Mleme and 2 Others v Mleme and 2 Others (Civil Cause 218 of 1992) [1993] MWHC 4 (8 April 1993)

JN THE BIGff ·COURT · OF ·MALAWI CIV-IL CAUSE . NO. 218_ OF· 1992 e O O O n O O O o O ,. 0 0 0 C O O O U O O O O <• 0 0 • lsT: APl?Ll~ . B~~ : AL UPE HLEME o - and - - a nd - . GLORIA fJlLBt·lE ·. 0 •> 0 • 0 • • e • • • , n O • 0 • • 0 < 0 ., e • 0 0 3RD AP-PLI-CANT J OHN t-14WE , c • • ' • • o o ~ • ,, o e o o o o • , ~ o o • o o o o o • o o • o o o o 1 ST B fi.,;PONDENT - a nd - MSCSA {HRS), J. Nyimba , of Counsel. £or the Applicants Kaliwo , of Counsel , for the Responoents Kadyak~le , Law Clerk R U L I N G Th i s is an application by way of Originating Not i ce of t11o t ion taken out b? three children of one, Aramson Beaston Mleme , who died intestate on the 13th day of October 1 9 8 6 . Th~ a.pplicants are seeking f o.: the follewing reli-ef s : - . ( 1) (Z ) That the Court should o~der a proper shar ing o f - the the be11eficiaries ; intestate property among all ~hat the respondents shoulo account for all s ums p ersonal received . and of representatives the inte~tate estate; either admi n istrators paid or and as That the respondents should pay into Court a ll t'~Cei•'\iec1 . or . paio and. balance d ue on t h e . sums taking of such aeecunts o ; z oz a q • . e .. -~ .. . }F;,$.~r .,. , •• ·~ • • • ..... ·•W' .... - 2 - th o neceased. was discontinueao The application against the 3rd respondent, a brothe r The application , of ~e.f~e. , p:rQce9d40, erg.inst the 1st and. 2nd res.pon.dent.s, who aze both child:;;-en of the dee.ea.sea o The a p plicants , Alufe Hleme , Dorothy Mleme and Gloria Mleme , are ~aughters of the deceased, born on 31st October 1947 , 18th February 1961 , and 13th August 1958 respectively . They ar~ all legitimate children of the deceased , ~ut born from ciiffersnt mothers. The deceased is not survivee by any w:l.dows " intestate on 13th October 1986 The deceased died survj_ ved by 7 children , including the applicants and the ~espondents , 3 brotherc and his mothers , The names of the The r~spondents other chilc~ren are Elsie and Nacfarlene . ~ ,g.rzn.:::~ J.e~"t.ara ~ ~ . : i nisd:r"t:io11- . QJl .the, .. Ll..i:.h day .o£ liay- 198 4 ,, in I allowec oral evidence to be given in addition to applieants' that contained At the time of the deceasecl's death, Elsie , aff id avits , Macf~rlene , the 3r~ they are all adults . app licant , were minors, but as of now , HoweveI:· .· EJ.s:i.e and t1acf c.rlene are still at school , one being at a technical college . the 2nd respondent and Gloria , respondents' l,1erton ,. and the a tlJ.cJ:eon. The deceased's inte,s~e p.r.o~ty in.eluded a l~ ld re.sidan:t:..i.al house b~ t The. p roperty wi th ee~~a.,ecl WE,5 r~ i ding in that h. Qu,se with John, Merton , Elsie, ~ M..1c:F;,.-J. J&~ o These children eontinued to reside in t h e ~ e after- the death of their father. The hcuse was later la~sed to tenants from 31st July 1988 to 29th February 1992 , during which period a net sum of K30 , 912 . 50 was received b y th e res pondents in the form of rent~.l o The property was The respondents leter sold at a price of K140,000.00 . the decea.seo. in their affidavit that at the st,ateo. d ied , the property was mortgaged to the New Building Socie t y an(; they 1.rned part ef the income recei vec1 to pay for t~,e mortg ag e The respondents also allege that in addition to these expenses , they also paid legal fees, commission charges, valuc:1.tion charges , and other ~xpenses on behalf of the estate . instalments , city rates and r e nt . land time The money was shared equally ::::etween I find that these cieath 'rhe o.eceased was a member of the l\ssociated Pension Trust Lim i ted and after his death there was due K40 , 375 . 