WILLS & ESTATES

Facts: In 2006, the late Dr Sabdia instituted review proceedings against Mr Soma in the Land Claims Court, relating to an immovable property. Dr Sabdia died on 5 November 2013, prior to the final adjudication of the review proceedings. His sons were appointed as executors of Dr Sabdia’s estate (the executors). Mr Soma brought an eviction application against the estate of Dr Sabdia, the heirs and three tenants. The eviction application was successfully opposed by the executors, represented by attorneys Mothle Jooma Sabdia Incorporated (MJS). The court dismissed the application with costs on a punitive scale. MJS set down the bill of costs for taxation before the Taxing Master of the High Court. The Taxing Master upheld the objection by Mr Soma that the estate was not entitled to recover the costs awarded by the court, save for the out-of-pocket expenses. The Taxing Master ruled that Mr Shiraz Sabdia, who was also an attorney practicing at MJS, although he acted in his professional capacity on behalf of the estate in the lawsuit, was not entitled to remuneration as an attorney, notwithstanding his co-executor approval. In addition, the Taxing Master found that the executor’s remuneration covered all the work done on behalf of the estate, and that neither Mr Shiraz Sabdia nor MJS was entitled to recover legal costs for work done in their professional capacity.

Appeal: The executors instituted review proceedings, challenging the decision of the Taxing Master. The High Court dismissed the application with costs. Dissatisfied with the outcome of the application, the executors sought leave to appeal the whole judgment and order of the High Court. The High Court dismissed the application, with costs. Undaunted, the executors petitioned this court for leave to appeal. This matter concerns the following cardinal questions of law. First, whether the executor, who is an attorney and acts in his professional capacity on behalf of the deceased estate in a lawsuit, was not entitled to remuneration as an attorney, notwithstanding the express provisions of the last will and testament (the will). Second, whether the decision to disallow the payment of such fees falls within the discretion of a Taxing Master.

Discussion: The executors asserted that the entitlement to remuneration is supported not only by the terms of the will but also by the provisions of sections 51(1)(a) of the Administration of Estates Act 66 of 1965, which permits the testator to determine the executor’s remuneration. Furthermore, they posited that the context and purpose of clause 4 of the will (the remuneration clause) should be the determining factors in its interpretation. Further, that this purpose and context is to be found in clause 5.3 of the will, which should be read with the remuneration clause. Upon applying the principles of interpretation, the language utilised in the remuneration clause is characterised by its clarity and directness. The direction provided is lucid and unequivocal, as it states that the "executors shall be entitled to charge and shall be paid all usual professional fees and other fees and charges from business transacted". The clause explicitly grants the executors the authority to charge for professional fees. In addition, it specifies that they have the right to charge for time spent and actions taken by them or their associates in connection with the administration of the estate. The remuneration clause pertains to fees levied based on the duration of the professional services rendered. In other words, it is time based. Conversely, the statutory rate for executors is a fixed percentage rate, regardless of the time spent or the nature and amount of work performed by them. It is not time based, but performance based. This demonstrates that Dr Sabdia intended his executors to be recompensed for any professional, and hence legal, services actually rendered by them.

Findings: In the context of the review application in the Land Claims Court, it is important to note that Dr Sabdia had consistently been represented by MJS. It is evident from the remuneration clause and clause 5.3 that Dr Sabdia desired the continued legal representation of MJS in the Land Claims Court litigation, even after his demise. Section 51(1)(a) expressly makes provision for the payment of remuneration, as may have been fixed by the deceased in his will. It negates the conclusion reached by the High Court that such remuneration is ultra vires the settled principles, contra bono mores and in conflict with the fiduciary duties of an executor. The High Court unfortunately did not construe section 51(1) correctly. It ought to have recognised that there are two distinct legislative frameworks in section 51(1) that govern the payment of an executor’s remuneration. Section 51(1) permits a testator to determine remuneration of an executor, including the remuneration that may be earned by an executor who renders professional services to the estate. The legislative scheme clearly envisages two fee payment regimes, namely, the one determined by the testator or the one prescribed by the statute. The remuneration clause and clause 5.3 of the will sanctioned the payment of professional fees due to the executors and MJS.

