Landmark ruling on inheritance
By Daniel Nemukuyu
Grandchildren can lawfully step into their parents’ shoes to inherit from their grandparents in cases where the concerned parents are deceased, the High Court has ruled.
In a landmark inheritance judgment, Justice Hlekani Mwayera said grandchildren, in cases where their grandparents do not leave behind a will, are entitled to their parents’ share from the estate if those parents are deceased.
They will inherit in representative capacity in terms of the “per stirpes” principle.
Such a principle, Justice Mwayera ruled, is applicable to all estates despite the fact that they are governed by the general law, common law or customary law.
The ruling was made following a chamber application by the Master of High Court in the estate of the late Mrs Bellinah Mhlanga, who passed away on January 28, 2010.
She left behind six children.
One of Mrs Mhlanga’s children – Tapuwa Caroline Mhlanga – died well before the death of her mother and she also left behind three children.
When the estate of Mrs Mhlanga was registered at the Master of High Court’s office, the three grandchildren were left out because they were not among the woman’s six surviving children.
The executor to the estate, Mrs Slyvia Chirawu (now judge of the High Court), contested the Master’s decision and the matter was referred to Justice Mwayera for opinion.
Justice Mwayera, through High Court judgment HH816/ 17, ruled that the “per stirpes” principle was applicable in the matter and the three grandchildren were entitled to a share.
“According to the per stirpes principle, the grandchild, whose parent predeceased the deceased, has a right to inherit by representation,” she ruled.
“He or she inherits what their deceased parent would have inherited, had they been alive.
“In this case, the grandchildren of the late Bellinah Mhlanga have a right to step into their deceased mother’s place and inherit from their grandmother under the “per stirpes” principle.
The death of their mother does not take away their bloodline and descendant rights to inherit.
“Even if there is no will and last testament, the right to inherit by representation is based on the blood relationship line,” ruled Justice Mwayera.
“In the circumstances, I make a finding that Tapuwa Caroline Mhlanga’s children are legally entitled to inherit per stirpes from the estate of the late Bellinah Mhlanga, their grandmother.
“Accordingly, it is ordered that: 1. The per stirpes principle is applicable in all estates regardless of being governed by customary law or general law and or common law; 2. Tapuwa Caroline Mhlanga’s children are legally entitled to inherit per stirpes from the estate of the late Bellinah Mhlanga, their grandmother.”
When Mrs Mhlanga’s estate was registered, her six children — Busisiwe, Lovemore, Dakarayi, Cynthia, Luwis and Erick — were listed as beneficiaries to the exclusion of the three grandchildren. Among other properties, the late Mrs Mhlanga left behind property number 3513, 13th Road, Glen View, Harare.
The executor then amended the list to include the three grandchildren, sparking a debate with the Master of High Court.
The matter was then referred to Justice Mwayera for determination. The Herald