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What are the requirements for the removal of an executor and/or executrix from his/her office?

What are the requirements for the removal of an executor

Introduction
During the administration of a Deceased Estate, conflict can often arise when there is an Executor and/or Executrix who does not properly carry out his or her duties.

This can impact the administration of the Deceased Estate greatly and can frustrate the Heirs of the Estate concerned who place their trust in the Executor and/or Executrix to administer the Estate competently and to finalise it within reasonable time.

In terms of Section 54 of the Administration of Deceased Estates Act 66 of 1965 (hereinafter referred to as the “Act”), an Executor may be removed from his or her office at any time either by the Master of the High Court or by a Court.

It is also important for the Heirs of Deceased Estate’s to note that they cannot remove and Executor and/or Executrix from his or her office as a result of mere break down in relationship or disagreement and the requirements in terms of the Act need to be complied with.

Requirements for the Removal by a Court
In terms of Section 54(1)(a) of the Act, an Executor and/or Executrix may be removed at any time by a Court:
1. if he or she has at any time been a party to an agreement or arrangement whereby he or she has undertaken that he or she will, in his or her capacity as Executor or Executrix, grant or endeavour to grant to, or obtain or endeavour to obtain for any Heir, Debtor or Creditor of the Estate, any benefit to which he is not entitled; or
2. if he or she has by means of any misrepresentation or any reward or offer of any reward, whether direct or indirect, induced or attempted to induce any person to vote for his recommendation to the Master as Executor; or
3. if he or she has accepted or expressed his willingness to accept from any person any benefit whatsoever in consideration of such person being engaged to perform any work on behalf of the Estate; or
4. if for any other reason the Court is satisfied that it is undesirable that he or she should act as executor of the Estate concerned.

Requirements for the Removal by the Master of the High Court
In terms of Section 54(1)(a) of the Act, an Executor may be removed at any time by the Master of the High Court:
1. if he or she has been nominated by will and that will has been declared to be void by the Court or has been revoked, either wholly or in so far as it relates to his nomination, or if he has been nominated by will and the Master is of the opinion that the will is for any reason invalid; 2. if he fails to comply with a notice under section 23 (3) within the period specified in the notice or within such further period as the Master may allow;
3. if he or she is convicted, in the Republic or elsewhere, of theft, fraud, forgery, uttering a forged instrument or perjury, and is sentenced to imprisonment without the option of a fine, or to a fine exceeding R2 000;
4. if at the time of his or her appointment he or she was incapacitated, or if he or she becomes incapacitated to act as Executor or Executrix of the Estate of the Deceased; or
5. if he or she fails to perform satisfactorily any duty imposed upon him or her by or under this Act or to comply with any lawful request of the Master; or
6. if he or she applies in writing to the Master to be released from his office.

Why is it important to comply with the Requirements of the Act?
In the reportable Judgment of Oberholster NO and others v Richter, it was held that mere disagreement between an Heir and the Executor of a Deceased Estate, or a breakdown in the relationship between one of the Heirs and the Executor, is insufficient for the discharge or removal of an Executor in terms of Section 54 of the Act.

Therefore, in order to achieve that result, it must be shown that the Executor or Executrix conducted himself in such a manner that it actually imperilled his proper administration of the estate.

Bad relations between an Executor and an Heir cannot lead to the removal of the executor unless it is probable that the administration of the Estate would be prevented as a result.1

Conclusion
As is clear from above, Section 54 of the Administration of Deceased Estates Act 66 of 1965, clearly sets out the requirements for the removal of Executor and Executrix from his or her office.

It is important for persons to comply with the said requirements as there are leading case law which point out that mere disagreements and break downs in relationships with the Executor or Executrix is not sufficient for the removal of an Executor or Executrix from his or her office.
 

© Shannon Vengadajellum - Schoemanlaw Inc. - 2018

1 A515/11) [2013] ZAGPPHC 99; [2013] 3 All SA 205 (GNP) (12 April 2013)

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