Melme & 2 Others v Mleme & 2 Others (Civil Cause 218 of 1992) [1993] MWHCCiv 25 (8 April 1993)

JN THE BIGff ·COURT·OF ·MALAWI CIV-IL CAUSE. NO. 218_ OF· 1992 . B~~: ALUPE HLEME o e O O O n O O O o O ,. 0 0 0 0 0 0 C O O O U O O O O <• 0 0 0 0 0 • lsT: APl?Ll~ -and --and -. GLORIA fJlLBt·lE ·. 0 0 0 •> 0 0 • 0 0 •• e ••• , n O • 0 •• 0 < 0 0 ., e • 0 0 0 0 3RD AP-PLI-CANT JOHN 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 -and -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 This is an application by way of Originating Notice of t11otion taken out b? three children of one, Aramson Beaston Mleme, who died intestate on the 13th day of October 1986. Th~ a.pplicants are seeking f o.: the follewing reli-ef s: . -(1) That the Court should o~der a proper sharing of -the intestate property among all the be11eficiaries; (Z) ~hat the respondents shoulo account for all sums received . and paid as either personal representatives or administrators of the inte~tate estate; and That the respondents should pay into Court all . sums t'~Cei•'\iec1 . or . paio and. balance due on the taking of such aeecuntso ; z oz a q •. e .. -~ ... }F;,$.~r .,. , •• ·~ • • • ..... ·•W' .... -2 -The application against the 3rd respondent, a brother of tho neceased. was discontinueao The application, ~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 applicants, 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" The deceased died intestate on 13th October 1986 survj_ ved by 7 children, including the applicants and the ~espondents, 3 brotherc and his mothers, The names of the other chilc~ren are Elsie and Nacfarlene. The r~spondents ~ ,g.rzn.:::~ J.e~"t.ara ~ ~.:i nisd:r"t:io11-. QJl .the, .. Ll..i:.h day .o£ liay-1984 ,, I allowec oral evidence to be given in addition to that contained in the respondents' and applieants' affidavits, At the time of the deceasecl's death, Elsie, Macf~rlene, l,1erton,. the 2nd respondent and Gloria, the 3r~ applicant, were minors, but as of now, they are all adults. HoweveI:· .· EJ.s:i.e and t1acf c.rlene are still at school, one being at a technical college. The deceased's inte,s~e p.r.o~ty in.eluded a l~ld property with a re.sidan:t:..i.al house b~ t tlJ.cJ:eon. The. 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 the ~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 by the respondents in the form of rent~.l o The property was leter sold at a price of K140,000.00. The respondents st,ateo. in their affidavit that at the time the decea.seo. died, the property was mortgaged to the New Building Society an(; they 1.rned part ef the income recei vec1 to pay for t~,e mortgage instalments, city rates and land rent. 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. 'rhe o.eceased was a member of the l\ssociated Pension Trust Limited and after his death there was due K40,375.48 to ~ess~s John Hleme and Henderson Beaston Mleme, the benef ic;.aries whom the deceased had appointed prior to his death, The money was shared equally ::::etween these two beneficiarie~. I find that these cieath :':)enefi ts c:lid not form pa~t cf the Geceased's estate. Therefore. th9 benefits were rightly paid to the two beneficiaries. ~~e respondents stated that the dependants of the deceased were maintained out of the proceeds of these death· benefits. It is, however_, clear that the only children who benef i tted from these benefits were the defenD.an·ts th ems elves, Elsie and Macf«E·lene o -3 -The dec~a <lied intestate. Therefore, his estate ~ .-s,upPQS.ed to be distributed in accorC:ance with the pro-visions cf the Wills and . Inheritance Act.-which provide the principles to be followed in distributing the intestate property. During the he~ring of this matter, it became clear that the money is mainly available for distribution to the children. The deceased is not s1,,1rvived by any wio.ows, having divorced all his wives prior to his c1eatho The ~oii.=.a.i..:,rf-cu:t. •z r~ d~~aew are entitled to the int~-b~t.o proper'c;y U?On fair 'a.istribut.5_..n ;.,.c f'J. 0?,ide,d in. ~teioa l? of the W:c.11s and Inheritance Act, which prov.ides, inter alia, as follows~ Ii l 7-( 1} The persons. ent~tled upon a fair distribution shall be the wife, issue and. dependants of the intestate whose shares shall be ascertained upon the following principles -( a) , {d} protection shQll be provided for the of the intestate from far as the property .. c.ependan.ts hardship so ava.ilable for distri::O. Uti.o.n can prov:i.de such prote.cJ:ion~ as be-1:ween the widows and the children of the.. i~estate, their shares s-ha.11 be -~ decidea in accordance with all the special circumstan~es including -( i ) any wishes expressed by intestate in the