WILLS & ESTATES

Facts: The appellant, Ebeling, is the adopted daughter of the late deceased, who passed away in 2015. The deceased’s will, executed in 2013, bequeathed her South African estate to the second respondent, Mr. Koch, with the first respondent, Mrs. Koch (Mr. Koch’s wife), acting as a witness to the will. The appellant challenges the validity of the will, arguing that the deceased lacked mental capacity and was unduly influenced by the respondents. If the will is declared invalid, the appellant would be the sole intestate heir. The appellant also seeks to attach a property in Mossel Bay, registered in Mr. Koch’s name, to found or confirm jurisdiction for a main action against the respondents for the alleged misappropriation of funds from the deceased’s bank account, which were used to purchase the property. The court a quo dismissed the appellant’s application for attachment, finding she lacked locus standi.

Issue: The central issue is whether the appellant has locus standi to attach the property to found or confirm jurisdiction for the main action, given that she is not the executor of the deceased’s estate and her status as an heir depends on the outcome of the pending will validity challenge.

Discussion: It was examined whether the appellant, as a potential intestate heir, could bring a representative action under the Beningfield exception, which allows beneficiaries to sue when the executor is unable or unwilling to act. Cases such as Gross and Others v Pentz 1996 (4) SA 617 (SCA) and Standard Bank of South Africa Ltd v July [2018] ZASCA 85 were referenced, which established that beneficiaries could have locus standi to protect their interests in the proper administration of an estate, even if their rights are contingent. The appellant’s situation was analogous, as she would become the sole heir if the will were invalidated. Mrs. Koch’s involvement as a witness to the will could disqualify Mr. Koch from inheriting under section 4A of the Wills Act 7 of 1953, further supporting the appellant’s claim. The respondents’ argument that the property transfer to Mr. Koch was valid was rejected, noting the lack of evidence of payment and the timing of the transfer, which coincided with the appellant’s legal challenge.

Findings: The appellant had established a prima facie cause of action and had locus standi to attach the property to found or confirm jurisdiction for the main action. The Beningfield exception applied, allowing the appellant to act in the absence of an executor. The attachment of the property was appropriate, as the validity of the transfer to Mr. Koch could be challenged in the main action.

Order: The appeal was successful. The court set aside the order of the court a quo and confirmed the interim attachment order and rule nisi issued on 25 January 2023. The first and second respondents were ordered to pay the costs of the application jointly and severally, including the costs of counsel and all reserved costs orders.

Facts: In 2015, the deceased was seen by a specialist neurologist, following concerns pertaining to her memory loss. Another doctor stated that the deceased presented with cognitive decline. In 2016, the deceased was seen by a psychologist who opined that the deceased was suffering from Alzheimer’s dementia, which was moderately advanced. His prognosis was that the condition would progress and not recover. He concluded that due to the mental condition of the deceased she was unable to manage her own affairs and recommended the appointment of a curator bonis. After the passing of the deceased in 2020, the third respondent lodged a will with the Master, which was purportedly executed by the deceased in 2016. In terms of the 2016 will, the second respondent was nominated as the executor and he proceeded to have the property transferred to the first respondent.

Appeal: The applicant is the biological father of the first respondent. The second respondent is the executor of the impugned will. The applicant, as well as the second to ninth respondents are the biological children of the deceased. The applicant seeks to declare the purported will executed in 2016 null and void due to the mental incapacity of the deceased. The applicant seeks also to set aside the transfer of the property and to remove the second respondent as executor.

Capacity: The respondents have produced no evidence in rebuttal of the testimony and reports of the expert witnesses to gainsay the conclusion that the deceased was indeed suffering from Alzheimer’s dementia, which was moderately advanced. The evidence must be viewed holistically. The factors considered cumulatively, on a balance of probabilities, lead to the inescapable inference that the deceased would not have had the requisite testamentary capacity to execute the 2016 will, bearing in mind that the test required that: (a) She should be of sufficient intelligence; (b) Possess a sufficiently sound mind and memory; and (c) for her to appreciate the nature of the testamentary act in all its bearings. Consequently, based on the objective facts proven, the 2016 will falls to be declared null and void.

