Administration Of Estates Act (Chapter 6:01)

Chapter 6:01

Administration Of Estates Act

Ord. 6,1907; Acts 12/1929, 3/1932, 2/1935, 37/1938 (ss. 19 and 20), 29/1951 (s. 2), 25/1956 (ss. 6 and 7), 3/1957,

15/1958, 9/1962, 14/1962 (s. 2), 22/1964 (s. 54), 30/1969, 29/1970 (s. 2), 42/1971 (s. 5), 77/1971 (s. 21), 57/1972

(s. 4), 39/1973 (s. 52)19/1977, 39/1978 (s. 13), 41/1978 (s. 31), 17/1979 (s. 13), 15/1981, 29/1981, 15/1982,

11/1991 (s. 21), 9/1995, 6/1997, 9/1997, 12/1997 (s. 4), 16/1998 (s. 68), 9/1999 (s. 82), 22/2001 (s. 4); R.G.N.s 26/1963, 386/1964, 217/1970; S.I. 574/1981 (and by 789/1981), 638/1981.

ARRANGEMENT OF SECTIONS PART I

PRELIMINARY Section

1. Short title.

PART II

MASTER’S OFFICE

3. Master and other officers.
4. Offices of record.

PART III

ESTATES OFDECEASEDPERSONS

Death Notices

5. Death notices to Master, Assistant Master or magistrate.
6. If death notice defective executor to furnish further information.

Wills

7. Deposit of wills with Master.
8. Transmission of wills.
9. Search for concealed will.
10. Order for delivery of will.
11. Registration of wills at testator’s death.

Inventories

12. Inventory of estate in community.
13. Penalty on omission of inventory.
14. Inventory on the death of person not married in community.
15. Transmission of inventory to Master, Assistant Master or magistrate.
16. Inventory by order of the High Court, judge or Master.
17. Particulars required as to immovable property.
18. [Repealed]
19. Penalty for false inventory.

Custody of Estate Pending Issue of Letters of Administration

20. Custody of estate in community.
21. Custody of estate of person not married in community.
22. Custody of estate by curator bonis.

Letters of Administration

23. Letters of administration.
24. Letters of administration to executors as appointed by will.
25. Appointment of executor.
26. Competition for the office of executor dative.
27. Appointment of tutor as executor.
28. Assumption of executor under power contained in will.
29. Appointment of new executor.

29A. Disqualification from appointment as executor in certain cases.

30. Revocation of letters of administration.
31. Security for due administration.
32. Administration of small estates.

Foreign Letters of Administration

33. Interpretation in sections 34 to 37.
34. Operation of sections 34 to 37 only with regard to letters granted in States specially proclaimed.
35. Recognition of foreign letters of administration.
36. Letters granted by British Consular Courts recognized.
37. Evidence of foreign letters of administration.

Duties of Executors

38. Inventory by executor.
39. Penalty for false inventory.
40. Valuation of assets.
41. Liability in certain cases for debts and legacies.
42. Duty of person in possession of assets of estate of deceased person.
43. Public notice by executors to creditors and others to lodge their claims.
44. Suspension of execution against deceased estate.
45. Duties of executors after expiration of period for lodging claims.
46. Preference on estate for funeral expenses.
47. Executor may require solemn declaration in support of claim.
48. If estate insolvent.
49. Master may permit surviving spouse to take over estate at appraisement.
50. Claims by minors, absent persons and others.
51. Executor to pay to Master money devolving upon minors, mentally disordered or defective persons or absent persons.
52. Administration and distribution accounts.
53. Summons if account has not been lodged within six months.
54. Master entitled to costs in certain cases.
55. Costs, unless otherwise ordered, to be paid by executor in default.
56. Remuneration of executors.
57. Transfer or mortgage of property held in community.
58. Property bequeathed with limited interest and transfer to administrator.
59. Penalty for refusing to deliver title deed to executor when required.
60. Court may grant its consent to alienation or mortgage of property subject to certain restrictions.
61. Duties of surviving spouse appointed executor testamentary.
62. Revision of accounts.
63. Particulars to be sent to Registrar of Deeds.
64. State, Master and Registrar exempt from liability in certain cases.

Estates under $4000

65. When Master may summarily appoint executor dative.
66. Master may fix time for filing claims and account.

Estates of Persons Not Ordinarily Resident in Zimbabwe 67.       Estate of person not resident in Zimbabwe.

PART IIIA

ESTATESOF PERSONSSUBJECTTO CUSTOMARY LAW

68. Interpretation in Part IIIA. 68A. Application of Part IIIA.

68B. Appointment of executor.

