Administration of Estates Act 66 of 1965 | South African Government

66 of 1965

Administration of Estates Act, 1965 (No. 66 of 1965)

[please note: this is the text from the original gazetted Act and does not include any amendments]

Act

to consolidate and amend the law relating to the liquidation and distribution of the estates of deceased persons, the administration of trust property given under the control of any person by a deceased person, and of the property of minors and persons under curatorship, and of derelict estates;
to regulate the rights of beneficiaries under mutual wills made by any two or more persons;
to amend the Mental Disorders Act, 1916 [repealed in July 1977]; and
to provide for incidental matters.

(English text signed by the State President.)
(Assented to 21 May 1965.)

BE IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:

PRELIMINARY

Definitions.

1. In this Act, unless the context otherwise indicates-

“absentee" means any person of whom the Master, after enquiry, believes that his whereabouts are unknown and that he has no legal representative in the Republic;

"accountant" means a person registered as an accountant and auditor under the Public Accountants' and Auditors' Act, 1951 (Act No. 51 of 1951);

"act of insolvency" means an act of insolvency in terms of section eight of the Insolvency Act, 1936 (Act No. 24 of 1936);

"administrator" means any person who is authorized to act under letters of administratorship granted or signed and sealed by a Master, or under an endorsement made under section fifty-nine;

"appraiser" means an appraiser appointed or deemed to have been appointed under section six;

"Court" means the provincial division of the Supreme Court having jurisdiction, or any judge thereof, and includes, whenever a matter in relation to which this expression is used is within the jurisdiction of a local division of the Supreme Court, that local division or any judge thereof;

"curator" means any person who is authorized to act under letters of curatorship granted or signed and sealed by a Master, or under an endorsement made under section seventy-two;

"executor" means any person who is authorized to act under letters of executorship granted or signed and sealed by a Master, or under an endorsement made under section fifteen;

"heir" includes a legatee and a donee under a donatio mortis causa;

"immovable property" means land and every real right in land or minerals (other than any right under a bond) which is registrable in any office in the Republic used for the registration of title to land or the right to mine;

"letters of administratorship" includes any document issued or a copy of any such document duly certified by any competent public authority in any State, from which it appears that any person named or designated therein has authority to administer for the benefit, in whole or in part, of any other person, any property given under the control of such first-mentioned person by a deceased person to be so administered;

"letters of curatorship" includes any document issued or a copy of any such document duly certified by any competent public authority in any State by which any person named or designated therein is authorized to act as curator of any property belonging to a minor or other person;

"letters of executorship" includes any document issued or a copy of any such document duly certified by any competent public authority in any State by which any person named or designated therein is authorized to act as the personal representative of any deceased person or as executor of the estate of any deceased person;

"letters of tutorship" includes any document issued or a copy of any such document duly certified by any competent public authority in any State by which any person named or designated therein is authorized to act as the tutor of a minor, or to administer any property belonging to a minor as tutor;

"magistrate" includes an additional magistrate and an assistant magistrate and, in relation to any particular act to be performed or power or right exercisable or duty to be carried out by the magistrate of a district, includes an additional magistrate or assistant magistrate permanently carrying out at any place other than the seat of magistracy of that district the functions of the magistrate of that district in respect of any portion of that district, whenever such act, power, right or duty has to be performed, exercised or carried out by virtue of any death occurring, thing being or deceased having resided or carried on business, as the case may be, in such portion of that district;

"Master", in relation to any matter, property or estate, means the Master, Deputy Master or Assistant Master of the Supreme Court appointed under section two, who has jurisdiction in respect of that matter, property or estate;

"Minister" means the Minister of Justice;

"person under curatorship" includes any person whose property has been placed under the care or administration of a curator;

"property" includes any contingent interest in property;

"State" means any state in respect of which a proclamation has been issued under section twenty;

"tutor" means any person who is authorized to act under letters of tutorship granted or signed and sealed by a Master, or under an endorsement made under section seventy-two.

CHAPTER 1: ADMINISTRATIVE PROVISIONS

Appointment of Masters, Deputy Masters and Assistant Masters

2. (1) Subject to the provisions of sub-section (2) and the laws governing the public service, the Minister shall, in respect of the area of jurisdiction of each provincial division of the Supreme Court, appoint a Master of the Supreme Court, and may, in respect of each such area, appoint one or more Deputy Masters of the Supreme Court and one or more Assistant Masters of the Supreme Court, who may, subject to the control, direction and supervision of the Master, do anything which may lawfully be done by the Master.

(2) No person shall be appointed as Master, Deputy Master or Assistant Master of the Supreme Court unless he has passed the Public Service Law Examination or an examination deemed by the Public Service Commission to be equivalent thereto, or has before the commencement of this Act held a substantive appointment as a Master or Assistant Master of the Supreme Court: Provided that whenever a Master, Deputy Master or Assistant Master of the Supreme Court is because of absence or for any other reason unable to carry out the functions of his office or whenever such office becomes vacant, the Minister may authorize any officer in the public service to act in his place during his absence or incapacity or to act in the vacant office until the vacancy is filled, as the case may be-

(3) Any person who at the commencement of this Act holds office as Master or Assistant Master of the Supreme Court shall be deemed to have been appointed under this section in respect of the area of jurisdiction of the provincial division of the Supreme Court concerned.

Master's office to be at seat of provincial division of Supreme Court

3. (1) Each Master shall have his office at the seat of the provincial division of the Supreme Court in respect of whose area of jurisdiction he has been appointed.

(2) The Minister may direct that a Deputy Master or an Assistant Master shall have his office at any place specified by the Minister, there to perform, in respect of the area so specified, such functions as he may lawfully perform under this Act or any other law.

(3) TThe Assistant Master who, at the commencement of this Act, has his office at Kimberley, shall be deemed to have his office at that place in pursuance of a direction under sub-section (2), and the area of jurisdiction of the Griqualand West Local Division of the Supreme Court shall be deemed to be the area specified by the Minister under the said sub-section in respect of the said Assistant Master.

Jurisdiction of Masters

4. (1) In respect of the estate of a deceased person, or of any portion thereof, or of any property given under the control of any person by a deceased person for the purpose mentioned in section fifty-seven, jurisdiction shall lie-

(a) in the case of a deceased person who was, at the date of his death, ordinarily resident within the area of jurisdiction of a provincial division of the Supreme Court, with the Master appointed in respect of that area; and

(b) in the case of a deceased person who was not at that date so resident, with the Master to whom application is made to grant letters of executorship or letters of administratorship, or to sign and seal any such letters already granted in respect of the estate or property concerned:

Provided that on written application by any person having an interest in a deceased estate, a Master who would otherwise have no jurisdiction in respect of that estate may, with the consent of the Master who has such jurisdiction, assume jurisdiction in respect of that estate.

(2) In respect of the property belonging to a minor, or to a person under curatorship or to be placed under curatorship, jurisdiction shall lie-

(a) in the case of any such person who is ordinarily resident within the area of jurisdiction of a provincial division of the Supreme Court, with the Master appointed in respect of that area; and

(b) in the case of any such person who is not so resident, with the Master appointed in respect of any such area in which is situate the greater or greatest portion of the property of that person: Provided that -

(i) a Master who has exercised jurisdiction under paragraph (a) or (b) shall continue to have jurisdiction notwithstanding any change in the ordinary residence of the person concerned or in the situation of the greater or greatest portion of his property; and

(ii) in the case of any mentally disordered or defective person who is under the Mental Disorders Act, 1916 (Act No. 38 of 1916), detained in any place, jurisdiction shall lie with the Master who, immediately prior to such detention, had jurisdiction in respect of his property under paragraph (a) or (b).

(3) No act performed by a Master in the bona fide belief that he has jurisdiction shall be invalid merely on the ground that it should have been performed by another Master.

(4) If more than one Master has in such belief exercised jurisdiction in respect of the same estate or property, that estate or property shall, without prejudice to the validity of any act already performed by or under the authority of any other Master, as soon as it becomes known to the Masters concerned, be liquidated, distributed or administered as the case may be, under the supervision of the Master who first exercised such jurisdiction, and any appointment made and any grant, signing and sealing or endorsement of letters of executorship, administratorship, tutorship or curatorship, by any other Master in respect of that estate or property, shall thereupon be cancelled by such other Master.

Records of Master's office, etc.

5. (1) Each Master shall, subject to the provisions of regulations made under section one hundred and three, preserve of record in his office all original wills, copies of wills certified in terms of sub-section (2) of section fourteen, written instruments, death notices, inventories and accounts lodged at his office under the provisions of this Act or any prior law under which any such documents were lodged at the office of the Master, Orphan Master or registrar of deeds in the province concerned, and such other documents lodged at his office as the Master may determine.

