Twin’s US$300,000 family estate row collapses over ‘non-existent’ defendants

A HIGH Court fight between twins over their late parents’ Gunhill home has collapsed before trial after a judge ruled that the case was fatally defective because the deceased estate were sued as if they were legal persons.

Justice Joel Mambara struck the matter off the roll, ruling that Athos Proestos’ failure to cite the executrix by name as the defendant representing each estate rendered the summons and declaration a nullity, which could not be cured by amendments that were never formally effected.

The dispute centres on the family home at 94 Churchill Avenue, Gunhill, which Proestos alleges was improperly sold by his twin sister, Christalleni Proestos, for US$300,000 after their mother was allegedly pressured into signing a disputed will.

Mambara said the legal defect was fundamental: a deceased estate cannot be sued in its own name because it has no separate legal personality.

“A summons, like a letter, must be addressed to someone,” the judge said.

“A letter addressed to ‘the house at 94 Churchill Avenue, Gunhill’ may well be pushed under the door, and whoever lives there may open it and even write back; but no one would say, on that account, that the house has entered into correspondence.”

“This action, in two of its six citations, is addressed to no one at all.”

The judge said the matter had reached the trial stage four and a half years after proceedings began, with a seven-day trial anticipated, 13 issues referred for determination and a record running to several hundred pages, only for the fundamental defect to derail the proceedings before any witness was called.

“It gives me no pleasure to say so,” Mambara said.

“A dispute between twins over their parents’ home is one the law would wish to resolve on its merits. But a court cannot decide the merits against parties who are not before it, and it is no kindness to let a litigant run a trial to judgment on process that would not survive the first ground of appeal.”

The judge said Proestos’ remedy, if he wished to pursue the claims, lay in properly constituted proceedings.

The twins’ father, Dinos Erotokritou Constantinos Proestos, died in May 1992, while their mother, Eleni Dinou Proestos, died in May 2021.

According to the plaintiff’s case, their mother had signed a will in June 2020 under duress, allegedly after Christalleni tore up an earlier will dated July 2000, which reportedly named Athos as executor and provided for an equal inheritance.

Christalleni was appointed to administer both estates in February 2022 and obtained the Master of the High Court’s consent to sell the Gunhill property, which she subsequently sold to Pratibha Patel for US$300,000. Transfer of the property followed.

Athos challenged the validity of the 2020 will, the administration of both estates and the sale, alleging that the transaction was tainted by an undervalued price, a side payment and an offshore payment arrangement. He sought, among other relief, the revocation of the letters of administration, the setting aside of the sale and cancellation of the deed of transfer.

However, Mambara did not determine whether the will was valid, whether the sale was improper or whether the allegations against Christalleni had merit.

Instead, the court dealt with preliminary legal objections raised by the first three defendants before the trial could begin.

The central issue was whether the two deceased estates could be cited as defendants in their own names, even though Christalleni’s name appeared in brackets as the person representing them.

The judge said the law was settled that a deceased estate is merely a collection of assets and liabilities, not a legal person capable of suing or being sued.

Under sections 23 and 25 of the Administration of Estates Act, the executor or executrix appointed by the Master administers the estate and represents it in legal proceedings.

Mambara cited the Supreme Court ruling in Chiangwa v Katerere & Others (SC 61-21), which held that the executor or executrix must be cited by name in litigation involving a deceased estate.

“Failure to cite the executor/executrix would be fatal to an action against the deceased’s estate,” the judge quoted from the decision.

He rejected the argument that naming Christalleni in a representative capacity in brackets amounted to substantial compliance with the law.

“The bracketed rider does not change who is sued; it merely tells the reader who will answer the door,” he said.

“The party named is the estate. The declaration says so in terms, and the prayer seeks relief ‘in respect of the Second and Third Defendants Estates’. The plaintiff chose his defendants. He chose two that do not exist.”

The court also rejected the argument that the defect could be overcome by the rules allowing cases to proceed despite misjoinder or non-joinder of parties.

“Existence is not a formality with which one may substantially comply,” Justice Mambara said.

“A rule designed to save a cause from a surplus or a missing litigant does not conjure one.”

The judge further found that the plaintiff had failed to complete proposed amendments intended to correct the citations, despite issuing notices in 2022 and again in March 2026.

Under Rule 41 of the High Court Rules, 2021, a notice of intention to amend is not itself an amendment. The amended pages must be formally filed.

“The record contains no amended summons and no amended declaration, not after June 2023, not after March 2026,” he said.

“A notice of intention to amend is a promise to tidy the house; the tidying is a separate act.”

Mambara added that even a properly completed amendment could not have revived a summons that was void from the outset because it had been issued against parties that did not legally exist.

“Litigants may agree on almost anything about their dispute, but they cannot agree a third person into existence, or confer on the court a power to give judgment against someone who is not there,” he said.

The court also ruled that the action could not be salvaged by proceeding against Christalleni in her personal capacity and Patel as the purchaser.

The judge said the relief sought, including cancellation of the transfer and the setting aside of the sale, depended on the estates being properly represented in the proceedings.

“The fourth defendant’s title derives from the executrix and cannot be tried in the executrix’s absence,” he said.

“With the estates gone, what remains against the first defendant personally is a set of accusations with no competent relief attached to them.”

Mambara declined to determine a separate objection over whether Athos, as a child and alleged beneficiary of the estates, had legal standing to bring the claims. He said the issue would arise, if at all, in properly constituted proceedings.

He nevertheless cautioned that there was a distinction between a beneficiary’s interest in challenging the validity of a will and an executor’s authority to recover property belonging to an estate.

“Whoever next frames these claims would do well to keep it in mind,” he said.

The judge ordered Athos to pay Christalleni’s legal costs on the ordinary scale, finding that he had recognised the citation problem years earlier but failed to correct it properly.

However, he declined to award punitive costs against him, noting that the defendants had also contributed to the confusion by pleading over, accepting documents bearing the amended citations and consenting to the proposed amendment before later arguing that the defect was incurable.

The action was struck off the roll, leaving the substantive dispute over the disputed will, the US$300,000 sale and ownership of the family home unresolved.

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