68C. Inheritance of customary articles by heir.

68D. Inheritance plan.

68E. Consideration and approval of inheritance plan.

68F.  Resolution of dispute over inheritance plan.

68G. Determination of whether customary law applied to deceased person.

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

68I.   Designation of persons to perform functions of Master.

68J.   Appeals against decisions of Master.

68K. No derogation from Cap. 6:03.

PART IV

ESTATES OF MINORS AND ABSENT PERSONS

69. Appointment by father or mother only of tutors to minors.
70. Tutors testamentary.
71. Mode of granting letters of confirmation.
72. Letters of confirmation to curators nominate.
73. Security rem pupilli salvam fore, by curators and tutors nominate in like manner as before this Act.
74. Appointment of tutors dative by Master.
75. Review of Master’s appointment.
76. Assumption of tutors and curators.
77. Proceedings in case of death, incapacity or removal of tutors or curators.
78. Revocation of letters of confirmation.
79. Appointment of curator dative of estate or property of person whose whereabouts are unknown.
80. Appointment of curator dative of property belonging to absent persons not having a legal representative in Zimbabwe.
81. Appointment of curator ad litem and curator bonis.
82. Security for due administration by tutors and curators.
83. Disqualifications of persons as tutors or curators.
84. Removal ipso facto of insolvent tutors and curators.
85. Removal and suspension for cause of executors, tutors and curators.

Duties of Tutors and Curators

86. Inventory by tutors and curators.
87. Penalties for failure to make and transmit inventory.
88. Penalty for making false inventory.
89. Duties and liabilities of tutors and curators after confirmation.
90. Prohibition of re-marriage of surviving parent until minors’ shares have been secured.
91. Prohibition of alienation of immovable property by tutor or curator.
92. Payment of moneys to Master.
93. Further payment of moneys to Master.
94. Accounts of administration by tutors and curators.
95. Summons by Master.
96. Compensation of tutors and curators.

The Guardian’s Fund

97. The Guardian’s Fund.
98. Interest on moneys of minors and mentally disordered or defective persons.
99. Master to control moneys in hands of agents for person whose whereabouts are unknown.
100. Deposit-receiving institutions.
101. Banking of moneys in Guardian’s Fund.
102. Payment to persons entitled to money.
103. Application of moneys to education of minor.
104. List of moneys in Guardian’s Fund to be published.
105. Prescription of claims to moneys in Guardian’s Fund.
106. Investment of moneys to credit of Guardian’s Fund.
107. Bonds to be made payable to Guardian’s Fund.
108. Examination of books and security of Guardian’s Fund.
109. Master to prepare annual balance sheet.
110. Master to deliver copy of balance sheet to Minister and others.
111. Procedure in case of credit balance or loss.
112. Maintenance awards.

PART V

GENERAL

113. Decision on point of law.
114. [Repealed]
115. Invalidity of appointment of Master as executor, tutor or curator.
116. Supervision of executors, tutors and curators.
117. Master may apply for removal of executor, tutor or curator from office.
118. Continuing liability of executor, tutor or curator who has been removed and of surety therefor.
119. Master to keep register of executors, tutors, curators and sureties.
120. Sale of property otherwise than by auction.
121. When Master may authorize subdivision of immovable property of minors.
122. Disposal of minors’ property.
123. Master may invest money of minors in purchase of immovable property in Zimbabwe.
124. Records of Master’s office.
125. Master to forward duplicates to magistrates.
126. Liability of Master for costs of actions by or against him.
127. Application of Act.
128. Valuation of assets and property.
129. Oath to be taken after valuation made.
130. Meetings before magistrate or other authorized official.
131. Certified copies of duplicate original documents admissible in evidence.
132. Minister may make regulations.

SCHEDULES

FIRST SCHEDULE: Area for which Master’s Office is Office of Record.

SECOND SCHEDULE: Forms.

THIRD SCHEDULE: Form of Affidavit.

AN ACT to consolidate and amend the law relating to the administration of the estates of deceased persons, minors, mentally disordered or defective persons and persons absent from Zimbabwe, and to provide for the control of moneys belonging to persons whose whereabouts are unknown.

[Date of commencement: 5th July, 1907.]

PART I

PRELIMINARY

1    Short title

This Act may be cited as the Administration of Estates Act [Chapter 6:01].

                       2    Interpretation

In this Act—

“Assistant Master” means the Assistant Master of the High Court referred to in paragraph (c) of subsection

(1) of section three or any person performing his functions in terms of subsection (2) of that section;

[Definition substituted by section 4 of Act 12 of 1997.]

