1

HH 198-16

HC 10317/14

TANIA JUNE ROCHE

(in her capacity as Curator Bonis of Anita Bruk-Jackson)

versus

IAN CHESTER MIDDLETON

(in his capacity as Testamentary Executor to Estate Late Chester Bruk-Jackson DR 102/13)

and

THE MASTER OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 24 March 2016

Opposed application

S. Mpofu, for the applicant.

Adv. F. Mahere, for the 1st respondent

CHITAKUNYE J. This is an application seeking an order that:-

1. the estate Anita June Bruk-Jackson and that of the late Chester Bruk-Jackson be declared joint and

2     the Will by the late Chester Bruk-Jackson should apply to half of the joint estate.

In the alternative, applicant seeks an order that:

1.   The property known as section 8 in the building known as St. James Terrace, St.

      James, Cape Town, South Africa be excluded from the estate late Chester Bruk-

      Jackson.

1. The 1st respondent to return to estate of Anita US$ 225 000-00 being rentals expended by the deceased from Anita’s immovable property and US$ 100 344.00 being an equivalent of the devaluation of the immovable property.

1. 1st respondent to return 25 thousand pounds and R 110 000-00 deposited in the deceased’s accounts by Anita.

The applicant is a daughter to Anita June Bruk-Jackson. On 8 April 2013, the applicant was appointed the Curator Bonis of Anita June Bruk-Jackson as the said Anita was bedridden and mentally incapacitated.

The first respondent is a nephew to the late Chester John Bruk-Jackson who died at Harare on 22 October 2012. The first respondent was appointed testamentary executor in terms of the late Chester Bruk-Jackson’s will.

The brief facts leading to this case are that on 23 September 1987, Anita June Bruk-Jackson married the late Chester Bruk-Jackson in South Africa. A day before the marriage the parties entered into an ante nuptial contract wherein they agreed that there would be no community of property as between them for the duration of their marriage. That antenuptial contract provided, inter alia, that:

First …..  that there shall be no community of property between the said intended Consorts, but that he or she shall respectively retain and possess all his or her estate and effects, moveable and immovable, in possession, expectancy or contingency, or to which he or she has or may have any eventual right or title, as fully and effectually as he or she might or could have if the said intended marriage did not take place.

Fourth … that each of the said intended Consorts shall be at full liberty to dispose of his or her property and effects, by will codicil or other testamentary disposition, as he or she may think fit.

Fifthly …. that there shall be no community of profit and loss between the said Consorts, but that each of them shall, respectively retain the profits made by or accruing to him or her, and shall in like manner separately and solely bear and sustain the losses happening to him or her during the subsistence of the said intended marriage.

These are some of the terms the parties expressly agreed to.

In July 1988, the late Chester Bruk-Jackson, herein after referred to as the deceased, purchased an immovable property, namely no 24 Woodholme Road, Emerald Hill, Harare. The property was registered in his sole name. Later on Anita June Bruk-Jackson, herein after referred to as Anita, also purchased an immovable property namely, no. 49 Quorn Avenue. Mt. Pleasant and registered it in her sole name. Thus each had a house registered in their respective sole names.

Both Anita and the deceased were directors in a company called ALCON Agencies Pvt Ltd. As at 15 December 1989 virtually all the shares in the company were held by The John Bruk-Johnson Family Trust. (see Share certificate @ p74)

They also jointly owned an immovable property in South Africa known as Section no. 8 St. James Terrace, St. James, Cape Town. In 1996 they had executed a joint will to govern this particular property.

The couple lived together in the deceased’s house as their matrimonial house until the demise of the deceased on 22 October 2012.

In the year 2001 Anita was diagnosed with mental dementia as a result of which in June 2001 the deceased took over the administration of Anita’s estate. Anita’s Estate comprised mainly the immovable property no. 49 Quorn Avenue Mt. Pleasant.  The deceased did not seek the appointment of a curator in terms of the Mental Health Act [Chapter 15:12].

            On 25 July 2011, the deceased executed a Will in terms of which he bequeathed his immovable  property to his daughter, Ashlea Mercia Brunette, subject to a usufruct in favour of Anita  as the surviving spouse in these terms:-

“I give and bequeath my immovable property described as 24 Woodholme Road, Emerald Hill, Harare to my daughter, ASHLEA MERCIA BRUNETTE, with representation per stirpes, subject to a usufruct in favour of my wife until her death, but subject expressly to my daughter’s written consent, or her remarriage or until she decides to quit the aforesaid immoveable property, whichever occurs the soonest.

