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

### Preamble
Judgment No. SC25/20 1
Civil Appeal No. SC 936/18
DISTRIBUTABLE (22)
---------


DISTRIBUTABLE      (22)

LAVENDER      CHIRINDA     (2)     HILARY     CHIRINDA

v

THE     MASTER     OF     THE     HIGH     COURT     (2)     THE     EXECUTRIX     OF     THE     ESTATE     OF     THE     LATE     PATRICK     RINOS     CHIRINDA     N.O     (3)     (MRS     N.R.F     TIYAGO)     C/O SCANLEN     AND     HOLDERNESS     LEGAL     PRACTITIONERS

SUPREME COURT OF ZIMBABWE

MAKARAU JA, HLATSHWAYO JA & UCHENA JA

HARARE:  JULY 9, 2019 & JANUARY 17, 2020

M. G. Bumhira, for the appellants

T. Zhuwarara, for the second respondents

UCHENA JA: This is an appeal against the whole judgment of the High Court, dismissing the appellants’ application for an order setting aside the decision of the Master of the High Court in terms of s 52 (9) (i) of the Administration of Estates Act [Chapter 6:01].

The facts of the case can be summarised as follows;

The late Patrick Rinos Chirinda (hereinafter referred to as “the testator”) died on 18 February 2017 and was survived by his wife and ten (10) children. The appellants are some of his children. In terms of the testator’s Will dated 30 November 2007, he bequeathed sums of money to the appellants under clauses 2.4 and 2.7 of the Will. Clauses 2.4 and 2.7 read as follows:

“2.4 The sum of $200 000 000.00 (Two Hundred Million Dollars) cash each to HILARY CHIRINDA and LAVENDER CHIRINDA.

…

2.7   My Mercedes Benz CL500 Registration Number AAR6000 to be sold and from the proceeds thereof $200 000 000.00 (Two Hundred Million Dollars) each to be

given to HILARY CHIRINDA and LAVENDER CHIRINDA, the balance to be     invested for TENDAI CHIRINDA, RUDO CHIRINDA and TATENDA CHIRINDA’S education.”

The Will nominated Roger Hunter Chadwick or a senior partner for the time being of Scanlen and Holderness Legal Practitioners, to be the executor of the estate. Upon the death of the testator, the second respondent (hereinafter referred to as “the executrix”) was in terms of the Will appointed the Executrix of the estate. The executrix prepared a First and Final Distribution Account of the estate.

On 14 September 2017, the appellants wrote to the first respondent (the Master of the High Court) objecting to the estate account published by the Executrix. They averred that they had been disinherited by the executrix in the estate account as they had not been listed as beneficiaries entitled to the sum of $200 000 000.00 cash each according to the Will.

On 21 September 2017, the executrix of the estate wrote to the first respondent stating that the appellants’ objection had no merit on the basis that clause 2.4 of the Will had fallen away as there were no Zimbabwean Dollars in the estate. On 25 January 2018, the first respondent advised the appellants of the response he had received from the Executrix and that their objection had been dismissed and that the distribution account would be confirmed.

Aggrieved by the first respondent’s decision, the appellants applied to the court a quo for an order setting aside the first respondent’s decision in terms of s 52 (9) (i) of the Administration of Estates Act [Chapter 6:01]. In the court a quo, the appellants argued that clause 2.4 of the Will did not make reference to Zimbabwean Dollars but rather it simply had a dollar sign prefix. In that regard, the appellants contended that a formula to distribute the money ought to have been devised to ensure that the cash bequeathed to them was ascertained.

The executrix opposed the application and asserted that since the Will had been made in 2007, it followed that the bequeathed sums of money were in Zimbabwean Dollars. She further stated that the appellants’ monetary bequest in terms of the Will had been affected by hyperinflation and as such the estate could not give money which it did not have. The executrix highlighted that the only money in the estate was from the proceeds of the sale of the matrimonial home, which money became part of the residue of the estate and was to be distributed in terms of clause 3 of the Will.