(2) Any person may at any time during office hours inspect any such document (except, during the lifetime of the person who executed it, a will lodged with the Master under section fifteen of the Administration of Estates Act, 1913 (Act No. 24 of 1913)), and make or obtain a copy thereof or an extract therefrom, on payment of the fees prescribed in respect thereof: Provided that-

(a) any executor, administrator, tutor or curator, or his surety, may inspect any such document or cause it to be inspected without payment of any fee; and

(b) in the case of a document lodged by an administrator in terms of section sixty-five, the right to inspect and to make or obtain a copy or extract shall be limited to the administrator, his surety and the beneficiaries concerned, or the representative of the administrator or of any such surety or beneficiary.

Appraisers for the valuation of property

6. (1) The Minister may from time to time appoint for any area specified by him such and so many persons as he thinks fit, to be appraisers for the valuation of property for the purposes of this Act, and may at any time revoke any appointment so made.

(2) Every person so appointed shall take an oath before a justice of the peace or commissioner of oaths that he will appraise all such properties as may be submitted to his valuation according to the true valuation thereof and to the best of his skill and knowledge.

(3) Any appraiser appointed under the corresponding provision of the Administration of Estates Act, 1913 (Act No. 24 of 1913), or of any law repealed by that Act, and holding office at the commencement of this Act, shall be deemed to have been appointed under this section, and it shall not be necessary for him, if he has already taken an oath, to take any further oath under this section.

(4) No appraiser shall act in connection with any property in which or in the valuation of which-

(a) he or his spouse or partner has any pecuniary interest other than his remuneration as appraiser; or

(b) his principal or employer or any person related to him within the third degree has any pecuniary interest.

(5) Every appraiser shall, in respect of every appraisement made by him, be entitled to a reasonable remuneration which shall be assessed according to a prescribed tariff of fees, and shall submit his account to the Master for taxation.

CHAPTER 2: DECEASED ESTATES

Death notices

7. (1) Whenever any person dies within the Republic leaving any property or any document being or purporting to be a will therein-

(a) the surviving spouse of such person, or if there is no surviving spouse, his nearest relative or connection residing in the district in which the death has taken place, shall within fourteen days thereafter give a notice of death substantially in the prescribed form, or cause such a notice to be given to the Master; and

(b) the person who at or immediately after the death has the control of the premises at which the death occurs shall, unless a notice under paragraph (a) has to his knowledge already been given, within fourteen days after the death, report the death or cause the death to be reported to the Master.

(2) Whenever any person dies outside the Republic leaving any property or any document being or purporting to be a will therein, any person within the Republic having possession or control of any such property or document, shall, within fourteen days after the death has come to his knowledge, report the death to the Master who shall take such steps as may be necessary and practicable to obtain a correct death notice.

(3) The Master may by written notice require any person who may, in his opinion, be able to furnish the information required-

(a) if no death notice has been given or obtained, to submit to him within a period specified in the notice, a death notice substantially in the prescribed form; and

(b) if a death notice has been given or obtained or has been submitted under paragraph (a) and the Master desires any further information, to answer in writing to the best of his knowledge, within a period so specified, such questions as may be set forth in the notice.

(4) If the person signing any death notice was not present at the death, or did not identify the deceased after death, the Master may call upon any person having any interest in the estate for proof of the death.

Transmission or delivery of wills to Master and registration thereof

8. (1) Any person who has any document being or purporting to be a will in his possession at the time of or at any time after the death of any person who executed such document, shall, as soon as the death comes to his knowledge, transmit or deliver such document to the Master.

(2) Every person shall, at the expense of the estate and when required by the Master to do so, transmit the original minute of any notarial will passed before him or in his possession, to the Master, and shall at the same time file a certified copy thereof in his protocol and endorse thereon that the original has been transmitted to the Master.

(3) Any such document which has been received by the Master, shall be registered by him in a register of estates, and he shall cause any such document which is closed to be opened for the purpose of such registration.

(4) If it appears to the Master that any such document, being or purporting to be a will, is for any reason invalid, he may, notwithstanding registration thereof in terms of sub-section (3), refuse to accept it for the purposes of this Act until the validity thereof has been determined by the Court.

(4A) In taking a decision concerning the acceptance of a will for the purposes of this Act, the Master shall take into account the revocation of a will by a later will, but not the common law presumptions concerning the revocation of a will.

(5) If the Master is satisfied that the person who executed any will transmitted or delivered to him in terms of sub-section (1), has not left any property in the Republic, he may release such will to any person lawfully requiring it for the purpose of liquidating and distributing the estate of the deceased person outside the Republic.

Inventories

9. (1) If any person dies within the Republic or if any person ordinarily resident in the Republic at the time of his death dies outside the Republic leaving any property therein, the surviving spouse of such person, or if there is no surviving spouse, his nearest relative or connection residing in the district in which such person was ordinarily resident at the time of his death shall, within fourteen days after the death or within such further period as the Master may allow-

(a) make an inventory in the prescribed form, in the presence of such persons having an interest in the estate as heirs as may attend, of all property known by him to have belonged, at the time of the death-

(i) to the deceased; or

(ii) in the case of the death of one of two spouses married in community of property, to the joint estate of the deceased and such surviving spouse; or

(iii) in the case of the death of one of two or more persons referred to in section thirty-seven, to the massed estate concerned;

(b) subscribe such inventory in his own hand and endorse thereon the names and addresses of the persons in whose presence it was made; and

(2) The Master may at any time, notwithstanding the provisions of sub-section (1), by written notice-

(a) require any person to make, in the presence of such persons referred to in paragraph (a) of the said sub-section as may attend, to subscribe and endorse as provided in paragraph (b) of the said sub-section and to deliver or transmit to him, within the period specified in the notice, an inventory in the prescribed form of all property known by such person to have belonged at the time of the death-

(i) to the deceased; or

(ii) in the case of the death of one of two spouses married in community of property, to the joint estate of the deceased and the surviving spouse; or

(iii) in the case of the death of one of two or more persons referred to in section thirty-seven, to the massed estate concerned;

(b) require any person who at or immediately after the death had control of the premises where the death occurred or of any premises where the deceased was living or staying or carrying on any business at the time of his death, to make, in the presence of the said persons, to subscribe and endorse as provided in paragraph (b) of the said sub-section, and to deliver or transmit to him, within the period specified in the notice, an inventory in the prescribed form of all the property known by him to have been in the possession of the deceased upon the said premises at the time of his death.

(3) Any person required by sub-section (1) or under paragraph (a) of sub-section (2) to make an inventory shall include therein a list specifying-

(a) all immovable property registered in the name of the deceased or in which he knows that the deceased had any interest at the date of his death; and

(b) all particulars known to such person, concerning any such property or interest.

Returns to registration officers of certain interests in immovable property

10. (1) The Master shall, after receipt of any inventory containing any list referred to in sub-section (3) of section nine, forthwith furnish to the registration officer concerned a return specifying -

(a) the name of any deceased person who at the date of his death was married in community of property, and according to the inventory, had an interest in immovable property registered in the name of his spouse;

(b) the particulars concerning such interest contained in the inventory;

(d) particulars of any immovable property which is registered in the name of any such survivor and has been massed as provided in the said section thirty-seven.

(2) A registration officer who has been furnished with such a return, shall not, unless directed by the Court or the Master to do so, register any transaction or right in respect of such property in the estate at the instance of any person other than the executor of the estate.

Temporary custody of property in deceased estates

11. (1) Any person who at or immediately after the death of any person has the possession or custody of any property, book or document, which belonged to or was in the possession or custody of such deceased person at the time of his death -

(a) shall, immediately after the death, report the particulars of such property, book or document to the Master and may open any such document which is closed for the purpose of ascertaining whether it is or purports to be a will;

(b) shall, unless the Court or the Master otherwise directs, retain the possession or custody of such property, book or document, other than a document being or purporting to be a will, until an interim curator or an executor of the estate has been appointed or the Master has directed any person to liquidate and distribute the estate: Provided that the provisions of this paragraph shall not prevent the disposal of any such property for the bona fide purpose of providing a suitable funeral for the deceased or of providing for the subsistence of his family or household or the safe custody or preservation of any part of such property;

(c) shall, upon written demand by the interim curator, executor or person directed to liquidate and distribute the estate, surrender any such property, book or document in his possession or custody when the demand is made, into the custody or control of such executor, curator or person: Provided that the provisions of this paragraph shall not affect the right of any person to remain inTemporary custody of property in deceased estates

(2) Any person who fails to comply with the provisions of paragraph (b) of sub-section (1) shall, apart from any penalty or other liability he may incur thereby, be liable for any estate duties payable in respect of the property concerned.

Appointment of interim curator

12. (1) The Master may appoint an interim curator to take any estate into his custody until letters of executorship have been granted or signed and sealed, or a person has been directed to liquidate and distribute the estate.

(2) Every person to be so appointed shall, before a certificate of appointment is issued to him, find security to the satisfaction of the Master in an amount determined by the Master for the proper performance of his functions.

