Removal of executor: Understanding the process and requirements

executor
25 Jul 2023

Introduction

When someone passes away, the administration of their estate is carried out by an executor appointed to handle their affairs. However, there are circumstances where executors may not fulfil their duties adequately, leading to the possibility of their removal from office. In this article, we will explain the process and requirements for such removal.

Responsibilities of an executor

Executors have fiduciary responsibilities, which means they must act honestly, diligently, and with fairness and compliance. If they behave in an undesirable or detrimental manner, such as gross incompetence or dishonesty, provisions exist for their removal.

Grounds for removal

Under Section 54(1)(a)(b) of the Administration of Estates Act (the ‘Act’), there must be valid reasons for removing an executor from office.

Removing an executor is not a decision taken lightly. The Master of the High Court or the Court must be convinced that the executor’s conduct warrants their removal, as it is deemed undesirable for them to continue in their role. A mere disagreement between the executor and beneficiaries is not sufficient grounds for removal, as established in the case of Oberholzer NO and others v Richter (2013) 3 All SA 205 (GNP).

Substantive and procedural requirements

Section 54 of the Act outlines the criteria for removing an executor. This includes instances such as incapacity, appointment through an invalid will, or misconduct resulting in a conviction for offences like forgery, theft, or fraud, with a subsequent prison sentence or a fine exceeding a specified amount. According to Section 54(2) of the Act, before removing an executor, the Master of the High Court must send them a registered letter stating the reasons for the removal. The executor has the right to apply to the Court within thirty days of receiving the notice, seeking an order to prevent their removal. This ensures that the principle of audi alteram partem (the right to be heard) is upheld.

Conclusion

In cases where serious allegations regarding an executor’s conduct arise, it is the responsibility of the courts to investigate and determine whether the individual is fit for the role. The Master does not have the authority to investigate the validity of complaints.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

Roy Bregman is an accredited divorce mediator and specialises in: - Drafting of antenuptial and postnuptial contracts; - Winding up of deceased estates; - Arbitration, mediation and alternative dispute resolution;...

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