Order: The appeal succeeds with costs. The order of the High Court is set aside and replaced. The decision and ruling of the Taxing Master are set aside. The allocator of the Taxing Master is set aside. The taxation of the bill of costs is referred to the Taxing Master.

MBATHA JA (HUGHES JA, KEIGHTLEY JA, UNTERHALTER JA, and COPPIN AJA concurring)

Facts and issue:  The applicant is dissatisfied with the way the executor administers the deceased estate. She complains about inordinate delays in the finalization of the estate as well as various acts by the executor including infidelity. The applicant seeks the removal of the executor in terms of the provisions of Section 54(1)(a) of the Administration of Estates Act 66 of 1965, an order that the executor may not charge a fee for the services he had rendered up to now and that the Master appoint another executor for the deceased estate.

Discussion: The applicant alleges that the executor has failed to adhere to his obligations in terms of the Act and by doing so has caused substantial harm to the deceased estate. The executor admits that he has yet to be appointed a director of the companies in the deceased estate. While this must surely have led to a delay in finalizing the estate, the applicant has shown no real damage suffered by this failure to the estate. The executor has not strictly complied with the provisions of Section 26 of the Act in respect of his appointment as interim director for the companies in the deceased estate, such failure does not warrant the executor’s removal from office. The executor has not published a liquidation and distribution account within the time provided for in Section 29. It is still not done and that is after some 4 years since his appointment. The executor says that this is due to various difficulties he has experienced with the deceased estate. The executor has failed in his duties. However, the executor says that the Liquidation and Distribution account is almost ready to be submitted.

Findings: The applicant did not seek relief in terms of Section 36 of the Act. The executor produced a draft liquidation and distribution account. The only issues the applicant has with the draft account are the inclusion of the second respondent’s claim and the payments made to the executor. The process of the finalizing of the deceased estate has at least proceeded to this point, albeit with undue delay. It would not benefit the deceased estate to remove the executor at this stage. The court does not consider each proven contravention in isolation. It considers all the contraventions as a whole. The court weighed this against the time that has already elapsed, the stage in the finalization of the deceased estate and the fact that none of the other heirs seek the executor’s removal. Having regard to all the factors, the executor should not be removed from office.

Order: The application is dismissed.

Facts: Mr Beukman (applicant) is the eldest son of the deceased and is a co-beneficiary to the will of the deceased, together with Ms Loubser (second respondent). At the time of his death, the deceased was involved in life-partnership with the second respondent. Although the deceased previously executed other wills, the one which was later accepted by the Master uncontested provides for Ms Pieterse (first respondent) and the second respondent to be appointed as executors. The applicant’s complaint is that, despite repeated requests, the executors have failed to take the prescribed steps in the furtherance of the administration of the deceased estate, and specifically the lodgement of the liquidation and distribution account. Neither have they provided the applicant with requested banking and accounting documents relating to the estate, specifically in relation to a guesthouse which continues to operate at the property of the deceased as an Air B&B business.

Application: The applicant seeks the removal of the first and second respondents as executors of the estate of the late Mr Beukman and an order directing the Master to appoint a new executor. The applicant’s view is that the second respondent has a conflict of interest between her duties as an executor and her interests as a beneficiary because she continues to reside at the property which is owned by the deceased estate and continues to earn an income from the Air B&B business, at the expense of the applicant, who is the only other beneficiary in terms of the will.

Discussion: At the heart of the dispute between the parties is the interpretation of the provisions of the will, according to which, the guesthouse is to continue to be run in the same way as it has been since inception. There is a way to interpret the will in such a manner that the business continues to run, operated and occupied only by the second respondent. In such event, each beneficiary receives their share of the income generated from the business, but in addition, the second respondent occupies the property for free. The second respondent’s alleged ownership of the guesthouse is neither supported by the terms of the will, nor by any evidence before the court. The applicant has requested information relating to the income of the guesthouse for a long time before instituting these proceedings, with the second respondent refusing to give such account, on the basis that the income is hers to retain.

Findings: The facts indicate that the second respondent harbours a clear conflict of interest and is intransigent with regard thereto. No legal basis is revealed in the evidence for the second respondent’s claim to retain the guesthouse income. It would be just an equitable for the second respondent to be removed as an executor. Her interests as a beneficiary in this matter are interfering with her duties as an executor. It is evident that there has been a complete breakdown of trust between the applicant and the respondents, and he has lost all faith in them as executors. The first respondent has failed to display impartiality in keeping with her fiduciary duties, and has instead enabled the second respondent’s conduct, which the applicant regards as rubber-stamping. The view held by her, in support of the second respondent, that the income of the Air B&B belongs to the second respondent and not the deceased estate, is contrary to the clear terms of the will.

