Virimai Makuzva and Others v Viola Machera (nee Makuzva) and Others

Muchandibaya Makuzva died on 30 November 2001, survived by the applicants and first respondent. His will provided that property known as Farm 1010 Wiltshire Chivhu was to be transferred to Makuzva Trust, which did not yet exist. The will was registered in May 2002 and third respondent was appointed executor testamentary. In 2004, first respondent allegedly fraudulently had the property transferred into her name. In May 2018, second respondent (Nengomasha Family Trust) purchased the property from first respondent, and the deed of transfer was executed on 13 May 2019. Second applicant occupied the property, leading second respondent to file an eviction application (HC 7245/19). Applicants then filed HC 7775/19 seeking to set aside the transfers to first and second respondents, remove the executor, and prevent further transfers. The two matters were consolidated. At hearing, respondents raised preliminary points regarding locus standi, improper basis for approaching the court, and prescription.

• Whether beneficiaries of an estate where the intended trust had not been created have locus standi to challenge transfer of estate property
• Whether section 120 of the Administration of Estates Act provides a proper cause of action for the relief sought
• Whether applicants' claims had prescribed in terms of the Prescription Act
• Whether beneficiaries have standing to sue when an executor has been appointed and the beneficiaries are not specifically identified

HC 7775/19 struck off the roll with costs. The Registrar was directed to set down HC 7245/19 (the eviction matter) for argument on the next available date.

1. Beneficiaries who are not identified in a will but are merely referenced as being "as per the Trust Deed" of a trust that was never created lack locus standi to challenge transfers of estate property. 2. Section 120 of the Administration of Estates Act does not provide a cause of action for challenging transfers or removing executors; the proper provision is section 116. 3. A claim for return of property transferred from an estate constitutes a "debt" within the broad meaning of the Prescription Act and prescribes 3 years after the claimant acquires or could reasonably have acquired knowledge of the transfer. 4. What is not denied in affidavits must be taken to be admitted, and prescription may be raised as a point in limine at any stage of proceedings under section 20(2) of the Prescription Act.

The court noted that if the testator had intended the applicants (who were beneficiaries of savings under clause 5) to also be beneficiaries of the farm, he would likely have listed them prior to clause 5 in the will. The court also observed that the third respondent executor would have been the ideal person to bring a rei vindicatio claim concerning estate property.

This case clarifies the requirements for locus standi of estate beneficiaries in Zimbabwean law, particularly where beneficiaries are not specifically identified but are to be determined by reference to a trust deed that was never created. It also illustrates the application of prescription to claims seeking return of property, affirming that such claims constitute "debts" for prescription purposes and prescribe after 3 years from knowledge of the facts giving rise to the claim. The case reinforces procedural requirements for challenging estate administration, emphasizing the need to use the correct statutory provisions (section 116 rather than section 120 of the Administration of Estates Act) and the consequences of failing to respond to allegations in opposing affidavits.