CHAPTER 6:01

ADMINISTRATION OF ESTATES ACT (Ordinance No. 6 of 1907 as amended through Act No. 16 of 1998) (Chap. 6 :01)

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PART III: ESTATES OF DECEASED PERSONS (sections 5-67)

Death Notices

5. Death notices to Master, Assistant Master or magistrate

(1) Whenever any person dies leaving any property in possession, reversion or expectancy or leaving a will, the nearest relative or connection of the deceased who is at or near the place of death, or in default of any such near relative or connection, the person who at or immediately after the death has the chief charge of the house in or of the place on which the death occurs shall, within fourteen days thereafter, cause a notice of death to be framed in the form A in the Second Schedule, and shall cause that notice, signed by himself, to be delivered or transmitted-

(a) if the death occurs in Harare or the district thereof, to the Master;

(b) if the death occurs in Bulawayo or the district thereof, to the Assistant Master;

A notice delivered or transmitted under this subsection to the Master or Assistant Master shall in all cases be accompanied by a duplicate or fair and true copy thereof and, if delivered or transmitted to a magistrate, by two duplicate or fair and true copies thereof.

(2) Every magistrate to whom such notice as aforesaid is given shall cause the duplicate copy thereof to be examined and compared with the original, and if need be corrected, and shall authenticate such duplicate or copy with his signature.

(3) The magistrate shall file and register the same and shall forthwith transmit the original notice-

(a) to the Master if the death occurred within the area defined in the First Schedule;

(b) to the Assistant Master if the death occurred outside the area defined in the First Schedule.

(4) If it appears that the person signing the death notice was not present at the death, the Master may call upon such person for proof of death.

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12. Inventory of estate in community

(1) When one of two spouses who have been married in community of property dies, the survivor shall, within thirty days after the death of the deceased, cause an inventory of all property, goods and effects, movable and immovable, of what kind soever which, at the time of the death, formed part of or belonged to the estate possessed in community between the predeceasing and surviving spouses, to be made in the presence of two impartial witnesses, being persons of good credit and repute, and of such persons having an interest in the distribution of the joint estate as heirs or legatees of the predeceased spouse as may attend.

(2) Every such inventory shall be subscribed by the surviving spouse and witnesses aforesaid and such heirs or legatees as are present at the making thereof.

13. Penalty on omission of inventory

(1) Every surviving spouse who wilfully neglects to cause an inventory of the joint estate to be made in manner and within the period hereinbefore provided, or knowingly omits to enter in such inventory any article of property of whatsoever kind, shall, in the distribution of such estate, forfeit all right to and share in anything which may accrue to the joint estate after the death of the predeceasing spouse and in and to such property so omitted in the inventory.

(2) Every loss which has been caused by the destruction or deterioration of any such property so omitted in the inventory, or which has accrued to the joint estate after the death of the predeceasing spouse by the loss or deterioration of any part thereof, shall, in the distribution of the estate, fall upon and be borne by such surviving spouse solely and exclusively.

(3) Nothing in this section contained shall free or exempt any person who wilfully, or for any fraudulent purpose, makes or causes to be made any false inventory of any such joint estate from any penalty or punishment hereinafter or by any other law provided with respect to the offence of making false inventories.

14. Inventory on the death of person not married in community

(1) On the death of any person not being one of two spouses married in community of property, the wife or

husband of the deceased or, in default or absence of the wife or husband, the child or children of the deceased or, in default, absence or minority of the child or children, the next of kin of the deceased or, in default, absence or minority of the next of kin, the person who at or immediately after the death has the chief charge of the house in or of the place on which the death occurs shall, within fourteen days after the death, make or cause to be made in the presence of two impartial witnesses, being persons of good credit and repute, an inventory of all goods and effects belonging to the deceased and being in the house or upon the premises at the time of death, and of all other goods and effects known by the person making such inventory or causing such inventory to be made to have belonged to the deceased.

(2) Every such inventory shall be subscribed by the person making or causing the same to be made and by the witnesses aforesaid.

