Year: 2021

Removal of an Executor of a Deceased Estate

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An executor is a person appointed to administer a deceased estate. In most cases they are lawyers registered as estates administrators. There are two ways in which an executor can be appointed to administer a deceased estate. That is, by way of nomination in a will and by appointment by the Master of the High Court where the deceased dies without a will.

An executor holds a position of trust and where such trust has been breached by failure to administer an estate he or she may be removed from such position. An executor has a fiduciary duty towards the estate hence he or she must act in a manner that safeguards and protects the estate and interests of the beneficiaries.

A chamber application is made to the High Court by the Master of the High Court for the removal of the executor. The court will not lightly interfere with the duties of an executor, except in situations where it is clearly established that the executor is grossly negligent in performing his or her duties. The conduct of the executor must be detrimental to the effects of the estate. The conduct complained of must be of such serious degree that if the executor is allowed to continue with the administration of the estate, the estate would not be protected and there will be further prejudice to the interests of the beneficiaries. The complaints against the conduct of the executor are raised to the Master who then applies to the High Court for the removal of the executor.

Other instances when an executor can be removed from such a position are as follows;

  • When the executor was not qualified for appointment to such office or the appointment was illegal.
  • When executor is mentally or physically incapable of performing his or her duties satisfactorily.
  • When executor is no longer suitable to hold such office in the opinion of the Master.

When an executor is removed from office, the Master will revoke any letters of administration or any confirmation granted to that person. The executor will however remain liable to account for his or her administration and management of the estate prior to his or her removal.

This article is for general information purposes only, legal advice must be sought in any aspect of the law.

what you need to know before buying a house or stand

What You Need To Do Before Buying a House (immovable property)

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It is everyone’s wish and desire to own a house or a stand. Many people have fallen prey into prey of stand developers, real estate agents or housing co-operatives who sell non-existing stands or houses. They take advantage of one’s need and desire to purchase a stand or a house such that they end up robbing people their hard earned money through fraud, double sales or double allocations. At the end of the sale, the buyers will not get the property or the title deeds to the property because they do not exist or the property is not registered in the name of the seller as presented.

Therefore, when one intends to purchase an immovable property (stand or house) the first and most important stage is due diligence through deed search. Deed search is done at the Deeds Registry in Harare or Bulawayo depending with the location of the property. One must not enter into an agreement of sale of an immovable property without first doing a due diligence search. This process is important because it protects prospective buyers form fraudsters and double sales.

A deeds search will show the following information

  • The deed number and the date of registration
  • Details of the registered owner
  • Full property description and extent(area)
  • Any outstanding mortgage bonds
  • Any caveats, servitudes (conditions restring transfer)

This article contains information for general information use it is advisable to seek legal advice in any aspect of the law.

Right to Bail

Right to Bail

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Did you know that an accused person is entitled to bail as a matter of right, a constitutional right? Bail is a way of allowing a person who has been remanded for trial at a later date to remain at liberty until his or her trial date. In terms of Section 50 (1)(d) of the Constitution any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued detention. The High Court [1]ruled that the old position where the onus or duty was on the accused person to show on a balance of probabilities why it was in the best interest of justice that he or she should be freed on bail ,is no longer applicable.

The Constitution ,2013 made the right to bail a constitutional right hence the onus or burden of proof shifted from the accused person to the State(prosecutor) who should establish compelling reasons why an arrested person should be denied and remain in custody pending trial. Where the State fails to show compelling reasons an arrested person is entitled to, as of right, to be released either unconditionally or on reasonable conditions pending trial.

Compelling reasons justifying refusal of bail(detention)

As highlighted above it is the duty of the State to show reasons why an accused person can be denied bail. The compelling reasons includes the following

  • That the accused (suspect)person is likely to abscond trial
  • That the accused (suspect) is likely to interfere with the evidence e.g. by intimidating witnesses
  • That the accused(suspect) is likely to commit further crimes if released

In determining the application, the court must balance the interests of justice against the right of the accused to bail. Bail can be granted by way of depositing a sum of money or by surrendering title deeds of an immovable property. The essential condition of bail is that the accused must attend court at the appointed dates and places until the proceedings against him or her are over. The court may include other conditions which are ordering the accused to surrender his or her passport, reporting to a police station at regular intervals and prohibition against his or her communication with witnesses for the prosecution. Bail conditions can be amended or withdrawn by the court if new facts are brought to the attention of the court. In the event that the accused person breaches the bail conditions the court can order the person to be committed to prison and if accused absconds trial a warrant of arrest will be issued against him or her and the bail deposit will be forfeited to the State.

This article is for general information purposes only, legal advice and legal representation should be sought in a bail application matter.

[1] The case of Munsaka vs The State HB-55-16