The Administration of Deceased Estates Act 66 of 1965 (the Act) governs the conduct of appointed Executors in the administration of late estates in South Africa. It is immaterial whether the Executor was appointed through a Will of the deceased or appointed by nomination during intestate succession.
The Act indeed places a duty on the Executor to administer the deceased estate with honesty and integrity. However, where it is deemed to be undesirable for the Executor to continue in that capacity, how can the Executor be removed?
Sections 54(1) and (2) of the Act make provision for the removal of an executor from that position by the Court (1) (a) and by the Master of the High Court (1) (b). While subsection (1) sets out the substantive aspects, subsection (2) provides for the procedure which must be followed when an executor is removed from the position.
The Executor may be removed from office upon such instances including incapacity, if appointed by a subsequent invalid will, misconduct such as conviction for forgery, theft, fraud etc, and consequently sentenced to imprisonment without the option of a fine or sentenced to a fine exceeding a set amount in the Act.
The Master is required to notify the Executor by way of registered post of the removal and in the event that the Executor wishes to interdict such removal, the Executor must bring an application to Court within 30 days. The Court will then investigate and make a finding on the matter.
It must be noted that it is not enough to remove an Executor merely because of disagreements between the Executor and other interested parties, but a high standard of undesirability or wrongdoing on the part of the Executor need to be satisfied first.
In the matter of Oberholzer NO and Others vs Richter (2013) 3 All SA 205 (GNP) (12 April 2013) an Executor had been removed in terms of section 54 (1) (a) (v) of the Act. The Court found that mere disagreement and the breakdown of the relationship between the Heir and Executor is not sufficient to warrant the removal of an Executor.
In terms of section 22 of the Act, a party may object to the appointment of a certain party to be Executor, with valid reasons.
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