Lavender Chirinda and Hilary Chirinda v The Master of the High Court and The Executrix of the Estate of the Late Patrick Rinos Chirinda N.O (Mrs N.R.F Tiyago)

### Preamble
1
HH 745-18
HC 2176/18
---------


LAVENDER CHIRINDA

and

HILARY CHIRINDA

versus

THE MASTER OF THE HIGH COURT

and

THE EXECUTRIX OF THE ESTATE OF

THE LATE PATRICK RINOS CHIRINDA N.O

(MRS N.R.F TIYAGO)

C/O SCANLEN AND HOLDERNESS

LEGAL PRACTITIONERS

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 15 October 2018 & 15 November 2018

Opposed Application

M.G. Bumhira, for the applicants

M. Mafo, for the 2nd respondent

MANZUNZU J: This is a court application in terms of s 52 (9) (1) of Administration of Estates Act [Chapter 6:01] seeking an order to set aside the decision of the Master.

The facts are simple. The late Patrick Rinos Chirinda died testate on 18 February 2017. His estate was registered with the Master of the High Court. The applicants are children of the deceased though not the only children. The deceased is survived by his wife and children. The last will and testament was attested to on 30 November 2007. The clauses of the will which are now subject of this dispute are 2.4 and 2.7. Clause 2.4 reads:

“The sum of $200 000 000 (Two hundred million dollars) cash each to Hilary Chirinda and Lavender Chirinda.”

Clause 2:7 says:

“My Mercedes Benz CL 500 Registration Number AAR 6000 to be sold and from the proceeds thereof $ 200 000 000-00 (Two hundred million dollars) each to be given to Hillary Chirinda and Lavender Chirinda, the balance to be invested for Tendai Chirinda, Rudo Chirinda and Tatenda Chirinda’s education.”

A reading of these clauses creates no confusion in interpretation. They are put in

simple terms. They carry their ordinary grammatical meaning. One can easily assume that the property which was bequeathed to the legatees, who are the applicants, was something readily available at the time of attestation of the will.

The estate was subject to a valuation and the first and final distribution account was prepared by the second respondent. The same was published giving notice for its inspection.

The total amount of the assets of the estate is $705 378-97 which includes cash amount of $313 013-75.

The applicants are not beneficiaries of any cash in the distribution account.

On 14 September 2017 the applicants raised their objection to the estate account lying for inspection with the Master. I cannot do any better than quote the relevant part of their  objection:

“We advise that as per Clause 2.4 of Last Will and Testament of the deceased filed of record Hillary Chirinda and Lavender Chirinda were entitled to the sum of $200 000 00-00 (Two Hundred Million Dollars) cash each. A close look at the estate account reveals that our clients have been disinherited of their benefit by the Executor to the Estate of the late. The executor does not mention anything about our client’s benefit hence we are objecting to the approval of the said distribution plan as our client’s benefit cannot just be wished away.

Further, Lavender Chirinda is a Director and Shareholder of P & P Motors (Private) Limited. We enclose hereto an affidavit prepared by the Executor and sent to our client for her signature. We are thus perplexed as to what has suddenly happened to our client’s shareholding in P & P Motors (Private) Limited.

Based on the above two submissions we are strongly objecting to the approval of the Estate account as it is disinheriting Hillary Chirinda and Lavender Chirinda’s benefits accruing from the estate of their late father.”

The objection was copied to the executor whose response of 21 September 2017 was:

“Reference is made to the objection to the estate account of the Late Patrick Chirinda received on the 14th of September 2017.

The allegation that Hilary and Lavender Chirinda were disinherited is denied. On the 2nd of March 2017 we attended to the registration of the Will of the deceased which he had duly executed in 2007. Our letter, a copy of which is attached indicated that clause 2.4 fell away as it related to Zimbabwean dollars (the era when the Will was made.) This is the clause in which the amounts claimed by Lavender and Hilary Chirinda are stipulated. The reason for non-payment is therefore that there are no Zimbabwe dollars in the estate of the deceased.

With regards the shares in P & P Motors (Private) Limited, of the 32 000 shares, only one single share is in the name of Lavender Chirinda. She also remains a director of the company. The account presented deals with the 31 999 shares that were in the name of the deceased. After failing to get books of account and after Lavender Chirinda’s refusal to provide the requested affidavit, there was no other option but to obtain three forms of valuations for the shares. Of the three, the valuation that was chosen is the one that in which the shares had the highest value. The objection is therefore not relevant for this platform as Lavender Chirinda can have these tabled before the company in which she is the sole remaining director and as such can deal with this issue herself.

Subject to the view of your esteemed offices, we are of the view that the said objections have no merit and await for the Account to be confirmed on expiration of the advertising period.”

It is clear from the papers that the legacy from the sale of the motor vehicle was not pursued for the simple reason that the testator had disposed of the motor vehicle during his lifetime. At the time of his death the legacy no longer existed. The issue of shares in P & P Motors Pvt Ltd was not persisted with. This means the only legacy in dispute is the one in clause 2.4 of the Will i.e the $200 000 000 for each of the applicants.

In a letter dated 25 January 2018 the Master dismissed the applicants’ objection and hinted that he was proceeding with the confirmation of the account.

The decision by the Master to confirm the account prompted this application.

The second respondent opposed the application. A point in limine was raised that the application was filed out of time. This is because the Master’s decision was communicated on 31 January 2018 and the application was filed on 8 March 2018 which time was outside the 30 day period.