48 to ~ess~s John Hleme and Henderson Beaston Mleme , t h e benef ic;.aries whom the deceased had appointed prior to his two d eath , :':)enefi ts c:lid not b eneficiarie~ . form pa~t cf the Geceased ' s estate . Therefore . th9 benefits we re r ightly paid to the two beneficiaries . ~~e respondents stated that the dependants of the deceased were maintained out of It is , however _, clear that the only children who benef i tted from th e se benefits were the defenD.an ·ts th ems elves , Elsie and Macf«E·lene o these death· benefits . the proceeds of these - 3 - to be distributed The dec~a <lied intestate. Therefore , his estate the ~ .-s,upPQS.ed pro-visions cf the Wills and . Inheritance Act .- which provide the p rinciples to be followed in distributing the intestate property . During the he~ring of this matter , i t became clear that the money is mainly available for distribution to the children. in accorC:ance with The deceased is not s1,,1rvived by any wio.ows, having divorced all his wives prior The ~oii.=.a.i..:,rf-cu:t. •z r~ d~~aew are entitled to the int~-b~t.o prope r'c;y U?On fair 'a.istribut.5_..n ;.,.c f'J. 0?,ide,d in. ~ t e ioa l? of the W:c. 11s and Inheritance Act , which prov.ides, inter alia , as follows ~ to his c1eath o Ii l 7- ( 1} persons . ent~tled fair The distribution shall be the wife, issue and. dependants of the intestate whose shares the followi ng shall be ascertained upon principles - upon a ( a) , {d} protection shQll be provided fo r .. c.ependan.ts of the hardship so ava.ilable prov:i.de such prote.cJ:ion~ for far as intestate the from the property can distri::O. Uti.o.n the widows the.. as be-1:ween children of shares s-ha.11 accordance with all circumstan~es including - i~estate, be -~ decidea and the their in spec i al the ( i ) any wishes expressed by intestate in the presence reliable witnesses; the of {ii) or assistance by way property of such education or otherwise as any of the . wi dows · or children may have received from the intestate during his lifetime; {iv) whether any daughter of deceased unmarried , is married the or but the in . circumstances children equal shares ; " absence the of wioows entitled $ p ecial and to shall ... be The re.spondents , as aclmini·strators of th~ aeceased &etc.te, we r _a - sup~ to distribute the intest~te property .irr accordance with the· Wills and Inhe r itance Act and in - 4 - particular upon fair cUstd_::mtion o 13th day of October 1985 " At property comprised Kl , 591 . 92 cash , household eff~cts , mote~ vehicle and leasehold property with a hous 2 ther e on ° The deceaseC: clied on the intestate the a that time I the hav e that finding already made the ~ eceficiaries , nominated by sum of a K40 . 335 . ~8 . the death benefits of a Pension Scheme that were -to th·e 1st and. 3rd respondents . di0. not form ~:>2.rt of oaid the Ci. 8Ceaoec.: estate. ':i:he death benefits were properly p aic. The to the def~ndants , th~t ..c,..e?~~-~ ~ the ~e.as~ weJ;e m.ainta.:iAeC out of the some of the ? :i..· oceeds of these death b enefits . ci.ocv.m·aots e::-;hibi ted in this Court confirm that the trustees of th~ ~cparu:::.ant.s.~ Macfa:.:len e 2.nd Elsie ::>efore payj.ng out t™:. hal..ance to the n.01ai n a.te6 :beneficiaries in r·;arch 1988 . however- , stated in their affidavit the Pan.sion Scheme we.re the deceased . I.laiD,ta ➔ nj ng In fact , to some of the heneficia1:-ies of Th8 respondents further stated that they have so far the some money .me. that the balance th~t ;;emains to .b,e.n.is:h.