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Wills

You can’t take it with you.

And this is why you can have your will; rather, you can make your own will, and rule from the grave. As long as it is in writing, signed by you in front of two witnesses (who must also sign) your will, or testament,1 dictates what is to happen with your possessions after you have gone. Like Leona Helmsley, a hotel magnate, who left 12 million dollars to her Maltese poodle called Trouble.2

The Administration of Estates Act 19653 is all about the liquidation and distribution of the estates of deceased persons, as well as others who cannot manage their property properly, such as those under curatorship.

The Act falls under the authority of the Minister of Justice and Correctional Services, but the Master of the High Court is the official who carries ultimate responsibility over the administration of estates.

A. Forging a will

  1. It is a criminal offence to falsify any document purporting to be a will.4

  2. It is also a crime to steal, hide, damage or destroy a will.5

B. When someone dies

  1. If you have any will (or document purporting to be a will) in your possession at the time of the death of the person who made the will,6 you must send it to the Master as soon as you become aware of the death. It is a crime not to do this.7

  2. If your husband or wife dies in the Republic, and leaves a will or any property in the Republic, you must (within 14 days) give notice of the death to the Master, or at least see to it that someone else does so. You commit an offence if this is not done.8

  3. If the person has no surviving spouse (i.e. husband, or wife) then the nearest relative or connection9 must get the death notice to the Master – or cause it to be done – within the 14 day period. Failure to do so is an offence.10

  4. Unless he knows that the spouse, relative or connection has already done so, the person in control of the premises where the death takes place must, within 14 days, report the death to the Master, and commits an offence if he fails to do so.11

  5. When someone dies outside of the Republic, but leaves property or a will in the Republic, the person who has control of the property, or the will, must report the death to the Master within 14 days of it coming to his knowledge. If he fails to do so, he commits an offence.12

  6. If, at the time of death or immediately thereafter, you have in your possession or control any property, book or document belonging to the person who died,13 you must take the following steps, and commit an offence if you fail to do so:
    • immediately report the particulars of such property, book or document14 to the Master;
    • unless the Master15 otherwise directs, retain possession of the items until an executor or curator has been appointed, or the Master gives directions;16
    • on demand by the executor, or other person under direction of the Master, surrender the items to him.1718
  7. If no death notice has been lodged (or it has, but the Master requires further information) the Master may, by written notice, direct any person who he thinks is able to furnish the information, either to file a death notice or to answer such questions as set out in the notice. It is an offence to fail to comply with the notice.19

C. Inventories

  1. When someone dies, his surviving spouse or nearest relative must make an inventory of all his property. This inventory must be submitted to the Master and it is an offence not to do so.20

  2. It is also a criminal offence to make any false inventory, for a will or for distribution of the assets.21

  3. The Master can also require any person to compile such an inventory. If you receive a notice calling on you to do so, remember that it is an offence to contravene this requirement.22

D. Executor’s functions and duties23

  1. It is an offence to wind up24 the estate of any deceased person, except under ‘letters of executorship’ granted under the Act, or in pursuance of a direction by the Master of the High Court.25

  2. As soon as he has received the letters of executorship from the Master, the executor must take control of all the property, books and documents in the estate.26 It is an offence to contravene this requirement.27

  3. Within six months after letters of executorship have been granted to him (or such further period as the Master may allow) the executor must lodge with the Master an account setting out the proposed structure and process for the liquidation of the estate and the distribution of its assets. It is an offence not to do this.28

  4. If you are an executor, you must not distribute any estate otherwise than in accordance with the relevant will and the provisions of the liquidation and distribution account. You commit a crime if you do otherwise.29

  5. It is a crime to submit to the Master any false account, or to make any false valuation of property affected by a will, or to make any statement in relation to a disputed claim against a deceased estate which is known to be false, or not believed to be true.30

  6. As soon as the executor has collected moneys in the estate in excess of R1 000, he must open a cheque account at a South African bank, and deposit the money. He commits an offence if he fails to do this.3132

  7. If required by the Master, the executor must notify him of the particulars of the bank account, furnish a bank statement or other evidence of the account’s position. It is an offence not to do so.3334

  8. Once the Master has been so notified, it is an offence to transfer the account (to another branch, etc.) without first notifying the Master in writing.3536

  9. The Master can direct the manager of the branch where the bank account has been opened to refuse any (further) withdrawals from the account, or to pay the moneys over to the guardian’s fund. It is a crime not to comply with such a direction.37

  10. The executor might need the title deed of (or the bond registered over) immovable property which relates to or is part of the estate, to enter an endorsement or for purposes of registration. If you are in possession of it, and the executor requests you to hand it over to him, you have 14 days to do so otherwise you commit an offence.38

