Deceased Estates – Removing an executor from office
11 Jun 2020
When someone dies the deceased estate is reported to the Master of the High Court (“the Master”) and the administration conducted by the executor or masters’ representative as the case may be. Where the executor is not performing these duties to the required standard, such person may be removed from office. In this regard sections, 54(1) and 54(2) Administration of Deceased Estates Act 66 of 1965 as amended (the “Act”) sets out the substantive and procedural requirements to be followed by the Master and/or the High Court to remove an Executor or Masters’ Representative.
When must an executor be appointed to administer a deceased estate?
When the value is more than R250 000. With this, the executor will be required to sign a liquidation and distribution account which record the assets liquidated, administration costs and how the assets will be distributed upon finalization of the deceased estate.
On the other side of the coin, section 18(3) of the Act states that: “If the value of any estate does not exceed the amount determined by the Minister by notice in the Gazette, the Master may dispense with the appointment of an executor and give directions as to the manner in which any such estate shall be liquidated and distributed. Should the deceased estate be less than R250 000 in value, then letters of authority shall be issued, and the Master shall give directions as to how the deceased estate must be distributed.
Section 14(1) of the Act
In a very recent case of Mlunguza and Another v Master of the High Court and Another, the Court found that the above section 14(1) does not empower the Master to refuse letters of executorship on the basis that the executor is undesirable. Furthermore, the above section does not empower the Master to make a value judgement on whether a person is a suitable candidate or not. On the other hand, the fact that an executor is alleged to not be a fit and proper person to be appointed as executor does not in itself lend itself to incapacity.[1] The Court in the above case had to decide whether the Master had the power to remove the attorney from the office of the executor, on the basis that the attorney was interdicted from operating a trust account, although at the time of the removal the Court had not delivered judgement in the interdict matter yet. The Court went as far as to state that assuming that the attorney was precluded from operating a trust account he could have still been able to act as executor, appoint another firm of attorneys to administer the deceased estate and open up an estate late bank account in terms of section 28 of the Act. The Court further found that the Master’s powers to remove an executor are triggered once there is a “determination” of wrongdoing, i.e. a court order declaring as such. The removal was declared unconstitutional, but the Court still found that it is undesirable that the Applicant is reappointed. The court further stated the majority of the Master’s power to remove an executor is in respect administrative non-compliance with the only ground for misconduct on the part of the executor in respect of Section 54(1)(a)(b) of the Act.
Section 54(1)(a)(b) of the Act
This section sets out the grounds on which the Master can remove an executor from the office. The above section provides for a substantive aspect which entails that there must be a good reason for the removal from the office. For example; the executor may be removed from office if such a person has a criminal conviction in respect of the specific offences as outlined in the Acts.
Section 54(2) states that:
“Before removing an executor from his office under subparagraph (i), (ii), (iii), (iv) or (v) of paragraph (b) of subsection (1), the Master shall forward to him by registered post a notice setting forth the reasons for such removal, and informing him that he may apply to the Court within thirty days from the date of such notice for an order restraining the Master from removing him from his office.”
The abovementioned section establishes the procedural element which states that the Master must follow a process which is aligned with the Audi Alteram Partem – rule, which essentially embraces the principle that every person shall be given an opportunity to be heard.
Conclusion
It is evident from the above, where an investigation is required in regards to serious allegations relating to the conduct of the executor, the Master does not have the prerogative to investigate the validity of the complaint. Our courts are tasked with this function to investigate and make findings on whether a particular person is a fit and proper person to hold the office of the executor. Should you require any assistance as an heir or interested party in an estate, or serve as an executor or masters’ representative yourself, and require advice – contact an expert at SchoemanLaw to assist.
[1] Para 33 to 34 Mlunguza and Another v Master of the High Court and Another (21755/2018) [2020] ZAWCHC 6[2] Section 54(1)(b))(iii) of the Act
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