(3) An interim curator may, if specially authorized thereto by the Master, collect any debt and sell or dispose of any movable property in the estate, wherever situate within the Republic, and subject to any law which may be applicable, carry on any business or undertaking of the deceased.

(4) If any interim curator is authorized under sub-section (3) to carry on any business or undertaking he shall not, without the special authority of the Master, purchase any goods which he may require for that business or undertaking otherwise than for cash and out of the takings of that business or undertaking.

(5) The reference in sub-section (1) of section forty-seven of the Liquor Act, 1928 (Act No. 30 of 1928), to a curator, shall include a reference to an interim curator appointed under sub-section (1), who has under sub-section (3) been authorized to carry on the business of the licensee or person referred to in sub-section (1) of the said section.

(6) An interim curator shall account for the property in respect of which he has been appointed, in such manner as the Master may direct.

(7) The provisions of sub-sections (3), (4) and (5) of section twenty-three, sections twenty-six, twenty-eight, thirty-six, forty-six, and sub-paragraph (ii) of paragraph (b) of sub-section (1) of section fifty-four shall mutatis mutandis apply with reference to interim curators.

Deceased estates not to be liquidated or distributed without letters of executorship or direction by Master

13. (1) No person shall liquidate or distribute the estate of any deceased person, except under letters of executorship granted or signed and sealed under this Act, or under an endorsement made under section fifteen, or in pursuance of a direction by a Master.

(2) No letters of executorship shall be granted or signed and sealed and no endorsement under section fifteen shall be made to or at the instance or in favour of any person who is by any law prohibited from liquidating or distributing the estate of any deceased person.

(3) The provisions of sub-section (2) shall not apply to any person nominated as executor by the will of a person who dies before the first day of July, 1966.

Letters of executorship to executors testamentary

14. (1) The Master shall, subject to the provisions of sub-section (2) and sections sixteen, seventeen and twenty-two, on the written application of any person who-

(a) has been nominated as executor by any deceased person by a will which has been registered and accepted in the office of the Master; and

(b) is not incapacitated from being an executor of the estate of the deceased and has complied with the provisions of this Act,

grant letters of executorship to such person.

(2) For the purposes of paragraph (a) of sub-section (1), the Master may-

(a) if the will of any deceased person is not in the Republic, register and accept a copy thereof certified by a competent public authority in the country or territory in which such will is; or

(b) if the will is also the will of any other deceased person and has been registered and accepted by any other Master, register and accept a copy thereof certified by such Master.

Endorsement of appointment of assumed executors on letters of executorship

15. (1) The Master shall, subject to the provisions of sub-section (2) and sections sixteen, seventeen and twenty-two-

(a) on the written application of any person who has been duly nominated as an assumed executor, is not incapacitated from being an executor of the estate of the deceased 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 executor who has so nominated him, endorse the appointment of such person as assumed executor on the letters of executorship granted to the executor testamentary.

(2) No endorsement under sub-section (1) shall be made after the executor vested with the power of assumption, or if there are two or more executors jointly vested with the said power, after every such executor has for any reason ceased to be executor.

(3) The appointment of any person in terms of sub-section (1) shall not be affected by the subsequent incapacity or death of the executor by whom he was assumed.

Letters of executorship and endorsements to or in favour of corporations

16. If any person referred to in sub-section (1) of section fourteen or in sub-section (1) of section fifteen is a corporation, the relevant letters of executorship or endorsement, as the case may be, shall be granted or made -

(a) to or in favour of any person who is an officer or director of the corporation and has been nominated by the testator or, if the testator has not nominated any person, by the corporation; and

(b) in the event of the death, resignation or dismissal of such person, or of his vacating for any reason the office with reference to which he has been so nominated, to or in favour of his successor in office so nominated, for whose acts and omissions as executor the corporation accepts liability.

Grant of letters of executorship to women

17. Letters of executorship may be granted to a woman, but shall not, without the consent in writing of her husband, be granted to a married woman, unless the marital power of the husband has been excluded.

Proceedings on failure of nomination of executors or on death, incapacity or refusal to act, etc.

18. (1) The Master shall, subject to the provisions of sub-sections (3), (4), (5) and (6)-

(a) if any person has died without having by will nominated any person to be his executor; or

(b) if the whereabouts of any person so nominated to be sole executor or of all the persons so nominated to be executors are unknown, or if such person or all such persons are dead or refuse or are incapacitated to act as executors or when called upon by the Master by notice in writing to take out letters of executorship within a period specified in the notice, fail to take out such letters within that period or within such further period as the Master may allow; or

(c) if, in the case of two or more persons being so nominated to be executors, the whereabouts of one or some of them are unknown, or one or some of them are dead or refuse or are incapacitated to act as executors or when so called upon by the Master fail so to take out letters of executorship, and in the interests of the estate, one or more executors should be joined with the remaining executor or executors; or

(d) if the executors in any estate are at any time less than the number required by the will of the testator to form a quorum; or

(e) if any person who is the sole executor or all the persons who are executors of any estate, cease for any reason to be executors thereof; or

(f) if, in the case of two or more persons who are the executors of any estate, one or some of them cease to be executors thereof, and in the interests of the estate, one or more executors should be joined with the remaining executor or executors,

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 surviving spouse (if any), the heirs of the deceased and all persons having claims against his estate, 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 executor or executors, a person or a specified number of persons.

(2) On receipt of such recommendation or when it appears that the persons concerned have failed to make any recommendation, the Master shall, subject to the provisions of sub-section (3) and sections nineteen, twenty-two and twenty-three, unless it appears to him to be necessary or expedient to postpone the appointment and to publish another notice under sub-section (1), appoint and grant letters of executorship to such person or persons as he deems fit and proper to be executor or executors of the estate of the deceased.

(3) If the value of any estate does not exceed six hundred rand, the Master may dispense with a notice under sub-section (1) and with the appointment of an executor and give directions as to the manner in which any such estate shall be liquidated and distributed.

(4) If the value of any estate does not exceed two thousand rand, the Master may, in any case referred to in sub-section (1), without any notice under that sub-section, appoint and grant letters of executorship to such person or persons as he deems fit and proper to be executor or executors of the estate of the deceased.

(5) The Master may at any time, without any such notice-

(a) if, in the case of two or more persons –

(i) who have been nominated by will to be executors, the whereabouts of one or some of them are unknown, or one or some of them are dead or refuse or are incapacitated to act as executors, or when called upon by the Master by notice in writing to take out letters of executorship within a period specified in the notice, fail to take out such letters within that period or within such further period as the Master may allow; or

(ii) who are the executors in any estate, one or some of them cease to be executors thereof,

grant letters of executorship to the remaining executor or executors, or authorize the remaining executor or executors to liquidate and distribute the estate, as the case may be; or

(b) if after the discharge of any executor it appears that there is property in the estate which has not been distributed by such executor, appoint and grant letters of executorship to such person as he deems fit and proper to liquidate and distribute such property.

(6) Nothing in this section contained shall authorize the Master to grant letters of executorship to any person who is legally incapacitated to act as executor of the estate of the deceased.

(7) The provisions of section sixteen shall mutatis mutandis apply with reference to the grant of letters of executorship under this section.

Competition for office of executor

19. If at any meeting in pursuance of a notice under sub-section (1) of section eighteen 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

(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 therefor, pass by any or all of the said persons.

Application of section 21 to foreign letters of executorship

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

(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 No. 24 of 1913), shall be deemed to have been issued under sub-section (1).

Sealing and signing of letters granted in a State

21. Whenever letters of executorship granted in any State and authenticated as provided in the rules made under section forty-three of the Supreme Court Act, 1959 (Act No. 59 of 1959), are produced to or lodged with the Master by the person in whose favour those letters have been granted or his duly authorized agent, those letters may, subject to the provisions of sections twenty-two and twenty-three, be signed by the Master and sealed with his 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.

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

22. (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 executorship are to be signed and sealed under section twenty-one, resides or is outside the Republic and has not chosen domicilium 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 sub-paragraph (ii), (iii) or (iv) of paragraph (a) of sub-section (1) of section fifty-four or sub-paragraph (iii) of paragraph (b) of that sub-section; or

(c) if any such person fails to satisfy the Master by a declaration under oath 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.

Security for liquidation and distribution

23. (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 satisfaction 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; or

(d) 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 Republic, or if there is any good reason therefor, the Master may, notwithstanding the provisions of paragraph (a), (b) or (c), refuse to grant or to sign and seal letters of executorship or to make any endorsement under section fifteen until he finds such security.

(3) The Master may by notice in writing require any executor (including any executor 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 has committed an act of insolvency, or who is about to go or has gone to reside outside the Republic, to find, within a period specified in the notice, security or additional security, as the case may be, to the satisfaction of the Master in an amount determined by the Master, for the proper performance of his functions.

