This blog outlines the three options available for appointing a tutor or curator to safeguard and manage the property or inheritance of a minor (or child) in South African law.

Introduction

In South African law, persons under the age of 18, called minors, lack, in terms of our law, the capacity to look after their inheritance or property. The South African legal system provides mechanisms such as trusts, tutors, curators, and the Guardian Fund (managed by the Master) to assist in the management of the inheritance or property of a minor (or child). This blog explores the various appointment types of tutors and curators involved in overseeing and managing a minor's inheritance or property, done through a testamentary nomination, or by means of a High Court order, or a Master's office intervention.

Difference between a Tutor and a Curator

Before delving into the appointment types of tutors and curators, it's important to understand the main difference between the two roles of a tutor and curator. A tutor may be appointed to oversee a minor's well-being and property, whereas a curator solely focuses on administering the minor's property.

Testamentary Appointed Tutor or Curator

Traditionally, a testator might opt to establish a testamentary trust and nominate trustees to manage a minor's inheritance. However, certain persons may validly nominate either a tutor assigned to look after the well-being and property, or a curator assigned to look after the property of a minor in terms of Section 72(1)(a)-(c) of the Administration of Estates Act 66 of 1965. They are the sole natural guardian, or the mother of an illegitimate minor, or a parent granted sole guardianship by the court. 

Then Section 72(1)(b)-(c) of Act 66 of 1965 provides that any other person may validly nominate only a curator who will look after the property of the minor (and not the well-being) who has bequeathed property to a minor in his/her Will.

For the appointment of either a nominated curator or tutor in the Will, certain prescribed documents are required to be submitted to the Master of the High Court that also includes the original signed valid Will and the declaration by the nominated tutor or curator confirming he/she was indeed validly nominated in compliance with section 72(1)’s requirements.

Tutor or Curator Appointed by the High Court

The High Court, acting as the upper guardian of minors, has the authority to appoint a tutor, curator, or trustee to manage the property of a minor. This scenario often arises when a minor receives property or funds through a damages claim or donation rather than inheritance [section 72(1)(d)]. Upon receiving the application, the court usually appoints a curator ad litem to safeguard the minor's interests and investigate the merits of the application. Both the curator ad litem and the Master must submit reports to the court. Once the court grants the application and appoints a tutor or curator, the Master must comply with the court order by issuing an appointment letter, authorising the appointed tutor, curator, or trustee to act.

Tutor or Curator Dative Appointed by the Master

When the Master becomes aware of a minor owning property without appropriate guardianship or curatorship, a tutor or curator dative may be appointed. Interested parties can initiate this process by submitting a written application to the Master. The Master may then publish a notice in the government gazette, inviting relatives and interested parties to recommend a suitable person. Ultimately, the Master determines the suitability of the nominated individual.

Conclusion

South African law provides for three different avenues through which a tutor or curator can be appointed to ensure the proper management and protection of a minor's property or inheritance. Whether through testamentary nomination, high court appointment, or Master's office intervention, each of these three avenues serves to uphold the best interests of the minor amidst the complexities of inheritance and property ownership.