Artikel unter 'Gesetzliche Regelung'

South Africa: Legal Provisions Regarding Tutorship and Curatorship

Rule 57:   De lunatico inquirendo, appointment of curators in respect of persons under        disability and release from curatorship

1. Any person desirous of making application to the court for an order declaring another person (hereinafter referred to as ‘the patient’) to be of unsound mind and as such incapable of managing his affairs, and appointing a curator to the person or property of such patient shall in the first instance apply to the court for the appointment of a curator ad litem to such patient.

2. Such application shall be brought ex parte and shall set forth fully—

a. the grounds upon which the applicant claims locus standi to make such application;

b. the grounds upon which the court is alleged to have jurisdiction;

c. the patient’s age and sex, full particulars of his means, and information as to his general state of physical health;

d. the relationship (if any) between the patient and the applicant, and the duration and intimacy of their association (if any);

e. the facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing his affairs; -

f. the name, occupation and address of the respective persons suggested for appointment by the court as curator ad litem, and subsequently as curator to the patient’s person or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be able and willing to act in these respective capacities.

3. The application shall, as far as possible, be supported by—

a. an affidavit by at least one person to whom the patient is well known and containing such facts and information as are within the deponent’s own knowledge concerning the patient’s mental condition. If such person is related to the patient, or has any personal interest in the terms of any order sought, full details of such relationship or interest, as the case may be, shall be set forth in his affidavit; and

b. affidavits by at least two medical practitioners, one of whom shall, where practicable, be an alienist, who have conducted recent examinations of the patient with a view to ascertaining and reporting upon his mental condition and stating all such facts as were observed by them at such examinations in regard to such condition, the opinions found by them in regard to the nature, extent and probable duration of any mental disorder or defect observed and their reasons for the same and whether the patient is in their opinion incapable of managing his affairs. Such medical practitioners shall, as far as possible, be persons unrelated to the patient, and without personal interest in the terms of the order sought.

4. Upon the hearing of the application referred to in subrule (1), the court may appoint the person suggested or any other suitable person as curator ad litem, or may dismiss the application or make such further or other order thereon as to it may seem meet and in particular on cause shown, and by reason of urgency, special circumstances or otherwise, dispense with any of the require¬ments of this rule.

5. Upon his appointment the curator ad litem (who shall if practicable be an advocate, or failing such, an attorney), shall without delay interview the patient, and shall also inform him of the purpose and nature of the application unless after consulting a medical practitioner referred to in paragraph (b) of subrule (3) he is satisfied that this would be detrimental to the patient’s health. He shall further make such inquiries as the case appears to require and thereafter prepare and file with the registrar his report on the matter to the court, at the same time furnishing the applicant with a copy thereof. In his report the curator ad litem shall set forth such further facts (if any) as he has ascertained in regard to the patient’s mental condition, means and circumstances and he shall draw attention to any consideration which in his view might influence the court in regard to the terms of any order sought.

6. Upon receipt of the said report the applicant shall submit the same, together with copies of the documents referred to in subrules (2) and (3) to the Master of the Supreme Court having jurisdiction for consideration and report to the court.

7. In his report the Master shall, as far as he is able, comment upon the patient’s means and general circumstances, and the suitability or otherwise of the person suggested for appointment as curator to the person or property of the patient, and he shall further make such recommendations as to the furnishing of security and rendering of accounts by, and the powers to be conferred on, such curator as the facts of the case appear to him to require. The curator ad litem shall be furnished with a copy of the said report.

8. After the receipt of the report of the Master, the applicant may, on notice to the curator ad litem (who shall if he thinks fit inform the patient thereof), place the matter on the roll for hearing on the same papers for an order declaring the patient to be of unsound mind and as such incapable of managing his affairs and for the appointment of the person suggested as curator to the person or property of the patient or to both.

9. At such hearing the court may require the attendance of the applicant, the patient, and such other persons as it may think fit, to give such evidence viva voce or furnish such information as the court may require.

10. Upon consideration of the application, the reports of the curator ad litem and of the Master and such further information or evidence (if any) as has been adduced viva voce, or otherwise, the court may direct service of the application on the patient or may declare the patient to be of unsound mind and incapable of managing his own affairs and appoint a suitable person as curator to his person or property or both on such terms as to it may seem meet, or it may dismiss the application or generally make such order (including an order that the costs of such proceedings be defrayed from the assets of the patient) as to it may seem meet.

