“My friend and I had an agreement in terms of which I lent him an amount of R100 000.00 for a business venture. My friend however died suddenly and his wife was appointed as the executor of the estate. His wife and I had various conversations regarding the repayment of the loan, but it seems that she has no intention to repay the loan. What can I do? 

The first principle which is important to note is that a deceased estate can only be sued or institute action once a letter of authority or letter of executorship has been issued by the Master of the High Court.

This means that a deceased estate only obtains locus standi when a person is appointed to amongst others administer the assets and liabilities of the estate.

 In terms of the learned writers of Meyerowitz on Administration of Estates and their taxation 2010 Edition Chapter 7.6,it is stated that:

       “Where there is likely to be a long delay in the appointment of an executor something beyond the authority of the person in possession of the deceased’s property has to be done urgently, application may be made to the Master for the appointment of an interim curator.”

In Chapter 8.1 it has been said that except for the limited authority given to the person in charge of a deceased’s estate and to an interim curator pending the appointment of an executor, the estate of a deceased person cannot be dealt with or liquidated and the assets are frozen until such time as an executor to the estate is appointed.

In the matter Redifine Properties Limited v Tiptop Nails CC t/a Colour Harmony the court held that the duty to allege and prove locus standi in judicio, rests on the party instituting the proceedings. The persona or facts that confers locus standi, described in application or summons must be in existence at the date of issue, otherwise the application or summons is a nullity.

This aspect was also driven home in the matter of July and others v Mbuqe and others where it was held that when it comes to the deceased estates the general rule is that an executor is the only person who can represent the estate of a deceased person. The deceased estate is not a separate persona, but the executor is such person for the purpose of the estate and in whom the assets and liabilities temporarily reside in a representative capacity.

It is thereof, very important to, before any steps are taken against the estate, be sure that the wife has in fact be appointed to deal with the estate.

After you have then established that the wife has in fact been appointed as executor in the estate of your late friend, then you can take the next step, which is to lodge with the executor your claim against the estate.

This is normally done through your attorney by way of letter, with all the relevant supporting documentation attached thereto. The obligation thereafter rests upon the executor to first and foremost acknowledge receipt of your purported claim and investigate the validity thereof.

In terms of the administration of a deceased estate, specifically an estate in which a letter of executorship has been issued, the executor is called upon to advertise the fact that the deceased died and invite both creditors and debtors of the estate to lodge claims or inform the executor of existing claim in favour of the estate. This advertisement must be advertised in a local newspaper where the deceased resided prior to his death.

The executor must then within a reasonable time, inform you that either your claim against the estate is admitted or rejected and if rejected reasons must be provided to you. If however your claim is ignored or rejected without any legal reason then you can issue summons against the estate, which will enable you to attach property of the estate from payment of your claim.

It is of further importance to, when summons is issued against the estate, ensure that the correct citation is used as the party against whom summons is issued will be the executor in his/her capacity as executor so appoint and not in the name of the deceased person.