Executrix of the Estate of the Late Mohapi Jessie (Lebohang Nts'inyi V Mphuto Jessie & 4 Others (C of A (CIV) 67/2024) [2025] LSCA 27 (8 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) 67/2024 CIV/APN/0080/2024 In the matter between: EXECUTRIX OF THE ESTATE OF THE LATE MOHAPI JESSIE (LEBOHANG NTŠINYI) APPELLANT and MPHUTO JESSIE 1ST RESPONDENT ‘MAMPHUTO JESSIE N. O. 2ND RESPONDENT THE ESTATE OF THE LATE MOHAPI JESSIE 3RD RESPONDENT MASTER OF THE HIGH COURT 4TH RESPONDENT THE ATTORNEY GENERAL 5TH RESPONDENT CORAM: DAMASEB AJA MUSONDA AJA CHINHENGO AJA HEARD: DELIVERED: 8 MAY 2025 24 APRIL 2025 FLYNOTE Succession — Testamentary trust — Validity of will — Divorce consent order directing testamentary devolution of property to children — Alleged conflict between will and court order — Whether deceased’s will validly created testamentary trust — Premature challenge to testamentary dispositions — Whether executrix’s appointment lawfully effected. This appeal arose from a dispute concerning the validity of the last will of the late Mohapi Jessie, who had previously been party to a divorce consent order stipulating that the property retained by each former spouse should devolve upon their minor children through their respective wills. Following the deceased’s death, his son and former wife brought proceedings challenging the will because it purported to create a testamentary trust in favour of an entity that allegedly did not exist at the time of death, and that it contradicted the terms of the divorce settlement. They sought, among other remedies, a declaration that the deceased had died intestate and the setting aside of the appointment of the executrix named in the will. The High Court upheld the challenge, declaring the will null and void, invalidating the testamentary trust, and setting aside the appointment of the executrix on the basis that the will contravened the divorce order and lacked legal effect. The Court of Appeal, per Damaseb AJA (Musonda AJA and Chinhengo AJA concurring), held that the High Court erred in its approach. It reaffirmed that under the Trust Property Control Act 1988 and general principles of testamentary trust law, a trust mortis causa need not exist before death; it comes into being by operation of the valid will. It further held that where the beneficiaries are readily ascertainable from the surrounding context, such as the divorce order naming the children, the trust is not invalid for want of beneficiaries. The Court found that the deceased’s will and the divorce order were not mutually rather complementary. The executrix’s position that she had not yet administered the estate or made any decisions as to distribution was found to be sound, and the application to set aside the will was premature. The Court also rejected the proposition that the property allocated to the deceased at divorce fell outside the joint estate or could be subject to competing claims from other relatives, inconsistent but underscoring the principle that all assets acquired during the marriage are jointly owned in the community of property. The Court concluded that the High Court was wrong to hold that the will was legal foundation, and that the executrix's appointment ought to be set aside. It dismissed the respondents’ application in its entirety. invalid, that the testamentary trust lacked The appeal was accordingly allowed, the order of the High Court set aside, and substituted with an order dismissing the application. By agreement of the parties, the estate was to bear each side’s taxed costs both a quo and on appeal. JUDGMENT P. T DAMASEB Introduction [1] The facts giving rise to this appeal fall within a narrow compass. It concerns the validity of a testamentary trust and appointment of an executor (the appellant) under it by the late Mr Mohapi Jessie (the deceased), who died on 4 March 2024. [2] Before his death, the deceased was married by civil rights to Ms Mamphuto Jessie (the former wife) in community of property. She appears as the second respondent in this appeal. The deceased and the former wife had two children, one male, Mphuto Jessie, and a female, Bonolo Jessie. [3] On 1 June 2022, the deceased and the former wife divorced. The court ordered a division of the joint estate based on a settlement agreement reached between the parties. The consent order clearly specified the property to be retained by each party as part of the divorce settlement. [4] In the case of the deceased, it was ordered that he ‘will keep the following property: 6.1 Developed site at Ha Thamae in the district of Maseru of lease No. 13291-368; 6.2 Developed site at Khubetsoana in the district of Maseru; 6.3 6.3 Site with Office spaces and businesses situated at Industrial Area, Maseru of lease No. 12281-250; 6.4 6.4 A fleet of vehicles: Fortuner 4x4 registration number A 723 BBK. Double cab 4x4 