The legislation governing the administration of deceased estates in South Africa, being the Administration of Estates Act 66 of 1965 (as amended) (the Act) provides for the appointment of an Executor to preside over the winding up of the estate of the deceased.
Winding up an estate is basically a process to distribute the residue of the estate to beneficiaries upon settling the creditor’s claims and other such liabilities.
The responsibilities of an Executor are fiduciary in nature and thus the Executor must at all times be honest, diligent, truthful as well as to see that the process is endowed with fairness and compliance. In the event that the Executor conducts themselves in a way that is undesirable and/or detrimental to the proper administration of the deceased estate (gross incompetence, dishonesty), there are provisions for the removal of such Executor.
However, the above decision (removal of Executor) is not arrived at easily, the Master of the High Court who issued the Letter of Authority/Executor or the Court must be satisfied that the conduct of the Executor under the circumstances warrants removal as continuing as Executor is undesirable.
Mere disagreement alone between the Executor and the beneficiaries is not an adequate ground to remove an Executor as was held in the case of Oberholzer NO and others v Richter (2013) 3 All SA 205 (GNP).
Before we discuss the removal of an Executor, it is beneficial in this perspective to briefly discuss how an Executor is appointed.
There are two scenarios to this, firstly where the deceased passed away without a valid Will, their estate will devolve intestate as per the Intestate Succession Act 81 of 1987. Various documents must be lodged to the Master of the High Court to report the estate, and one of the documents is a Nomination Letter wherein the heirs nominate an Executor, usually a family member, their attorney or accountant.
Such person will then be appointed, at the master’s discretion, to preside over the devolution of the deceased estate. Section 19 of the Act provides an order of preference in the event where a family member is to be appointed as an Executor in intestate succession. In the second instance, a deceased may have left a Will nominating their preferred Executor and an alternative.
As alluded to above the removal of an Executor is not a decision that is arrived at easily, reasons of substance must be provided before the Master, or the Court approves such removal. Section 54 of the Act provides for substantive and procedural requirements under which the executor may be removed.
The Executor may be removed from office upon such instances including incapacity, if appointed by a subsequent invalid will, misconduct such as conviction for forgery, theft, fraud etc, and consequently sentenced to imprisonment without the option of a fine or sentenced to a fine exceeding a set amount as per the Act. The Master is required to notify the Executor by way of registered post of the removal and if the Executor wishes to interdict such removal, the Executor must bring an application to Court within 30 days. The Court will then investigate and make a finding on the matter.
Further, in terms of section 22 of the Act, a party may object to the appointment of a certain party to be Executor, with valid reasons.
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