Property bequests in deceased estates quite often run into legal snags because of ignorance or a misunderstanding of the relevant legislation.
According to Lanice Steward, managing director of the Cape Peninsula estate agency, Anne Porter Knight Frank, this happens not because the people involved are dishonest, they just lack the understanding of the laws governing such properties.
According to Lanice Steward, managing director of the Cape Peninsula estate agency, Anne Porter Knight Frank, this happens not because the people involved are dishonest, they just lack the understanding of the laws governing such properties.
Steward refers to High Court judgment that had been given countrywide exposure by the attorneys Smith Tabata Buchanan Boyes who published it in their online newsletter.
In this case the sale of a property in a deceased estate to an innocent purchaser was nullified because the executor did not consult with the beneficiaries (as is required by law).
The home in question is linked to three farms. These had all been left by the beneficiary to his two minor children on the condition that his wife would have usufruct on the property for life.
Steward says the relevant law in this instance is Section 47 of the Administration of Estates Act 66 of 1965.
“This states clearly that provided it is not contrary to the wishes of the deceased, (for example, the bequeather), an executor is entitled to sell a property in the manner and subject to the conditions which the heirs approve in writing.”
She says this is only allowed provided the heirs are absent or minors or are persons under curatorship. Even if they are minors, the law stipulates that they should be consulted.
Furthermore, the law states that if the heirs cannot agree on the sale or the conditions thereof, the executor is entitled to sell it subject to the approval of the Master of Court.
In this case, the widow acting, she claimed, on behalf of her minor children, disputed the authority of the executor to sell and obtained a court order removing him from his position and appointing herself as executor.
The former buyers appealed to the court and obtained an order for the reinstatement of the sale on the grounds that the executor had acted within his rights.
The widow responded by appealing against this, claiming that the former executor had in terms of Section 47 of the act not had the authority to sell because the heirs (the children) were not joined or consulted in the decision.
In the final ruling from the court, the judge pointed out that as the heirs were minors the Master should have been consulted (which was not done) and the children and the mother’s approval obtained.
The previous ruling permitting the sale to go ahead was therefore declared invalid.
Steward says this case shows how essential it is not only to appoint an executor who fully understands your wishes and who can be relied on to carry them out but also to ensure that the executor acts in consultation, and in the best interests of, the beneficiaries.
She adds that it is surprising how often in South African law this has not happened, the executor apparently making decisions with extraneous or other goals in mind.
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