11. Different persons may, subject to due compliance with the requirements of this rule in regard to each, be suggested and separately appointed as curator to the person and curator to the property of any person found to be of unsound mind and incapable of managing his own affairs.

12. The provisions of subrules (1), (2) and (4) to (10) inclusive shall in so far as the same are applicable thereto, also apply mutatis mutandis to any application for the appointment by the court of a curator under the provisions of s 56 of the Mental Health Act, 1973 (Act 18 of 1973), to the property of a person detained as or declared mentally disordered or defective, or detained as a mentally disordered or defective prisoner or as a State Presidents decision patient and who is incapable of managing his affairs.

13. Save to such extent as the court may on application otherwise direct, the provisions of subrules (1) to (11) shall, mutatis mutandis, apply to every application for the appointment of a curator bonis to any person on the ground that he is by reason of some disability, mental or physical, incapable of managing his own affairs.

14. Every person who has been declared by a court to be of unsound mind and incapable of managing his affairs, and to whose person or property a curator has been appointed, and who intends applying to court for a declaration that he is no longer of unsound mind and incapable of managing his affairs or for release from such curatorship, as the case may be, shall give 15 days’ notice of such application to such curator and to the Master.

15. Upon receipt of such notice and after due consideration of the application and such information as is available to him, the Master shall, without delay, report thereon to the court, at the same time commenting upon any aspect of the matter to which, in his view, its attention should be drawn.

16. The provisions of subrules (14) and (15) hereof shall also apply to any application for release from curatorship by a person who has been discharged under s 53 of the Mental Health Act, 1973 (Act 18 of 1973), from detention in an institution, but in respect of whom a curator bonis has been appointed by the court under s 56 of the said Act.

17. Upon the hearing of any application referred to in subrules (14) and (16) hereof the court may declare the applicant as being no longer of unsound mind and as being capable of managing his affairs, order his release from such curatorship, or dismiss the application, or mero motu appoint a curator ad litem to make such inquiries as it considers desirable and to report to it, or call for such further evidence as it considers desirable and postpone the further hearing of the matter to permit of the production of such report, affidavit or evidence, as the case may be, or postpone the matter sine die and make such order as to costs or otherwise as to it may seem meet.

CHAPTER IV
TUTORS AND CURATORS

71. Certain persons not to administer property as tutor or curator without letters of tutorship or curatorship

1. No person who has been nominated, appointed or assumed as provided in section seventy-two shall take care of or administer any property belonging to the minor or other person concerned, or carry on any business or undertaking of the minor or other person, unless he is authorized to do so under letters of tutorship or curatorship, as the case may be, granted or signed and sealed under this Act, or under an endorsement made under the said section.

2. Any letters of confirmation or certificate granted or issued under the Administra¬tion of Estates Act, 1913 (Act 24 of 1913), or under section sixty-two of the Mental Disorders Act, 1916 (Act 38 of 1916), and in force at the commencement of this Act, shall be deemed to be letters of tutorship or curatorship, as the case may be, granted under this Act.

72. Letters of tutorship and curatorship to tutors and curators nominate and endorsement in case of assumed tutors and curators

1. The Master shall, subject to the provisions of subsection (3) and to any applicable provision of section 5 of the Matrimonial Affairs Act, 1953 (Act 37 of 1953), or any order of court made under any such provision or any provision of the Divorce Act, 1979, on the written application of any person —

a. who has been nominated by will or written instrument —

(i) by the parent of a legitimate minor who has not been deprived, as a result of an order under subsection (1) of the said section 5 or the Divorce Act, 1979, of the guardian¬ship of such minor and who immediately before his death was the sole natural guardian of such minor; or

(ii) by the mother of a minor born out of wedlock who has not been so deprived of the guardianship of such minor or of her, parental powers over him or her; or

(iii) by the parent to whom the sole guardianship of a minor has been granted under subsection (1) of the said section 5 or under the Divorce Act, 1979, to administer the person as tutor, or to take care of or administer his property as curator; or

b. who has been nominated by will or written instrument by any parent of a minor to administer as curator any property which the minor has inherited from such parent; or

c. who has been nominated by will or written instrument by any deceased person who has given or bequeathed any property to any other person, to administer that property as curator; or

d. who has been appointed by the Court or a judge to administer the property of any minor or other person as tutor or curator and to take care of his person or, as the case may be, to perform any act in respect of such property or to take care thereof or to administer it; and

e. who is not incapacitated from being the tutor or curator of the minor or other person concerned or of his property, as the case may be, and has complied with the provisions of this Act, grant letters of tutorship or curatorship, as the case may be, to such person.