15. Transmission to Master, Assistant Master or magistrate

(1) Every person hereinbefore required or directed to make, or cause to be made, any such inventory as aforesaid shall, so soon as the same has been made, forthwith deliver or transmit every such inventory-

(a) if such person resides in Harare or the district thereof, to the Master;

(b) if such person resides in Bulawayo or the district thereof, to the Assistant Master;

(2) An inventory delivered or transmitted under paragraph (c) of subsection (1) shall be accompanied by a duplicate or fair and true copy thereof.

(3) The magistrate shall cause the duplicate or copy of every such inventory so delivered or transmitted to him to be examined, and if need be corrected; and shall authenticate such duplicate or copy with his signature, and file the same of record in his office, transmitting the original to the Master.

16. Inventory by order of the High Court, judge or Master

The High Court, or any judge thereof, or the Master, on sufficient cause appearing at any time may order that an inventory of any property belonging to any deceased person, or to the joint estate of any deceased person and the surviving spouse, shall be taken by any person named in such order.

17. Particulars required as to immovable property

Every person who is required by section twelve, fourteen or sixteen to make an inventory shall include therein a specified list of all immovable property wherein to his knowledge the deceased had an interest at the date of his death, and, if possible, a reference to the title under which the deceased held such interest, and the date of such title.

18. Penalty clause

Every person who fails to comply with section twelve, fourteen or sixteen shall, in addition to any penalty provided by law, be guilty of an offence and liable to the appropriate penalty prescribed in section one hundred and fourteen.

19. Penalty for false inventory

If any person required and directed under and by virtue of section twelve, fourteen or sixteen to make or cause to be made an inventory of any estate, goods or effects wilfully makes a false inventory thereof, he shall be guilty of an offence and liable to a fine not exceeding two thousand dollars.

Custody of Estate Pending Issue of Letters of Administration

20. Custody of estate in community

When one of two spouses who have been married in community of property dies, the joint estate shall remain under the charge of the survivor until the executor of the deceased, or the tutor testamentary or dative of the minor children of the marriage, or the Master or curator bonis lawfully appointed to such minor children, takes proceedings for the administration, distribution and final settlement of the joint estate:

Provided that nothing in this section shall prevent any such joint estate from being placed under sequestration as insolvent.

21. Custody of estate of person not married in community

On the death of any person not being one of two spouses married in community of property, the spouse of the deceased or, in default or absence of the spouse, the child or children of the deceased or, in default, absence or minority of the child or children, the next of kin of the deceased or, in default, absence or minority of the next of kin, the person who at or immediately after the death has the chief charge of the house in or of the place on which the death occurs shall secure and take charge of all goods and effects of whatever description belonging to the deceased and being in the house or upon the premises at the time of death, and shall retain the same in his or her custody and possession until delivery thereof is demanded by the executor of the deceased or by any other person lawfully appointed by the High Court or any judge thereof or the Master, to receive delivery of the same.

22. Custody of estate by curator bonis

(1) In all cases where it may be necessary or expedient to do so, the Master may appoint a curator bonis to take the custody and charge of any estate until letters of administration are granted to executors testamentary or dative for the due administration and distribution thereof.

(2) Every such curator bonis may collect such debts and may sell or dispose of such perishable property belonging to the estate as the Master shall specially authorize.

(3) Every appointment made by the Master of any curator bonis shall, upon the application of any person having an interest in such estate, be subject to be reviewed and confirmed or set aside by the High Court or any judge thereof; and the High Court or judge, by whom such appointment is set aside, may appoint some other fit and proper person to be curator bonis.

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25. Appointment of executor

(1) When any person has died without having by any valid will or codicil appointed any person to be his executor, or where any person duly appointed to be the executor of any deceased person has predeceased him or refuses or becomes incapacitated to act as such, or within such reasonable time as the Master considers sufficient, neglects or fails to obtain letters of administration, then and in every such case the Master shall cause to be published in the Gazette, and in such other manner as to him seems fit, a notice calling upon the surviving spouse, if any, and the next of kin, legatees and creditors of the deceased to attend at his office, at the time therein specified, to see letters of administration granted to such person or persons as may then be appointed by him executor or executors, to the estate of such deceased person.