Order: The first and second respondents are removed as executors of the deceased estate of the late Mr Beukman. The Master is ordered to appoint a new executor within 30 days. The first and second respondents are to pay the costs on an attorney and own client scale.

MANGCU-LOCKWOOD J

Facts and issue: This matter concerns disputes arising from the interpretation and execution of the late Cronje's Last Will and Testament. The primary focus is the alleged non-compliance by Mr Robertson with what the respondent contends are certain conditions imposed by the Will, which have led to multiple legal proceedings, including Mr Robertson’s main application seeking the removal of the executor of the deceased’s estate and the executor's counter-application seeking declaratory relief regarding the interpretation of the Will and its conditions.

Discussion: The central question concerns the failure, or purported failure, by Mr Robertson to fulfil certain conditions imposed by the deceased’s Will as a prerequisite to inheriting a 51% membership interest in Kitsch Kool Properties CC, a business trading as Big Blue. The executor contends that conditions precedent for Mr Robertson’s inheritance were not met, specifically arguing that Mr Robertson failed to ensure the legacies to Noel and Chiwandire were paid as stipulated. This failure, the executor asserts, results in the forfeiture of Mr Robertson’s claim to the bequest. Mr Robertson, on the other hand, maintains that the financial obligations outlined in the Will were not imposed on him personally but were directed at the close corporation, Big Blue, in which he already held a 49% membership interest. He argues that the payments to the legatees were made from the CC and that he has fully complied with the Will’s requirements. He also challenges the executor’s conduct in administering the estate, accusing him of delays, inaccuracies in the liquidation and distribution account, and mismanagement. The crux of the dispute revolves around the interpretation of the Will and whether it imposed personal obligations on Mr Robertson to make the payments to the legatees or merely intended for these payments to be made from the deceased’s business interest in Big Blue.

Findings: The conclusion that Mr Robertson’s rights vested immediately upon the death of the testator aligns with the overall intention of the testator as reflected in the Will. The interpretation that the bequest to Mr Robertson was subject to a modus rather than a suspensive condition is not only consistent with the language of the Will but also supports the practical implementation of the testator’s wishes. The testator’s explicit requirement that the payments to Mrs. Noel and Chiwandire be made “payable from the Big Blue business interest” suggests that the business interest needed to vest in Mr Robertson immediately upon the testator’s death. Mr Robertson’s right to inherit the 51% membership interest in Kitsch Kool Properties CC vested immediately upon the death of the testator, subject to the obligations arising from the modus. Mr Robertson has not established sufficient grounds to justify the claim for the removal of the executor.

Order: The application and the counter-application are dismissed.

Facts and issue: This is a family dispute between the stepmother, supported by her son on the one hand, and her three stepsons on the other. The dispute emanates from the special bequest that the applicant requires to enforce from her late husband’s will. The respective parties are firm in asserting their rights in respect of immovable property which was owned by the applicant’s husband and the respondents’ father (the testator), who died testate. The property is in full use of the applicant by virtue of the usufructuary rights provided for in the will. The property is now registered in the names of the respondents in accordance with the provisions of the testator’s will.

Discussion: The respondents argued that the testator made a calculated move when he made the will. According to them, the testator did not want to leave the applicant with any disposable cash because of his fear that she would be easily influenced by her brother. That was denied by the applicant to be the case. If indeed that is so, in such circumstances she enjoys an unencumbered or unrestricted right to sell the property.  In fact, that is sanctioned by the special bequest as the testator did not want the applicant to fall into hardship, but to enjoy the comfort she was accustomed to when the testator was alive. When the will, including the special bequest, is interpreted purposefully, the property was meant to cushion the applicant in times of need.

Findings: The intention of the testator as expressed in the will is clear and unambiguous. It was to bequeath the entire estate to the four respondents in equal shares, but to limit the effect of the bequest to be subject to the full usufruct as expressed in the special bequest. This shows that the intention of the testator was to restrain the full effect of the dominant clause by what is referred to by the testator as ‘full usufruct’. The intention of the testator was to have the co-existence of the dominant clause and the special bequest in the will. In terms of the will, the applicant may dispose of any asset.