2. The Master shall, subject to the provisions of subsection (3) —

a. on the written application of any person who has been duly nominated as an assumed tutor or curator, is not incapacitated from being the tutor or curator of the minor or other person concerned or of his property, as the case may be, and has complied with the provisions of this Act; and

b. on production of the deed of assumption duly signed by the person so nominated and the tutor or curator, as the case may be, so assuming him, endorse the appointment of such person as assumed tutor or curator on the letters of tutorship or curatorship, as the case may be, granted to such tutor or curator.

3. The provisions of sections sixteen and twenty-two shall mutatis mutandis apply with reference to letters of tutorship or curatorship to be granted under subsection (1) and any endorsement to be made under subsection (2), and the provisions of subsections (2) and (3) of section fifteen shall so apply with reference to any such endorsement.

73. Proceedings on failure of nomination of tutors or curators, or on death, incapacity or refusal to act, etc

1. The Master may, subject to the provisions of subsections (2), (3) and (4) —

a. if it comes to his knowledge —
(i) that any minor is the owner of any property in the Republic which is not under the care of any guardian, tutor or curator; or
(ii) that any absentee is the owner of any property in the Republic,
and he is satisfied that the said property should be cared for or administered on behalf of such minor, or absentee; or

b. in any case in which it would, in terms of the proviso to section 56 (1) of the Mental Health Act, 1973 (Act 18 of 1973), be competent for a judge in chambers to appoint a curator, or in any case in which the Master would be competent to appoint a curator in terms of section 56A of the said Act; or

c. if any eventuality referred to in paragraph (b), (c), (d), (e) or (f) of section 18 (1) occurs with reference to any person who has been nominated or appointed as provided in paragraph (a), (b), (c) or (d) of section 72 (1), or to whom letters of tutorship or curatorship have been granted under the latter section or under this subsection, by notice published in the Gazette and in such other manner as in his opinion is best calculated to bring it to the attention of the persons concerned, call upon the relatives of the minor, absentee or other person concerned, and upon all persons having an interest in the care or administration of his property to attend before him or, if more expedient, before any other Master or any magistrate at a time and place specified in the notice, for the purpose of recommending to the Master for appointment as tutor or tutors or as curator or curators, a person or a specified number of persons.

2. Subsections (2), (5) and (6) of section 18 shall mutatis mutandis apply with reference to tutors and curators: Provided that for the purposes of the application under this subsection of the said subsection (2), the reference to section 18 (3) and to section 19 shall be deemed to be omitted.

3. The Master may, without any notice under subsection (1), if he is satisfied that any absentee or other person would be prejudiced by the non-performance by the absentee of any particular act in respect of any property of the absentee in the Republic, appoint and grant letters of curatorship to such person as he deems fit and proper, to perform such act on behalf of the absentee.

4. The Master may, if the value of the property of any minor or absentee or other person referred to in subsection (1) does not exceed R5 000, without any notice under that subsection, appoint and grant letters of tutorship or curatorship to such person or persons as he deems fit and proper as tutor or tutors or curator or curators, as the case may be.

74. Foreign letters of tutorship or curatorship

Whenever the provisions of section twenty-one apply, in terms of section twenty, to letters of executorship granted in any State, the said provisions shall mutatis mutandis apply also to letters of tutorship or curatorship so granted.

75. Notifications in respect of tutors and curators

The Master shall, whenever he has granted or signed and sealed letters of tutorship or curatorship or has made an endorsement under section seventy-two, to or in favour of any person, and whenever any such person ceases to be a tutor or curator, cause to be published in the Gazette and in one or more newspapers circulating in the district in which the minor or person under curatorship is ordinarily resident, or if he is not so resident in any district in the Republic, in one or more newspapers circulating in the area in which such minor or person owns property, a notice stating that a tutor or curator has been appointed to such minor or person, and specifying the names and addresses of the tutor or curator and of such minor or person, or stating that the tutor or curator has ceased to be a tutor or curator and specifying the names and addresses aforesaid, as the case may be.

