Senior Reporter
PARLIAMENT is rationalising the powers of the Master of High Court to ensure that the office does not willy-nilly dispose or sell the property of a deceased estate without the permission of a judge of the High Court.
The Master should also not unilaterally appoint or remove an executor of an estate.
This is meant to enhance protection of widows, widowers and orphans during disputes over deceased estates.
Once the Administration of Estates Amendment Bill has become law, the Master of the High Court will have to approach the High Court and argue their case before appointing or removing any executor of a deceased estate and will have to seek the approval of the Guardian's Fund in making investments of funds falling under the office.
The new requirements were adopted by the National Assembly on Tuesday during the committee stage of the Administration of Estates Amendment Bill, where Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi introduced additional amendments to the proposed law.
The Bill, which is still before the National Assembly, seeks to provide for better and autonomous administration of the Office of the Master of the High Court to enable it to serve the people efficiently and in a decentralised manner through, among other things, removing it from the Judicial Service Commission.
Clause 4 of the Bill provides that the appointment of an executor or executors of a deceased estate by the Master, where this is not laid down in a will, must be approved by the High Court after notifying everyone with a legitimate interest in the estate, should there be no resolution among stakeholders on who should become an executor.
This would apply where there is no will naming the executor, and in such a case, the Master just confirms who the deceased person wanted. Sometimes the family can unanimously agree, and again that can be confirmed. But problems can arise where there is no executor laid down in a will, and where there is a family disagreement.
"There are scenarios that can arise that a family may not agree on who to appoint as an executor. Under the current Act, the Master can appoint an executor.
"This provision we're simply including it as a check to ensure that there cannot be connivance between the Master and the persons so chosen to be executor. We are simply saying that if the Master discovers that the family cannot agree on who to be executor, he can then make an application to the court and clearly state that there has been a dispute and submit all the facts and the court will then make a determination," said Minister Ziyambi.
"This is just a clause that will check the powers of the Master and request the Master to defer to the court so that the court will be satisfied. The other reason is by leaving it
solely to the Master, they (Master) will then have a list of people who can be executors and ordinarily, these are solvent estates and the executor will be paid but there is room for connivance.
"Once you have deferred to the court, you are actually ensuring that that is taken care of and there is also confidence in the office of the Master in that the Master will say 'no we made an application to the court. It was not me who appointed them'."
Earlier on, Dzivarasekwa MP, Mr Edwin Mushoriwa, said in many instances there will be executors who would be "milling around the Master" because of their proximity to have them appointed as executors and eventually make rich pickings from the estate, prejudicing poor members of the family.
Clause 9 deals with the removal of an executor, tutor or curator from office, where the Master should apply to the High Court after notifying every person with an interest in the estate for a determination.
Clause 10 provides that an executor, with the concurrence of the Master and other interested parties, should approach the High Court before a property is disposed of or sold, particularly if the sale is not through an auction.
The Clause reads as follows: "The executor produces to the Master, an affidavit, jointly sworn by all the persons having an interest in an estate, supporting the application of the executor to sell specified property of the estate, being property in respect of which the will of the deceased contains no provision to the contrary, other than by public auction and the Master is of the opinion that no good grounds exist for not granting the application."
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Minister Ziyambi said involvement of everyone, including the High Court, will help deal with connivance.
"We do not want one or two persons to just connive with the executor and sell the property and others will discover that the property has been sold. We want the Master to follow certain processes that will lead to the court making a confirmation, and once the court process has commenced, everyone that is involved in that particular estate needs to be informed. If they do not deposit an affidavit challenging that, then the process can continue," he said.
There is also a clause which provides that the Master of the High Court must get approval from the board before making any investment of funds he is administering, such as the Guardian Fund, meant to help children particularly orphans.
The initial clause required that the Master consult with the board but after debate it was felt that the board must in-fact approve any investment as it plays its oversight role.
