Ellen Lucie Borgonovo v A.M. Rosettenstein, The Executor of the Estate of the Late Ruggero Borgonovo and Vanessa Angela Ngamiza and Master of the High Court of Zimbabwe

### Preamble
1
HH 384-13
HC 8893/10
ELLEN LUCIE BORGONOVO
versus
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ELLEN LUCIE BORGONOVO
versus
A.M. ROSETTENSTEIN, THE EXECUTOR OF THE ESTATE OF THE LATE
RUGGERO BORGONOVO
and
VANESSA ANGELA NGAMIZA
and
MASTER OF THE HIGH COURT OF ZIMBABWE

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 31 May 2013

Opposed Application

E. Samukange, for applicant
N R Mutasa, for 2nd respondent

CHITAKUNYE J: The applicant was married to the late Ruggero Borgonovo on 4 February 1964. In 1977 the applicant and late Ruggero Borgonovo executed a joint Will. In 1996 they executed a Deed of Separation and thereafter lived separately till the late Ruggero Borgonovo’s demise.

The late Ruggero Borgonovo died at Harare on 24 April 2008. At the time of his death he was living with the second respondent as husband and wife. At the instance of the Second respondent his estate was registered with the third respondent’s offices for administration purposes under reference DR 525/2008. The joint Will that the applicant and late Ruggero executed in 1977 was accepted by the third respondent as a valid last Will and Testament, hereinafter referred to as ‘the first Will’. The first respondent was appointed executor testamentary in terms of the first Will on 06 September 2010. In that capacity he filed a First and Final liquidation and distribution account with the third respondent.

In the meantime another document was brought to the third respondent as a Will left by late Ruggero Borgonovo, hereinafter referred to as the second Will. The third respondent accepted that document as well. There were thus now two ‘Wills’ both executed by the late Ruggero Borgonovo.

Having accepted the two documents as Wills the third respondent rejected the first ‘First and Final distribution account’ by the first respondent as it had not taken account of the second Will. The first respondent was asked to distribute the deceased’s estate in terms of both the first and second Wills.

In compliance with the third respondent’s directive, the first respondent amended the estate account and prepared a second account in which he awarded the deceased estate to the testamentary beneficiaries provided for in both the first and second Wills.

Aggrieved by the second account, and after two months, the applicant filed the present application seeking the setting aside of the second account and the confirmation of the first account which awarded the entire estate to the applicant instead.

The application is opposed. In her opposition the second respondent raised some points in limine. These included that the application is pre-mature as in terms of the Administration of Estates Act, chapter 6:01, hereafter referred to as the Act, there are some procedural steps that ought to have been taken before approaching this court with such an application.

After hearing submissions on the points in limine I dismissed the application with costs on a higher scale

My reasons were as follows:-

A careful analysis of the application shows that there is no denying that it is the Master, upon sight of the second Will, who directed the first respondent to also take that Will into account. As a consequence of that directive the initial first and final distribution account was amended to incorporate beneficiaries reflected in the second Will’.

In terms of s 8(5) of the Wills Act, chapter 6:06, the Master is empowered to accept a document as a Will where he makes a determination that the deceased intended it to be his Will.

That section states that:-

“Where the Master is satisfied that a document or an amendment of a document which was drafted or executed by a person who has since died was intended to be his Will or an amendment of his Will, the Master may accept that document or that document as amended, as a Will for the purposes of the Administration of Estates Act [Cap 6:01] even though it does not comply with all the formalities for—

(a) The execution of Wills referred to in subsection(1) or (2); or

(b) The amendment of wills referred to in subsection (2), (3) or (4) of section nine.”

In paragraph two of the Master’s report filed of record the Master stated that:-


“I accepted this document as a Will for the purposes of Administration of Estates Act [Cap 6:01] on 16 May 2008. I was satisfied that the document was intended to be the deceased’s last Will and Testament. The heading was clear and the opening paragraph after the heading mentioned that it was applicable upon his death.”

This is what the Master said he did in his report filed of record. Where anyone is aggrieved by the Master’s decision s 8(6) of the Act states that:-

“Any person who is aggrieved by a decision of the Master may appeal to an appropriate court within thirty days of being notified of the decision of the Master.”

This was an avenue open to applicant.

If as the applicant seemed to argue she felt the Master had not acted in terms of s 8(5) or that he had not exercised his discretion properly she should have challenged that in the appropriate form and within the stated time frame.

I am inclined to agree with the respondent’s contention that applicant is in fact asking this court to review the Master’s decision without following the appropriate review procedure. The Master’s decision to accept the second document as a Will was made on 16 May 2008 and has never been challenged and the present application was filed in December 2010 close to two years after the decision. Clearly applicant cannot have his way.

Another point in limine raised was that the second account was advertised as lying open for inspection on 10 December 2010. In terms of s 52(5) of the Act applicant had a period of three weeks within which to lodge an objection thereto with the Master of the High Court.

Section 52(8) thereafter provides that:-

“Any person interested in the estate may at any time before the expiration of the period allowed for inspection lodge with the Master in writing any objection, with the reasons thereof, to that account.”

The applicant did not deem it fit to comply with this provision as well. No cogent reason was advanced for failure to comply with the above procedures.

The applicant’s case was evidently flawed and in a bid to make amends the applicant in her address sought to amend the relief sought. Unfortunately such effort was without substance hence was abandoned.


It was apparent from the submissions made that the applicant’s case was fatally flawed and thus cannot succeed.

The second respondent asked for costs on a legal practitioner/client scale. The applicant was forewarned in time that the application was untenable. The relevant statutory provisions were brought to applicant’s attention but for some reason applicant persisted in flogging a dead horse. In the process respondent was put out of pocket when that could easily have been avoided. I am of the view that taking into account all the circumstances of the case it is appropriate that the applicant be ordered to pay costs on a higher scale.

Accordingly the application is hereby dismissed with costs on a legal practitioner/client scale.

Venturas & Samkange, applicant’s legal practitioners
Honey & Blanckenberg, first respondent’s legal practitioners
Costa & Madzonga, second respondent’s legal practitioners
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