Order: The first to the fourth respondent’s ownership rights the property is limited by and subject to the applicant’s rights arising from the special bequest recorded in the will of the testator and reflected in the title deed to the property and Notarial Deed.

Facts and issue: The deceased passed away after he had been diagnosed with cancer a mere two months before. The applicant lodged all necessary documents to report the estate with the Master of the High Court. The Master rejected the Will as the it does not comply with the provisions of s 2(1)(a)(iv) of the Wills Act 7 of 1953 in that the Will consists of more than one page and only the last page thereof had been signed by the deceased and the witnesses. The applicant seeks an order that the Master accepts the document as the valid Will of the testator.

Discussion: The crux of the respondent’s (biological daughter of the deceased) opposition to the application is that the applicant has failed to prove that the Will contains or is a true reflection of the deceased’s intentions. The respondent effectively disputes the requirements that the Will was drafted by the deceased and that he intended it to be his will. As far as all the grounds advanced by the respondent are concerned, there exists no factual basis upon which the version by the applicant, stands to be rejected. Her version is also confirmed by the two witnesses who signed the Will, the most important being the deceased’s uncle who was present when the Will was drafted by the deceased. According to Mr Rawson, the applicant has failed to allege and prove sufficient surrounding circumstances to support her claim that the deceased executed the Will or intended the Will to contain his testamentary wishes. This is also not correct.

Findings: The uncontested facts show that the applicant concluded a customary marriage with the deceased, which customary marriage was confirmed by the Department of Home Affairs by the issuing of the abridged marriage certificate. Approximately four years later the deceased was diagnosed with cancer. Soon thereafter he decided to execute a Will which resulted in the document currently before court. There is no reason as contended by Mr Rawson why the deceased must or should have discussed his intention to bequeath his entire estate to his wife before executing the Will. In fact, bequeathing one’s estate to your spouse is nothing out of the ordinary. The applicant has succeeded in showing that the Will was drafted by the deceased with the intention to be his last will and testament.

Order: The Master of the High Court is ordered to accept the document as the last Will of the deceased.

Facts and issue: This is an application whereby the applicant firstly, seeks the removal of the respondent as the executrix of the deceased and secondly, that the second respondent be ordered to return her letter of appointment to the Master within a specified period. Thereafter, the Master appoint Ms Madeline Peyper as well as any such person as necessary as the executors in the estate as soon as practically possible. The applicant contends that the respondent was not duly appointed as the executrix of the estate because LM was not authorised by the family to nominate the respondent and her signature that appears on the documents was forged.

Discussion: The courts have been slow to interfere with the discretion of the executor unless it is clear that the executor abused his authority and acted in serious contravention of the law. The applicant complaint about the respondent’s appointment as the executrix saying her signature was forged. The court does not agree with her submission, as it is unfounded and baseless and was only referred to in the heads of argument. The applicant also complained when she noticed that P was allotted 50% of the inheritance because she was mentioned and identified as Dr M’s child. It appears that this became the main issue between her and the respondent regarding the estate. It is evident that when the applicant applied for P’s birth certificate from Lesotho Home Affairs, the intention was to strengthen her case against the respondent. It is in that period where she applied to the Department of Home Affairs in South Africa for the change of parenthood of P, there is no reply provided for her request. At this stage, P is legally Dr M’s child.

Findings: The applicant has not convinced the court that the alleged disagreement with the respondent as well as her loss of trust and confidence in the respondent serves as sufficient reasons for the removal of the executrix. On basis of the authorities and the evidence presented on behalf of the respondent, it is not desirable nor is it in the best interest of the estate and the heirs to remove the respondent as the executrix of the estate. There is no evidence on a balance of probabilities suggesting that the current executrix must be replaced. The application is found not to have merits on all the grounds raised by the applicant.

Order: The application is dismissed.

Facts: The case involves a testamentary dispute between seven siblings in relation to the will of their late mother. The deceased died leaving a will that nominated Mr Gil as executor to her estate. All seven children are to inherit equally. The only issue in relation to the will is Mr Gil’s executorship. Of the seven siblings, five (or their deceased estates), complain about the executorship of their brother. The application is brought by three of the siblings and the deceased estates of two of the siblings who have died since the death of their mother. They apply to remove their sibling and co-heir from office as executor to the deceased estate of their mother.