76. Authority conferred by letters of tutorship and curatorship

1. The Master may —

a. by any letters of tutorship granted by him, authorize the tutor to administer the prop¬erty of the minor, and may by such letters also authorize the tutor to carry on, subject to any law which may be applicable, any business or undertaking of the minor; and

b. by any letters of curatorship granted by him, authorize the curator to do any one or more of the following, namely —
(i) to perform any particular act in respect of the property of the person concerned;
(ii) to take care of the said property;
(iii) to administer the said property; and
(iv) to carry on, subject to any law which may be applicable, any business or under¬taking of the person concerned.

2. The Master shall, by any such letters granted by him —

a. in any case referred to in paragraph (d) of subsection (1) of section seventy-two, confer upon the tutor or curator such powers as will give effect to the terms of the appointment by the Court or the judge; and

b. in any case referred to in paragraph (a), (b) or (c) of that subsection, or in subsection (2) of that section, if in terms of the will or other written instrument concerned, the curator is to administer the property of the person concerned, or if in terms of the will or other written instrument concerned the tutor or curator is to carry on any business or under-taking of the minor or other person concerned, authorize the tutor or curator to administer the property or, as the case may be, authorize the tutor or curator carry on such business or undertaking subject to any law which may be applicable.

77. Security by tutors and curators

1. Every person appointed or to be appointed tutor or curator as provided in section 72 (1) (d) or (2) or under section 73 or 74, shall, subject to the proviso to section 57 (3) of the Mental Health Act, 1973 (Act 18 of 1973), before letters of tutorship or curatorship are granted or signed and sealed, or any endorsement is made, as the case may be, and at any time thereafter when called upon by the Master to do so, find security or additional security to the satisfaction of the Master in an amount determined by the Master, for the proper performance of his functions.

2. Every person nominated as provided in paragraph (a), (b) or (c) of subsection (1) of section seventy-two to be a tutor or curator, shall be under the like obligation of finding security unless —

a. he has been nominated by will or written instrument executed before the first day of October, 1913, or if he is the parent of the minor, by will or written instrument executed before the commencement of this Act, and has not been directed by the will or instrument to find security; or

b. he has been nominated by will or written instrument executed after the first day of October, 1913, or if he is the parent of the minor, by will or written instrument executed after the commencement of this Act, and the Master has in such will or instrument been directed to dispense with such security; or

c. the Court shall otherwise direct:
Provided that if the estate of any such person has been sequestrated or if he has committed an act of insolvency or is or resides or is about to reside outside the Repub¬lic, or if there is any good reason therefor, the Master may, notwithstanding the provi¬sions of paragraph (a) or (b), refuse to grant letters of tutorship or curatorship until he finds such security.

3. The Master may by notice in writing require any tutor or curator (including any tutor or curator who would not otherwise be under any obligation of finding security) whose estate or whose surety’s estate has been sequestrated, or who or whose surety’s estate has committed an act of insolvency, or who is about to go or has gone to reside outside the Republic, or who is the parent of the minor or other person concerned and is or becomes a widower or widow or divorced and remarries, to find, within a period specified in the notice, security or additional security, as the case may be, to the satisfac¬tion of the Master in an amount determined by the Master, for the proper performance of his functions.

4. The costs of finding any security under this section shall be paid out of the income derived from the property concerned or out of the property itself.

5. If any default has been made by any tutor or curator in the proper performance of his functions, the Master may enforce the security and recover from such tutor or curator or his sureties the loss to the minor or person under curatorship.

78. Inventories by tutors and curators

1. A tutor or curator shall —

a. within thirty days after letters of tutorship or curatorship have been granted to him, or within such further period as the Master may allow, lodge with the Master an inventory in the prescribed form signed by him in person of all the property to be taken care of or administered by him;

b. thereafter, whenever he comes to know of any such property which is not mentioned in any inventory lodged by him with the Master, within fourteen days after he has come to know of such property, or within such further period as the Master may allow, lodge with the Master an additional inventory thereof so signed by him; and

c. if any immovable property is included in any such inventory, specify therein all parti¬culars known to him concerning such property.

