Restriction of dealing with property in a deceased estate

01 September 2021 1988

Being appointed as an Executor in an estate means that you hold an official capacity, with the duties of administering the estate in a manner that is in compliance with the relevant legislation, as well as the will of the deceased (if applicable). The Administration of Estates Act 66 of 1965 (“the Act”) sets out the parameters regarding what an Executor may and may not do, and what he/she should do.

As a general rule, any person with legal capacity may buy immovable property. However, as is with any rule, there are exceptions. The exception this article will focus on is contained in Section 49 (1) of the Act.

Section 49 of the Act states the following:

1) If any executor or his spouse, parent, child, partner, employer, employee or agent purchases any property in the estate which he has been appointed to liquidate and distribute, the purchase shall, subject to the terms of the will (if any) of the deceased, and, in the case of an executor who is the surviving spouse of the deceased, to the provisions of section thirty-eight, be void, unless it has been consented to or is confirmed by the Master or by the Court.”

Essentially this section states that where an Executor (whether he/she is the surviving spouse or not) wishes to purchase immovable property belonging to the estate of the deceased person wherein they are appointed as Executor, the Master’s consent to such a purchase is necessary. Further, a person who is the spouse, partner, parent, child, employer, employee or agent of the Executor also requires such permission if they wish to purchase the property.

I speculate when I say the following, but it is possible that the legislature, in including this rule in the act, is attempting to protect a deceased estate from an unscrupulous executor. Meaning that if the Master needs to consent to such a sale, the Master will be able to identify if the purchase price is unreasonably low for example.

The said approval of the Master can be requested on written application by the Executor, and such approval in the form of a certificate will be one of the supporting documents for lodgement of the transfer at the Deed’s Office.

 

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