presence reliable witnesses; the of {ii) such assistance by way of education or property or otherwise as any of the. widows· or children may have received from the intestate during his lifetime; {iv) whether any daughter of the deceased is married or unmarried, but in. the absence circumstances the children shall ... be equal shares;" of $pecial wioows and entitled to The re.spondents, as aclmini·strators of th~ aeceased &etc.te, wer_a-sup~ to distribute the intest~te property .irr accordance with the· Wills and Inheritance Act and in -4 -particular upon fair cUstd_::mtion o The deceaseC: clied on the 13th day of October 1985" At that time the intestate property comprised Kl,591.92 cash, household eff~cts, a mote~ vehicle and leasehold property with a hous2 thereon° I have already made a finding that the sum of K40.335.~8. the death benefits of a Pension Scheme that were oaid -to th·e 1st and. 3rd respondents. di0. not form ~:>2.rt of the Ci.8Ceaoec.: estate. ':i:he death benefits were properly paic. to the ~eceficiaries, nominated by the deceased. The def~ndants, however-, stated in their affidavit th~t the ..c,..e?~~-~ ~ the ~e.as~ weJ;e m.ainta.:iAeC out of the ?:i..·oceeds of these death benefits. In fact, some of the ci.ocv.m·aots e::-;hibi ted in this Court confirm that the trustees of the Pan.sion Scheme we.re I.laiD,ta➔ nj ng th~ ~cparu:::.ant.s.~ Macfa:.:lene 2.nd Elsie ::>efore payj.ng out t™:. hal..ance to the n.01aina.te6 :beneficiaries in r·;arch 1988. Th8 respondents further stated that they have so far advanc20. some money to some of the heneficia1:-ies of the d.ec~asec1 .me. that the balance th~t ;;emains to .b,e.n.is:h.•.i~ is i<59, 'l36, UJ ':i."h:i_s r.i0ans t::iat the ::--cs;,-onc-.::nt:-s ;-1ao. a total; sum of · Kl2 3,031, 4•1 available for distr-i::,uticn ° In th~ absencG of any special circumstanc~s, the chilaren were sup?0.5~~ to get equal sha=es after providing for the ot~er ~.rnt.s such as th~ »io~ht. .of the ~~se.6., an4. p.ay:1.ag ~ 1'..~,~ ~ ~ ~-,:~ed. 'I'he c"':p,e0,aaeo. is so.rvi ved '.;:;y 7 children, his .m.,0,t.h,e.r and b~ei•-.-'i"'he. ~-:tr.iQd to c~llan9~ the ·fact thc,.t, Glor:'.a" the 3rd a'?plicant, was one. ~f the chilcren of the dAC9~s2d. 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. 7here is evidence that._ 1;J1e money which was in the bank was already distributecl. I will, ther9fore: concentrate on the ;.)1-oceccis 0£. th·s hot.1se, 2.s these form t::-ie substantial part o:f:~·the deceasecl' s_ ~;:;tate.. · 'I'he respondents in their c::apac~.·ty 2. S administrators c-=. the deceased Is estate' were ~ceqt'-est_~~-to account as .,,to how some of the money has been usec-r: John rneme, ·the .. ,J.st respondent ane the most active 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·" got K6, 12.0. 00, · whilst Macfarlene got K3, 931. 50 -The cthe= ~~?encl~nts got a total s~m of K4,450.0C. I hav~ carefully co~siderec all the facts availa~le in this case o I am of the view that the respondent.:s should. have ~ist~ibuted the intestate as soon as they receivee all the mon~y which formed the intestate property. They were at l:L;:>9:::-ty '~o o~?em trustee accounts for the minors. It wa.s not ::-ight fo:i: them to· held on to the funds which they should have c,j_stributec. to the ac5.u.l t beneficiaries. -5 -I :believe justice in this matter will be achieved by -di.stribu.ting the w:1ole intesta.te as it was before some of the beneficiaries 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 their accommoC:.e1.tion after selling the deceaseo. 's house in which they were residing. I will also deduct the amount of K4,376.ll which is owing to the Inspector of Taxes and Landed Pro?e~ty ngents. Therefore, the sum of Kl06,655.33. was availabl~ fo~ distribution. Ti'w f o.cts show that the decec.sed used to sup;;:,ort an. his ch::.ldrer. 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 view that the intestate which is valued at Kl06,655.33 shoul<'l. ;J€ distributed as follows: f;jac£.a.r 1-ne -Mleme . J.5% --Kl5,998.03 EJ.sie Mleme 15% = Kl5,998.03 Merton Mleme 12% = Kl2,798.06 John Nleme 12% = Kl2,798o06 Alufe Mleme 12% = Kl2,798.06 Gloria Mleme 12% = Kl2,798.06 Dorothy Mleme 12% = Kl2,798.06 Doris Mleme 10% = Kl0,665073 Total talfb,6'S"s-. 3 3 ------------------~--~----As I sa.id earlier on, what was already paic1 out will be t~eated as advance payment" I note that the respondents allege that they got some acivance :,;,ayments for Elsie and f·1c.cfarlene in their n2raes. They should know the exact amounts which they used on these beneficiarieso Each party will pay his own costs for these proceedings. ~nDE in Chambers this 8th day of April 1993, at Blantyre. ASE Nsosa (Mrs) JUDGE