I give and bequeath my billiard table to LIAM BRUK-JACKSON.

I give and bequeath the remainder and residue of my Estate wheresoever situate to my daughter ASHLEA MERCIA BRUNETTE and my son BRENDAN CHESTER BRK-JACKSON, in equal shares, with representation per stirpes”

It is clear that he virtually left nothing for the Anita serve for usufruct right over the matrimonial house.

The applicant’s case was to the effect that from the time deceased took de facto control of Anita’s estate he had solely administered Anita’s Mt Pleasant property and other financial interests with proceeds there from accruing to him. He had in effect merged his estate with that of Anita. In the circumstances this court should grant a joinder of the estates.

The applicant’s counsel argued that in conducting himself as he did and despite the existence of an ante nuptial contract, the deceased merged the two estates. The two factors he cited are the deceased’s failure to submit Anita’s estate for statutory administration in terms of the Mental Health Act and alleged breach of the terms of the antenuptial contract.

On failure to submit Anita’s estate for statutory administration, counsel argued that in failing to submit the estate deceased merged the two estates at the time Anita was incapacitated. In this regard he cited s 85 of the Mental Health Act as support for his argument.  

As aptly counter argued by the respondent’s counsel that section does not seem to support applicant’s case. That section states that:

“Until the appointment of a curator in terms of section eighty-six to care for and administer a patient’s estate-

1. the patient’s spouse; or
2. failing the patient’s spouse, any child of the patient who is over the age of eighteen; or
3. failing any child of the patient over the age of eighteen, any other of the patient’s close relatives; or
4. failing any of the patient’s close relatives, the person who had charge or control of the house or place where the patient was living when he was removed in terms of this Act to an institution, special institution or other place;

shall take charge of all property of whatever description belonging to the patient in the house or on the premises concerned and, subject to any directions given to him in terms of subsection (2), shall retain such property in his custody until delivery of the property is demanded by the curator or by any other person lawfully entitled to receive it.”

It is thus clear that the above provision is for the interim protection and safe keeping of a patient’s property whilst a curator is appointed. It does not provide for the joinder of estates were one spouse takes charge of another’s estate.

The deceased as the spouse could thus look after Anita’s property without being deemed to have merged the estates.

The failure to thereafter take the case before a magistrate for directions in terms of subs (2) would in my view not be fatal to the marriage regime the two had opted for.

The respondent on the other hand contended that the estates were never merged and that there was no breach of the antenuptial contract.

In his submissions applicants counsel also argued that the antenuptial contract became ineffectual when Anita was mentally incapacitated by illness as by then Anita was disposed of the legal capacity to contract. By virtue of this incapacity the antenuptial contract terminated. Thus for the 11 years that deceased administered Anita’ estate he did so in the absence of an antenuptial contract and in his capacity solely as an unauthorised husband. As a consequence the marriage became a marriage of community of property regime whose incidence arise joint holding of matrimonial property. I however did not hear counsel to allude to any legal principle that converts an out of community marriage regime to an in community of property marriage regime simply because one spouse has become mentally incapacitated.

The applicants claim that the estates were merged is also defeated by her own action upon being appointed curator bonis.

It is common cause that upon being appointed curator in 2013 she disposed of the only immovable property that was solely owned by Anita. After the disposal she then had a misunderstanding with the executor of estate late Chester Bruk-Jackson on how and where Anita should be cared for. She made demands for Anita’s maintenance by the estate late Chester Bruk-Jackson. It was only after failure to reach agreement that she approached court seeking a joinder of the estates. Had she been bona fide in her belief that the estates had been merged she surely would not have disposed Anita’s immovable property before approaching court. Now that she has disposed the only valuable property Anita had, what does she bring to the table to be merged with late Chester Bruk-Jackson’s estate? She brings nothing. The only asset to be declared joinder is essentially deceased’s house.

The other point to note is that some of the evidence applicant alluded to as justification for joinder occurred before Anita became mentally incapacitated. Such aspects as the rebuilding of the Emerald Hill house after its purchase and the opening of deceased’s off shore Bank account using money from Anita’ account.  It is my view that only the two spouses were privy to their financial arrangements. Such arrangements did not terminate the antenuptial contract or alter any terms thereof. They maintained the marriage regime of their choice as evidenced by the fact that even after rebuilding the deceased’s house, Anita went on to buy a property in her own name in 1996. In November 1996 Anita executed a Notarial Deed of Donation and Trust in which she stated herself as being married out of community of property to Chester John BRUK- JACKSON

I am thus of the view that the manner in which the parties dealt with their properties pre 2001 did not alter the terms of the antenuptial contract.