(4) The Master shall allow the reasonable costs of finding security to be paid out of the estate.

(5) If any default is made by any executor in the proper performance of his functions, the Master may enforce the security and recover from such executor or his sureties the loss to the estate.

Reduction of security given by executors

24. If any executor who has given security to the Master for the proper performance of his functions, has accounted to the satisfaction of the Master for any property, the value of which was taken into consideration when the amount of such security was assessed, the Master may reduce the amount of the security to an amount which would, in his opinion, be sufficient to cover the value of the property which such executor has been appointed to liquidate and distribute, and which has not been so accounted for.

Estates of persons who upon their death are not resident in the Republic and do not own any property other than movable property in the Republic

25. (1) Upon the death of any person who is neither ordinarily resident within the Republic nor the owner of any property therein other than shares, stocks or any right to dividends due thereon, or any credit balance at any bank or other financial institution, or debentures or any right to interest due thereon, the Master may, subject to the provisions of sub-section (2)-

(a) without observing the usual procedure or requiring security-

(i) sign and seal letters of executorship produced to or lodged with him under section twenty-one; or

(ii) if no such letters are produced or lodged, appoint an executor to liquidate and distribute the estate, or direct the manner in which the estate shall be liquidated and distributed; and

(b) by writing under his hand and subject to such conditions as he may determine, exempt the executor from compliance with the provisions of section thirty-five.

(2) The Master shall not exercise his powers under subsection (1) unless -

(a) an affidavit made by such person and containing such particulars as may be prescribed has been lodged with him in the place of the documents required in terms of the proviso to section twenty-one;

(b) the estate duty payable in respect of the shares, dividends or debentures has been paid or the payment thereof has been secured to the satisfaction of the proper authority; and

Executor charged with custody and control of property in estate

26. (1) Immediately after letters of executorship have been granted to him an executor shall take into his custody or under his control all the property, books and documents in the estate and not in the possession of any person who claims to be entitled to retain it under any contract, right of retention or attachment.

(2) If the executor has reason to believe that any such property, book or document is concealed or otherwise unlawfully withheld from him, he may apply to the magistrate having jurisdiction for a search warrant mentioned in sub-section (3).

(3) If it appears to a magistrate to whom such application is made, from a statement made upon oath, that there are reasonable grounds for suspecting that any property, book or document in any deceased estate is concealed upon any person or at any place or upon or in any vehicle or vessel or receptacle of any nature, or is otherwise unlawfully withheld from the executor concerned, within the area of the magistrate's jurisdiction, he may issue a warrant to search for and take possession of that property, book or document.

(4) Such a warrant shall be executed in like manner as a warrant to search for stolen property, and the person executing the warrant shall deliver any article seized thereunder to the executor concerned.

Inventories by executors and valuation at instance of Master

27. (1) An executor shall-

(a) within thirty days after letters of executorship 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 showing the value of all property in the estate; and

(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 so signed by him showing the value thereof.

(2) If any executor has in any inventory lodged with the Master placed upon any property a value which the Master has reason to believe is not the true value thereof, the Master may, at the expense of the estate, cause the value of that property to be appraised by an appraiser or any other person approved by the Master.

(3) No executor shall, except in the ordinary course of any business or undertaking of the deceased carried on by him, dispose of any property in the estate which has not been mentioned in any inventory lodged by him with the Master.

Banking accounts

28. (1) An executor -

(a) shall, unless the Master otherwise directs, as soon as he has in hand moneys in the estate in excess of forty rand, open an account in the name of the estate with a commercial bank (as defined in section one of the Banks Act, 1965 (Act No. 23 of 1965», in the Republic, or any other institution in the Republic, which is a banking institution as so defined and has by notice in the Gazette been designated by the Minister, after consultation with the Minister of Finance, for the purposes of this paragraph and shall, deposit therein the moneys which he has in hand and such other moneys as he may from time to time receive for the estate;

(b) may with the written permission of the Master, open a savings account in the name of the estate with a banking institution as so defined or a building society (as defined in section one of the Building Societies Act, 1965 (Act No. 24 of 1965), and may transfer thereto so much of the moneys deposited in the account referred to in paragraph (a) as are not immediately required for the payment of any claim against the estate.

(2) Every executor shall-

(a) within seven days after he has opened any account referred to in sub-section (1), notify the Master in writing of the bank, banking institution or building society and the office or branch thereof with which the account has been opened; and

(b) whenever required by the Master to do so, furnish the Master with a bank statement or other sufficient evidence of the position of the account.

(3) No executor shall transfer any such account from any such office or branch to any other such office or branch, except after written notice to the Master.

(4) All cheques or orders drawn upon any such account shall contain the name of the payee and the cause of payment and shall be drawn to order and be signed by every executor or his duly authorized agent.

(5) The Master and any surety of the executor shall have the same right to information in regard to any such account as the executor himself possesses, and may examine all vouchers in relation thereto, whether in the hands of the bank, banking institution or building society or of the executor.

(6) The Master may in writing direct the manager of any office or branch with which an account has been opened under sub-section (1), to refuse, except with the consent of the Master, any further withdrawals of money from that account or to pay over into the guardian's fund all moneys standing to the credit of the account at the time of the receipt, by the said manager, of that direction, and all moneys which may thereafter be paid into that account, and shall notify the executor of any such direction.

Notice by executors to lodge claims

29. (1) Every executor shall, as soon as may be after letters of executorship have been granted to him, cause a notice to be published in the Gazette and in one or more newspapers circulating in the district in which the deceased ordinarily resided at the time of his death and, if at any time within the period of twelve months immediately preceding the date of his death he so resided in any other district, also in one or more newspapers circulating in that other district, or if he was not ordinarily so resident in any district in the Republic, in one or more newspapers circulating in a district where the deceased owned property, calling upon all persons having claims against his estate to lodge such claims with the executor within such period (not being less than thirty days or more than three months) from the date of the latest publication of the notice as may be specified therein: Provided that if the value of the estate does not exceed two thousand rand, the Master may by writing under his hand direct the executor to specify in the notice a period (not being less than fourteen or more than thirty days) determined by the Master.

(2) All claims which would be capable of proof in case of the insolvency of the estate may be lodged under sub-section (1).

Restriction on sale in execution of property in deceased estates

30. No person charged with the execution of any writ or other process shall-

(a) before the expiry of the period specified in the notice referred to in section twenty-nine; or

(b) thereafter, unless, in the case of property of a value not exceeding two hundred rand, the Master, or in the case of any other property, the Court, otherwise directs,

sell any property in the estate of any deceased person which has been attached whether before or after his death under such writ or process: Provided that the foregoing provisions of this section shall not apply if such first-mentioned person could not have known of the death of the deceased person.

31. Late claims

31. If any person fails to lodge his claim against any deceased estate before the expiry of the period specified in respect of that estate under sub-section (1) of section twenty-nine, he shall-

(a) if he lodges his claim thereafter and does not satisfy the Master that he has a reasonable excuse for the delay, be liable for any costs payable out of the estate, in connection with the reframing of any account or otherwise, as a result of the delay; and

(b) whether or not he lodges his claim thereafter, not be entitled in respect of his claim to demand restitution from any other claimant of any moneys paid to such other claimant at any time or before he lodged his claim, as the case may be, in pursuance of a valid claim against the estate.

Disputed claims

32. (1) If an executor disputes any claim against the estate, he may, by notice in writing -

(a) require the claimant to lodge, in support of his claim, within a period specified in the notice, an affidavit setting forth such details of the claim as the executor may indicate in the notice; and

(b) with the consent of the Master, require the claimant or any other person who may in the opinion of the Master be able to give material information in connection with the claim, to appear before the Master or any magistrate or Master nominated by the Master, at a place and time stated in the notice, to be examined under oath in connection with the claim.

(2) At an examination under paragraph (b) of sub-section (1), the person concerned may be questioned by the magistrate or Master before whom the examination takes place, and by the executor and any heir or the attorney or advocate acting on behalf of the executor or any heir.

(3) If any claimant fails without reasonable excuse to comply with any notice under sub-section (1), or having appeared in answer to any such notice, refuses to take the oath or to submit to examination or to answer fully and satisfactorily any lawful question put to him, his claim may be rejected by the executor.

(4) Any magistrate or Master before whom any such examination takes place shall take or cause to be taken a record thereof and shall, at the request of the executor or of the claimant and at the expense of the estate, or of the claimant, as the case may be, furnish the executor or claimant with a copy of such record.

Rejected claims

33. (1) If any executor rejects any claim against the estate, he shall forthwith notify the claimant in writing by registered post and shall state in the notice his reasons for rejecting the claim.

(2) Any Court by which any claim against a deceased estate is adjudged in favour of a claimant may decline to grant the claimant his costs against the estate if the Court is satisfied that the information given by the claimant to the executor was insufficient or that the executor was justified in rejecting the claim under sub-section (3) of section thirty-two.