2. A tutor or curator shall not dispose of any property which he has been appointed to take care of or to administer, if that property has not been mentioned in any inventory lodged by him with the Master, unless he does so in the ordinary course of any business or undertaking carried on by him as tutor or curator.

79. Returns by Masters to registration officers of immovable property included in inventory

1. The Master shall forthwith after receipt by him of an inventory under section seventy-eight in which immovable property has been included, furnish to the registra¬tion officer concerned a return specifying the name of the minor or other person con¬cerned and of the tutor or curator, and particulars of such property.

2. No registration officer who has been furnished with such a return, shall register any, transaction in respect of such property entered into by the tutor or curator concerned, except in pursuance of any will or written instrument by which that tutor or curator has been nominated or in pursuance of any authority granted under section eighty.

80. Restriction on alienation or mortgage of immovable property by natural guardian, tutor or curator

1. No natural guardian shall alienate or mortgage any immovable property belonging to his minor child, and no tutor or curator shall alienate or mortgage any immovable property which he has been appointed to administer, unless he is authorized thereto by the Court or by the Master under this section or, in the case of a tutor or curator, by any will or written instrument by which he has been nominated.

2. The Master may at any time authorize —

a. any alienation of immovable property belonging to a minor or to a person for the administration of whose property a tutor or curator has been appointed, if the value of the particular property to be alienated does not exceed the amount2 determined by the Minister from time to time by notice in the Gazette and the alienation would be in the interest of the minor or of such person, as the case may be; and

b. any mortgage or any such immovable property to an amount not exceeding in the case of any one such minor or person, the amount3 determined by the Minister from time to time by notice in the Gazette, if the mortgage is necessary for the preservation or improvement of the property or for the maintenance, education or other benefit of such minor or person, as the case may be.

2 Fixed at R100 000 in ON R1318 (GG 25456) of 19 September 2003.
3 Fixed at R100 000 in ON R1318 (GG 25456) of 19 September 2003.

81. Purchase by tutor or curator of property administered by him

If any tutor or curator or the spouse, parent, child, partner, employer, employee or agent of any tutor or curator, purchases any property which he has been appointed to administer, the purchase shall, subject to the terms of any will or written instrument by “which he has been nominated, be void, unless it has been consented to or is confirmed by the Court or the Master.

82. Payment to Master of certain moneys

Every tutor and curator shall, whenever he receives any money belonging to the minor or other person concerned, from any person other than the Master, forthwith pay the money into the hands of the Master: Provided that the foregoing provisions of this section shall not apply —

a. if the Court appointing the tutor or curator or if the Master otherwise directs; or

b. if any will or written instrument by which the tutor or curator has been nominated or by which the money has been disposed of, otherwise provides; or

c. to so much of the money as is immediately required —
(i) for the payment of any debt of the minor or other person; or
(ii) for the preservation or safe custody of any property of the minor or other person; or
(iii) for the maintenance or education of the minor or other person or any of his dependants; or
(iv) to meet any current expenditure in any business or undertaking of the minor or other person carried on by the tutor or curator.

83. Accounts by tutors and curators

1. Every tutor or curator shall —

a. on or before the date in every year which the Master may in each case determine, lodge with the Master a complete account in the prescribed form of his administration during the year ending upon a date three months prior to the date so determined, supported by vouchers, receipts and acquittances and including a statement of all property under his control at the end of such last-mentioned year, and if he carries on any business or undertaking in his capacity as tutor or curator, also a statement relating to such business or undertaking; and

b. if required to do so by the Master by notice in writing, produce, within a period specified in the notice, for inspection by the Master or by any person nominated by him for the purpose, any securities held by him as tutor or curator.

2. Any person who ceases to be tutor or curator shall, not later than thirty days thereafter, or within such further period as the Master may allow, lodge with the Master a complete account, in the prescribed form, of his administration between the date up to which his last account was rendered under subsection (1) and the date on which he ceased to be tutor or curator, supported by vouchers, receipts and acquittances, and including a statement of all property under his control immediately before he ceased to be tutor or curator.

84. Remuneration of tutors and curators

1. Every tutor and curator shall, subject to the provisions of subsection (2), be entitled to receive out of the income derived from the property concerned or out of the property itself —

a. such remuneration as may have been fixed by any will or written instrument by which he has been nominated; or

b. if no such remuneration has been fixed, a remuneration which shall be assessed according to a prescribed tariff and shall be taxed by the Master.