The deceased’s conduct after Anita became mentally incapacitated did not equally alter the terms of the antenuptial contract. as a spouse, he was expected to take charge of Anita’s estate pending the appointment of a curator bonis.

If at all applicant believes that Anita’s estate has a genuine claim against estate late Chester, which should be on well-founded legal basis and not on the basis of joinder.

I thus conclude that no case has been made out for joinder.

The claim that the deceased’s Will be held to apply to half the deceased’s estate may also not be sustainable.

As alluded to above the major asset deceased had and which is dealt with in the Will is the Emerald Hill house. It is common cause that that house is registered in deceased’s name and was thus his property.

As aptly noted in Takafuma v Takafuma 1994 (2) ZLR 103 (S) 105 H-106 A:

“The registration of rights in immovable property in terms of the Deeds Registries Act…. is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered…”

As the owner of the property, deceased had the right to dispose of the property in a manner he pleased in the Will.

As regards the rights of a spouse in a situation of a conflict between family law rights and property law rights property law rights tend to take precedence.

In Muswere v Makanza 2004 (2) ZLR 262 (H) court held that:

“A wife cannot stop her husband from selling the matrimonial home or any other immovable property forming the joint estate if it is registered in his sole name even if she contributed directly and indirectly towards the acquisition of that property. Anachronistic as it is, the legal position at present is the right of a wife to the matrimonial estate, as determined by the principles of family law, are inferior to the rights of her husband in the same property as determined by the principles of the law of property.”

Clearly therefore deceased had the right to bequeath his property to whoever he wished in his Will.

The applicant also argued that the Will disinherits the surviving spouse and so, in terms of s 5(3) of the Wills Act, it is invalid to that extent.

Section 5(3) of the Wills Act provides that:

”No provision, disposition or direction made by a testator in his Will shall operate so as to vary or prejudice the rights of:

1. Any person to whom the deceased was married to a share in the deceased’s estate or in the spouses’ joint estate in terms of any law governing the property rights of married persons; or …”

In Estate Wakapila v Matongo N.O and Ors 2008 (2) ZLR 43 (H) at p.47 D-E  KUDYA J had occasion to analyse the import of this section and this is what he said:

“The provisions of s 5(3)(a) of the Wills Act prevent the testator from eroding the property rights vested in his spouse by law in either his or their joint estate. These rights, in my view, are those that the spouse has at the time the Will is executed as opposed to future or contingent rights that arise on the death of the testator. After all, the variation or prejudice does not arise on the demise of the testator but at the time the Will is written, notwithstanding that the Will only commences to operate on his death.”

The learned judge went on to hold that:-

“It is fallacious to argue that at the time of death the surviving spouse is vested with rights in a deceased estate in which a testamentary disposition has been made. The first reason is that the divested property, subject to acceptance by the beneficiary, no longer belongs to the testator. The second reason is that to give such a meaning to the provision in issue would result in a radical alteration of the common law power of a spouse to dispose of his or her property to whomsoever he wishes. If the lawmaker intended such a radical departure from the common law, it would have said so in clear language. It would be absurd to allow the spouse to dispose of his property during his or her lifetime but take away that power from him to dispose of it by will.”

The above explains the correct application of the section. It would not have been intended to interfere with a spouse’s sole rights in a property, which rights he had the power to dispose without the consent of the other spouse during his lifetime.

In casu, the deceased’s right to dispose of the property as he pleased is further

confirmed by the antenuptial contract the spouses executed. A careful reading of the provisions of the antenuptial contract shows that the parties intended to exclude community of property and of profit and loss. To this extent clause four of the antenuptial contract provides as follows: -

“That each of the said intended consorts shall be at full liberty to dispose of his or her property and effects, by Will Codicil or other testamentary disposition, as he or she may think fit.”

It is important to appreciate that antenuptial contracts must be interpreted in

accordance with the ordinary rules applicable to bona fide contracts. Where the intention of the parties is clear, that should be adhered to.

 At common law, under this form of antenuptial contract, the general capacity and

property rights of the parties remain unaffected by the marriage. They retain their separate estates. They are not liable for each other’s debts, with the exception of debts contracted for household necessities.

The contracts and other juridical acts of one spouse are not binding on the other. If the

husband alienates or encumbers his wife’s property without her consent, she may recover it from the third party with the rei vindication…

In addition, the spouse whose property was improperly alienated hypothecated or

otherwise disposed of has a personal action for damages against the other. The South African Law of Husband and Wife, 5th ed, H. R. Hahlo, p 287-288.