Further: The attorney remarked during cross-examination that had he known the deceased had been diagnosed with dementia or consulted a psychiatrist for dementia, he would not have assisted her in executing the will because the validity thereof would be challenged. The respondents who accompanied the deceased to the attorney’s office would have been aware of her cognitive decline. The timing of the 2016 will, being subsequent to the medical diagnosis and curator bonis recommendation, becomes a crucial consideration. The court is satisfied, on a conspectus of the evidence, that the deceased no longer had a disposing mind at the time of executing the will in 2016. The deceased was at the time of executing the 2016 will unable to: (a) appreciate her actions; (b) recall her property and interests; (c) recall and/or identify her potential heirs and the claims of her other children; and (d) make her own informed executive decision regarding the terms of the will.

Order: The will of Marion Johnson executed in 2016 is declared null and void. The transfer of the property to the first respondent is set aside. The estate of the late Marion Johnson is to be administered in terms of intestate succession. The Master is directed to appoint a new executor of the deceased estate.

ANDREWS AJ

Facts: The applicant, Perumal, and Mr Stanton, the deceased, were involved in a romantic relationship, having met during January 2021. The second respondent, VDC, is Stanton’s former partner and mother of his minor child. Their relationship had terminated in 2020. Apart from sharing a child, VDC was no longer part of Stanton’s life, after termination of their relationship. Stanton and the applicant formed a close bond and were engaged on 28 July 2022. Their wedding was planned for December 2023. Stanton had amended his will in July 2022 to include the applicant as his life partner. The amendments were sent to the first respondent, Van Rensburg, the executor of Stanton’s estate, for incorporation. Stanton passed away on 9 April 2023 without signing the amended will.

Application: The applicant applied under section 2(3) of the Wills Act 7 of 1953, seeking a declaration that the document was Stanton’s last will and testament. She also requested that the Master of the High Court accept the document for estate administration purposes. The application was opposed only by VDC, who claimed there were material disputes of fact and that Stanton’s failure to sign the will indicated a lack of intent for it to be his final will. The central issue was whether the court could declare the document as Stanton’s last will and testament under section 2(3) of the Wills Act, despite the lack of his signature, based on evidence of his intent.

Discussion: It was examined whether the requirements of section 2(3) of the Wills Act were met. These requirements are: (a) the document was drafted or executed by the deceased; (b) the deceased died after drafting the document; and (c) the deceased intended the document to be his will. Stanton had personally drafted the amendments and sent them to Van Rensburg for incorporation. A reading of the changes in the will suggests that Stanton was aligning his will to reflect the applicant as his life partner. The changes were made by Stanton using his laptop, with the applicant alongside him. He thereafter sent the amended will to Van Rensburg, with a message stating that the changes need to be made, whereafter Stanton will sign. A voice message from Stanton to Van Rensburg, sent one month before his death, confirmed his intent to finalize the amended will.

Findings: Two messages were sent by Stanton to Van Rensburg. The first accompanied the amendments, wherein he said to Van Rensburg that the amendments must be effected so that he (Stanton) signs. The second is the voice message for Van Rensburg, where Stanton says he had not received the will, which confirms the applicant’s assertions before court. The voice message cannot be seen as conduct of a man who had changed his mind about his will. On the contrary, not only had Stanton intended to make the document his last will and testament, but there was also a sense of urgency in his words. The second respondent’s argument that Stanton’s failure to sign the will indicated a change of mind was rejected, as the evidence overwhelmingly supported Stanton’s intent for the document to be his last will. The requirements of section 2(3) of the Wills Act were satisfied. Stanton had drafted the amendments, he had since passed away, and the evidence demonstrated his clear intent for the amended document to be his last will. The lack of a signature did not negate Stanton’s intent, as the purpose of section 2(3) is to prevent technical formalities from frustrating a testator’s genuine intentions.

Order: The application was upheld. Annexure "A" was declared the last will and testament of Stanton. The Master of the High Court was directed to accept the document for estate administration purposes.

BAM J

Facts: The applicants, siblings and trustees of the Bray Family Trust, sought to invalidate a bequest in the will of their late brother, Bray, to the Boerelegioen (BL) and Pathfinder Bushcraft & Survival. The testator, a quadriplegic with borderline personality disorder, became obsessed with the idea of an impending genocide of white people in South Africa and aligned himself with the BL, a far-right, white supremacist group. The testator’s will and codicil bequeathed a portion of his estate to the BL for training purposes. The applicants argued that the bequest was vague and contrary to public policy, as the BL’s activities, including paramilitary training and racial exclusion, violated the Constitution and the Private Security Industry Regulation Act (PSIRA).