registration number R9047 and Toyota Alphard registration number A 532 BBC; 6.5 6.5 Two houses situated at Ha Hoohlo, in the district of Maseru of leases No. 12281-239 and 12281-550; 6.6 Engineering consulting business (Lyma consulting business) 6.7 Ice equipment hire; 6.8 Construction company; 6.9 Kids entertainment business’. [5] Paragraph 7 of the court order directed as follows (referring to the property retained by each of the parties): ‘The above-mentioned properties will devolve to the parties’ minor children being Mphuto and Bonolo Jessie. This will be registered in the parties’ testamentary wills respectively’. [6] In his Last Will and Testament, the deceased ‘bequeathed’ the property he received under the divorce settlement ‘to MOHAPI JESSIE FAMILY TRUST’ ‘which are in my name which derive from my estate’. [7] In that Will, the deceased declared that he ‘nominate and appoint Ms LEBOHANG NTSINYI …to be the Executor of this my Will, granting unto him (sic) all such powers as are required by law and especially that of assumption’. [8] Upon becoming aware of the Last Will and Testament of the deceased, initially, the son, Mphuto Jessie (later joined by his mother, “Mamphuto Jessie nomine officio for the minor Bonolo) approached court seeking the following relief, that: ‘a) The purported last will and testament of the late Mohapi Jessie be declared invalid for being irregular and contradictory in its contents. b) The first respondent [the executrix] be interdicted and restrained from carrying out the testator’s instructions under the purported las will of Mohapi Jessie… c) The [Master of the High Court] be directed to withhold the letters of administration, if any, of the [executrix] d) That the Office of the Master of the High Court …[be] ordered to appoint an independent neutral and qualified person as executor of the late Mohapi Jessie’s [estate] f) that the decision of the [Master of the High Court] to appoint the [executrix nominated by the deceased] be reviewed, corrected and set aside; g) The deceased Mohapi Jessie be declared to have died intestate’. [9] The applicants justified the relief they sought as follows. Mphuto deposed to the affidavit in support of the relief, later joined by his mother. I will only refer to his affidavit. After the demise of the deceased and becoming aware of his Will, inquiries done by his legal representative showed that the Mohapi Jessie Family Trust does not exist and that bequeathing the property in question was ‘in contravention of’ the settlement agreement which was made an order of court, ‘directing that the parties being my parents, should in their respective wills cause that the divided property devolve to myself and my sister’. [10] According to Mphuto, the deceased’s testamentary freedom was curtailed by the court order and that bequeathing the property in the manner the deceased did was in contempt of the court order, unlawful and impossible to enforce because ‘the trust did not exist’. He also averred that the Master of the High Court’s appointment of the appellant as executor was invalid as the Will was invalid. Opposition [11] The relief was opposed by the appellant in her capacity as executrix duly appointed by the Master of the High Court on the strength of the deceased’s Will. Her principal contention in opposition to the application is that clause 7 and the Will are not incompatible and in fact complement each other. [12] According to the executrix, the application is premature as she had not yet decided on the beneficiaries and only once she has done that can the deceased’s children, if aggrieved, challenge the decisions she had made. Her further contention is that, through the application, the applicants seek to invoke the authority of the court to frustrate the proper and orderly administration of the deceased’s estate. [13] The executrix reiterates that the application is premature for another fundamental reason: Her duty, she asserts, is to administer the estate in terms of the Administration of Estates Act including creating the trust envisaged under the deceased’s Will. [14] In a supplementary affidavit, the executrix informed the High Court that she came upon evidence that at least one asset referenced in the divorce settlement which was made an order of court (Lyma Consulting Engineers) is a limited liability company in which the deceased was only one of the shareholders. A fact, she alleged, which emphasises the importance that issues of inheritance are premature and that the process of administration of the estate should be allowed to proceed unhindered. [15] According to the executrix, the division of the property between the deceased and the former wife under the divorce settlement was done in such a way that what the former wife received was the property acquired by the couple during marriage; and that the property that