2. The Master may —

a. if there are in any particular case special reasons for doing so, reduce or increase any such remuneration; or

b. if the tutor or curator has failed to discharge his duties or has discharged them in an unsatisfactory manner, disallow any such remuneration, either wholly or in part.

85. Application of certain sections to tutors and curators

Sections 24, 26, 28 and 36, subsection (2) of section 42, sections 46 and 48, subsection (2) of section 49 and sections 52, 53, 54 and 56 shall mutatis mutandis apply with reference to tutors and curators: Provided that any reference in any of the said sections to a will shall, for the purposes of its application under this section, include a reference to any written instrument by which the tutor or curator concerned has been nominated.

53. Absence of executor from Republic

An executor shall not be absent from the Republic for a period exceeding 60 days unless —

a. the Master has before his departure from the Republic granted him permission in writing to be absent;

b. he complies with such conditions as the Master may think fit to impose; and

c. he has given such notice of his intention to be so absent as the Master may have directed.

54. Removal from office of executor

1. An executor may at any time be removed from his office —

a. by the Court —
(i) Sub-para. (i) deleted by s. 16 (a) of Act 86 of 1983.

(ii) if he has at any time been a party to an agreement or arrangement whereby he has undertaken that he will, in his capacity as executor, 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

(iii) if he 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 to effect or to assist in effecting such recommendation; or

(iv) if he 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

(v) if for any other reason the Court is satisfied that it is undesirable that he should act as executor of the estate concerned; and

b. by the Master —

(i) if he 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; or

(ii) 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; or

(iii) 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; or

(iv) if at the time of his appointment he was incapacitated, or if he becomes incapaci¬tated to act as executor of the estate of the deceased; or

(v) if he fails to perform satisfactorily any duty imposed upon him by or under this Act or to comply with any lawful request of the Master; or

(vi) if he applies in writing to the Master to be released from his office.

2. Before removing an executor from his office under subparagraph (i), (ii), (iii), (iv) or (v) of paragraph (b) of subsection (1), the Master shall forward to him by registered post a notice setting forth the reasons for such removal, and informing him that he may apply to the Court within thirty days from the date of such notice for an order restraining the Master from removing him from his office.

3. An executor who has not been nominated by will may at any time be removed from his office by the Master if it appears that there is a will by which any other person who is capable Of acting and consents to act as executor has been nominated as executor to the estate which he has been appointed to liquidate and distribute: Provided that if the non-production or non-disclosure of the will prior to the appointment of such first-mentioned executor has been due to the fault or negligence of the person therein nominated executor, the person so nominated shall be personally liable, at the instance of the Master or any person interested, to make good all expenses which have been incurred in respect of the appointment of such first-mentioned executor.

4. The Court removing any executor from his office may declare him incapable, during the period of his life or such other period as it may determine, of holding office as an executor.

5. Any person who ceases to be an executor shall forthwith return his letters of executorship to the Master.

55. Continuance of pending legal proceedings by remaining or new executor

1. No civil legal proceedings instituted by or against any executor shall lapse merely because he has ceased to be an executor.

2. The Court in which any such proceedings are pending may, upon receiving notice that such executor has ceased to be an executor, allow the name of any remaining or new executor to be substituted for the former, and the proceedings shall thereupon be con¬tinued as if they had originally been instituted by or against such remaining or new executor.

56. Discharge of executors, and proceedings against discharged executors

1. Upon the completion to the satisfaction of the Master of the liquidation and distribution of a deceased estate, the executor shall, subject to the provisions of section seventeen of the Estate Duty Act, 1955 (Act 45 of 1955), be entitled to obtain his discharge from the Master.

2. No person shall institute any legal proceedings against any person who has been discharged as executor under subsection (1), in respect of any claim against the deceased estate or any benefit out of that estate: Provided that the provisions of this subsection shall not exempt any such person from liability in respect of any fraudulent dealing in con¬nection with the estate or the liquidation or distribution thereof.

3. (a) After two years have elapsed as from the date upon which any person has been discharged as an executor, he may, with the consent in writing of the Master, destroy all books and documents in his possession relating to the estate of which he was the executor.
(b) Paragraph (a) shall apply also in relation to any deceased estate liquidated and distributed prior to the date of commencement of this Act.