The court a quo found that a reading of clauses 2.4 and 2.7 carried an ordinary meaning and that the property bequeathed was something readily available at the time of attestation. It further found that the appellants were no longer pursuing the claim of their legacy on the motor vehicle as per clause 2.7 of the will as it had been sold by the deceased before he died. The court a quo held that despite the intention of the testator to leave for the appellants the specified sums of money, the money had been demonetised and was no longer available. It further held that the appellants could not benefit from the residue of the estate as it was proceeds of the sale of the matrimonial home.

Accordingly, the court a quo dismissed the appellants’ application. Aggrieved by that decision, the appellants appealed to this Court on the following grounds:

“The court a quo erred and misdirected itself in failing to appreciate that the demonetization of the Zimbabwean Dollar had no effect on bequests made in wills executed in the Zimbabwean dollar era.

The court a quo erred and misdirected itself in upholding the first respondent’s decision to disinherit the appellants on the grounds that the second respondent could not give that which does not exist when in fact, for the purposes of giving effect to the intentions of the testator, conversions of the money bequeathed to the applicants could be done at the rate prevailing on the date of execution of the Last Will and Testament.”

This appeal raises one issue for determination:

Whether or not the court a quo erred in finding that the appellants had been disinherited as the money bequeathed to them had been demonetized.

Mr Bumhira for the appellants, submitted that the court a quo erred in finding that demonetisation took away the bequest made by the testator during the Zimbabwean Dollar era. He further submitted that what was demonetised by S.I 70 of 2015 was the currency and not obligations and benefits which accrued to individuals. Mr Bumhira argued that the executrix ought to have approached the Reserve Bank of Zimbabwe to get the exchange rates, make conversions and give the appellants what was due to them. He contended that the appellants were to be given the money equivalent to the sum of that which was bequeathed before the Zimbabwean Dollar fell away.

Mr Zhuwarara for the second respondent, submitted that the appellants were legatees in the estate and were only entitled to what was bequeathed to them. He further submitted that their legacy had been taken away by S.I 70 of 2015 which demonetised the Zimbabwean Dollar as a currency. Mr Zhuwarara argued that it then followed that the $200 000 000.00 dollars bequeathed to each of the appellants had ceased to exist and they could not inherit what was non-existent. He further contended that as legatees, the appellants could not have a share in the residue of the estate as it was reserved for heirs. Mr Zhuwarara argued that the executrix could not therefore give the appellants what was not in existence.

The determinant clauses of the will read as follows:

“2.4 The sum of $200 000 000.00 (Two Hundred Million Dollars) cash each to Hilary

Chirinda and Lavender Chirinda.

My Mercedes Benz CL500 Registration Number AAR6000 to be sold and from the proceeds thereof $200 000 000.00 (Two Hundred Million Dollars) each to be given to Hilary Chirinda and Lavender Chirinda, the balance to be invested for Tendai Chirinda, Rudo Chirinda and Tatenda Chirinda’s education.”

When interpreting a will, the determinant consideration is the intention of the testator which must be given effect. In Piennar and Anor v Master of the Free State High Court, Bloemfontein and Ors 2011 (6) SA 338 (SCA) the court held that:

“The golden rule for interpretation of wills is to ascertain the wishes of the testator from the language used. Once the wishes of the testator have been ascertained a court is bound to give effect to them.

In Zvobgo v Madondo N.O and Ors HH 92/06, the court held that:

“The cardinal rule is that a will should be so construed as to ascertain from the language used therein the true intention of the testator in order that his wishes be carried out.”

A reading of the testator’s will shows that he bequeathed to the appellants’ specific property that is cash bequests and gave other directives on how the money belonging to the estate would be distributed. Clause 2.4 which bequeathed the sum of $200 000 000.00 cash to each of the appellants ought to be given its literal meaning and be read with the period when the will was drawn in mind. When the will was made in 2007, the currency in force was the Zimbabwean Dollar. It therefore means that the $ prefix in the will was that of the Zimbabwean Dollar as it was the only legal tender at that time. Mr Bumhira’s argument that the $ prefix did not refer to the Zimbabwean dollar currency has no merit.