was given to the deceased took into consideration that it was property he had inherited from his father and grandfather. That meant, she contends, that he was to provide for his siblings and grandfather’s children from the property that he received under the divorce settlement. [16] The executrix further alleged that even if the deceased had not provided for a trust under his Will, one would still have had to be created insofar as the estate includes landed property which cannot be jointly owned except via a trust. High Court’s approach [17] The court a quo (Khabo J) held: ‘[18] The court finds in the circumstances of the case before it that the deceased failed to honour the terms of the settlement agreement between him and the 2nd Applicant. It is worth noting that the court order granted by this court in CIV/T/415/21 (the divorce decree) flowed from the parties’ consensual agreement. If the deceased’s Will were to be enforced, it would undermine the provisions of this order, which has to date not been subjected to any challenge. [19] Applicants had further prayed that the appointment of the 2nd Respondent by the Master of the High Court (the Master), 3rd Respondent herein, as the executrix of the deceased’s Will be reviewed, corrected and set aside for being based on an illegal Will. The validity of this appointment by the Master emanates from the deceased’s Will and Testament. It is, therefore, dependent on the finding of this court on the validity or otherwise of this Will. The Will is found to be invalid and of no force or effect as analysed above. [20] It is, therefore, unenforceable for being in contravention of the divorce decree that the former spouses’ property as divided upon the dissolution of their marriage shall devolve on their two named children, the 1st Applicant, and her younger sister on their parents’ demise. The appointment of the executor under the said Will, therefore, falls off. [18] Khabo J therefore ordered that: ‘ a. The Will of the late Mohapi Jessie is declared null and void; b. The late Mohapi Jessie is declared to have died intestate; c. The decision of the Master to appoint the 2nd Respondent under the late Mohapi Jessie’s Will is hereby reviewed, corrected and set aside; and d. There is no order as to costs’. The appeal [19] The appellant (executrix) relies on the following grounds of appeal 1. The court a quo erred and misdirected itself in declaring that the Will of the late Mohapi Jessie is null and void on the ground that it contravenes clause 7 of the decree of divorce. The said Will and Clause 7 of the decree of divorce complement each other. 2. The court a quo erred and misdirected itself in holding that the Will of the late Mohapi Jessie lacked a legal basis in view of the decree of divorce in CIV/T/415/21. The Will and the decree of divorce in CIV/T/415/21 are mutually consistent with each other. The said Will set out a clear basis that the desire of the deceased is to have his estate managed by the Mohapi Jessie Family Trust. 3. The court a quo erred and misdirected itself in declaring the Will of the late Mohapi Jessie as null when no such order was sought before it. The court mischaracterised the nature of the case before it and the reliefs sought; there was no prayer for a declaratory order setting aside the Will of the late Mohapi Jessie and therefore the court erred in declaring the Will as a nullity. 4. The court a quo sitting in CIV/APN/0080/24 lacked the subject matter jurisdictional power in the absence of the necessary jurisdictional facts to interpret and enforce the decree of divorce order issued in CIV/T/415/21. 5. On the pleaded facts on the record there are no jurisdictional facts justifying the invalidation of the Will of the late Mohapi Jessie and declaring that he died intestate 6. The court a quo erred and misdirected itself in declaring the Will of the late Mohapi Jessie as null and void on the ground that it referred to a testamentary trust. It is legally acceptable for a Will to direct the establishment of a Trust mortis causa. In casu, the trustees of the trust would easily be determinable from the surrounding facts on record.’’ Discussion The law [20] In Lesotho, trusts are governed by the Trust Property Control Act 1988. A trust is a legal arrangement in terms of which a trustee holds assets on behalf of beneficiaries. A trust is either inter vivos or mortis causa, also known as a testamentary trust. [21] A Will can establish a valid testamentary trust only if certain essential elements are present. The leading case Administrators, Estate Richards v Nichol and Another1 laid down that the trust instrument (the Will) must clearly provide for the following three requirements: a. There must be a trustee appointed to hold and administer the trust property. b. The beneficiaries must be identified or at least be ascertainable. In other words, there must be definite trust objects who can benefit under the trust. c. There must be defined property or a legal subject-matter that is the object of the trust. [22] If any of these elements is missing, no valid trust is created. This principle was affirmed by the Supreme Court of Appeal in the same case on appeal.2 [23] In short, the Will itself serves as the trust instrument and the testator must clearly intend to create a trust and set out who will serve as trustee, who will benefit, and what property is placed in trust. 