The Master's appointment of an executor is an essential legal consideration in estate administration, which is guided by the procedures outlined in the Estates Act. Interested parties can offer to serve as executor, and the Master's Office typically chooses from those who volunteer. In case of any disputes, there are legal options available for resolution, such as the option to review the Master's appointment by the Chief Master.

Introduction

Have you ever wondered what would happen if you did not name an executor in your Will, or if your executor passed away before you or resigned from their position? To answer this question, we must first distinguish between two types of executors: testamentary executors appointed by the deceased in their Will, and dative executors appointed by the Master in the absence of a nominated executor or on their death, incapacity, or refusal to act. The Master follows a statutory procedure to appoint either type of executor.

In this blog, we'll explore the circumstances under which a dative executor may be appointed and what happens in case of a dispute regarding their appointment.
Master's Discretion to Appoint: Understanding the Role of the Master in the Appointment of Executors

The Master of the High Court is a functionary of the Department of Justice in South Africa who holds jurisdiction over the estates of deceased individuals under section 4 of the Administration of Estates Act 66 of 1965 (Estates Act). Their authority is defined by national legislation and limited to specific administrative tasks, such as examining the executor's accounting of the estate and requesting documents. Because of their limited role, the courts refer to the Master as a creature of statute.
Under sections 18 and 19 of the Estates Act, the Master holds the discretion to appoint an executor deemed fit by them. However, this discretion is limited by a statutory procedure outlined in the different provisions of the Estates Act for the appointment of a testamentary or dative executor. Even when an executor is nominated in the Will, the Master still holds the discretion to appoint such a nominated executor. In most cases, the Master is in agreement with the nomination.


Testator's Choice: Understanding the Executor Testamentary

When creating a Will, the testator can nominate an executor to administer their estate upon their passing. However, by law, only the Master of the High Court can officially appoint an executor of an estate.
According to section 14(1) of the Estates Act, the executor testamentary must submit a written application to the Master. If the Master does not deem the person unfit or incapacitated from being an executor of the estate and the executor applicant complies with the provisions of the Act, the Master will grant letters of executorship to that person.

No executor’s nomination or executor cannot act

If no executor was nominated, or the nominated executor cannot act, the Master must follow certain procedures according to section 18 of the Estates Act. Section 18(6) states that the Master cannot grant letters of executorship to anyone who is legally incapable of acting as the executor of the deceased's estate.
According to section 18(1), the Master must appoint and grant letters of executorship to a person or persons whom they deem fit and proper to be executor or executors of the estate of the deceased. To find a suitable person, the Master has the option to publish a notice in the Gazette or in any other manner they consider appropriate to bring it to the attention of the relevant parties. The notice must call upon the surviving spouse (if any), the heirs of the deceased, and all persons with claims against the estate to attend before the Master (or before any other Master or magistrate if more expedient) at a specified time and place to recommend a person or persons to be appointed as executor or executors.

If the Master publishes a notice in the Gazette, they must follow the recommendations received, or if no recommendations are made, appoint and grant letters of executorship to a person or persons they deem fit and proper. If the Master deems it necessary or expedient to postpone the appointment and publish another notice, they may do so.

In the case where two or more persons were nominated by the Will, and one or some of them are dead, refuse to act, are incapacitated, or fail to take out letters of executorship when called upon by the Master, the Master may grant an appointment to the remaining executor or executors to administer and distribute the estate. Alternatively, the Master may appoint and grant letters of executorship to a person they deem fit and proper to administer and distribute the estate.
The High Court and the Master's Office have overall discretion, based on the circumstances and the best interests of the estate, to appoint or remove an executor.

What if there is a dispute?

If a conflict arises among the beneficiaries regarding who should administer the deceased estate, section 19 of the Estates Act provides a hierarchical order as to who may be appointed by the Master:

• The first preference is the surviving spouse and/or their representative;
• then a beneficiary (heir/legatee) and/or their representative;
• then a creditor and/or their representative nominee; and
• Lastly, the tutor or curator of any heir or creditor so nominated who is a minor or a person under curatorship, in the place of such heir or creditor.
Provided that the Master may, (i) join any of the said persons as executor with any other of them; or (ii) pass by any or all of the said persons if there is any good reason therefor.

If interested parties wish to challenge the appointment, written submissions must be made to the Master setting out the grounds on which the challenge is based.
In terms of section 22(1) of the Estates Act the Master may refuse to grant, endorse, sign, and seal letters of executorship in certain cases.

If it appears to the Master or if any person having an interest in the estate lodges with the Master in writing an objection that the nomination of any person as executor testamentary or assumed executor is or should be declared invalid, letters of executorship or an endorsement, as the case may be, may be refused by the Master until:

(a) the validity of such nomination has been determined by the Court; or
(b) the objection has been withdrawn; or
(c) the person objecting has had a period of fourteen days after such refusal or such further period as the Court may allow, to apply to the Court for an order restraining the grant of letters of executorship, or the making of the endorsement, as the case may be.
In terms of section 22(2) of the Estates Act, the Master may refuse to grant letters of executorship or to make the endorsement or to sign and seal the letters of executorship to the following applicant executor:
(a) if the applicant, resides or is outside the Republic and has not chosen domicilium citandi et executandi in the Republic;
(b) if any such person could, if he is appointed as executor, be removed from his office by the provisions of the Estates Act;
(c) if any such person fails to satisfy the Master by a declaration under oath that letters of executorship have not already been granted or signed and sealed by any other Master in the Republic.

Review van master’s appointment

According to section 95(1) of the Estates Act, the Chief Master has the power to review any appointment of an executor and any decision made by the Master. The Chief Master considers any representations made in this regard and can either confirm, set aside, or vary the appointment or decision.

If making representations under section 95(2), it is necessary to provide relevant information, such as the estate number, name of the deceased or executor, name of the court whose jurisdiction the matter falls under, and a copy of the correspondence from the Master regarding their decision.

Section 95(3) stipulates that any decision taken by the Chief Master in terms of subsection (1) can be subject to appeal or review by the court, initiated by any person who feels aggrieved. The court can confirm, set aside, or vary the appointment, decision, ruling, order, direction, or taxation, as appropriate.

In accordance with subsection (4)(a) of section 95, the Chief Master must develop a review and appeal policy and issue policy directives to implement the provisions of this section and any other applicable laws. If policy directives are not followed, the Chief Master can intervene at any point in the process.

Conclusion

In conclusion, appointing an executor is a crucial process that necessitates a thorough understanding of legal obligations and potential conflicts. The Master's Office has the power to confirm or reject the appointment of executors and can appoint joint executors or representatives. 

While the nomination of a family member or beneficiary is generally accepted, in certain situations such as those involving minor children or absentee heirs, an attorney may be appointed as executor. Disputes between beneficiaries may arise, and it is important to be aware of the legal avenues available for resolving such conflicts. If necessary, the appointment of the Master can also be reviewed by the Chief Master. 

Ultimately, successfully navigating the executor appointment process requires a good understanding of the legal framework and careful attention to detail.