  11. In certain circumstances an executor is obliged (and can also be directed by the Master) to furnish security, in an amount to be determined by the Master, for the proper performance of his functions. When this happens, the executor must lodge an inventory showing the estimated value of all property in the estate (and update it when more property comes to his knowledge). The executor commits an offence if he fails to do this.39

  12. When the liquidation and distribution account has been finalised, it must lie open for inspection at the office of the Master (or the deceased’s local Magistrate’s office). If there are no objections, or they have been resolved, the executor must pay creditors and then distribute what remains amongst the heirs. If, for any reason, there are moneys left after a period of two months which the executor has been unable to distribute, he must pay the funds over to the Master for deposit into a fund called the guardian’s fund. The executor commits an offence if he fails to do this.40

  13. If there are any objections to the liquidation and distribution account, the executor must send his comments (in duplicate) to the Master, within 14 days. He commits an offence if he fails to do this.41

  14. The executor must sell property in the estate unless it is contrary to the terms of the will. However, the sales must be subject to any conditions which heirs (who have an interest in the property) have approved in writing. In certain instances the Master must also approve the conditions. The executor commits an offence if he contravenes these provisions.42

  15. Once someone ceases to be an executor, he must return his ‘letters of executorship’ to the Master, forthwith. It is an offence not to do so.43

E. Sales in execution

The executor must publish a notice in the Government Gazette, and in the local newspapers, calling for people to lodge their claims against the deceased’s estate. The period for this lodging must be between 30 days and three months. It is an offence for any person to sell in execution any property in the deceased estate during the period specified in that notice; or, after the expiry of that period, except with the permission of the Master44 or the Court.45

F. Disputed claims

  1. If the executor disputes a claim lodged against the estate, he can require the claimant to support the claim with an affidavit setting out details of the claim, and also to appear before the Master, or a magistrate, to be examined (and cross examined) under oath about the claim. Any person who is notified so to appear, and fails to do so (without reasonable excuse) commits an offence.46

  2. If the person does appear, he nevertheless commits an offence if he:

    • refuses to submit to examination;
    • refuses to take the oath;
    • refuses to answer, fully and satisfactorily, any question put to him.47

G. Minors, curators and ‘tutors’

  1. Where a minor, or a person who cannot control his own affairs is the heir, a tutor or curator is nominated or appointed to take care of and administer the property or business in question. However, he may not do so until a so-called ‘letter of tutorship’ or ‘curatorship’, (as the case may be) has been granted and sealed in terms of the Act. It is a crime to contravene this provision.48

  2. As soon as he has received the ‘letters of curatorship’, or ‘letters of tutorship’, as the case may be, the curator/tutor must take control of all property to be under his administration. It is an offence not to do so.49

  3. Both a tutor and a curator must also lodge inventories with the Master, keep them updated and particularised. It is a crime not to do so.50

  4. It is an offence for a tutor or curator to dispose of property under his care or administration if it has not been mentioned in the inventories he has lodged with the Master.51

  5. It is an offence if you dispose of any property which you have been appointed to administer, unless you do so in the ordinary course of business carried on as the curator.52

  6. Every tutor and curator must, on or before a date determined by the Master, lodge a complete account of his administration, supported by vouchers, invoices, etc.53

  7. If required by the Master, every tutor and curator must also produce for inspection any securities held by him. It is an offence to contravene this provision.54

  8. When somebody ceases to be a tutor or curator, he must lodge a final complete account of his administration, and commits an offence if he fails to do so.55

  9. He must also return his letters of tutorship, or curatorship, to the Master forthwith. It is an offence not to do so.56

H. Natural guardians

  1. The natural guardian of a minor is (subject to certain conditions) entitled to receive any movable property due to the minor in terms of the liquidation and distribution account. The guardian must, if called upon to do so by the Master, lodge a statement (verified on affidavit) giving such particulars about the property as specified in the Master’s notice. It is a crime to ignore the notice.57

  2. The Master may call for security from the guardian (to ensure that he will hand over the property to the minor when he becomes entitled to it). He can also call for additional security, and the guardian commits an offence if he fails to comply with a notice from the Master to this effect.5859

I. The Guardian’s Fund and unclaimed monies

This is a fund, established by the statute, which holds money in trust for (generally speaking) unknown people.

  1. Each January, every person carrying on business in South Africa must publish in the Government Gazette a detailed statement in respect of all amounts of R100 or more held by him as at 31 December of the previous year, which are not his property60 and which have not been claimed for a period of five years or more by the rightful owners. It is an offence not to do this.61

  2. Then, if the moneys have still not been claimed after a period of three months, the person must:

    • submit a statement and affidavit to the Master; and
    • deposit all such amounts with the Guardians Fund.