Application: The applicants seek to have the bequest declared invalid, arguing that it is vague and contrary to public policy. They also request that the assets devolve by intestate succession and seek costs against the second and third respondents. The respondents, Boerelegioen RSA and Boerelegioen NPC, opposed the application but withdrew their legal representation before the hearing. The main issues are whether the bequest is void for vagueness and whether it is contrary to public policy due to the alleged unlawful and discriminatory nature of the Boerelegioen's activities.

Discussion: The testator's intentions, the nature of the Boerelegioen, and the legal implications of the bequest were examined. Regarding vagueness, the will did not specify which entity (Boerelegioen RSA (Pty) Ltd, Boerelegioen NPC, or a voluntary association) was the intended beneficiary. There was an examination of whether the BL’s activities, as described in its manifesto and other materials, were contrary to public policy. The BL’s manifesto promoted white supremacy, racial exclusion, and paramilitary training, which was in violation of the Constitution and PSIRA. The BL’s activities included unlawful security training and incitement of racial hatred, which undermined the rule of law and the values of the Constitution. The principles of public policy applied, as rooted in the Constitution. The bequest would fund unlawful and discriminatory activities.

Findings: The bequest was void for vagueness, as it was unclear which entity was intended to benefit. Additionally, the bequest was contrary to public policy, as the Boerelegioen's activities were unlawful and promoted racial hatred, violating constitutional values. The respondents' arguments were rejected, as their denials of racism and unlawful activities were found to be implausible and unsupported by evidence. Considering the common cause fact that the BL was conceptualised and established as an organisation for white persons, by white persons, to defend a perceived white genocide and is stated as being only open to members who have “Boer-blood,” the purported disputes of fact raised by the respondents were not bona fide and were far-fetched and untenable. Expression of the nature described cannot find protection under freedom of speech nor under cultural protection. They remain contrary to public policy and therefore, also contrary to the common law.

Order: The court declared the bequest invalid, ruling that the assets should devolve by intestate succession. Costs were awarded to the applicants on Scale C, to be paid by the second and third respondents, including the costs of two counsel.

ALLIE J

Facts: The case involves the administration of the estate of Bell, with McQuarrie serving as the executrix. Friction arose between McQuarrie and certain heirs, Nel and Swart, leading to a request for her removal. The Master of the High Court, Gqeberha, issued a notice of removal, citing McQuarrie's failure to comply with duties under the Administration of Estates Act 66 of 1965, particularly delays in publishing a required notice and addressing queries related to the estate's liquidation and distribution account. McQuarrie sought to restrain the Master from removing her, while Nel and Swart opposed the application.

Issue: The central issue was whether the Master's decision to remove McQuarrie as executrix was justified, given her alleged failures in administering the estate, and whether her removal was an appropriate and proportionate response.

Discussion: The delays in finalizing the estate were significant, exacerbated by the COVID-19 pandemic and disputes between the heirs and the executrix. While McQuarrie's conduct fell short of ideal, particularly in failing to publish a required notice promptly, the estate was largely finalized by the time of the application. What remains outstanding is in the possession and control of Mr Nel. The remaining issues, such as obtaining vouchers from Nel, could be resolved without removing McQuarrie. The Master's decision to remove her was criticized as disproportionate, given that her removal would cause further delays and costs without benefiting the estate or its beneficiaries. Nothing could be gained by the removal of the executrix at this stage of proceedings and the papers did not demonstrate any risk to the heirs or legatees going forward.

Findings: To the extent that reliance was placed on historic delays, including the s 29 advertisement, it was significant that the Master had not sought to compel the executrix to comply with any provision of the Act or reasonable requests, which he could have done in terms of the powers vested in him under s 36 of the Act. For those reasons the decision of the Master to remove the executrix from office was not rationally connected to the purpose of the power vested in him in s 54 of the Act, and it was not, at the time that it was taken an appropriate consequence of her failure. While McQuarrie had not performed her duties satisfactorily, her removal was not rationally connected to the purpose of protecting the estate's interests. The estate was nearly finalized and removing her would only cause further delays. The Master's decision was deemed inappropriate and disproportionate.

Order: The court set aside the Master's decision to remove McQuarrie as executrix and restrained the Master from removing her. Nel and Swart were ordered to pay the costs of the application.