1 1996 (4) SA 253 (C) at 258E–F). 2 See Estate Richards v Nichol 1999 (1) SA 551 (SCA)). [24] Contrary to the suggestion made by applicants a quo, neither South African nor Lesotho law requires a testamentary trust to be registered or to be in existence before the testator’s death. The trust comes into existence upon the death of the testator, by operation of the Will, and not before. The Will functions as the trust deed at death, and the nominated trustee (often via the executor of the estate) will then administer the trust assets according to the Will’s terms. There is no legal requirement that the trust be formally registered or signed into existence during the testator’s lifetime. [25] In Hamilton and Another v Badenhorst and Others3, the Free State High Court confronted an argument that a trust created in a will was invalid because a draft inter vivos trust deed had not been signed or registered before the testator’s death. Family members in that case claimed it was unlawful to bequeath property to a trust that did not yet exist. The court rejected this notion, calling it an “incorrect view”. In other words, a Will may validly leave assets to a testamentary trust that is only constituted upon death. [26] By analogy, Lesotho law follows the same principle. Once a Will that meets the legal requirements for a trust is validated, the executor can proceed to set up the trust according to the Will’s directions, without any need for the trust to have been separately registered while the testator was alive. To my knowledge, there is 3 Hamilton and Another v Badenhorst and Others [2018] ZAFSHC 33 (Free State High Court, 29 March 2018). no reported Lesotho case imposing a pre-death registration requirement. [27] A fundamental principle of trust law in both South Africa and Lesotho is that a trust must have an identifiable beneficiary (or class of beneficiaries). If a Will purports to create a trust but names no beneficiaries at all, the trust will fail for want of an object. [28] The Hamilton v Badenhorst4 case eloquently illustrates the point. In that case, the Will attempted to leave certain property to a trust (the “Eben-Haeser Trust”), but because the trust had never actually been constituted and had no beneficiaries at the time of the testator’s death, the court held that the supposed trust “did not exist” at death and “had no capacity to benefit” anyone. In short, it was a legal fiction. [29] Consequently, “the bequest of the immovable properties to the trust should fail.”5 The practical effect of such a failure is that the property meant for the non-existent trust lapses and remains part of the deceased’s estate. Those assets will then pass under the residuary provisions of the Will or, if no residuary clause exists, by intestate succession. [30] Lesotho law is aligned on this point. Lesotho courts have similarly insisted that the objects of a trust be specified and have struck down trusts with no designated beneficiaries. For example, 4 Hamilton & Another v Badenhorst & Others [2018] ZAFSHC 33 (FSHC, 29 March 2018) at paras 57–58. 5 Hamilton & Another v Badenhorst & Others [2018] ZAFSHC 33 (FSHC, 29 March 2018) at paras 57–58. in Maphathe v Maphathe & Others6, the court voided a trust for lack of any named beneficiaries, reinforcing the rule that a trust without a beneficiary is invalid. Disposition [31] During the hearing of the appeal, the Court raised the question whether in the absence of named beneficiaries the trust meets an important requirement of a trust. I turn to that issue next. [32] It is trite that even if the trust instrument does not specifically name beneficiaries it will be valid if the beneficiaries are easily identifiable. My understanding of the executrix’s case is that the test is met in light of clause 7. I will accept that to be correct for present purposes and proceed from the premise that the deceased’s testamentary trust is valid because it must be read with clause 7. In other words, the beneficiaries under the trust are the children of the deceased, Mphuto and Bonolo. [33] The next issue is Khabo J’s ratio that the Will is invalid because it conflicts with clause 7 of the court order. I have shown that the executrix contends that the Will and clause 7 complement each other and are not in conflict. [34] The basis on which the