EXECUTORS APPOINTMENT IN TERMS OF THE ADMINISTRATION OF ESTATES ACT, ACT 66 OF 1965 – THE EXTENT OF THE MASTERS POWERS
- The Master ,if all reporting documents are in order, appoints the Executor in an Estate.
- Every appointment by the Master, is in terms of Section 95 of the Administration of estates
Act (‘the Act”), is subject to appeal or review by the court at the instance of an aggrieved
3.1 A testamentary Executor is a person nominated as such in terms of the Will of a deceased person.
3.2 An executor dative is someone not nominated in the deceased’s will for example the
deceased died without leaving a will.
- The entire administration process revolves around the office of the Executor. Sometimes it is not the executor himself who administers the estate, but an expert such as an attorney whom the Executor appoints as his/her attorney. It however remains the responsibility of the Executor to ensure the proper execution of this task as executor.
- An Executor is legally vested with the administration of the Estate.
- In terms of Section 14(1)of the Act, the Letters of Executorship, must be issued by the Master
on the written application of the person nominated in terms of the deceased’s will as the Executor. The will must of course be registered and accepted by the office of the Master.
The Master may however refuse to issue letters of Executorship to a person nominated as Executor on the grounds that the nomination is or should be declared invalid.
- If the Master out of his own volition considers a nomination as invalid, it is up to the nominated person or any interested party to bring an application to Court to determine the validity of the appointment.
- Apart from instances where the validity of the will is placed in question, the Master may refuse to grant letters of Executorship or to endorse or to sign and seal them, as the case may be-
- if the person to whom letters of Executorship are to be granted, endorsed or signed and sealed resides or is outside the Republic and has not chosen domicilium citandi et executandi in the Republic( own emphasis); or
- if such person, if appointed, could be removed from office on the grounds set out in section 54(1)(a)(ii), (iii) or (iv), or on the ground set out in section 54(1)(b)(iii). These gounds are the following-
- if the executor has at any time been a party to an agreement or arrangement whereby he has undertaken that he will, in his capacity as Executor, grant or endavour to grant to, or obtain or endavour to obtain for any heir, debtor or creditor
of the estate, any benefit to which he is not entitled;
- if he has by means of any misrepresentation or any reward or offer of any reward, whether direct or indirect, induced or attempted to induce any person to vote for his recommendation to the Master as executor or to effect or to assist in effecting such recommendation; or
- if he has accepted or expressed his willingness to accept from any person any benefit whatsoever in consideration of such person being engaged to perform any work on behalf of the estate;
- if he/she is convicted , in the Republic or elsewhere , of theft, fraud, forgery, uttering a forged instrument or perjury, and is sentenced to imprisonment without the option of a fine, or to a fine exceeding R 2000.00 (own underlining)
- if such a person fails to satisfy the Master by a declaration under oath that letters of executorship have not already been granted or signed or sealed by any other Master in the Republic.
- In terms of Section 22(1) of the Act, a person whose nomination has been refused by the Master, has fourteen days after such refusal or such further period as the court may allow, to apply to court for an order restraining the grant of letters of executorship or their endorsement, as the case may be.
- It is submitted that the Master can only refuse the appointment of a nominated Executor in terms of a valid will if the grounds as prescribed in terms of paragraph 7.1 and 7.2 above and not for any other reason except on account of a court order to that effect. If the Master does so, it is further submitted that such a decision would be ultra vires.