In terms of the Administration of Estates Act 66 of 1965, as amended (hereinafter referred to as “the Act”), an Executor is the appointed person who is responsible for the winding up of a Deceased Estate. This involves ascertaining all the assets, settling liabilities, as well as obtaining assets and distributing them to the heirs or legatees in the Estate.

It often happens however, that two or more people may be appointed as co-Executors of an Estate, or that an Executor acts in a way which is detrimental to the interests of the Estate. This raises several questions: who may be appointed as the Executor of an Estate and is there any right to such an appointment? Finally, what is to be done in the case of conflicting Executors in an Estate?

Who may be appointed?

The Deceased may nominate one or more persons to administer his/her Estate in their Will, as well as appoint alternative persons should the nominee be unwilling or unable to be appointed as the Executor. In the case of first time Executors, the Master may insist on the appointment of an Agent to assist them such as an Attorney, Accountant or Bank and so forth, due to the Executors inexperience.

However, where the Deceased dies without leaving a Will or the Will does not provide for an Executor, the Master of the High Court (herein after referred to as the “Master”) will appoint a person competent in law to act as Executor. This is known as an Executor Dative. The Master will often request the family of the Deceased to nominate a person such as a family member or a professional such as an Attorney or Accountant. The Master has a discretion to confirm or decline to appoint the nominees or appoint joint Executors instead.

Competition, objection for the appointment of Executors

Conflict can arise among the Beneficiaries and/or the Executors themselves as to whom should administer the Deceased Estate. Section 19 of the Act provides a hierarchical order as to whom may be an Executor Dative in the case of family members. In terms of Section 19(a), the surviving spouse or their representative has first preference. Should they not be nominated or nominate someone else, an heir or their representative may be nominated. Finally, a Creditor or their nominee may be appointed. Parties may also object to the appointment of an Executor in terms of Section 22 of the Act.

An Executor has what is termed a fiduciary duty to the Estate, which means he/she must remain honest, impartial, objective and at all times, act in the best interests of the Estate. Should an interested Party wish to challenge an Executor’s appointment, written submission must be made to the Master setting out the grounds.

Removal of the Executor

Section 54 of the Act essentially summarises the fiduciary duties of an Executor and when they may be removed. These are also the primary grounds on which an objecting Party is best suited to rely on. Furthermore, a person may in terms of Section 22 apply to Court after refusal of their objection as to why the Executor should not be appointed.

Removal by Court application

Finally, it may become clear that the appointed Executor is not competent, not objective, or otherwise not acting in the best interests of the Estate. In this case, an Executor may be removed by the Master or by a Court in terms of Section 54 of the Act. It should be noted that a Court or the Master will only grant the removal of the Executor in the most extreme of cases. Criteria in section 54(1)(a) include where the Executor has not acted objectively and favours a particular Party, has induced his/her nomination by offer of reward, is convicted of theft fraud or forgery or for any other reason the Court may deem fit.

Removal by the Master

The Master may remove an Executor in terms of Section 15(1)(b) for all of the above reasons, as well as where the Executor becomes incapacitated, where the will appointing him/her becomes invalid, where the Executor elects to be removed or if he/she fails to comply with any provisions of the Act.

Conclusion

An Executor plays a critical role in the administration of a Deceased Estate. In order to avoid any confusion or conflict as to whom the Executor should be, it is best for the Testator to set out nominees and alternatives in his/her will, whilst alive. With regard to the appointment objection to, or the removal of an Executor it should always be borne in mind that the Court and the Master have an overall discretion, based on the circumstances and the best interests of the Estate. Contact SchoemanLaw Inc for all your Wills and Estates planning needs.

Written by Max Rainer, Candidate Attorney, Schoeman Law