervisory role; (4) complete breakdown of trust with all beneficiaries; and (5) conduct that poses a danger or threat to the estate. The Master's consent under section 120 is not automatic but requires due inquiry to ensure the proposed transaction is in the interest of the estate and its beneficiaries. The cumulative effect of such misconduct justifies removal even where the executor may have had some legal justifications for individual actions.

The court observed that under normal circumstances the Master and an executor are supposed to create a conducive working relationship to enable the smooth winding up of estates. The court noted that the first respondent's combative and disrespectful tone in correspondence with the Master's office projected her in bad light and demonstrated contempt for that office. The court remarked that no law should compel beneficiaries to remain in a working relationship with an executor where that relationship has become toxic. The court also noted approvingly the observation in Kudzanayi Frank Katsande v Raymond Katsande that "the Master's office needs to awaken to the serious duties and responsibilities bestowed on that office in deceased's estates" and that the Master must take active or positive steps to verify the contents of applications before granting consent.

This case is significant in Zimbabwean estate administration law as it clarifies the grounds for removal of an executor and the Master's supervisory role. It establishes that: (1) applications under section 117 of the Administration of Estates Act need not be brought as chamber applications if no prejudice results; (2) the Master's consent under section 120 requires active due inquiry and is not merely a rubber-stamp exercise; (3) disposal of estate property without the Master's consent, especially during investigations into the executor's conduct, constitutes serious misconduct; (4) overcharging statutory fees demonstrates bad faith; (5) the breakdown of trust between beneficiaries and an executor, combined with proven misconduct, justifies removal; and (6) the Master has an active supervisory duty to protect estate assets and beneficiaries' interests. The case emphasizes that executors must maintain professional relationships with both the Master's office and beneficiaries, and that the Master must take positive steps to verify applications before granting consent.