Clause 2.4 of the Will clearly indicates that the testator’s intention was to give the appellants legacies as he bequeathed specific property to them being the aforementioned amount of money.  Corbet, Hahlo, Hofmeyer and Kahn in their book Law of succession in South Africa (Juta and Co, Cape Town 1980) at p 223, state that the difference between a legatee and an heir is that a legatee receives a specific bequest while an heir receives the residue. In casu, it is clear that the appellants were legatees and were thus not entitled to the residue in the estate as that was a preserve of the heirs.

The record reveals that the sum of money bequeathed to the appellants was money at hand probably in a bank account. The coming in of S.I 70 of 2015 (Demonetisation of Notes and Coins) Notice, 2015 saw the demonetization of monies held by any person in Zimbabwe. Section 6 of S.I 70 of 2015 provides that the Reserve Bank of Zimbabwe would pay the denominated monies at the following rate:

five United States Dollars for every account that was held with a balance of up to one hundred and seventy-five quadrillion Zimbabwe Dollars; and

for any Zimbabwean Dollar balances above the amount stated in paragraph (a), one United States Dollar to thirty-five quadrillion Zimbabwean Dollars.

It is important to note that the deceased died on 18 February 2017. This means when S.I 70 of 2015 took effect he was still surviving and his will was affected by it. The money bequeathed to the appellants was reduced to what the law provided. When converted in terms of the S.I, they were entitled to less than US$1. If it was proved that such diminished amounts were in the estate the appellants would be entitled to such legacies. It is however clear from the evidence on record that there was no other money in the estate besides that which came from the disposal of the matrimonial home. I am of the view that the executrix could therefore not give to the appellants that which was not in the estate. The simple position is that there was no money in the estate to meet the bequests. The appellants cannot inherit the residue in the estate as clause 3 of the Will made it a preserve of the heirs.

In arriving at the determination of the issue before it the court a quo said:

“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.”

The court a quo’s decision was informed by what the second respondent deposed in her opposing affidavit on pages 39 to 43 at para 14 where she said:

“The only money that belongs to the estate came from proceeds of the sale of the matrimonial home. Unfortunately, the deceased became ill and died before he could secure another property for his wife and minor children. The amount therefore became part of the residue to be distributed in terms of para 3 of the Will.”

This means over and above the demonetisation of the appellants’ legacy, there was eventually no other money in the estate to be paid to the appellants as legatees. Therefore the issue of demonetisation fell away and was taken over by there being no other money besides that from the proceeds of the sale of the matrimonial home which did not fall under clauses 2.4 and 2.7 under which legacies were bequeathed to the appellants. It fell under clause 3 which bequeathed it to heirs of the estate.

It is unfortunate that Mr Bumhira for the appellants erroneously continued to claim that his clients were disinherited by the first and second respondents, when they were in fact disinherited by the testator’s failure to amend his Will when his estate was diminished as he moved on towards his death. The testator was aware that the sale of his Mercedes Benz would disinherit the appellants. He was also aware that the absence of any other money in his estate would disinherit his legatees. The solution to the appellants’ fate lay in the amendment of his Will by nominating other legacies, or up grading the appellants to heirs of his estate.  His failure to amend the Will cannot be rectified by the law which should merely bring into effect what he bequeathed according to what he left in his estate at the time of his death. In terms of the law a legatee suffers the loss when the thing bequeathed to him is diminished or destroyed before the death of the testator or before the distribution of the estate. This is simply because no one other than the testator can give to his legatees or heirs. They are confined to what the Executor or Executrix finds in the estate.

The decision of the court a quo is therefore unassailable. The appeal has no merit. It is dismissed with costs

MAKARAU JA:        				I agree

HLATSHWAYO JA:  				I agree

J. Mambara & Partners, appellant’s legal practitioners

Scanlen & Holderness, second respondent’s legal practitioners