ADMINISTRATION OF ESTATES

REMOVAL OF EXECUTOR/EXECUTRIX

Generally, upon the appointment of an Executor/Executrix via the issuing of the Letters of Executorship by the Master of the High Court, he/she is given the control and overall custody of all the assets of the deceased so as to proceed with the administration of the estate in question. However, with this control and custody comes a lot of responsibilities.

An Executor/Executrix has various duties in respect of the estate in which he/she is appointed as such. Such an appointee is expected to exercise his/her powers bona fide (in good faith) and with the utmost sense of impartiality and is to treat all claims, brought against the estate, fairly.

One of these duties is to advertise the estate in question. Firstly, in terms of section 29 of the Administration of Estates Act, for all possible creditors and subsequently in terms of section 35 of same, whereby the final Liquidation and Distribution Account lies open for about 21 days for inspection so as to ensure that it is free from all objections.

Recently the Kwazulu- Natal High Court heard a case which dealt with the above:

Van Niekerk v Van Niekerk and another [2011] 2 All SA 635 (KZP)

Summary of the facts of the above case:

• The deceased (the applicant’s husband) died and as per his Will, which was executed shortly prior to his death, appointed his former wife (the first respondent) as the Executrix of his estate, as well as the sole heir to his estate;
• The applicant ( the deceased wife at the time of his death), made an application for the removal of the respondent as the Executrix in terms of section 54 (1) (a) (v) of the Administration of Estates Act;
• The applicant was claiming half of the estate on the grounds that she and the deceased were married in terms of community of property, as well as for the payment of maintenance from the estate as per the provisions of the Maintenance of Surviving Spouses Act 27 of 1990;
• The respondent rejected the applicant’s claims against the estate;
• The court therefore had to decide whether “…the continuance in office of the executrix would detrimentally affect the proper administration and winding up of the estate.”

Note: section 54 (1) (a) (v) of the Administration of Estates Act reads as follows:

• An executor may at any time be removed from his office by the Court if for any other reason the Court is satisfied that it is undesirable that he should act as executor of the estate concerned;

When dealing with an application for the removal of an Executor under this section, the court is vested with discretion, but in exercising such discretion, consideration should be given to the interests of both the estate and its beneficiaries.

In addition to the above provision, the applicant also relied on a common law principle which provides that a court has the discretion to remove an Executor whose personal interests are in conflict with those of the estate.

In dealing with this case, the court hled that an Executrix, when dealing with claims against the estate, is obligated to assess all the claims’ “…merits on a fair consideration of all the facts and its legal merits. It is not proper for the executor to reject claims against the estate without some good reason to do so.”  It is important to note however that this does not in any way prohibit an Executor/Executrix to reject a claim against the estate, if there are good reasons to do so.

Therefore the mere disputing of claims against an estate does not constitute a substantial reason to remove such an Executor/Executrix from office. However, if a court finds that the appointee is utilising his/her office to intentionally resist all or some claims without any due fair minded consideration of the merits of same and/or if it finds that the appointee is doing this so as to secure personal financial benefits in his/her capacity as a beneficiary of the estate, then such court is obligated to remove the appointee in terms of the abovementioned section.  

In the case in casu the court found that the manner in which the Executrix treated the claims of the applicant rendered her appointment as being undesirable. As a result, the court granted the relief sought by the applicant.

FULL JUDGEMENT IS AVAILABLE HERE:

• http://www.saflii.org/za/cases/ZAKZPHC/2010/85.html

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