When Co-Executors Lock Horns | Legal Articles

 

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When Co-Executors Lock Horns

A difference in opinion is sometimes inevitable whenever a decision has to be made jointly amongst a group of people, and often at times this results in confrontations and disputes. In some instances, these disagreements often have to be resolved before the Courts or by any other dispute resolution process available. In most contracts even, parties usually provide for a dispute resolution process should a dispute arise during the currency of the agreement. What happens when, during the administration of a deceased estate, the co-executors do not agree with each other?

To begin with, an executor of a deceased estate holds the responsibility to wind up the affairs of the deceased person. An executor may either be nominated by the testator in a Will, or by the beneficiaries in the instance where the deceased passed away without executing a valid Will. It must be emphasized that the party nominated as the executor may only act in that capacity upon being issued with a Letter of Authority by the Master of the High Court. Therefore, the actions of a nominee, in misrepresentation as an executor, are invalid.

While for practical reasons, the process of decision-making encounters less difficulties where the deceased estate is being administered by one executor, having more than one executor in a deceased estate often results in the co-executors acting as checks on each other. At the end of the day however, both options have their strengths and weaknesses and it remains the privilege of the testator to nominate his/her preferred number of executors.

The guiding principle is that where there is more than one executor, the co-executors must act jointly in administering the estate of the deceased. This process involves putting to account the assets in the deceased estate, settling liabilities and distributing the residue to the beneficiaries. It should not be a tug of war amongst the co-executors to undertake this responsibility especially where the deceased left a valid Will, with instructions about how the estate must be administered. Where however, some provisions in the Will are ambiguous and /or unclear, there might be disagreements between the co-executors on what route to take.

Owing to the fact that co-executors must act together in the administration of the deceased estate, the directives of the Master of High Court must be sought where there are disagreements on how to proceed. Alternatively, a Court Order may be sought to achieve the same result.

It ought to be remembered also, that an executor may be removed from that position where it is undesirable for them to continue in that capacity. Mere disagreement alone between an executor and the beneficiaries is not an adequate ground to remove an executor as was held in the case of Oberholzer NO and others v Richter (2013) 3 All SA 205 (GNP), the Master of the High Court who issued the Letter of Authority/Executorship or the Court must be satisfied that the conduct of the Executor under the circumstances warrants removal as continuing as Executor is undesirable.

Van Deventer and Van Deventer Incorporated assists with family law matters such as deceased estates, maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in general litigation, civil matters, criminal, labour, personal injury, company law, deceased estates amidst an array of others.

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