(2) When it appears to the Master necessary or expedient so to do, he may in such notice call upon such persons as aforesaid to attend before any magistrate, at such time and place as may be appointed, for the purpose of proposing some person or persons to be by such magistrate recommended to the Master as fit and proper to be by him appointed executor or executors.

(3) The Master shall at the meeting so to be held at his office, or upon receiving the report of such magistrate, appoint such person or persons as to him seems fit and proper to be executor or executors of the estate of the deceased, and shall grant letters of administration accordingly, unless it appears to him necessary or expedient to postpone such appointment and to call another, or other such meeting or meetings, as aforesaid:

Provided that when it appears to the satisfaction of the Master that the estate of any deceased person as is hereinbefore mentioned is manifestly insolvent, then and in every such case it shall not be necessary for him to take any such proceedings as aforesaid for the appointment of an executor or executors.

26. Competition for the office of executor dative

In every case in which a competition takes place for the office of executor dative the surviving spouse, or failing him or her the next or some of the next of kin, or failing him or them a creditor or creditors, or failing him or them failing a legatee or legatees, shall be preferred by the Master to the office of executor:

Provided that-

(i) nothing in this section shall prevent any one or more of the above classes of persons from being conjoined in the said office with one or more of any of the above-mentioned classes of persons;

(ii) when it appears to the Master or to the High Court or any judge thereof, on reviewing the appointment of the Master, that any good reason exists against the appointment of all or any of the above-mentioned persons or classes of persons, as executor or executors, any such person or class of persons may be passed by and some other fit and proper person or persons may by the Master, or by the High Court or judge, be appointed executor or executors;

(iii) every such appointment so made by the Master shall, on the application of any person having an interest in such estate, be subject to be reviewed and confirmed or set aside by the High Court or any judge thereof; and the High Court or judge by whom such appointment is set aside may appoint some other fit and proper person or persons to be executor or executors.

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49. Master may permit surviving spouse to take over estate at appraisement

If one of two spouses dies intestate, or dies testate and has made no provision to the contrary in the will, the Master may, if it appears to him that it will be for the benefit of the minor children, if any, of the deceased spouse to do so, permit the estate belonging to such deceased spouse to be taken over by the survivor at a valuation, to be made by a person appointed in terms of section one hundred and twenty-eight, instead of being realized according to law:

Provided that no person having any lawful claim against the estate of such deceased spouse shall be delayed or defeated in obtaining payment of such claim by virtue of anything herein contained.

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57. Transfer or mortgage of property held in community

The survivor of two spouses who were married in community of property shall not, without the consent of the Master in writing, transfer any land belonging to the joint estate and registered in the name of such survivor unless and until an account of the administration of such estate has been lodged with and accepted by the Master, nor shall the survivor, unless and until such account has been so filed and accepted, mortgage without such consent any such land as aforesaid, except for the purpose of-

(a) securing to the minor heirs of such deceased spouse the inheritance rightfully due to them; or

(b) raising money in order to pay such inheritance into the hands of the Master.

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61. Duties of surviving spouse appointed executor testamentary

Every surviving spouse who has been appointed executor testamentary of his or her deceased spouse shall, so soon as the estate of the deceased has been administered and an account thereof framed according to law-

(a) secure the inheritances ascertained by the said account to be due to the minor children or descendants of the deceased spouse in such manner as the deceased spouse has directed or failing such direction by deed of kinder-bewys in customary form; or

(b) pay the said inheritance into the hands of the Master.

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65. When Master may summarily appoint executor dative

(1) In all cases in which it appears from the death notice or inventory filed in respect of the estate of any deceased person, and from such other information as the Master may call for, that the value of the assets of such estate does not exceed such amount as the Minister may specify in terms of subsection (2), the Master in the case of an intestate estate, or in the case of a testate estate in which the executor testamentary may be unable or unwilling to act, may summarily, and without observance of the usual and customary forms, appoint an executor dative to administer the estate of such deceased person:

Provided that a person shall not be appointed as an executor dative in terms of this section unless he is-

(a) registered under the Estate Administrators Act [Chapter 27:20]; or

(b) a surviving spouse or next of kin of the deceased person concerned.