Facts: The applicant applied for relief against the E.M.D. (first respondent), the Master of the High Court (second respondent), and ZAF Khan Attorneys (third respondent). The applicant sought a declaration of pre-emptive rights to the joint estate's immovable property, removal of the respondent as executrix, and an order directing ZAF Khan Attorneys to release R450,000 to the estate. The applicant and the deceased were married in community of property. They owned a property subject to a bond. They separated, and the respondent moved in with the deceased. The deceased initiated divorce proceedings twice. During the second proceedings, settlement discussions took place, and the applicant counter-offered for R450,000. Shortly before his death, the deceased paid this amount to ZAF Khan Attorneys. He also executed a will, appointing the respondent as executrix and bequeathing his entire estate to her and their child. The applicant was initially appointed executrix but was replaced by the respondent after the will was discovered. The respondent's administration of the estate was marked by delays, unresponsiveness to the Master's directives, and failure to properly account for funds, particularly the R450,000.

Issue: The issue was whether the respondent should be removed as executrix, and whether ZAF Khan Attorneys should be ordered to pay the R450,000 to the estate.

Discussion: The Master's role in estate administration, including examining accounts and issuing directives, was outlined. The grounds for removing an executor, as per section 54 of the Administration of Estates Act 66 of 1965, were considered, focusing on the executor's failure to comply with directives and act in the estate's best interest. The respondent's conduct was reviewed, highlighting her non-compliance with the Master's queries regarding bank accounts, particularly the missing R500,000 from a specific transaction, and her failure to provide vouchers for claims. The disputed R450,000 was also discussed, with the respondent initially claiming it was for a debt to CMC SA (Pty) Ltd, a claim that was later supported by a suspect acknowledgment of debt dated after the deceased’s death.

Findings: The respondent’s consistent failure to comply with the Master's directives, her lack of transparency regarding estate funds, and her general mismanagement of the estate justified her removal as executrix. The evidence established that the executor had failed to comply with the Master’s directive raised in respect of the first and the amended account. The executor was directed to furnish “all bank statements including proof that an estate bank account had been opened”. This had to date not been done. The evidence regarding the R450,000 favoured the applicant's version, that it was intended as a settlement payment. The “acknowledgement of debt” provided by the respondent was deemed suspect and unreliable.

Order: The first respondent was removed as executrix. ZAF Khan Attorneys were ordered to pay the R450,000 into the deceased's estate account. The applicant's pre-emptive rights to the immovable property were confirmed, as she was a co-owner.

Facts: The applicant applied to have a document declared the last will and testament of the deceased, who died in 2023. The deceased's alleged customary wife, the fourth respondent, opposed the application. The Master of the High Court and other potential beneficiaries were also parties to the proceedings. The document in question was drafted by Old Mutual Trust in 2018 but remained unsigned by the deceased despite being presented to him multiple times. The deceased's paternity of his children, including the applicant, was disputed, and litigation regarding the legality of his customary marriage to the fourth respondent was pending. The fourth respondent alleged the deceased acknowledged all his children to her and would have wanted them and his mother to benefit from his estate.

Issue: The central issue for determination was whether the deceased intended the unsigned document to be his last will and testament.

Discussion: The requirements for a valid will under the Wills Act 7 of 1953 were outlined. Section 2(3) of the Act, which allows a document to be accepted as a will despite lacking formalities if the deceased intended it to be their will, was discussed. The numerous uncertainties surrounding the deceased's intentions, including his repeated refusal to sign the document, the disputes regarding his children's paternity, and the pending litigation concerning his marriage, were considered. The document was presented to the deceased in 2018 to be signed. On numerous occasions the representative of the fifth respondent, one Mr. De Vos (De Vos), inquired about the neglect of the deceased to sign the document. The deceased maintained the status quo not to sign the document up until his demise in 2023. In fact, De Vos that was involved in the drafting of the will, indicated to the applicant that there was not a will but only an unsigned draft. The fifth respondent only supplied the draft document to the applicant much later.

Findings: The evidence was insufficient to conclude that the deceased intended the unsigned document to be his will. The deceased's consistent failure to sign the document, coupled with the other uncertainties, made it impossible to establish his testamentary intent.

Order: The application to declare the document the deceased's will was dismissed. The fourth respondent's late filing of her answering affidavit was condoned, with the fourth respondent ordered to pay the costs of the condonation application. The applicant was ordered to pay the costs of the main application, including costs of counsel.

