1. Sue the executor or executrix by name and not the estate

The Supreme Court recently restated the position of the law with regards to suits against deceased estates. (Cosma Chiangwa v David Katerere & Ors SC 2021) The court stated that one cannot sue the estate but the executor or executrix. Likewise, it is the executor who can sue on behalf of the estate. This is because the deceased estate cannot represent itself. A deceased estate is simply an aggregate of assets and liabilities. The totality of the rights, obligations and powers of dealing with them vests in the executor so that he alone can deal with them. The executor has no principal and represents neither the heirs nor the creditors of the estate.

Since the 1950s, it has always been the position that the citation of the deceased estate by name is wrong. See; the Rhodesian case of Clarke v Barnacle NO & Ors 1958 R&N.

The citation of the deceased estate is incurable and fatal to the whole proceedings. (Nyandoro & Anor v Nyandoro & Ors)

2. You cannot sue the estate until the executor has been appointed

The executor is the recognised legal representative of a deceased estate. The executor is the one appointed to administer the estate and to ensure the estate is properly wound up with all assets and liabilities being accounted for. The executor is empowered by letters of administration granted by the Master of the High Court to administer the estates of the testate or intestate in terms of the Administration of Estates Act [Chapter 6:01.

In actual fact, the Supreme Court stated in the Cosma Chiangwa case that failure to cite the executor is fatal to the action against the deceased estate.

3. Citing the Master of the High Court is advisable

Since the Master of the High Court is the supervisor of all deceased estates, it is prudent to cite him in all litigation processes (Rule 61 as read with Rule 32 (11) of the High Court Rules, 2021. See also; David Mapurisa Jack & Ors v Lloyd Takudzwa Mushipe & Ors 2015).

The Rules of Court also require that the Master of the High Court be served with the application. Be that as it may, there is case law suggesting that failing to cite Master is not necessarily fatal to the proceedings.

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