Insolvent deceased estates

34. (1) On the expiry of the period specified in the notice referred to in section twenty-nine the executor shall satisfy himself as to the solvency of the estate and, if the estate is insolvent, forthwith report its position to the Master.

(2) If the Master is satisfied that the value of the assets in the insolvent estate does not exceed two thousand rand, the estate shall, subject to the rights of creditors, be liquidated and distributed in such manner as he may direct.

(3) If the Master is not so satisfied, he shall in writing notify the executor accordingly.

(4) On the receipt of the notification under sub-section (3), the executor shall, without delay, by notice in writing (a copy of which he shall lodge with the Master) report the position of the estate to the creditors, informing them that unless a majority in number and value of all the creditors instruct him in writing, within a period (not being less than fourteen days) specified in the notice, to surrender the estate under the Insolvency Act, 1936 (Act No. 24 of 1936), he will proceed to realize the assets in the estate and distribute the proceeds in accordance with the provisions of sub-section (5) : Provided that-

(a) no creditor whose claim amounts to less than sixty rand shall be reckoned in number;

(b) any creditor holding any security which a trustee would under section eighty-three of the said Act have been authorized to take over if the estate had been sequestrated, shall, if called upon to do so in writing by the executor, place a value thereon within the period specified by the executor, and shall be reckoned in respect of the balance of his claim which is, according to such valuation, unsecured; and

(c) if any creditor fails to place a value on any such security within the said period, he shall not be reckoned as a creditor for the purpose of this sub-section.

(5) If after the expiry of the period specified in the notice under sub-section (4) the executor has not in accordance with such notice been instructed to surrender the estate, he shall-

(a) realize the assets in the estate, on such conditions as the Master may approve, by public auction or public tender or in such other manner as the Master may approve;

(b) frame a distribution account providing for the distribution of the proceeds in the order of preference prescribed under the said Insolvency Act, 1936, in the case of a sequestrated estate; and

(6) In so far as a date of sequestration is relevant for the purposes of the distribution of an estate under sub-section (5), such date shall be deemed to be the date immediately following the date on which the period specified in the notice given in respect of the estate in question under sub-section (4), has expired.

(7) If any creditor has under paragraph (b) of the proviso to sub-section (4) placed a value on any security, the executor may at any time within six weeks thereafter deal therewith mutatis mutandis in the manner provided in section eighty-three of the said Insolvency Act, 1936.

(8) The account of an executor liquidating or realizing and distributing an estate under this section shall be advertised by the executor and confirmed by the Master in like manner and with like effect as an account framed by a trustee in an insolvent estate is advertised and confirmed.

(9) The provisions of this section shall not prevent the sequestration of any estate under the said Insolvency Act, 1936.

Liquidation and distribution accounts

35. (1) An executor shall, as soon as may be after the last day of the period specified in the notice referred to in sub-section (1) of section twenty-nine, but within-

(a) six months after letters of executorship have been granted to him, if the gross value of the estate exceeds two thousand rand; or

(b) three months after letters of executorship have been granted to him, if the gross value of the estate does not exceed two thousand rand; or

submit to the Master an account in the prescribed form, supported by vouchers, of the liquidation and distribution of the estate.

(2) The Master may at any time in any case in which he has exercised his powers under paragraph (c) of sub-section (1) or in which an executor has funds in hand which ought, in the opinion of the Master, to be distributed or applied towards the payment of debts, direct the executor in writing to submit to him an interim account in the prescribed form, supported by vouchers, within a period specified.

(3) The executor shall set forth in any interim account all debts due to the estate and still outstanding and all property still unrealized, and the reasons why such debts or property, as the case may be, have not been collected or realized.

(4) Every executor's account shall, after the Master has examined it, lie open at the office of the Master, and if the deceased was ordinarily resident in any district other than that in which the office of the Master is situate, a duplicate thereof shall lie open at the office of the magistrate of such other district for not less than twenty-one days, for inspection by any person interested in the estate.

(5) The executor shall give notice that the account will be so open for inspection by advertisement in the Gazette and in one or more newspapers circulating in the district in which the deceased was ordinarily resident at the time of his death and, if at any time within the period of twelve months immediately preceding the date of his death he was so resident in any other district, also in one or more newspapers circulating in that other district, and shall state in the notice the period during which and the place at which the account will lie open for inspection.

(6) The magistrate shall cause to be affixed in some public place in or about his office, a list of all such accounts lodged in his office, showing the date on which each such account will be transmitted to the Master, and, upon the expiry of the period allowed for inspection, shall endorse on each account his certificate that the account has lain open in his office for inspection in accordance with this section and transmit the account to the Master.

(7) Any person interested in the estate may at any time before the expiry of the period allowed for inspection lodge with the Master in duplicate any objection, with the reasons therefor, to any such account and the Master shall deliver or transmit by registered post to the executor a copy of any such objection together with copies of any documents which such person may have submitted to the Master in support thereof.

(8) The executor shall, within fourteen days after receipt by him of the copy of the objection, transmit two copies of his comments thereon to the Master.

(9) If, after consideration of such objection, the comments of the executor and such further particulars as the Master may require, the Master is of opinion that such objection is well-founded or if, apart from any objection, he is of opinion that the account is in any respect incorrect and should be amended, he may direct the executor to amend the account or may give such other direction in connection therewith as he may think fit.

(10) Any person aggrieved by any such direction of the Master or by a refusal of the Master to sustain an objection so lodged, may apply by motion to the Court within thirty days after the date of such direction or refusal or within such further period as the Court may allow, for an order to set aside the Master's decision and the Court may make such order as it may think fit.

(11) If any such direction affects the interests of a person who has not lodged an objection and the account is amended, the account as so amended shall, unless the said person consents in writing to the account being acted upon, again lie open for inspection in the manner and with the notice and subject to the remedies hereinbefore provided.

(12) When an account has lain open for inspection as hereinbefore provided and-

(a) no objection has been lodged; or

(b) an objection has been lodged and the account has been amended in accordance with the Master's direction and has again lain open for inspection, if necessary, as provided in sub-section (11), and no application has been made to the Court within the period referred to in sub-section (10) to set aside the Master's decision; or

(c) an objection has been lodged but withdrawn, or has not been sustained and no such application has been made to the Court within the said period,

the executor shall forthwith pay the creditors and distribute the estate among the heirs in accordance with the account, lodge with the Master the receipts and acquittances of such creditors and heirs and produce to the Master the deeds of registration relating to such distribution, or lodge with the Master a certificate by the registration officer or a conveyancer specifying the registrations which have been effected by the executor: Provided that a cheque purporting to be drawn payable to a creditor or heir in respect of any claim or share due to him and paid by the banker on whom it is drawn, may be accepted by the Master in lieu of any such receipt or acquittance.

(13) The executor shall not later than two months after the estate has become distributable in terms of sub-section (12), pay to the Master for deposit in the guardian's fund on behalf of the persons entitled thereto, all moneys which he has for any reason been unable to distribute in accordance with the account.

Failure by executor to lodge account or to perform duties

36. (1) If any executor fails to lodge any account with the Master as and when required by this Act, or to lodge any vouchers in support of such account or to perform any other duty imposed upon him by this Act or to comply with any reasonable demand of the Master for information or proof required by him in connection with the liquidation or distribution of the estate, the Master or any person having an interest in the liquidation and distribution of the estate may, after giving the executor not less than one month's notice, apply to the Court for an order directing the executor to lodge such account or vouchers in support thereof or to perform such duty or to comply with such demand.

(2) The costs adjudged to the Master or to such person shall, unless otherwise ordered by the Court, be payable by the executor, de bonis propriis.

Massed estates

37. If any two or more persons have by their mutual will massed the whole or any specific portion of their joint estate and disposed of the massed estate or of any portion thereof after the death of the survivor or survivors or the happening of any other event after the death of the first-dying, conferring upon the survivor or survivors any limited interest in respect of any property in the massed estate, then upon the death after the commencement of this Act of the first-dying, adiation by the survivor or survivors shall have the effect of conferring upon the persons in whose favour such disposition was made, such rights in respect of any property forming part of the share of the survivor or survivors of the massed estate as they would by law have possessed under the will if that property had belonged to the first-dying; and the executor shall frame his distribution account accordingly.

Taking over by surviving spouse of estate or portion thereof

38. (1) The Master may, if-

(a) one of two spouses, whether they were married in or out of community of property, has died; and

(b) the deceased has made no provision to the contrary in any will; and

(d) it appears to him that no person interested would be prejudiced thereby,

authorize the executor, subject to security being given mutatis mutandis as provided in sub-section (2) of section forty-three for the payment of any minor's share, and to such conditions as the Master may determine, to make over any property or all the property of the deceased, or the whole or any part of that portion of his property in respect of which he has made no testamentary provision to the contrary, to the surviving spouse at a valuation to be made by an appraiser or any other person approved by the Master, and to frame his distribution account on the basis of such valuation.