[Subsection (1) amended by section 68(d) of Act 16 of 1998 with effect from 1 March 2000.]

(2) The Minister may, by statutory instrument, specify an amount for the purposes of subsection (1) and may in like manner revoke or amend any such statutory instrument.

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PART IIIA: ESTATES OF PERSONS SUBJECT TO CUSTOMARY LAW (sections 68-68K)

68. Interpretation in Part IIIA

(1) In this Part-

'beneficiary', in relation to a deceased person's estate, means-

(a) a surviving spouse or child of the deceased person; or

(b) where the deceased person left no surviving spouse or child, any person who is entitled to inherit any property in the estate in terms of this Part;

'estate' includes any immovable property forming part of the estate;

'executor' means a person appointed as executor of an estate in terms of section sixty-eight B;

'family', in relation to a deceased person referred to in subsection (1) of section sixty-eight A, means the persons who are recognized under customary law as constituting the deceased person's family;

'heir', in relation to a deceased person referred to in subsection (1) of section sixty-eight A, means his heir at customary law;

'Master' includes a magistrate or other person designated by the Minister in terms of section sixty-eight I;

'net estate' means the residue of an estate remaining after the discharge or settlement of the claims of creditors.

(2) Any reference in this Part to a share or a fraction of an estate shall be construed as a share or fraction, as the case may be, determined according to value.

(3) A marriage contracted according to customary law shall be regarded as a valid marriage for the purposes of this Part notwithstanding that it has not been solemnized in terms of the Customary Marriages Act, and any reference in this Part to a spouse shall be construed accordingly:

Provided that such a marriage shall not be regarded as valid for the purposes of this Part if, when it was contracted, either of the parties was married to someone else in accordance with the Marriage Act or the law of a foreign country under which persons are not permitted to have more than one spouse.

(4) A marriage contracted according to the Marriage Act or the law of a foreign country under which persons are not permitted to have more than one spouse shall be regarded as a valid marriage for the purposes of this Part even if, when it was contracted, either of the parties was married to someone else in accordance with customary law, whether or not that customary-law marriage was solemnized interms of the Customary Marriages Act:

Provided that, for the purposes of this Part, the first-mentioned marriage shall be regarded as a customary-law marriage.

68A. Application of Part IIIA

(1) Subject to subsection (2), this Part shall apply to the estate of any person to whom customary law applied at the date of his death.

(2) This Part, other than section sixty-eight C, shall not apply to any part of an estate that is disposed of by will.

68B. Appointment of executor

(1) Upon the death of a person referred to in subsection (1) of section sixty-eight A, the Master shall summon the deceased person's family, or such members of the family as are readily available, for the purpose of appointing a person to be the executor of the deceased person's estate.

(2) The Master, with the concurrence of the relatives present at a meeting summoned in terms of subsection (1), shall appoint a person to be the executor of the estate of the deceased person referred to in that subsection:

Provided that-

(i) if the relatives are unable to agree upon a person to be appointed as executor, the Master shall appoint a person as provided in section twenty-six, which section shall apply, mutatis mutandis, in relation to any such appointment;

(ii) no person shall be appointed as executor under this subsection unless he is-

(a) registered under the Estate Administrators Act; or

(b) a member of the deceased person's family.

(3) The heir of the deceased person concerned shall be eligible for appointment as executor in terms of subsection (2), if the deceased person's relatives present at a meeting summoned in terms of subsection (1) agree on his appointment.

(4) Subject to this Part, an executor appointed in terms of subsection (2) shall be responsible for-

(a) discharging the claims of creditors against the estate of the deceased person concerned; and

(b) administering and safeguarding the estate of the deceased person concerned, pending its distribution in terms of this Part.

(5) In the exercise of his responsibilities in terms of subsection (4), an executor shall have such of an executor's powers under this Act, and shall be subject to such of an executor's duties, as may be prescribed or as the Master may confer or impose on him.

68C. Inheritance of customary articles by heir

Upon the death of a person referred to in subsection (1) of section sixty-eight A, his heir shall inherit the person's name and tsvimbo or intonga and any traditional articles which, under customary law, pass to his heir on the person's death.

