Outline: In this blog, we will explore the legal obligations of a person who is in possession, or even temporary possession, of a document that resembles a Will of a departed person. We will discuss the relevant provisions of the Wills Act and the Administration of Estates Act and analyse the possible consequences of failing to comply with these provisions.

Introduction

"After my grandmother's passing, I have reason to believe that the broker who handled her investments may have her Will in his possession. Despite my requests, he has refused to submit it, claiming that it is “outdated”. I am unsure of the validity of his claim and would like to know if he has the right to withhold the Will from the Master."
The Administration of Estates Act 66 of 1965 outlines the legal obligations of various individuals who possess a document that resembles a Will or an original Will of a departed person. Failure to comply with these obligations is an offense, and those found guilty may face fines or imprisonment as outlined in section 102 of the Act. Furthermore, according to section 102(2), a court may order the convicted individual to comply with the Act within a specified period.

In this blog, we will explore these legal obligations and offenses and conclude with possible solutions to address this issue in the case study.

Obligation to report an estate

Section 7 of the Estates Act outlines an individual's obligations to submit the prescribed Death Notice, which requires the reporting of the estate to the Master. According to section 7(1)(a), if a person dies within the Republic and leaves any property or a document resembling a Will, the surviving spouse, nearest relative, or connection residing in the district where the death occurred must report the estate, with the prescribed documents, to the Master within fourteen days. Failure to do so places the responsibility on the person who controls the premises where the death occurred to report it to the Master within the same time frame [section 7(1)(b)].
Furthermore, section 7(2) stipulates that if a person dies outside the Republic and leaves any property or a document resembling a Will, any individual within the Republic who has possession or control of such property or document must report the death to the Master within fourteen days.

This means that even if the departed person left no property, but there is a document resembling a Will in someone's possession, and that person learns of the death, the estate must be reported, and the prescribed Death Notice and document resembling a Will must be submitted to the Master.
According to section 102(1)(i), failing to comply with the provisions of sections 7(1) or (2) is an offense, and those found guilty may face fines or imprisonment for up to three months.

OBLIGATION TO SUBMIT A DOCUMENT THAT LOOKS LIKE A WILL

Section 8 of the Estates Act specifically deals with the submission of Wills to the Master and their registration. This section applies directly to the case study at hand.
According to section 8(1), any person who has a document that is or resembles a Will of a departed person in their possession must submit it to the Master as soon as they become aware of the death. Section 8(2) requires notaries to submit the original minute of any notarial Will in their possession, at the expense of the estate, to the Master when required to do so. They must also file a certified copy of the Will in their protocol and endorse that the original has been submitted to the Master.
Sections 8(3) and 8(4) outline the Master's duties. Section 8(3) states that when the Master receives an original Will or a document that looks like a Will, they must register it in their "register of estates". Additionally, according to section 8(4), it is the Master's responsibility to determine if the Will is invalid for any reason, and if so, they may refuse to accept it until the validity has been determined by the court, despite the Will being registered in terms of Section 8(3).
Section 8 clearly directs that the person holding a document that resembles a Will is not entitled to decide not to submit it based on an assessment of its compliance with the formalities of the Wills Act 7 of 1953.

In terms of penalties, Section 102(1)(a) and (h) outline the consequences of non-compliance. Section 102(1)(h) states that any person who contravenes or fails to comply with the provisions of Section 8(1) or (2) is guilty of an offense and may be fined or imprisoned for up to six months upon conviction. Additionally, section 102(1)(a) states that any person who steals, wilfully destroys, conceals, falsifies, or damages any document resembling a Will is guilty of an offense and may be fined or imprisoned for up to seven years.

OBLIGATION OF A PERSON TEMPORARY IN CUSTODY OF A WILL

Lastly, Section 11 of the Estates Act deals with the obligations of a person who is temporarily in custody of the property of a departed person, including possession or custody of any property, book, or document belonging to or in the possession of the departed person at the time of their passing. Section 11(1)(a) directs that the possessor must immediately report the particulars of such property, book, or document to the Master after the death, and may open any closed document for the purpose of ascertaining whether it is, or purports to be, a Will. This scenario may occur when the possessor awaits the reporting of the estate, for instance, if the estate is still in the process of being registered at the Master and an executor has not yet been appointed. In this case, the possessor must inform the Master of the details of the temporary possession of the property or document.

Furthermore, anyone who contravenes or fails to comply with the provisions of Section 11(1) is guilty of an offense under Section 102(1)(h) and may be liable to a fine or imprisonment for a period not exceeding six months, upon conviction.
Submitted documents to be preserved at the Master

When the Master receives an original Will or a document that resembles a Will, they must preserve the document as a record in their office, in accordance with section 5(1) of the Estates Act. These documents are considered part of the Master's office records, which also include other written instruments such as Death Notices, Inventories, and Liquidation and Distribution Accounts. Section 103 of the Act stipulates that the Minister of Justice is responsible for creating regulations governing the custody, preservation, and destruction of records, moneys, or securities in the offices of Masters, including the removal and preservation of such records in other places.

May request copies of MASTER’S OFFICE documents

Section 5(2) of the Estates Act states that any person may inspect a Will or any other Master’s office document during office hours and obtain a copy or extract from it by paying the prescribed fee. However, an executor or his surety may inspect the document at the Master’s office without paying any fees.

Alternative solution: Section 36

When an executor in possession of a document resembling a Will fails to submit it or comply with a reasonable demand from the Master or an interested party to the estate of the departed person, they may apply for a court order to the high court under section 36(1) of the Estates Act. The executor must first be given at least one month's notice before seeking an order from the court to compel compliance. According to section 36(2), the executor is responsible for paying the costs awarded to the Master or the interested party, unless the Court orders otherwise.

Conclusion

In conclusion, it is crucial for any person in possession of a document resembling a Will or an original Will of a departed person to comply with the obligations stipulated by the Estates Act. Sections 7, 8, and 11 set out specific requirements for reporting the estate and submitting the Will to the Master within a certain time limit. The Master has a responsibility to preserve the document and keep it as an official record, which can be accessed by the public by paying a prescribed fee. Furthermore, Section 36 provides an alternative solution for interested parties to obtain a court order to compel compliance from the executor if they fail to submit the Will or comply with the Master's reasonable demand.

Non-compliance with these obligations is subject to penalties, which demonstrates the importance placed by the legislator on revealing details of temporary possession or immediate submission of the document to the Master. Thus, it is essential to report any knowledge of the whereabouts or possible concealment of a document resembling a Will to the Master as soon as possible.