(2) Sub-sections (3), (4) and (5) of section forty-three shall mutatis mutandis apply in respect of any security given under sub-section (1).

Registration of immovable property in deceased estate

39. (1) An executor shall, subject to the provisions of sub-sections (2) and (3) and the Deeds Registries Act, 1937 (Act No. 47 of 1937), cause immovable property (including, in the case of a massed estate, any such property forming part of the share of the survivor or survivors of that estate) to which an heir is entitled according to a distribution account, to be registered in the name of the heir, subject to any rights and conditions affecting such property.

(2) If a usufructuary or other like limited interest in any immovable property has been bequeathed to any person with a direction that after the expiry of such interest the property shall devolve upon some person uncertain or the proceeds of the property shall devolve upon any person, whether certain or uncertain, the executor shall, subject to the provisions of section twenty-five of the said Act, cause the terms of the will or a reference thereto to be endorsed against the title deeds of the property, and lodge with the Master a certificate by the registration officer concerned or a conveyancer that the title deeds have been so endorsed.

(3) If any heir is unable or could not without hardship be required to pay the costs involved in having any immovable property to which he is entitled according to a distribution account, registered in his name, the Master may authorize the executor to cause a note that the property has been bequeathed or inherited, as the case may be, to be endorsed against the title deeds of the property.

Endorsement of testamentary trusts against title deeds and bonds

40. (1) If an administrator has been appointed to administer any property of a deceased person under his will (including in the case of a massed estate any property forming part of the share of the survivor or survivors of that estate which, according to a distribution account, is to be administered by such administrator), the executor shall-

(a) deliver to the administrator such of the movable property as should, according to the distribution account, be delivered to him;

(b) cause the terms of the will, or a reference thereto, in so far as they relate to the administration, to be endorsed against the title deeds of such of the property as is immovable, and against any mortgage or notarial bond forming part of the property, and deliver the title deeds and any such bond, subject to the provisions of sub-section (2) of section forty-one, to the administrator; and

(c) llodge with the Master the administrator's acquittance for any such movable property, deeds or bond, and a certificate by the registration officer concerned or a conveyancer that such deeds or bond have been endorsed as aforesaid.

(2) The provisions of sub-sections (2), (3), (4) and (5) of section twenty-three shall apply mutatis mutandis to an administrator appointed by will or written instrument operating inter vivos executed prior to the commencement of the Trust Moneys Protection Act, 1934 (Act No. 34 of 1934).

(3) The provisions of sub-section (2) shall lapse on the date of commencement of Chapter III.

Production of title deed or bond to executor

41. (1) Any person who has the possession or custody of any title deed or bond required by an executor for the purposes of any registration or endorsement in terms of this Act, shall deliver such deed or bond to the executor within a period of fourteen days after written demand has been made therefor by the executor.

(2) If any such person notifies the executor in writing at the time of the delivery of such deed or bond, that he has a right of retention in respect thereof, the executor shall return such deed or bond to such person as soon as it is no longer required by him for the purposes of this Act.

(3) Any person who fails to comply with the provisions of sub-section (1), shall be liable for the costs to which the executor may be put in obtaining an order of the Court for the production of such deed or bond.

Documents to be lodged by executor with registration officer

42. (1) Except as is otherwise provided in sub-section (2), an executor who desires to have any immovable property registered in the name of any heir or other person legally entitled to such property or to have any endorsement made under section 39 or 40 shall, in addition to any other deed or document which he may be by law required to lodge with the registration officer, lodge with the said officer a certificate by the Master that the proposed transfer or endorsement, as the case may be, is in accordance with the liquidation and distribution account.

(2) An executor who desires to effect transfer of any immovable property in pursuance of a sale shall lodge with the registration officer, in addition to any such other deed or document, a certificate by the Master that no objection to such transfer exists.

Movable property to which minors and moneys to which absentees or persons under curatorship are entitled

43. (1) The natural guardian of a minor shall, subject to the provisions of sub-sections (2) and (3) and to the terms of the will (if any) of the deceased, be entitled to receive from the executor for and on behalf of the minor, any movable property to which the minor is, according to any distribution account in any deceased estate, entitled as an heir.

(2) No sum of money shall be paid, and if in the case of any other movable property, the Master so directs, no such movable property shall be delivered to any such guardian under sub-section (1) unless payment of such sum of money or payment, in default of delivery, of the value of such movable property according to a valuation by an appraiser or any other person approved by the Master, as the case may be, to the minor, at the time when he is to become entitled to the payment of such sum of money or delivery of such property, has been secured to the satisfaction of the Master.

(3) Any such guardian shall, if called upon to do so by the Master by notice in writing, lodge with the Master, within a period specified in the notice or within such further period as the Master may allow, a statement in writing, signed by him in person and verified by an affidavit made by him, giving such particulars in respect of any such property or sum of money as may be indicated in the notice.

(4) If the estate of any such guardian or of his surety is sequestrated, or if such guardian or surety commits an act of insolvency, or is about to go or has gone to reside outside the Republic, or if in the opinion of the Master the security given under sub-section (2) has become inadequate, the Master may, by notice in writing, require such guardian to provide within the period stated in the notice, such additional security as the Master may specify, and if the guardian fails to comply with the notice within the said period or within such further period as the Master may allow, the amount in question shall, unless the notice has been withdrawn by the Master, forthwith become payable into the hands of the Master.

(5) The Master may -

(a) if any payment or delivery referred to in sub-section (2) has been made to any minor entitled thereto; or

(b) if any minor entitled to any such payment or delivery at any time after his majority, consents thereto in writing after he has attained majority,

reduce the amount of the security to an amount which would, in his opinion, be sufficient to secure any other such payment or delivery still to be made by the guardian.

(6) Subject to the provisions of sub-section (1) and to the terms of the will (if any) of the deceased, an executor shall pay into the hands of the Master any money to which any minor, absentee, unknown heir or person under curatorship is entitled according to any liquidation or distribution account in the estate of the deceased: Provided that the Court may, upon consideration of a report by the Master and of the terms of the will (if any) of the deceased, make such order exempting the executor from compliance with the provisions of this sub-section as it may deem fit.

Movable property to which minor or unborn heir is entitled subject to usufructuary or fiduciary rights or other like interests

44. (1) If according to any distribution account a minor is, or an unborn heir will when born be, entitled to any movable property out of a deceased estate, subject to usufructuary or fiduciary rights or any other like interest in favour of any other person including the natural guardian, tutor or curator of the minor or unborn heir, then, subject to the provisions of sub-section (3) and any express provision to the contrary in the will-

(a) the executor shall, in the case of a sum of money, pay such sum of money into the hands of the Master, and, in the case of any other movable property, deal with such property in such manner as the Master may direct; and

(b) such sum of money and, unless the Master otherwise directs, such other movable property shall not, during the minority of the minor or before the birth and during the minority of the heir, as the case may be, be paid or delivered to such person unless such person has given security mutatis mutandis as provided in sub-section (2) of section forty-three, for the payment of such sum or the delivery of such property to the minor or heir at the time when the minor or heir is to become entitled to such payment or delivery.

(2) Sub-sections (3), (4) and (5) of section forty-three shall mutatis mutandis apply in respect of any security given under sub-section (1).

(3) The provisions of sub-section (1) shall not apply in relation to any disposition in a will executed prior to a date twelve months after the date of commencement of this Act.

Payment of moneys to minors or persons under curatorship domiciled outside the Republic

45. (1) If according to any distribution account in any deceased estate, any minor or person under curatorship domiciled outside the Republic is entitled to any sum of money, the executor with the concurrence of the Master, or the Master, if the said sum has been paid into his hands, may remit the said sum to the government of the country in which such minor or person is domiciled or to the natural guardian, tutor or curator of such minor or person in that country.

(2) If the executor has remitted any sum under sub-section (1), he shall in due course produce proof to the satisfaction of the Master that he has done so.

(3) No action shall lie against the Master at the instance of any such minor or person under curatorship in respect of any sum remitted under sub-section (1).

Failure to pay over moneys

46. Any executor who fails to pay over any money to the Master or to any other person or to deposit it in any banking account under section twenty-eight when required by or under this Act to do so, or who uses or knowingly permits any co-executor to use any property in the estate except for the benefit of the estate, shall pay into the estate an amount equal to double the amount which he has so failed to pay over or to deposit or to double the value of the property so used: Provided that the Master may, on good cause shown, exempt any executor, in whole or in part, from any liability which he may have incurred under this section.