Facts: The applicant, son of the deceased, sought to have a document signed by the deceased and his widow (first respondent) declared the deceased's Last Will and Testament. The document, a "Will Questionnaire," did not comply with the formal requirements of the Wills Act 7 of 1953. The deceased had given the document to the applicant for safekeeping, instructing him to deliver it to a named attorney (Yazbek) upon his death. The first respondent, the deceased’s widow and appointed executrix initially claimed ignorance of the document and later disputed its validity. The Master of the High Court also rejected the document due to non-compliance with the Wills Act. The other respondents are children and grandchildren of the deceased.

Issue: The central issue was whether the deceased intended the "Will Questionnaire" to be his Last Will and Testament, despite its non-compliance with formal requirements, thus justifying its acceptance under section 2(3) of the Wills Act. Subsidiary issues included a striking-out application by the respondents and points in limine raised by the first respondent.

Discussion: The court considered the requirements of section 2(3) of the Wills Act, focusing on the deceased's intention. It examined the document itself, noting its ambiguities and informal nature, but also its clear articulation of the deceased's wishes regarding beneficiaries, guardianship, and executorship. The court then analyzed the surrounding circumstances, including the deceased's instructions to the applicant regarding the document's safekeeping and delivery. The court addressed the striking-out application, granting it in part regarding new matter in the replying affidavit. The court dismissed the first respondent's points in limine, finding no merit in the claims of non-compliance with section 2(1) (as section 2(3) addresses such issues) and "unclean hands."

Findings: The court found that the deceased intended the "Will Questionnaire" to be his Last Will and Testament. It emphasized the deceased's clear decisions expressed in the document, coupled with his actions of entrusting it to the applicant for delivery to his attorney upon his death. The court concluded that these factors, despite the document's imperfections, unequivocally demonstrated testamentary intent. The court was satisfied that the requirements of section 2(3) of the Act were met, leaving it with no discretion but to recognize the document as the deceased's valid will.

Order: The application to strike out portions of the replying affidavit was granted. The first respondent's points in limine were dismissed. The "Will Questionnaire" was declared the deceased's Last Will and Testament, and the Master of the High Court was directed to accept it. The first respondent was removed as executrix, and the named attorney (Yazbek) was appointed in her place. The first respondent was directed to hand over all estate documents and account fully for her administration of the estate. Costs were awarded against the deceased's estate.

Facts: In 2006, the late Dr Sabdia instituted review proceedings against Mr Soma in the Land Claims Court, relating to an immovable property. Dr Sabdia died on 5 November 2013, prior to the final adjudication of the review proceedings. His sons were appointed as executors of Dr Sabdia’s estate (the executors). Mr Soma brought an eviction application against the estate of Dr Sabdia, the heirs and three tenants. The eviction application was successfully opposed by the executors, represented by attorneys Mothle Jooma Sabdia Incorporated (MJS). The court dismissed the application with costs on a punitive scale. MJS set down the bill of costs for taxation before the Taxing Master of the High Court. The Taxing Master upheld the objection by Mr Soma that the estate was not entitled to recover the costs awarded by the court, save for the out-of-pocket expenses. The Taxing Master ruled that Mr Shiraz Sabdia, who was also an attorney practicing at MJS, although he acted in his professional capacity on behalf of the estate in the lawsuit, was not entitled to remuneration as an attorney, notwithstanding his co-executor approval. In addition, the Taxing Master found that the executor’s remuneration covered all the work done on behalf of the estate, and that neither Mr Shiraz Sabdia nor MJS was entitled to recover legal costs for work done in their professional capacity.

Appeal: The executors instituted review proceedings, challenging the decision of the Taxing Master. The High Court dismissed the application with costs. Dissatisfied with the outcome of the application, the executors sought leave to appeal the whole judgment and order of the High Court. The High Court dismissed the application, with costs. Undaunted, the executors petitioned this court for leave to appeal. This matter concerns the following cardinal questions of law. First, whether the executor, who is an attorney and acts in his professional capacity on behalf of the deceased estate in a lawsuit, was not entitled to remuneration as an attorney, notwithstanding the express provisions of the last will and testament (the will). Second, whether the decision to disallow the payment of such fees falls within the discretion of a Taxing Master.