•.i~ advan c 20. d.ec~asec1 ;-1ao. a total; is i< 59 , 'l36 , U J th~ In sum of · Kl2 3 , 031 , 4•1 available for distr-i::,uticn ° a b sencG of any special circumstanc~s , the chilaren were sup?0.5 ~~ to get e q ual sha=es after providing for the ot~er ~ . rn t . s such as th~ »io~ht. .of the ~~se.6., an4. p.ay:1.ag ~ 1'..~ , ~ r.i 0 ans t::iat the ::--cs;,-onc-.::nt:-s ~ ~ ~-,:~ed . ':i."h:i_s 'I'he c"': p,e 0 ,aaeo. is so.rvi ved '.;:;y 7 children , his .m.,0,t.h,e.r and 'i"'he. ~ - :tr.iQd to c~llan9~ the ·fact thc,.t, b~ei•-. - Glor :'.a " the 3rd a'?plicant , was one. ~f the chilcren of the dAC9~s 2d . I, ~owever , find that there was abundant evidence that th~ deceased was the father of Gloria an~ that he used to ma .i_ntain her·...,as''"''<5ne ···of his children. I will , 7here is evidence that._ 1;J1e money which was in the bank ther9fore : concentrat e on was already distributecl . ;.)1-oceccis 0£. th·s hot.1se, 2.s th e t::-ie substant i a l part o:f :~·the deceasecl' s _ ~;:;tate .. 'I'he respondents in thei r c::apac ~. ·ty 2. S administrators c-= . the deceased Is estate ' were to account as ., ,to how some of the money has been ~ceq t'-est_~~- ·the .. ,J.st respond ent ane the most active usec-r : actministrator , paid himself the lar~est share of K33 , 133 . 70, followe& by the 2nd responde-rrt , who got Kl~, 959 . 80 and then EJ. sL·" g ot K6 , 12.0 . 00 , · whilst Macfarlene got K3 , 931 . 50 - The cthe= ~~?encl~nts got a total s~m of K4 , 450 . 0C . these form · John rneme , I I hav~ carefully co~siderec all the facts availa~le in am of the view that the respondent.:s should. this cas e o have ~ist~ ibuted the intestate as soon as they receivee all the mon ~y which formed the intestate property . They were at It wa.s not l they should ::- i g ht fo:i: have c,j_s tri butec. to the ac5.u.l t beneficiaries . :L;:>9:::-ty '~o o~?em trustee accounts for the minors . them to · held on to the funds which - 5 - I :believe justice in this matter will be achieved by the w:1ole intesta.te as it was before some of -di.stribu.t i n g th e b e n eficiaries were advanced some money and by treating whatever was advanced to them as aa.v~nce payment of their entitlement . I will deeuct the sum of Kl2 , 000 . 00 which the res~&nts allege that they used for building a house for accommoC:.e1.tion after selling the deceaseo. 's house in thei r I will als o deduct the amount of which they were residing. the Inspector of Taxes and to K4 , 376 . ll whi ch is owing Landed Pro? e ~t y ngents . Therefore, the sum of Kl06 , 655 . 33 . was avai labl~ fo~ distribution. Ti'w f o.cts show that the decec.sed used to sup;;:,ort an. his ch::.l d rer. even afte,.~ they got r.tarried " Bis gr::nerosi ty went as far as sup9orting his grandchildren. Taking all the circumstances of thi5 matter into consiGeration , I am of the is valued at Kl06 , 655 . 33 vi e w that shoul <'l. ;J€ distributed as follows: the intestate which f;jac£.a.r 1-ne -Mleme . J.5% EJ.sie Mleme 15% Merton Mleme 12% John Nleme 12% Alufe Mleme 12% Gloria Mleme 12% 12% Dorothy Mleme Doris Mleme 10% -- = = = = = = = Total Kl 5 ,998.03 Kl5 , 998.03 Kl2,798.06 Kl2,798o06 Kl2,798.06 Kl2,798.06 Kl2,798.06 Kl0,665073 talfb,6'S"s-. 3 3 ----------- -------~--~---- As I sa.id earlier on , what was already paic1 out will I note that the respondents be t ~ eated as advance payment " :,;,ayments for Elsie and alleg e f·1c.cfar l e ne the exact amounts which they used on these beneficiaries o Each p arty wi ll p ay his own costs for these proceedings . t hat they got some acivance the i r n2raes. They should know in ~nDE Blantyre . in Chamb ers this 8th day of April 1993 , at AS E Nsosa ( Mrs) JUDGE