In the Matter of Wills & Inheritance Act v In the Matter of Soko Deceased (Misc. Cause 86 of 1994) [1994] MWHC 5 (2 December 1994)

' ~IGH COURT IN THE HIGH COURT OF MALAWI l..lBRARY PRINCIPAL REGISTRY MI SC CAUSE NO. 86 OF 1994 IN THE MATTER OF WILLS & I NHERITENCE ACT Versus IN THE MATTER OF PATR I CK SOKO DECEASED CORAM: MKANDAW I RE , J Mr Maulidi for t h e app l icant Mr Mbendera fo r t h e r es p o n de n t RULING Th is i s n n oL i ce of mot i o n b r oug h t unclcr section 25 of the Th e c o u rt is b ei n g aske d to appoint a The l etters of ildmi n istration. t h is was not Wills and ln h erit,1nce Act . receiver pe n d in g i n j u ction b u t notice of motion pursued by the lcnrned counsel for t h e app l ica n t s. t h e gr:rn t of ,1 l c;o talked of a n Th e undisputed L:icts the applica n ts ' mot h e r The children are all g r own u p . applica n ts' mot h er separated . by the n ame of Ann Kunsi n cla . formal marriage wit h deceased died in testate. He 441 Mic h i ru . Society . h ouse Th e ,H e t h at t h e deceaced was married to in 1955 . He h ad five c h ildren with her. t h e d eceased and the Th e deceased took on another woman t h at t h ere was no the On 6t h February 1994 It is be l eive d t h is woma n. I n 1980, l eft be h i n d a h o u se o n p l ot No. LK to i s on mortgage t h e New Building So far n o o n e h as obtai n ed l etters of admi n istration to Th e affidavit i n s u ppo r t of th e notice of t h e children If anyone did t h e affidavit does n ot say wh at stage has been renched. t h ere are ~rn y obst.1c l cs, no n e hns heen t h e ot h er hil n d, r,1rag 1-i1 ph 1 1 is sayi n g t h e npplicants is t lv 1t All l etters o f The normal adm in istratio n. l etters of admi n istration . A receiver can administer t h e estate . motion docs not say wh y have not applied for letters of ad mi n istration . apply, If on disclosed. intend for procedure is to obtai n be no substitute for an admi n ist r ator . t h e mot h er a n d / or a n y of to apply 25 of sectio n However In h eritance Act provides that a co u rt may ap p o in t a t h e grant of letters 01 receiver there must be evidence ) t h at there is da n ger that the property may be wastecl . Paragra~ 9 of t h e applicants ' affidavit says that the woma n wh0m t h e decl:sed to0 k 0 n aut h orised the New c1 court can appoint r eceiver pe n di n g ;idministr;itinn . Bu t before t h e Wills a n d HIGH COURT LIBRARY - 2 - to sell the hous e Building Society the proceeds therefrom for h er own benefit and the benefit of h er children to the exclusio n of The the propert y LK 441, is: question now Michiru may be wasted. Surely if M/S Ann Kunsinda h as authorised the New Building Society to s el 1 the hou se and then poc kct the proceeds then there is danger of waste. the applicants and is the other children. there danger to get so as that t h e that their allegation Mr Mbendera who represe nts the respondent submitted that a the applicants have not receiver cannot be appoi nted because substantiated respondent has given instructions to the New Building Society that the h ouse be sold. There is no affidavit in reply. The 3pplicants ' affidavit was served on the respondent's lawyers on 18th November, 1994. There was therefore ample ti .me for the respondent to file an affidavit in reply to refute what is alleged of h er if what the applicants are saying is not true. In the absence of any refutal from the respondent, the applicants ' statement goes unchallenged. Had the respondent put in an affidavit denying the allegation, then the court would be called upon to decide as to who was telling the Now that the respondent c hose to keep quiet, I have no truth . but to go by what the appl icants' are saying in their affidavit. It may be arg u ed t hat there was no obligation on the respondent to file an affidavit i n reply. Well, that may be so, but I think that where allegations are made, it is important to refute them if they are not true. The applica nts were present at the hearing and Mr Mbendera could have cross -e xami n ed them h ad he wished. In the circumstances, I am satisfied that t h ere is indeed t h erefore appoint the danger that the property may be wasted. General Manager of the New Building Society to be t h e Receiver pending t h e gra n ti n g of letters of ad ministr atio n. But as I have already sa id earlier on a receiver can be no s ubsti tute for an administrator. letters of administration be obtained without delay. therefore impo rtant that is It I Made Blantyre. in Chambers this 6th day of December, 1994 at r· M P MkancL1wire • ,. JUDGE