Application: The applicants seek to have Mr Gil declared disqualified from receiving the benefit of executorship based on section 4A of the Wills Act 7 of 1953 and, in the alternative, that he be removed as executor under section 54 of the Administration of Estates Act 66 of 1965. Mr Gil brings a counter-application in terms of which he seeks to be declared competent to receive the benefit which accrued to him under the will in terms of section 4A(2)(a) and (b) of the Wills Act. The benefit in issue is his right to be executor.

Discussion: The immovable property which comprises the bulk of the South African estate of the deceased was sub-divided. The erven are valuable and are zoned for commercial use. It is these properties which are the main subject matter of the applicants’ complaints. Mr Gil has variously expressed the wish personally to purchase certain or all the erven. The applicants wish to market the properties and sell same at the highest price which can thus be achieved on the open market whilst Mr Gil wishes the properties to be sold by way of public auction and without a reserve price. The applicants allege that there is method in Mr Gil’s approach to the mechanism of the sale. They contend that he is financially able to bid at the auction and that he wishes to do so. They are concerned that an auction without reserve would result in lower prices being obtained and that Mr Gil would, qua executor, have some insight into the auction process. Mr Gil has been involved in conducting business operations at the properties for some years. He is a 25% interest holder in Meatnet CC which has been a tenant of the property. The applicants contend that, because of the interest of Mr Gil in Meatnet, it has, over the years, paid rental at below the market-related rental.

Findings: There are amounts which are outstanding as to the rental and other expenses arising out of the tenancy of Meatnet which are due by Meatnet to the deceased estate. The applicants have expressed a lack of confidence in the willingness of Mr Gil to pursue this claim because of his interest in Meatnet. There is also the dismay expressed that Mr Gil, who acted as both landlord and tenant of the properties, allowed Meatnet to fall into significant arrears. The arrears are alleged to be almost R1 million. A further concern expressed by the applicants is that Mr Gil did not heed their request that he execute the landlord’s hypothec over the movables of Meatnet. They contend that he failed to do this because of his personal interest in Meatnet. What is particularly troubling is Mr Gil’s refusal to take the views of the applicants into account in relation to the disposal of the properties. The executor has refused to entertain the applicants’ proposal of a sale by way of private treaty. The disagreeing heir as to method of sale is Mr Gil himself. Mr Gil has not sought the approval of the Master as to the method of sale. This involves a central conflict of interest which meets the requirements of section 54(1). There are also the further conflicts of interest relating to the rental and other amounts owed by Meatnet in respect of the properties. The applicants have made out a case as to their inherent mistrust of Mr Gill. Mr Gil has given them real cause for concern.

Order: The application succeeds and the respondent is disqualified from occupying the position and is removed as executor of the deceased estate of Rosa da Conceicao Gil. The respondent’s counter-application is dismissed.

FISHER J

Facts: The applicant’s father, Mziwetemba Solani (the deceased), operated a taxi business during his lifetime and was affiliated with the Cape Amalgamated Taxi Association. As of the date of death, the deceased had about 18 taxis. According to the applicant, the taxi business generated an approximate income of R40,000 per week collected by the deceased and his wife. In November 2023, the deceased was shot by unidentified assailants in Gugulethu. In February 2024, the deceased's wife was gunned down in the Nyanga location by unknown assailants. The applicant avers that the taxi business continues to operate and defaulted on monthly instalments for some of the taxis in the amount of R250,776.25. The applicant asserts that unknown individuals are currently collecting the income from the business to the prejudice of the deceased estate.

Application: An ex parte application in which the applicant, who is the duly appointed executrix of the deceased estate, seeks an order in terms of section 26(3) read with section 102 of the Administration of Estates Act 66 of 1965 for the issuance of a warrant for search and seizure of all assets registered in the name of the deceased as of the date of his death. In addition, the applicant seeks an order that the sheriff of the court be authorised to enter, search and seize several motor vehicles wherever they may be found and that these vehicles be delivered to the applicant’s custody.