applicants challenged the Will, which found favour with the court a quo, fails to recognise that issues of 6 Maphathe v Maphathe & Others (CIV/APN/317/04) [2005] LSHC 132 (High Court of Lesotho, 15 June 2005) inheritance and the administration of the estate should not be conflated. [35] The respondents seem to think that because the property was mentioned in the divorce settlement that immediately vested it in the names of the children. There is an important qualification to that. First, there could be creditors who might have claims against those properties. Second, a divorce settlement which bound the parties inter se (as opposed to the whole world), does not bind others who were not party to it. What if, for example, the property actually belonged to a third party contrary to the belief of the deceased and the former wife? Such disputes will have to be resolved by the executrix in the process of the administration of the estate; and most importantly, property in a deceased estate can only be distributed in the course of the administration of an estate. [36] The task of an executor is to realise all the assets of a deceased’s estate including pursuing debtors, identifying all creditors, admitting or rejecting claims, and generally winding up the estate to the satisfaction of the Master of the High Court. In my view, the clause 7 beneficiaries are a distinct category of creditors of the deceased’s estate and the property mentioned in clause 7 would, for that reason, represent their claim against the deceased’s estate. [37] When the matter is approached in that way, it becomes apparent that Khabo J’s conclusion that the Will conflicts with clause 7 of the court order cannot be sustained. The executrix is correct to point out that the application was premature because the executrix must first realise the assets, admit or reject creditor’s claims, and ascertain the beneficiaries under the Mohapi Jessie Family Trust and give effect to the testator’s wish. [38] I take the view that for those reasons, the court a quo was wrong to hold that the Will was in conflict with clause 7 of the court order. Since the order setting aside the executor’s appointment was made dependent on the order invalidating the will, that order too is wrong. Necessary digression [39] The executrix seems to think that when the deceased and the former wife divorced, the property which was allocated to the deceased did not form part of the community of property. That is a wrong proposition as a matter of law. [40] Therefore, the executrix’s contention that, in relation to the property referred to as the deceased’s in clause 7 of the divorce settlement and made an order of court, other relatives may have rights of inheritance, is untenable. Firstly, when the settlement was reached and made an order of court, the deceased must have been aware of that if that is in fact the case. The fact that it is not reflected in the divorce settlement between the deceased and the former wife, leads to the inference that he did not labour under such an obligation at the time. Secondly, the executrix’s position is indicative of a flawed understanding of community of property. [41] The correct legal position is that community of property refers to a legal arrangement where all assets and debts acquired during marriage belong jointly to both spouses, regardless of who specifically acquired them. That includes property acquired by either spouse before the marriage and during the marriage. [42] It is a matter of concern therefore that the executrix does not appreciate this hallowed position of the law. [43] It could well be that this attitude on the executrix’s part is what makes the respondents suspicious of her bona fides and led to Mr Rasekoai for the respondents inviting the Court, during the hearing of the appeal, to direct the appointment of another executor in her place. Much as one has appreciation for this concern, it is not the sort of decision a court, especially an appellate court, can take without the opinion of the Master of the High Court. That issue is best ventilated at first instance. [44] As far as costs are concerned, the parties were ad idem that it should be in the estate. Order 1. The appeal succeeds. 2. The order of the High Court is set aside and replaced with the following: ‘The application is dismissed. Both parties’ costs shall be born by the estate after having beeb duly taxed.’ 3. Both parties’ taxed costs shall be borne by the estate. _______________________________________ P. T DAMASEB ACTING JUSTICE OF APPEAL –––––––––––––––––––––––––––––––––––––– P MUSONDA ACTING JUSTICE OF APPEAL I agree: I agree: ____________________________________ M. H CHINHENGO ACTING JUSTICE OF APPEAL FOR APPELLANT: Adv. K. W Letuka assisted by Adv. B Moshoeshoe FOR 1st and 2nd RESPONDENTS: Mr M Rasekoai assisted by Adv. M. J Thienyane 18