    It is a crime to contravene these requirements.62

J. Appraisers

Certain people are appointed by the Department of Justice to be sworn appraisers for the valuation of property for the purposes of the Act.

  1. It is an offence for an appraiser to act (as appraiser) in respect of property in which he, or his wife, or partner has any pecuniary interest,63 or has an interest in the valuation of the property.64

  2. The same applies if the appraiser’s principal, employer, or any relative65 has any pecuniary interest in the property.66

  1. A testator is the person making the ‘will’. 

  2. www.funtrivia.com s.v. ‘Strangest Bequests’. 

  3. As amended, the latest amendment was effected by Act 11 of 2009. 

  4. Section 102(1)(a). 

  5. Section 102(1)(a). 

  6. Or any time after the death. 

  7. Section 8(1) read with section 102(1)(h). 

  8. Section 7(1)(a) read with section 102(1)(i). 

  9. This ‘connection’ is not defined in the Act. The Concise Oxford Dictionary talks of ‘family relationship’, but in the modern sense a ‘connection’ could be a work associate, or friend – for example. 

  10. Section 7(1)(a) read with section 102(1)(i). 

  11. Section 7(1)(b) read with section 102(1)(i). 

  12. Section 7(2) read with section 102(1)(i). 

  13. Or if it was in his possession at the time of his death. 

  14. You may open the document to see if it is a will. 

  15. Or a court. 

  16. You may dispose of property, if necessary and in good faith, to arrange a suitable funeral, or to provide for the family. 

  17. Subject to your right to retain possession in terms of any contract, right of retention, or legal attachment. 

  18. Section 11(1) read with section 102(1)(h). 

  19. Section 102(1)(i) read with section 7(3). 

  20. Section 102(1)(g) read with section 9(1). 

  21. Section 102(1)(b). 

  22. Section 102(1)(g) read with section 9(2). 

  23. There are a number of provisions affecting executors. There are some which are too esoteric for mention here. You will likely not be doing the job of an executor if you are not familiar with all provisions of the Act. 

  24. That is, to pay any debts and to distribute the assets. 

  25. Section 13(1) read with section 102(1)(g). 

  26. Except for those which are in the possession of someone who claims some right to keep the items. 

  27. Section 26(1) read with section 102(1)(h). 

  28. Section 35(1) read with section 102(1)(h). 

  29. Section 35(12) read with section 102(1)(f). 

  30. Section 102(1)(c), section 102(1)(d) and section 102(1)(e). 

  31. The same applies to an interim curator, curator, or tutor. 

  32. Section 13(1) read with section 102(1)(g). 

  33. The same applies to an interim curator, curator, or tutor. 

  34. Section 12(7) and 85 read with section 102(1)(h). 

  35. The same applies to an interim curator, curator, or tutor. 

  36. Section 12(7) and 85 read with section 102(1)(h). 

  37. Section 102(1)(i) read with section 28(6). 

  38. Section 41(1) read with section 102(1)(i). 

  39. Section 102(1)(g) read with section 27(1). 

  40. Section 102(1)(g) read with section 35(13). 

  41. Section 35(8) read with section 102(1)(i). 

  42. Section 10291)(g) read with section 47. 

  43. Section 54(5) read with section 102(1)(i). 

  44. If the property is valued at not more than R5 000. 

  45. Section 30 read with section 102(1)(h). 

  46. Section 32(1)(b) read with section 102(1)(i). 

  47. Section 32(1)(b) read with section 102(1)(i). 

  48. Section 102(1)(g) read with section 71. 

  49. Section 102(1)(h) read with section 85. 

  50. Section 102(1)(g) read with section 78(1). 

  51. Section 102(1)(g) read with section 78(2). 

  52. Section 78(2) read with section 102(1)(g). 

  53. Section 102(1)(g) read with section 83(1)(a). 

  54. Section 102(1)(g) read with section 83(1)(b). 

  55. Section 102(1)(g) read with section 83(2). 

  56. Section 102(1)(i) read with section 54(5) and 85. 

  57. Section 102(1)(h) read with section 43(3). 

  58. If the property is value at not more than R5 000. 

  59. Section 102(1)(h) read with section 43(4). 

  60. Or subject to any valid lien. 

  61. Section 102(1)(g) read with section 93(1). 

  62. Section 102(1)(g) read with section 93(3). 

  63. Of course, this does not apply to his remuneration as appraiser. 

  64. Section 6(4) read with section 102(1)(h). 

  65. Within the third degree – for example a cousin: his mother (first degree), her sister (second degree) and her son (third degree). 

  66. Section 6(4)(b) read with section 102(1)(h).