68D. Inheritance plan

(1) As soon as possible after the death of a person referred to in subsection (1) of section sixty-eight A and the discharge or settlement of any legitimate claims against his estate, his executor shall draw up a plan providing for such of the following matters as may be appropriate-

(a) the conservation and application of the net estate for the benefit of the beneficiaries;

(b) the distribution of all or any part of the net estate to the beneficiaries;

(d) the maintenance of any beneficiary.

(2) When drawing up a plan in terms of subsection (1), an executor shall-

(a) pay due regard to the principles set out in subsection (2) of section sixty-eight F, to the extent that they are applicable; and

(b) so far as is practicable, consult the deceased person's family and the beneficiaries and endeavour to obtain the beneficiaries' agreement to it.

68E. Consideration and approval of inheritance plan

(1) As soon as possible after drawing up a plan in terms of section sixty-eight, an executor shall submit it to the Master for approval.

(2) On receipt of a plan drawn up in terms of section sixty-eight D, the Master shall take such steps as he considers necessary or appropriate to satisfy himself that-

(a) the executor has consulted all the members of the deceased's family and beneficiaries whom he could with reasonable diligence have consulted, and has obtained the beneficiaries' agreement to the plan; and

(b) the beneficiaries who have agreed to the plan have done so with full knowledge and understanding of their rights.

(3) If the Master-

(a) is satisfied that a plan submitted to him in terms of subsection (1) has been agreed to by all the beneficiaries concerned or by such of them as the executor could with reasonable diligence have consulted, the Master shall approve the plan and authorize the executor to distribute or administer the estate in accordance with it;

(b) has reason to believe that the executor has failed to consult a member of the deceased's family or a beneficiary whom he could with reasonable diligence have consulted, the Master shall refuse to approve the plan until that family member or beneficiary has been consulted and, in the case of a beneficiary, his agreement to the plan has been obtained;

(c) has reason to believe that one or more of the beneficiaries concerned have not agreed to a plan submitted to him in terms of subsection (1), the Master shall proceed to determine, in accordance with section sixty-eight F, any issues in dispute between the executor and the beneficiary or beneficiaries, and shall direct the executor to distribute or administer the estate in accordance with his determination.

68F. Resolution of dispute over inheritance plan

(1) In determining any issue between an executor and a beneficiary in terms of paragraph (c) of subsection (3) of section sixty-eight E, the Master shall-

(a) adopt such procedure as, in his opinion, will resolve the issue in the speediest and least expensive manner consistent with real and substantial justice; and

(b) ensure that the executor and the beneficiary concerned are afforded a reasonable opportunity to state their respective cases.

(2) The Master shall be guided by the following principles, to the extent that they are applicable, when determining any issue between an executor and a beneficiary in terms of paragraph (c) of subsection (3) of section sixty-eight E-

(a) any personal articles which, under customary law, devolve upon a member of the deceased person's family should be given to that family member, and their value excluded from the net estate for the purposes of paragraphs (b) to (j);

(b) where the deceased person was a man and is survived by two or more wives and had one or more children-

(i) one-third of the net estate should be divided between the surviving wives in the proportions two shares to the first or senior wife and one share to the other wife or each of the other wives, as the case may be; and

(ii) the remainder of the estate should devolve upon-

A. his child; or

B. his children in equal shares;

as the case may be, and any of their descendants per stirpes;

(c) where the deceased person was a man and is survived by two or more wives, whether or not there are any surviving children, the wives should receive the following property, in addition to anything they are entitled to under paragraph (b)-

(i) where they live in separate houses, each wife should get ownership of or, if that is impracticable, a usufruct over, the house she lived in at the time of the deceased person's death, together with all the household goods in that house;

(ii) where the wives live together in one house at the time of the deceased person's death, they should getjoint ownership of or, if that is impracticable, a joint usufruct over, the house and the household goods in that house;

(d) where the deceased person is survived by one spouse and one or more children, the surviving spouse should get-

(i) ownership of or, if that is impracticable, a usufruct over, the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house; and

(ii) a share in the remainder of the net estate determined in accordance with the Deceased Estates Succession Act;