“magistrate for the district” means the magistrate whose court is situated within the district concerned or, where there is no magistrates court situated within the district concerned, the magistrate whose court is situated nearest thereto;

“Master” means the Master of the High Court referred to in paragraph (a) of subsection (1) of section three or any person performing his functions in terms of subsection (2) of that section;

[Definition substituted by section 4 of Act 12 of 1997.]

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act. PART II

MASTER’S OFFICE

                       3    Master and other officers

(1) Subject to the law relating to the Public Service, there shall be

• a Master of the High Court; and
• a Deputy Master of the High Court; and
• an Assistant Master of the High Court at Bulawayo; and
• such further Assistant Masters of the High Court and other officers as may be necessary for the proper administratio of this Act; whose offices shall be public offices and form part of the Public Service.

(2) Subject to this Act and any directions the Master may give them, the officers referred to in paragraph (b), (c) and (d) of subsection (1) shall perform such of the Master's functions, whether under this Act or any other enactment, as the Master may assign to them.

[Section substituted by section 4 of Act 12 of 1997.]

                       4    Office of record

• The office of the Master shall be an office of record for that part of Zimbabwe defined in the First Schedule and the office of the Assistant Master shall be an office of record for the remainder of Zimbabwe:

Provided that such of the records filed in the office of the Assistant Master as the Master may specify shall, if the Master so directs, be transferred for safekeeping to the office of the Master or such other central office of record as he may specify.

• Any provision of this Act or any other enactment which requires any document to be lodged with the

Master shall—

• if such document relates to a death which occurred outside the area defined in the First Schedule or to the death of a person who at the time of his death was ordinarily residing outside such area; or
• if such document is required to be lodged by a person residing outside such area; be read and construed as requiring such document to be lodged with the Assistant Master.

PART III

ESTATES OFDECEASEDPERSONS

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—

• if the death occurs in Harare or the district thereof, to the Master;
• if the death occurs in Bulawayo or the district thereof, to the Assistant Master; (c) if the death occurs in any other district, to the magistrate for that district.

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.

• 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.
• The magistrate shall file and register the same and shall forthwith transmit the original notice—
• to the Master if the death occurred within the area defined in the First Schedule;
• to the Assistant Master if the death occurred outside the area defined in the First Schedule.

(3a) Any person who, without just cause, fails to comply with subsections (1) to (3) shall be guilty of an offence and liable to a fine not exceeding level one or to imprisonment for a period not exceeding one month or to both such fine and such imprisonment.

[Subsection inserted by section 4 of Act 22 of 2001.]

• 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.

                       6    If death notice defective executor to furnish further information

• If the information in any death notice is defective or insufficient, the Master may call upon any executor, after his appointment, to furnish such further information as may be required, and every executor so called upon shall without delay return his written answers to such questions as the Master may put for that purpose.
• An executor who, without just cause, fails to comply with subsection (1) shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.

[Subsection inserted by section 4 of Act 22 of 2001.]

Wills

                       7    Deposit of wills with Master

• Any person may deposit with the Master or Assistant Master, either open or enclosed under a sealed cover, any will, codicil or testamentary instrument executed by him.
• The Master and the Assistant Master shall each keep, or cause to be kept, a register of the names and descriptions of the persons depositing with him every such deed, and the date on which it was so deposited.
• Every such deed shall be accompanied by a duplicate or fair and true copy thereof, which, together with the original, shall be kept under the charge and custody of the Master or Assistant Master, as the case may be, until the death of the maker thereof, unless re-delivery of the same is demanded by the said maker, or in his lifetime by his lawful agent specially authorized for that purpose, and when any such deed is re-delivered in manner aforesaid, the maker or his agent, as the case may be, shall sign a receipt for the same.

                       8    Transmission of wills

(1) Every person other than the Master or Assistant Master who has at the time of the death of the maker thereof in his possession any deed purporting to be or entitled the last will, codicil or other testamentary instrument of any other person, or into whose possession any such deed comes after the death of the maker

thereof, shall forthwith, at the first opportunity, deliver or transmit every such deed— (a)        when such person resides in Harare or the district thereof, to the Master;

• when such person resides in Bulawayo or the district thereof, to the Assistant Master;
• when such person resides in any other district, to the magistrate for the district in which he resides or is at the time.
• If delivered or transmitted to the Assistant Master or a magistrate under paragraph (b) or (c) of subsection

(1), such person shall also furnish a duplicate or true copy thereof.