Sales by executor

47. An executor shall not, unless authorized thereto by the will of the deceased, sell any property (other than property of a class ordinarily sold through a stockbroker, or a bill of exchange) otherwise than by public auction after such notice and upon such conditions (if any) as the Master may direct: Provided that-

(a) the foregoing provisions of this section shall not apply in respect of property sold in the ordinary course of any business or undertaking of the deceased carried on by the executor; and

(b) the Master may, if it would be to the advantage of the persons interested or if they all consent thereto and it would not be contrary to the terms of the will (if any) of the deceased, authorize the executor to sell any such property on such conditions as the Master may determine, by public tender or out of hand.

Extension of time and compounding of debts

48. An executor may accept from a debtor of the deceased estate who is unable to pay his debt in full, any reasonable part of the debt in discharge of the whole debt or grant any debtor of the deceased estate an extension of time for the payment of his debt in so far as this is compatible with the provisions of section thirty-five: Provided that if the debt exceeds two hundred rand, an executor shall, subject to the terms of the will (if any) of the deceased, not accept a part of the debt in discharge of the whole debt, unless he has been authorized to do so by the Master.

Purchases by executor of property in estate, or mortgaged or pledged to the deceased

49. (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.

(2) An executor may, in his capacity as such, and subject to the consent of or confirmation by the Master, buy in any property mortgaged or pledged to the deceased.

Executor making wrong distribution

50. Any executor who makes a distribution otherwise than in accordance with the provisions of section thirty-four or thirty-five, as the case may be, shall -

(a) be personally liable to make good to any heir and to any claimant whose claim was lodged within the period specified in the notice referred to in section twenty-nine, any loss sustained by such heir in respect of the benefit to which he is entitled or by such claimant in respect of his claim, as a result of his failure to make a distribution in accordance with the said provisions; and

(b) be entitled to recover from any person any amount paid or any property delivered or transferred to him in the course of the distribution which would not have been paid, delivered or transferred to him if a distribution in accordance with the said provisions had been made: Provided that no costs incurred under this paragraph shall be paid out of the estate.

Remuneration of executors and interim curators

51. (1) Every executor (including an executor liquidating and distributing an estate under sub-section (4) of section thirty-four) shall, subject to the provisions of sub-sections (3) and (4), be entitled to receive out of the assets of the estate-

(a) such remuneration as may have been fixed by the deceased by will; 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) An interim curator appointed under section twelve shall, subject to the provisions of sub-section (3), be entitled to receive out of the assets of the estate a remuneration which shall be so assessed and taxed.

(3) The Master may -

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

(b) disallow any such remuneration, either wholly or in part, if the executor or interim curator has failed to discharge his duties or has discharged them in an unsatisfactory manner; and

(c) if the deceased had a limited interest in any property which terminated at his death, direct that so much of such remuneration as the Master considers equitable, or the whole thereof if there are no other assets available for the payment of such remuneration, shall be paid in such proportion as he may determine by the persons who became entitled to the property at the death of the deceased.

(4) An executor shall not be entitled to receive any remuneration before the estate has been distributed as provided in sub-section (4) of section thirty-four or sub-section (12) of section thirty-five, as the case may be, unless payment of such remuneration has been approved in writing by the Master.

No substitution or surrogation

52. It shall not be competent for any executor to substitute or surrogate any other person to act in his place.

Absence of executor from Republic

53. At the request of an executor the Master may permit him to absent himself from the Republic on such conditions as the Master may think fit to impose and subject to his giving such notice of his intention to absent himself from the Republic as the Master may direct.

Removal from office of executor

54. (1) An executor may at any time be removed from his office -

(a) by the Court-

(i) if he fails to comply with a notice under sub-section (3) of section twenty-three within the period specified in the notice, or within such further period as the Master may allow, and was not, prior to the issue of such notice, under an obligation to find security for the proper performance of his functions; or

(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 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

(iv) 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

(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

(ii) if he fails to comply with a notice under sub-section (3) of section twenty-three within the period specified in the notice or within such further period as the Master may allow and was, prior to the issue of such notice, under an obligation to find security for the proper performance of his functions; or

(iii) if he is convicted, in the Republic or elsewhere, of theft, fraud, forgery, uttering a forged instrument or perjury, and is sentenced therefor to serve a term of imprisonment without the option of a fine, or to a fine exceeding twenty rand; or

(iv) if at the time of his appointment he was incapacitated, or if he becomes incapacitated 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 sub-section (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.

Continuance of pending legal proceedings by remaining or new executor

55. (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 continued as if they had originally been instituted by or against such remaining or new executor.

Discharge of executors, and proceedings against discharged executors

56. (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 No. 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 sub-section (1), in respect of any claim against the deceased estate or any benefit out of that estate: Provided that the provisions of this sub-section shall not exempt any such person from liability in respect of any fraudulent dealing in connection 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.

CHAPTER 3: ADMINISTRATORS

In certain cases property not to be administered without letters of administratorship

57. No person shall-

(a) administer any property which has by the will of any person who dies after the commencement of this Chapter, been given under his control to be administered for the benefit, whether in whole or in part, of any other person; or

(b) after the death of any donor who dies after the commencement of this Chapter, administer any property which has by any written instrument operating inter vivos been given under his control by such donor for the said purpose,

except under letters of administratorship granted or signed and sealed under this Chapter, or under an endorsement made under section fifty-nine.

Orders by Master prohibiting administration without letters of administratorship

58. (1) The Master may, subject to the provisions of sub-sections (3) and (4)-

(a) if written application is made therefor by any interested beneficiary under any will or written instrument operating inter vivos whereby a testator or donor who has died before the commencement of this Chapter, has given any property under the control of any person to be administered for the benefit, whether in whole, or in part, of any other person; and

(b) if a report by an accountant on the administration of the property by the person under whose control it has been so given is submitted with the application; and

(c) if there are reasonable grounds for believing that the interests of such beneficiary would be prejudiced if the said person is not restrained from administering that property otherwise than under letters of administratorship granted or signed and sealed under this Chapter or under an endorsement made under section fifty-nine, as the case may be,
by written order under his hand, prohibit that person from so administering that property.

(2) Any person under whose control any property has been given as aforesaid shall allow any accountant nominated in writing by any beneficiary referred to in paragraph (a) of sub-section (1) to examine, for the purposes of compiling the report referred to in paragraph (b) of the said sub-section, any books of account and any document kept by him or in his custody or under his control and relating to his administration of such property.

(3) The Master shall, before exercising his powers under sub-section (1), give the person under whose control the property has been so given, not less than thirty days' notice of the grounds upon which the exercise of those powers is contemplated, and shall consider any representations made or information or evidence submitted to him by such person within that period.

(4) The said notice shall be accompanied by a summary of all the relevant facts relating to the application which have come to the knowledge of the Master.

Letters of administratorship to administrators nominated by deceased persons, and endorsements in case of assumed administrators

59. (1) The Master shall, subject to the provisions of sub-section (3), on the written application of any person -

(a) under whose control a testator or donor who has died before or after the commencement of this Chapter, has by will or written instrument operating inter vivos which has been registered in the office of the Master, given any property to be administered for the benefit, in whole or in part, of any other person; and

(b) who is not incapacitated from being an administrator of such property and has complied with the provisions of this Act,
grant letters of administratorship to such person.

(2) The Master shall, subject to the provisions of sub-section (3) -

(a) on the written application of any person who has been duly nominated as an assumed administrator by any administrator nominated by a testator or donor referred to in paragraph (a) of sub-section (1), is not incapacitated from being an administrator of the property concerned, and has complied with the provisions of this Act; and

(b) on production of the deed of assumption duly signed by the person so assumed and the administrator so assuming him,
endorse the appointment of such person as assumed administrator on the letters of administratorship granted to the administrator so assuming him.

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

(4) If written application for any letters of administratorship granted under sub-section (1), was made within fourteen days after the death of the testator or donor, or the date of any order made under section fifty-eight, as the case may be, such letters of administratorship shall, for the purposes of section fifty-seven, or of the prohibition contained in such order, as the case may be, be deemed to have been granted immediately after the death of the testator or donor, or on the date of such order.

Proceedings on failure of .nomination of administrators or on death, incapacity or refusal to act, etc.

60. (1) The Master shall, subject to the provisions of sub-section (2)-

(a) if any person who dies after the commencement of this Chapter, has, without nominating any person as administrator, by will or by written instrument operating inter vivos provided for the administration of any property for the benefit, in whole or in part, of any person; or

(b) if any eventually referred to in paragraph (b), (c), (d), (e) or (f) of sub-section (1) of section eighteen, occurs with reference to any person or persons -

(i) who have by will or written instrument operating inter vivos been nominated by a person who dies after the commencement of this Chapter to be administrator or administrators; or

(ii) against whom an order under section fifty-eight has been made; or

(iii) to whom letters of administratorship have been granted under this Chapter,

by notice in writing or by a notice published in such manner as in his opinion is best calculated to bring it to the attention of the persons concerned, call upon the persons for whose benefit the property is or is to be administered, 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 administrator or administrators, a person or a specified number of persons.