(e) where the deceased person was a woman whose husband at the time of her death had more than one wife, and she is survived by her husband and had one or more children-

(i) one-third of her net estate should devolve upon her husband; and

(ii) the remainder of her estate should devolve upon-

A. her child; or

B. her children in equal shares;

as the case may be, and any of their descendants per stirpes;

(f) where the deceased person is not survived by a spouse or child, the net estate should devolve upon his surviving parents, brothers and sisters, if any, in equal shares;

(g) where the deceased person is survived by one spouse but no children-

(i) the surviving spouse should get-

A. ownership of or, if that is impracticable, a usufruct over, the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house; and

B. half the remainder of the net estate;

(ii) the balance of the net estate should devolve upon the deceased person's surviving parents, brothers and sisters, if any, in equal shares;

(h) where the deceased person is not survived by a spouse and had one or more children, the net estate should devolve upon-

(i) that child; or

(ii) those children in equal shares;

as the case may be, and any of their descendants per stirpes;

(i) so far as possible, the net estate should be applied to meeting the basic needs of beneficiaries who have no other means of support;

(j) subject to paragraphs (a) to (i), the net estate should devolve according to customary law.

68G. Determination of whether customarylaw applied to deceased person

(1) Section 3 of the Customary Law and Local Courts Act shall apply in determining the question whether or not customary law applied to a deceased person for the purposes of this Part:

Provided that it shall be presumed, unless the contrary is shown, that-

(a) customary law applied to a person who, at the date of his death, was married in accordance with customary law; and

(b) the general law of Zimbabwe applied to a person who, at the date of his death, was married in accordance with the Marriage Act or the law of a foreign country, even if he was also married to the same person under customary law.

(2) Where there is a dispute among the beneficiaries of an estate as to whether or not customary law applied to the deceased person for the purposes of this Part, the question shall be referred to the Master, who shall determine it in the speediest and least expensive manner consistent with real and substantial justice.

68H. Exemption of small estates from provisions of this Part

Without derogation from section sixty-five, if the Master is satisfied that the net value of any estate does not exceed such amount as may be prescribed, he may exempt the estate concerned from all or any of the provisions of this Part.

68I. Designation of persons to perform functions of Master

The Minister may, by notice in the Gazette, designate-

(a) any magistrate or class of magistrates; or

(b) any other person or class of persons;

as persons entitled to perform, subject to such conditions as may be specified in the notice, all or any of the functions of the Master in terms of this Part.

68J. Appeals against decisions of Master

Any person who is aggrieved by any decision of the Master in terms of this Part may appeal against the decision to the High Court within the time and in the manner prescribed in rules of court.

68K. No derogation from Cap. 6:03

This Part shall not be construed as limiting the right of any person to apply for, receive or enjoy any benefit under the Deceased Persons Family Maintenance Act.

PART IV: ESTATES OF MINORS AND ABSENT PERSONS (sections 69-112)

69. Appointment by father or mother only of tutors to minors

(1) No person, except the father of any minor or the mother of any minor whose father is dead or has abandoned the minor, by any will or other deed shall nominate and appoint any tutor to administer and manage the estate or to take care of the person of such minor.

(2) Nothing in subsection (1) contained shall prevent any person who gives or bequeaths any property to any person from appointing any curator to administer and manage such property during the minority or during the continuance of the insanity of the person to whom the same is given or bequeathed, in like manner and as fully in all respects as the same might lawfully have been done prior to the 5th July, 1907.

(3) All curators so appointed shall be called curators nominate.

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PART V: GENERAL (sections 113-132)

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114. Penalties for contraventions of provisions of Act

Any person convicted of a contravention of this Act hereinafter in this subsection mentioned shall be liable to fines not exceeding respectively the sums following, that is to say-

(a) sections five, six and fifty-nine, one hundred dollars;

(b) sections eight, twelve, fourteen and fifteen, two hundred dollars;

(d) subsection (3) of section ninety and section one hundred and twenty-eight, one thousand dollars;

(e) subsection (4) of section ninety, two thousand dollars;

(f) any other sections in respect to which no other or special penalty has been prescribed, five hundred dollars.

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