Discussion: In terms of section 26(2), if the executrix, such as the applicant in the present matter, has reason to believe that any property, book or document is concealed or otherwise unlawfully withheld from her, she may apply to the magistrate having jurisdiction for a search warrant mentioned in section 26(3). Section 26 holds significant importance as it outlines the specific requirement of applying to a magistrate as part of a legal process or procedure. Before a magistrate may exercise his discretion to issue a warrant in terms of the section, it must appear to him that there are reasonable grounds for suspecting that any property, book or document belonging to a deceased estate is either concealed in any of the ways set out in the section or is otherwise unlawfully withheld. Section 1 of the Administration of Estates Act delineates a clear differentiation between a magistrate and the High Court.

Findings: Section 26 explicitly delineates the process for obtaining a warrant to recover assets or documents for a deceased estate. It regulates the procedural requirements that must be adhered to prior to the issuance of such a warrant. The section envisages that an application must be to a magistrate’s court having jurisdiction. The section does not envisage the High Court to hear such an application. The applicant instituted this application in the wrong forum. The High Court enjoys inherent jurisdiction, however, the exercise of the inherent jurisdiction of this court must not encroach upon the authority of the magistrate's court. Such action would undermine the legislative authority of Parliament.

Order: The application is struck off the roll. No cost order is made.

LEKHULENI J

Facts and issue: Application to declare the customary marriage between the deceased and the respondent void, to remove the respondent as executrix, and appoint Marina Naydenova Attorneys as the executors of the estate. The applicant states that she does not know the respondent and thinks she is colluding with the deceased’s other family members to defraud her and her children by taking possession of the deceased’s estate and depriving them of their rights to the inheritance.

Discussion: There is very little evidence other than the respondent’s affidavit that the requirements have been complied with. There are two affidavits by two men who are alleged to be the deceased's brothers, stating that they witnessed the white wedding on 21 December 2019. However, neither the deceased’s adult daughter nor the applicant knows the two gentlemen, who are also 30 years younger than the deceased. Be that as it may, the date of the conclusion of the alleged customary marriage is 3 March 2019, so the affidavits do not assist. The fraudulent first marriage certificate and the whiff of deception with the signature on the lobola letters severely undermine the version of the respondent. As the story progresses, the respondent gets more tangled in her dishonesty. The Master appointed the respondent as executrix based on a marriage certificate that Home Affairs indicates is a falsified document. That appointment thus seems to have been made on information now known to be fraudulent.

Findings: The possible fraudulent actions of the respondent raise enough concern that her continuation in office will be prejudicial to the proper administration of an estate and be to the detriment of the beneficiaries of that estate. Because the respondent has now gone missing and her lawyers applied to declare her presumed dead, it also means that she needs to be removed and replaced by somebody who can see that the estate is administered correctly to the benefit of the deceased’s five children.

Order: The customary marriage of the first respondent and the deceased, which allegedly took place on 3 March 2019, is declared null and void. The third respondent are to appoint Marina Naydenova Attorneys as executors of the estate, upon provision of sufficient bond of security to the value of the estate.

Facts: Mr De Kock and the deceased were married  to each  other. Their marriage was terminated by her death in 2018. Two minor children were born of the marriage. The deceased and Ms Scholtz were identical twins. Ms Scholtz is thus Mr De Kock’s former sister-in-law and the aunt of the two minor children. The minor children are the joint heirs in the estate of the deceased. In terms of the deceased’s will, Ms Scholtz is the executrix in the deceased estate. She is also a practising attorney. In 2014 the deceased was awarded R7,067,736.80 by the RAF following injuries she had sustained in a motor vehicle accident. The funds were paid into the trust account of her attorneys. The deceased instructed her attorneys to pay over the nett proceeds of R5,600,000 into the trust account of her twin sister, Ms Scholtz. The funds were transferred to an investment account managed by Ms Scholtz.

Application: Before the court of first instance, Mr De Kock brought the application in his nominal capacity as the guardian of his two minor children. He sought an order compelling Ms Scholtz to render an account for the R5,600,000 and for the debatement of that account, and for the payment to the deceased estate of whatever amount was found to be due to it. The application was dismissed by the court of first instance. On appeal to it, the full court upheld Mr De Kock’s appeal.

