Widow challenges sister in-law's appointment as es...

Widow challenges sister in-law's appointment as estate executioner

Nyashadzashe Ndoro

Chief Reporter

Justice Fatima Chakapamambo Maxwell has dismissed an application for leave to appeal in a contentious estate dispute, finding that the applicant lacked the necessary legal standing to challenge the appointment of an executor and the distribution of assets.

The applicant, Silayse Useni, had sought to challenge the appointment of the first respondent, Esnath Nyamupingidza, as the executor of the estate and the award of a property in Kadoma to her.

Useni, who was married to Nyamupingidza's brother, Wellingtom Dube, who passed away in 2018, had been staying at the property in question, house number 22 Chiverenga Street Rimuka, Kadoma. The property forms part of Nyamazana's estate, and Useni claimed that she had made improvements to the house and should have been included as a creditor in the estate.

The court, however, found that Useni had no locus standi to bring the application, as she was not a beneficiary of the estate. The court also noted that Useni's application was based on common law, which only allows beneficiaries to challenge the appointment of an executor.

Useni's legal team argued that the application was based on fraud committed by Nyamupingidza, but the court found that no particulars of fraud were alleged in the founding affidavit. The court also rejected Useni's argument that there was an error in the interpretation of section 32(2)(b) of the Administration of Estates Act.

In dismissing the application for leave to appeal, the court found that Useni had no prospects of success on appeal. The court applied the test for reasonable prospects of success, as defined in the case of Madamombe v The State, which requires that an appellant must convince the court that they have a realistic chance of succeeding on appeal.

"Applicant has no prospects of success on that issue. As stated in Madamombe v The State SC 117/21 the "prospects of success" was defined in Essop v S (2016) ZASCA 114 as:

"What the test for reasonable prospects of success postulates is dispassionate decision, based on the facts and the law that a court of appeal could reasonably conclude differently to that of the trial Court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

"More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorized as hopeless. There must in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.

"I did not find a sound and rational basis for concluding that Applicant has prospects of success on appeal. For that reason I dismissed the application on the day of the hearing," the judge noted.