Discussion: The executors asserted that the entitlement to remuneration is supported not only by the terms of the will but also by the provisions of sections 51(1)(a) of the Administration of Estates Act 66 of 1965, which permits the testator to determine the executor’s remuneration. Furthermore, they posited that the context and purpose of clause 4 of the will (the remuneration clause) should be the determining factors in its interpretation. Further, that this purpose and context is to be found in clause 5.3 of the will, which should be read with the remuneration clause. Upon applying the principles of interpretation, the language utilised in the remuneration clause is characterised by its clarity and directness. The direction provided is lucid and unequivocal, as it states that the "executors shall be entitled to charge and shall be paid all usual professional fees and other fees and charges from business transacted". The clause explicitly grants the executors the authority to charge for professional fees. In addition, it specifies that they have the right to charge for time spent and actions taken by them or their associates in connection with the administration of the estate. The remuneration clause pertains to fees levied based on the duration of the professional services rendered. In other words, it is time based. Conversely, the statutory rate for executors is a fixed percentage rate, regardless of the time spent or the nature and amount of work performed by them. It is not time based, but performance based. This demonstrates that Dr Sabdia intended his executors to be recompensed for any professional, and hence legal, services actually rendered by them.

Findings: In the context of the review application in the Land Claims Court, it is important to note that Dr Sabdia had consistently been represented by MJS. It is evident from the remuneration clause and clause 5.3 that Dr Sabdia desired the continued legal representation of MJS in the Land Claims Court litigation, even after his demise. Section 51(1)(a) expressly makes provision for the payment of remuneration, as may have been fixed by the deceased in his will. It negates the conclusion reached by the High Court that such remuneration is ultra vires the settled principles, contra bono mores and in conflict with the fiduciary duties of an executor. The High Court unfortunately did not construe section 51(1) correctly. It ought to have recognised that there are two distinct legislative frameworks in section 51(1) that govern the payment of an executor’s remuneration. Section 51(1) permits a testator to determine remuneration of an executor, including the remuneration that may be earned by an executor who renders professional services to the estate. The legislative scheme clearly envisages two fee payment regimes, namely, the one determined by the testator or the one prescribed by the statute. The remuneration clause and clause 5.3 of the will sanctioned the payment of professional fees due to the executors and MJS.

Order: The appeal succeeds with costs. The order of the High Court is set aside and replaced. The decision and ruling of the Taxing Master are set aside. The allocator of the Taxing Master is set aside. The taxation of the bill of costs is referred to the Taxing Master.

MBATHA JA (HUGHES JA, KEIGHTLEY JA, UNTERHALTER JA, and COPPIN AJA concurring)

Facts and issue:  The applicant is dissatisfied with the way the executor administers the deceased estate. She complains about inordinate delays in the finalization of the estate as well as various acts by the executor including infidelity. The applicant seeks the removal of the executor in terms of the provisions of Section 54(1)(a) of the Administration of Estates Act 66 of 1965, an order that the executor may not charge a fee for the services he had rendered up to now and that the Master appoint another executor for the deceased estate.

Discussion: The applicant alleges that the executor has failed to adhere to his obligations in terms of the Act and by doing so has caused substantial harm to the deceased estate. The executor admits that he has yet to be appointed a director of the companies in the deceased estate. While this must surely have led to a delay in finalizing the estate, the applicant has shown no real damage suffered by this failure to the estate. The executor has not strictly complied with the provisions of Section 26 of the Act in respect of his appointment as interim director for the companies in the deceased estate, such failure does not warrant the executor’s removal from office. The executor has not published a liquidation and distribution account within the time provided for in Section 29. It is still not done and that is after some 4 years since his appointment. The executor says that this is due to various difficulties he has experienced with the deceased estate. The executor has failed in his duties. However, the executor says that the Liquidation and Distribution account is almost ready to be submitted.

Findings: The applicant did not seek relief in terms of Section 36 of the Act. The executor produced a draft liquidation and distribution account. The only issues the applicant has with the draft account are the inclusion of the second respondent’s claim and the payments made to the executor. The process of the finalizing of the deceased estate has at least proceeded to this point, albeit with undue delay. It would not benefit the deceased estate to remove the executor at this stage. The court does not consider each proven contravention in isolation. It considers all the contraventions as a whole. The court weighed this against the time that has already elapsed, the stage in the finalization of the deceased estate and the fact that none of the other heirs seek the executor’s removal. Having regard to all the factors, the executor should not be removed from office.

Order: The application is dismissed.