The object of an antenuptial contract is to exclude the normal legal consequences of

marriage, particularly community of property, and to replace them with the consequences desired by the spouses and which the law allows them to choose.

In Introduction to Family Law, P J Visser and J M Potgieter at p 118 the esteemed

authors stated that:-

“The most important characteristic of an antenuptial contract is that it regulates the matrimonial property system of the parties. Only in so far as an antenuptial contract, for example, also provides for donations between spouses can it be regarded as a contract which creates obligations. In other words, an ante nuptial contract primarily determines the nature of the legal principles which govern the financial position of the spouses and it does not actually lead to contractual claims against each other.”

At the demise of one of the spouses the estate of the first dying spouse devolves upon

his or her heirs, while the surviving spouse retains his or her estate unaffected by the dissolution of the marriage by death.

It is also a principle of such ante nuptial contract that if one of the spouses had

during the marriage disposed of the property of the other without the latter’s consent, the latter may now, if he has not done so before, claim damages. The same holds true if, owing to the fault of one of the spouses, property of the other spouse was destroyed, damaged or lost.

I am of the view that based on the above applicant‘s claim both in the main and in the

alternative cannot succeed.

On the main claim no legal justification has been made, based on the facts placed

before me, to warrant the relief sought. The applicant disposed of Anita’s property and now seeks to have a bite at the deceased’s property. Had she been bona fide in her claim she would have sought joinder before disposing of Anita’s property as that was the only valuable property Anita’s estate would have brought onto the joint estate.

I also find that no legal justification has been established for the deceased’s Will to be

tampered with by restricting it to only half of his estate.

Regarding the alternative relief sought, I am of the view that it is not sustainable.

In clause 1 applicant seeks that the property known as no. 8 in the building known as

St. James Terrace, St. James, Cape Town, South Africa be excluded from the estate of the deceased. As already alluded to that property is governed by a joint Will that the deceased and Anita executed. Clause 1 of that Will states that:

“We place on record that we jointly own section no. 8 in the building known as St. James Terrace, St. James, Cape Town. Notwithstanding anything contained in any other Wills heretofore made by us, on the death of the first dying of us, we bequeath the first dying’s share in the said property to the survivor of us.”

Clearly therefore that property is bequeathed to the surviving spouse, in this case

Anita. I was at a loss to understand why applicant wished that clear provision to be tampered with. That Will remains extant.

In Clause 2 applicant seeks an order that the first respondent returns to the applicant’s

estate US$225 000.00 being rentals expended by the deceased from Anita’s immovable property and US$100 344.00 being an equivalent of the devaluation of the immovable property.

The sums were derived from what applicant said were rentals for the period deceased

took de facto administration of Anita’s house to the time of his demise. It is common cause that most of that time 2001 to 2009 February the official currency was the Zimbabwe dollar. If at all deceased received rentals it would have been in that currency. In such a claim applicant would have to show that the rentals were received and were not utilised for Anita’s benefit or the benefit of her estate. This applicant could not show. She could not rebut the contention that proceeds from rentals were used in seeking medical care for Anita both locally and outside the country.

The applicant was not clear on the conversion rate for rentals that could have been received in the Zimbabwe dollar era to United States dollars.

As regards the claim for devaluation I found this astounding as I did not hear applicant to deny that for about two years after the property came under her administration, the property was vacant and subject to adverse effects associated with a property left unoccupied for such a long time. In her calculation of the devaluation applicant did not seem to take account of her own role. Indeed even the cause of action for such a claim was not clear. If at all she was seeking damages for any wrongful act it was for her to prove the nature and extent of such damages. This was not done.

In clause 3 the applicant seeks that the first respondent return 25 000 pounds and R

110 000.00 deposited in the deceased’s accounts by Anita. This claim is difficult to understand taking into account the period the deposits are said to have occurred. It was a period well before Anita became mentally incapacitated. The circumstances for the deposits were privy to deceased and Anita. Only the two could shed light on the reasons for the deposits into deceased’s account and whether the argument and counter argument by the applicant and the first respondent vis-a vis these deposits has merit or not.

I thus find that applicant has failed to make a case for the alternative claim as well.

Accordingly the application is hereby dismissed, both in the main and in the

alternative with costs.

Munangati & associates, applicant’s legal practitioners

Atherstone and Cook, first respondent’s legal practitioners