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Notwithstanding the fact that an Executor of a deceased estate acts as per the authority of the Master of the High Court, to superintend over the administration of the deceased estate, it is not without restrictions. Executors have a wide discretion in this process but that their actions and decisions must be within what is permissible at law and as per the Master’s directives.

In the case of Schofield And Others v Bontekoning And Another [2011] JOL 27906 (GSJ) a former Executor had sold an immovable property without the approval of the heirs. The Executor who was subsequently appointed successfully challenged the sale and transfer of the property, with the Court upholding that the sale of the property had been unlawful.  

During the deceased estate administration process, circumstances may present themselves where it becomes necessary to sell assets in the deceased estate. For instance, where joint ownership of an asset amongst the heirs is not possible (due to the heirs having a discordant relationship) the heirs may enter into a redistribution agreement whereby the other heir will acquire the asset whilst another is paid the fair value of their share in cash. It is also possible for either of the heirs to buy the property from the deceased estate before an offer from a third party is considered.

Sometimes the Testator expressly provides that the assets must be sold for the proceeds to be shared between the heirs, after settling claims against the deceased estate. At times, the deceased estate may require to raise funds of settling claims lodged against it by creditors as the heirs may not be in a position to do so.

Section 47 of the Administration of Deceased Estates Act 66 of 1965 [as amended] (the Act) obligates the Executor to seek the approval of the heirs before selling property in the deceased estate and where such cannot be obtained, to seek the directives and/or approval of the Master of the High Court. The Testator in the case of Schofield And Others v Bontekoning And Another [2011] JOL 27906 (GSJ), provided in his Will, that Section 47 is not applicable, but the Court disregarded that part because a legislative provision with statutory force cannot be dispensed in such manner unless such legislative provision provides so.

47           Unless it is contrary to the Will of the deceased, an Executor shall sell property (other than property of a class ordinarily sold through a stock broker or a bill of exchange or property sold in the ordinary course of any business or undertaking carried on by the executor) in the manner and subject to the conditions which the heirs who have an interest therein approve in writing: Provided that-

(a) in the case where an absentee, a minor or a person under curatorship is heir to the property; or

(b) if the said heirs are unable to agree on the manner and conditions of the sale, the executor shall sell the property in such manner and subject to such conditions the Master may approve."

Section 42 (2) on the other hand, prescribes that where the Executor requires to effect the transfer of an immovable property after a sale, he/she must:

42 (2)    An executor who desires to effect transfer of any immovable property in pursuance of a sale shall lodge with the registration officer, in addition to any such other deed or document, a certificate by the Master that no objection to such transfer exists."

The above provisions are peremptory and Executors must abide by the law whenever they seek to conclude a sale of property held in a deceased estate. It may also be advisable to nominate an attorney as Executor, owing to their knowledge of the ‘ins’ and ‘outs’ of how the deceased estate administration process unfolds.

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