Facts: Mr Beukman (applicant) is the eldest son of the deceased and is a co-beneficiary to the will of the deceased, together with Ms Loubser (second respondent). At the time of his death, the deceased was involved in life-partnership with the second respondent. Although the deceased previously executed other wills, the one which was later accepted by the Master uncontested provides for Ms Pieterse (first respondent) and the second respondent to be appointed as executors. The applicant’s complaint is that, despite repeated requests, the executors have failed to take the prescribed steps in the furtherance of the administration of the deceased estate, and specifically the lodgement of the liquidation and distribution account. Neither have they provided the applicant with requested banking and accounting documents relating to the estate, specifically in relation to a guesthouse which continues to operate at the property of the deceased as an Air B&B business.

Application: The applicant seeks the removal of the first and second respondents as executors of the estate of the late Mr Beukman and an order directing the Master to appoint a new executor. The applicant’s view is that the second respondent has a conflict of interest between her duties as an executor and her interests as a beneficiary because she continues to reside at the property which is owned by the deceased estate and continues to earn an income from the Air B&B business, at the expense of the applicant, who is the only other beneficiary in terms of the will.

Discussion: At the heart of the dispute between the parties is the interpretation of the provisions of the will, according to which, the guesthouse is to continue to be run in the same way as it has been since inception. There is a way to interpret the will in such a manner that the business continues to run, operated and occupied only by the second respondent. In such event, each beneficiary receives their share of the income generated from the business, but in addition, the second respondent occupies the property for free. The second respondent’s alleged ownership of the guesthouse is neither supported by the terms of the will, nor by any evidence before the court. The applicant has requested information relating to the income of the guesthouse for a long time before instituting these proceedings, with the second respondent refusing to give such account, on the basis that the income is hers to retain.

Findings: The facts indicate that the second respondent harbours a clear conflict of interest and is intransigent with regard thereto. No legal basis is revealed in the evidence for the second respondent’s claim to retain the guesthouse income. It would be just an equitable for the second respondent to be removed as an executor. Her interests as a beneficiary in this matter are interfering with her duties as an executor. It is evident that there has been a complete breakdown of trust between the applicant and the respondents, and he has lost all faith in them as executors. The first respondent has failed to display impartiality in keeping with her fiduciary duties, and has instead enabled the second respondent’s conduct, which the applicant regards as rubber-stamping. The view held by her, in support of the second respondent, that the income of the Air B&B belongs to the second respondent and not the deceased estate, is contrary to the clear terms of the will.

Order: The first and second respondents are removed as executors of the deceased estate of the late Mr Beukman. The Master is ordered to appoint a new executor within 30 days. The first and second respondents are to pay the costs on an attorney and own client scale.

MANGCU-LOCKWOOD J

Facts and issue: This application concerns an immovable property (the Kriel property). The applicant seeks an order interdicting the respondents from alienating or passing transfer of the property, including all movable property in the deceased estate. The issue in dispute appears to be whether the respondent, as an executor of the estate, is statutorily obliged and entitled to dispose of the property in order to satisfy the claims against the estate and to distribute in accordance with the will.

Discussion: The applicant argues that the application was instituted because the deceased left a will in terms of which he disposes his 50% share of the estate to his three children. The primary reason for the interdict appears to be that the applicant is an old person who stands to be homeless if her 50% of the Kriel property is sold. The applicant further contends that as a result of her being a joint owner in the property, her consent is required before the deceased estates property can be sold. The respondent contends that as the Kriel property also forms part of the estate, he is entitled to dispose of it in order to satisfy the claims of the creditors against the estate and to distribute the estate according to the will executed by the deceased. An executor is vested with the authority and powers to deal with the assets of a deceased estate in a representative capacity and this includes to the property in the manner and subject to the conditions which the heirs who have an interest therein approve and subject to the approval of the Master.  The applicant contends that as a result of her being a joint owner in the property, her consent is required to sell the deceased estates property. This assertion clearly impugns the executor’s rights and obligation conferred on him in terms of the Administration of Estates Act 66 of 1965.

Findings: The applicant as the surviving spouse does not become the owner of half of the assets of the estate but merely has a right against the executor in respect of half of the net balance. The applicant does not make any specific allegations to justify the basis for the interdict. The contention by the applicant suggests that the provisions of the Administration of Estates Act and the law thereon be ignored without any justification. There is no justification for the statutory obligations and duties bestowed on an executor to be taken away or ignored. The applicant has not succeeded in establishing that she has any prima facie right based on which the executor’s rights and duties can be excluded. Despite being the surviving spouse, the applicant has no legal standing to interfere with the respondent’s statutory obligations.

Order: The application is dismissed with costs.