19. Competition for office of executor

If more than one person is nominated for recommendation to the Master, the Master shall, in making any appointment, give preference to —

a. the surviving spouse or his nominee; or

b. if no surviving spouse is so nominated or the surviving spouse has not nominated any person, an heir or his nominee; or

c. if no heir is so nominated or no heir has nominated any person, a creditor or his nominee; or

d. the tutor or curator of any heir or creditor so nominated who is a minor or a person under curatorship, in the place of such heir or creditor:
Provided that the Master may —
(i) join any of the said persons as executor with any other of them; or
(ii) if there is any good reason therefore, pass by any or all of the said persons.

20. Application of section 21 to foreign letters of executorship

1. The Minister may by notice in the Gazette declare that the provisions of section twenty-one shall, as from the date fixed by such notice or during a period specified in such notice, apply to letters of executorship granted in any State so specified, and may by like notice withdraw or amend any such notice.

2. The provisions of the said section applying to letters of executorship granted in any State, shall apply also to letters of executorship granted by any consular court of that State.

3. Any proclamation issued under section forty of the Administration of Estates Act, 1913 (Act 24 of 1913), shall be deemed to have been issued under subsection (1).

21. Sealing and signing of letters granted in a State

Whenever letters of executorship granted in any State and authenticated as provided in the rules made under section 6 (1) (i) of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), are produced to or lodged with the Master by the person in whose favour those letters have been granted or his or her duly authorized agent, those letters may, subject to sections 22 and 23, be signed by the Master and sealed with his or her seal of office, and such person shall thereupon with respect to the whole estate of the deceased situate in the Republic, for the purposes of this Act be deemed to be an executor to whom letters of executorship have been granted by the Master: Provided that before any such letters are signed and sealed a duly certified and authenticated copy of the will (if any) of the deceased and an inventory of all property known to belong to him within the Republic shall be lodged with the Master.

22. The Master may refuse to grant, endorse or sign and seal letters of executorship in certain cases

1. If it appears to the Master or if any person having an interest in the estate lodges with the Master in writing an objection that the nomination of any person as executor testamentary or assumed executor is or should be declared invalid, letters of executorship or an endorsement, as the case may be, may be refused by the Master until —

a. the validity of such nomination has been determined by the Court; or

b. the objection has been withdrawn; or

c. the person objecting has had a period of fourteen days after such refusal or such further period as the Court may allow, to apply to the Court for an order restraining the grant of letters of executorship, or the making of the endorsement, as the case may be.

2. The Master may —

a. if any person to whom letters of executorship are to be granted or in whose favour an endorsement is to be made under section fifteen, or at whose instance letters of executor¬ship are to be signed and sealed under section twenty-one, resides or is outside the Republic and has not chosen domicillium citandi et executandi in the Republic; or

b. if any such person could, if he is appointed as executor, be removed from his office under subparagraph (ii), (iii) or (iv) of paragraph (a) of subsection (1) of section fifty-four or subparagraph (iii) of paragraph (b) of that subsection; or

c. if any such person fails to satisfy the Master by a declaration under oarh that letters of executorship have not already been granted or signed and sealed by any other Master in the Republic,

refuse to grant letters of executorship or to make the endorsement or to sign and seal the letters of executorship, as the case may be.

23. Security for liquidation and distribution

1. Subject to the provisions of section twenty-five, every person who has not been nominated by will to be an executor shall, before letters of executorship are granted, or signed and sealed, and thereafter as the Master may require, find security to the satisfac¬tion of the Master in an amount determined by the Master for the proper performance of his functions: Provided that if such person is a parent, spouse or child of the deceased, he shall not be required to furnish security unless the Master specially directs that he shall do so.

2. Subject to the provisions of section twenty-five, every person nominated by will to be an executor and every person to be appointed assumed executor shall be under the like obligation of finding security unless —

a. he is the parent, child or surviving spouse of the testator or has been assumed by such parent, child or spouse; or

b. he has been nominated by will executed before the first day of October, 1913, or assumed by the person so nominated, and has not been directed by the will to find security; or

c. he has been nominated by will executed after the first day of October, 1913, or assumed by the person so nominated, and the Master has in such will been directed to dispense with such security;

Andreas Springer
Springer -Nel Attorneys
Cape Town, South Africa

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