Discussion: The court of first instance accepted Ms Scholtz’s explanation that she had expended the payments on the specific instructions of the deceased, and that the deceased was satisfied with how the monies were disbursed. On appeal, the issue remains whether Ms Scholtz was obliged to account for the R5,600,000. Mr De Kock predicated the duty to account on his allegation that Ms Scholtz stood in a fiduciary relationship with the deceased. Ms Scholtz emphasised that she never acted as the deceased’s attorney in relation to her RAF award. The money was kept in Ms Scholtz’s trust account only for four days. Once the money was transferred to the investment account, Ms Scholtz’s mandate as an attorney, and any ancillary fiduciary relationship there might have existed, was terminated.

Findings: The records reveal that the bulk of the money was paid to the deceased. It is common cause that the twin sisters shared a warm, close and trusting relationship. The funds were under Ms Scholtz’s control for approximately four years before the deceased’s passing. This is sufficiently long enough for the deceased to have demonstrated her dissatisfaction, if any, about Ms Scholtz’s management of her funds. There is no hint of that. It is also important to bear in mind that the deceased was a person with full mental capacity. She was entitled to dispose of her assets in a manner she deemed fit during her lifetime. Her children, in whose interests Mr De Kock purports to act, have no right at law to question her financial decisions during her lifetime.

Order: The appeal is upheld with costs including costs of two counsel. The order of the full court is replaced with one dismissing the appeal.

MAKGOKA JA and MBHELE AJA (NICHOLLS JA, HUGHES JA and MOLEFE JA concurring)

Facts: Prior to his death, the testator executed his will before two witnesses. In his will the testator appointed Klassen (erstwhile executor) as an executor. In terms of the will, amongst others, the erstwhile executor was given powers to sell or rent out the immovable property of the testator. The applicants entered into a sale agreement with the erstwhile executor to the estate. In terms of the sale agreement the erstwhile executor sold two immovable properties to the applicants. The applicants took possession of the properties and are liable to pay rent until the date of the registration. The applicants remain in possession of the properties. Before the registration of transfer was affected, the erstwhile executor was removed as the executor. Due to the failure of the erstwhile executor to pass the transfer to the applicants, they instituted legal proceedings against him to enforce the terms and conditions of the agreement of sale.

Application: The applicants seeks to enforce the terms of the sale agreement that was entered into between them and the former executor, in terms of which two immovable properties were sold by the erstwhile executor to the applicants. The issue to be determined arises in connection with clause 4.1.1. of the will of the testator and the provisions of section 47 of the Administration of Estates Act 66 of 1965. The core dispute revolved around whether the provisions of section 47 override clause 4.1.1. of the will in question.

Discussion: It is submitted on behalf of the respondents that the respondents as well as the other heirs to the estate of the testator were always against the sale of the properties as they wanted to protect the legacy by continuing with what the testator had started. It is also asserted that the erstwhile executor was aware of these wishes but chose to act as he deemed fit. It is strongly asserted that the consent of the beneficiaries should have been obtained prior to the sale agreement being concluded. So, the argument continues that despite the clause of the will, the heirs with interest in the property should have approved the conditions in writing. It is the assertion of the applicants that the estate, including the respondents, are bound by the agreement of sale and that the enforceability thereof has not been affected by the change in executorship. Additionally, the applicants assert that no steps have been taken by the respondents to render the agreement of sale null and void.

Findings: It is evident from a reading of the will that the testator’s intention was to give the erstwhile executor unfettered discretion as far as the sale and renting of the immovable property are concerned. The terms of the will reveal that the erstwhile executor had absolute discretion to sell or to lease the immovable property and to determine the price. The testator in his will has used words like “My executor’s decision shall be final and not reviewable in any forum.” The will is detailed as far as the powers of the executor in selling the immovable property. The testator stated in his will that the executor can deal with his immovable property as he saw fit. The use of the words "unless it is contrary to the will of the deceased", allows a testator to direct a contrary intention to the legislative limits imposed by section 47. It means that the statutory provision applies unless a contrary intention appears from the will. In other words, the provisions of section 47 do not apply if a contrary intention appears in the will. This grants the testator the powers to dispose of his property in the way he deems fit.

Order: The respondents, within 45 days from the date of the order, shall take all steps necessary which shall include, but shall not be limited to, signing all documentation to pass transfer of the immovable properties to the applicants.

NZIWENI J