However, at the commencement of the hearing, counsel for the applicant applied for condonation which was granted by consent of the parties.

The second respondent denied that the applicants were disinherited from the deceased’s estate. She stated that the amount bequeathed to them is non-existent. I will reproduce the executor’s explanation in para 9 of the opposing affidavit on why she says the amount bequeathed is non-existent;

“The Last Will and Testament by the deceased was signed in the year 2007, when Zimbabwe’s currency was Zimbabwe Dollars, therefore one can assume that the currency in question is in 	Zimbabwe Dollars and not any other currency. In the Last Will and Testament, the deceased bequeathed to the two applicants $200 000 000 (two hundred million dollars) each.  Present day, the deceased’s account does not have this contested $400 000 000 (four hundred million) 	and therefore cannot bequeath what he does not have. In 2009, due to hyperinflation, all bank accounts through a Reserve Bank of Zimbabwe circular issued on the 09th of June 2015 were to be credited with an amount of US$5 in full and final 	settlement, despite the amount that was held initially in the bank account. This transition to dollarization did not provide any mechanism for the conversion of amounts from Zimbabwe 	Dollars to United States Dollars…… One can therefore not administer an asset bequeathed in a deceased estate that has ceased to exist.”

On the other hand the applicants said, “Clause 2.4 Does not refer to Zimbabwe Dollars. It simply has a dollar sign prefix.” I am at loss as what this ought to mean. This will was done in Zimbabwe which was using Zimbabwe dollars in 2007. For one then to say the will “simply used a dollar sign prefix” without suggesting  which currency it was, does not assist the court. The only reasonable explanation if not only inference is that the $ sign referred to Zimbabwe dollar.

In their answering affidavit the applicants maintained that they were disinherited and that the testator’s intention was to bequeath them the cash in the estate. They maintained for a conversion rate to get that which was bequeathed to them.

I agree with the submissions by the second respondent that applicants are legatees as opposed to heirs in this will.

The difference between a legatee and an heir is that a legatee is a person to whom the testator has bequeathed a specific thing or amount of money and on the other hand an heir is a person who succeeds to the whole of the estate or a portion of the residue of it. It cannot be disputed that the applicants were legatees who were bequeathed with a certain sum of money.

A will is a statement of intention by the testator in regard to the devolution of property on the testator’s death. The testator has the freedom of testation that is to dispose of his property on death as he pleases. The legatee has every right to claim for his legacy at the completion of the process of the administration of the estate.

It was argued by the second respondent that as a general rule the legatee is entitled to claim the bequeathed property as it was at the death of the testator, whether it has increased or diminished in value since the making of the will: See Norden’s Executors v Norden 1909 (26) SC 881. Further the legatee is entitled to all the improvements made on the property since the date of the bequest and to interest or natural fruits which have accrued since the legacy vested.

However, using the authority of Natal Bank v Rood’s Heirs, 1909 TS 243 and Hiddingh v Denyssen 1885 (3) SC 424 the second respondent argued that if the property is accidentally lost or destroyed either before or after the testator’s death the loss falls on the legatee.

This is more of common sense, if the legacy no longer exist, then one cannot give out of nothing.

This is where the dispute of the parties is centred. Applicants say the legacy is there and can be realized through conversion from the Zimbabwe dollar then to United States dollars. In any event the applicants argued the intention of the testator was to bequeath all the cash in the estate to the two applicants. If one goes by the applicants’ argument, even if the conversion is done it serves no purpose, because according to the applicants the testator’s wish was that all cash be shared between the two applicants.

But can this be the correct position. I do not think so. A reading of the entire will does not support the notion that the testator’s intention was that all the cash devolve between the two applicants. I say so for the following reasons;

(a)	Clause 2.7 goes further after bequeathing $200 000 000 each to the applicants to say:

“the balance to be invested for Tendai Chirinda, Rudo Chirinda and Tatenda Chirinda’s education.”

(b) 	If all cash in the estate was intended for the applicants then the testator would

have said so without the trouble of giving specific amounts of money.

(c)     Clause 3 of the will bequeath “the rest and residue” (which may include money)

to  the widow.

Clause 7 (b) of the will which relates to the powers of the Administrator refers

to investments of monies found in the estate.

Having said that the issue remains as to whether the applicants are entitled to the cash in the estate either in whole or part.

The second respondent says the $200 million dollars cash was demonetized and as such that loss falls upon the legatees. The vehicle was alienated by the testator during his lifetime and does not form part of the estate. Ademption therefore took place in respect to the motor vehicle and this explains why the applicants apart from a mere mention could not raise any sustainable argument to the legacy which flaws from the motor vehicle. Case law is clear on this point. See Sorge v Estate Preuss, 1933 CPD 61 @65; Barrow v The Master, 1960 (3) SA 253 (E) @ 257, Steyn v Steyn, 1904 (21) SC 528.

It is true that the testator bequeathed to the applicants specific amounts of money. However, despite the intention of the testator the money was demonetized and is no longer there. I agree that the executor cannot give that which does not exist. The cash which was found in the estate which happen to be proceeds of the sale of a matrimonial home is nothing more than the residue to be treated under clause 3 of the Will. There is nothing for the applicants in the form of a legacy to lay their hands on.

This application can therefore not succeed.

In the result:

The application is hereby dismissed with costs.

J. Mambara & Partners, applicants’ legal practitioners

Scanlen & Holderness, 1st respondent’s legal practitioners