• The magistrate shall cause such duplicate or copy to be examined and compared with the original and, if need be, corrected, and shall authenticate such duplicate or copy with his signature, and shall file and register the same, and shall forthwith transmit the original deed—
• to the Master if the deceased person ordinarily resided at the time of his death within the area defined in the First Schedule;
• to the Assistant Master if the deceased person ordinarily resided at the time of his death outside the area defined in the First Schedule.
• If, in the case of a will, codicil or other testamentary instrument transmitted or delivered under paragraph (b) of subsection (1), the district of Bulawayo is not the district in which the deceased person ordinarily resided at the time of his death, the Assistant Master shall transmit the duplicate or copy of such will, codicil or other testamentary instrument authenticated as aforesaid to the magistrate for such last-mentioned district, and such magistrate shall file and register the same.
• If, in the case of a will, codicil or other testamentary instrument transmitted under paragraph (c) of subsection (1), the magistrate to whom such deed is transmitted or delivered is not the magistrate for the district in which such deceased person ordinarily resided at the time of his death, he shall transmit the duplicate or copy of such will, codicil or other testamentary instrument, authenticated as aforesaid, to the magistrate for such lastmentioned district, and such last-mentioned magistrate shall file and register the same.
• Every notary public shall, when called upon by the Master to do so, transmit the original minute of any notarial will, codicil or testamentary instrument passed before him to the Master.
• Any person failing to comply with the provisions of this section shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.

[Subsection amended by section 4 of Act 12 of 1997 and section 4 of Act 22 of 2001.]

                       9    Search for concealed will

Every judge of the High Court and every magistrate or justice of the peace, upon information taken on oath being transmitted to him by the Attorney-General or the Master, or upon the information of any person made on oath before any such judge, magistrate or justice of the peace that there is reason to suspect that any will, codicil or other testamentary instrument is concealed in any place within the jurisdiction of such judge, magistrate or justice of the peace, may, by warrant under his hand, cause every such place to be searched.

[Section amended by section 4 of Act 12 of 1997.]

10 Order for delivery of will

If any person who is reasonably believed to be in possession of or have under his control any will, codicil or other testamentary instrument, after the death of the testator, refuses or fails to deliver or transmit the same in manner hereinbefore provided, the Master is hereby authorized and required forthwith to apply to the High Court or any judge thereof for an order of such Court or judge on such person forthwith to deliver such will, codicil or other instrument.

[Section amended by section 4 of Act 12 of 1997.]

11 Registration of wills at testator’s death

Every deed being or purporting to be the will, codicil or other testamentary instrument of any person which has been deposited with or transmitted to the Master or Assistant Master, as the case may be, in manner hereinbefore provided shall, after the death of the maker thereof, be registered by the Master or Assistant Master, as the case may be, in his Register of Wills, for which purpose the Master and the Assistant Master are hereby authorized and required to open or cause to be opened every such deed which may be sealed up:

Provided that—

• notwithstanding any such registration all questions as to the validity and legal effect of every such deed shall be reserved and remain for the decision of the High Court;
• where such deed has been deposited with the Master or Assistant Master previous to the death of the maker thereof, the Master or Assistant Master, as the case may be, shall cause the duplicate or copy deposited with the said deed to be examined and compared with the original, and if need be corrected, and shall authenticate such duplicate or copy with his signature, and shall transmit the same if the deceased ordinarily resided at the time of his death in any district other than the district of Bulawayo or Harare, to the magistrate for such first-mentioned district, and the said magistrate shall cause the same to be filed and registered.

[Section amended by section 4 of Act 12 of 1997.]

Inventories

12 Inventory of estate in community

• 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.
• 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.
• Without derogation from section thirteen, a surviving spouse who fails to cause an inventory to be made in terms of this section shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.

[Subsection inserted amended by section 4 of Act 22 of 2001.]

13 Penalty on omission of inventory

• 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.
• 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.
• 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

• 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.
• Every such inventory shall be subscribed by the person making or causing the same to be made and by the witnesses aforesaid.
• Any person who fails to make an inventory in terms of this section or to cause such an inventory to be made shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.

[Subsection inserted by section 4 of Act 22 of 2001.]

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;

• if such person resides in Bulawayo or the district thereof, to the Assistant Master;
• if such person resides in any other district, to the magistrate.
• An inventory delivered or transmitted under paragraph (c) of subsection (1) shall be accompanied by a duplicate or fair and true copy thereof.
• 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   …

[Section repealed by section 4 of Act 22 of 2001.]

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 level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

[Section amended by section 4 of Act 22 of 2001.]

Custody of Estate Pending Issue of Letters of Administration