(2) Sub-sections (2), (4), (5) and (6) of section eighteen shall mutatis mutandis apply with reference to administrators: Provided that for the purposes of the application under this sub-section of the said sub-section (2), the reference to sub-section (3) of section eighteen and to section nineteen, shall be deemed to be omitted.

Competition for office of administrator

61. If at any meeting in pursuance of a notice under sub-section (1) of section sixty more than one person is nominated for recommendation to the Master, the Master shall, in making any appointment, prefer the nominee of a more immediate beneficiary to the nominee of a more remote beneficiary: Provided that the Master may -

(a) join the nominee of a more immediate beneficiary with the nominee of a more remote beneficiary; or

(b) if there is any good reason therefor, pass by any or all of such nominees.

Foreign letters of administratorship

62. 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 also apply to letters of administratorship so granted.

Security by administrators

63. (1) Every person to be appointed administrator dative or assumed administrator or against whom an order has been made under section fifty-eight shall, before letters of administratorship are granted or signed and sealed, or any endorsement is made under section fifty-nine, as the case may be, find security to the satisfaction of the Master in an amount determined by the Master, for the proper performance of his functions.

(2) Every person to be appointed administrator in pursuance of any will or written instrument operating inter vivos, shall be under the like obligation of finding security, unless -

(a) he has been nominated by any will or by any such instrument executed before the commencement of this Chapter, and has not been directed by such will or instrument to find security; or

(b) he has been nominated by any will or by any such instrument executed after the commencement of this Chapter, and the Master has by 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 if he is or resides or is about to reside outside the Republic, or if there is any good reason therefor, the Master may, notwithstanding the provisions of paragraph (a) or (b), refuse to grant or sign and seal letters of administratorship or to make any endorsement under section fifty-nine, until he finds such security.

(3) The costs of finding such security shall be paid out of the income derived from the property concerned or out of the property itself: Provided that such costs shall, subject to the terms of the will or written instrument operating inter vivos, for the purposes of adjustment between the beneficiaries concerned, be brought into account against the said income and against the property in such proportions as the Master may determine.

(4) Sub-sections (3) and (5) of section twenty-three shall mutatis mutandis apply with reference to administrators.

(5) Unless the Master otherwise directs, an administrator shall be required to find security in terms of this section if all the beneficiaries concerned are permanently resident outside the Republic.

Transfer and mortgage of immovable property by or in favour of administrators

64. (1) An administrator who desires to have any immovable property registered in the name of any beneficiary or to have any endorsement made under section thirty-nine, as applied by section seventy, shall, in addition to lodging any deed or document which he may by law be required to lodge with the registration officer, satisfy the said officer that the proposed transfer or endorsement is in accordance with the will or written instrument operating inter vivos.

(2) An administrator who desires to effect transfer of any immovable property in pursuance of a sale, or to effect the registration of a mortgage over immovable property and any person who desires to effect transfer of any immovable property to an administrator or to effect the registration of a mortgage over immovable property in favour of an administrator, shall satisfy the registration officer that it is within the powers of the administrator to effect such transfer or registration, or to acquire such property or accept such mortgage, as the case may be.

Accounts by Administrators

65. (1) An administrator shall at least once in every year not later than a date to be determined by the Master -

(a) lodge with the Master a statement of account in the prescribed form and an audit certificate in the prescribed form, signed by an accountant appointed in terms of the will or written instrument operating inter vivos, or, if no accountant has been so appointed, by an accountant nominated by the Master after consultation with the beneficiaries;

(b) forward to each beneficiary, or in the case of a minor or a person under curatorship, to the natural guardian, tutor or curator of such minor or person, as the case may be, a copy of such statement and certificate; and

(2) The Master shall issue to every accountant nominated by him in terms of paragraph (a) of sub-section (1) a certificate of nomination and advise the administrator of the name and address of such accountant.

(3) Subject to the terms of the will or written instrument operating inter vivos, any expense incurred in terms of sub-section (1) shall be paid out of the income derived from the property concerned or out of the property itself and shall, for the purposes of adjustment between the beneficiaries concerned, be brought into account against the said income and against the property in such proportions as the Master may determine.

Movable property to which minors and moneys to which absentees or persons under curatorship are entitled

66. (1) The natural guardian of a minor shall, subject to the provisions of sub-section (2) and to the terms of the will or written instrument operating inter vivos, be entitled to receive from an administrator for and on behalf of the minor -

(a) any income accruing to the minor from the property concerned; and

(b) any money or other movable property to which the minor is entitled under the will or written instrument.

(2) Sub-sections (2), (3), (4) and (5) of section forty-three shall mutatis mutandis apply with reference to any money or other movable property referred to in paragraph (b) of sub-section (1).

(3) Subject to the provisions of sub-section (1) and of the terms of the will or written instrument operating inter vivos, an administrator shall pay into the hands of the Master any money to which any minor, absentee, unknown beneficiary or person under curatorship becomes entitled by way of income from the property concerned or otherwise under the will or written instrument.

Payment of moneys to minors or persons under curatorship domiciled outside the Republic

67. (1) If any minor or any person under curatorship domiciled outside the Republic, becomes entitled to any sum of money by way of income from any property administered by an administrator or otherwise in terms of the will or written instrument operating inter vivos under which any property is administered by an administrator, the administrator with the concurrence of the Master, or the Master, if the said sum has been paid into his hands, may remit the said sum to the government of the country in which such minor or person is domiciled or to the guardian, tutor or curator of such minor or person in that country.

(2) Sub-sections (2) and (3) of section forty-five shall mutatis mutandis apply with reference to any sum remitted under sub-section (1).

Administrator making wrong distribution

68. Any administrator who makes a distribution otherwise than in accordance with the provisions of the relevant will or written instrument operating inter vivos -

(a) shall be personally liable to make good to any beneficiary or creditor any loss sustained by such beneficiary in respect of the benefit to which he is entitled, or by such creditor in respect of his claim, as a result of his failure to make a distribution in accordance with the said provisions, unless the court otherwise directs; and

(b) shall be entitled to recover from any person any amount paid or any property delivered or transferred to him in the course of the distribution, which would not have been paid, delivered or transferred to him if a distribution had been made in accordance with the said provisions: Provided that no costs incurred under this paragraph shall be paid out of the property in respect of which such administrator has been appointed or out of any income therefrom.

Remuneration of administrators

69. (1) Every administrator shall, subject to the provisions of sub-section (2), in respect of his administration and distribution of the property concerned, 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 the win or written instrument operating inter vivos; 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;

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

(3) Any such remuneration shall, subject to the terms of the will or written instrument operating inter vivos, for the purposes of adjustment between the beneficiaries concerned, be brought into account against the said income and against the property in such proportions as the Master may determine.

Application of certain sections to administrators

70. (1) Sections seventeen, twenty-four, twenty-eight, thirty-six, thirty-nine and forty-one, sub-sections (1) and (3) of section forty-four, sections forty-six to forty-nine, inclusive, and sections fifty-two to fifty-six, inclusive, shall mutatis mutandis apply with reference to administrators: Provided that any reference in any of the said sections to a will shall, for the purposes of its application under this sub-section, include a reference to any written instrument operating inter vivos and executed by a person who has died.

(2) Section twenty-seven shall mutatis mutandis apply with reference to administrators appointed to administer any property under a written instrument operating inter vivos.

CHAPTER 4: TUTORS AND CURATORS

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

71. (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 Administration of Estates Act, 1913 (Act No. 24 of 1913), or under section sixty-two of the Mental Disorders Act, 1916 (Act No. 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.

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

72. (1) The Master shall, subject to the provisions of sub-section (3) and to any applicable provision of section five of the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), or any order of court made under any such provision, on the written application of any person-

(a) who has been nominated by will or written instrument-

(i) by the father of a legitimate minor, who has not been deprived, as a result of an order under sub-section (1) of the said section five, of the guardianship of such minor, or under section sixty of the Children's Act, 1960 (Act No. 33 of 1960), of his parental powers over him; or

(ii) by the mother of an illegitimate minor or of a legitimate minor whose father is dead, who has not been so deprived of the guardianship of such minor or of her parental powers over him; or

(iii) by the parent to whom the sole guardianship of a minor has been granted under sub-section (1) of the said section five or on whom the exclusive right to exercise parental powers in regard to a minor has been conferred under the said section sixty,

to administer the property of such minor and to take care of his 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 sub-section (1) and any endorsement to be made under sub-section (2), and the provisions of sub-sections (2) and (3) of section fifteen shall so apply with reference to any such endorsement.

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

73. (1) The Master may, subject to the provisions of sub-sections (2) and (3)-

(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 sub-section (1) of section sixty-two of the Mental Disorders Act, 1916 (Act No. 38 of 1916), be competent for a judge in chambers to appoint a curator; or

(c) if any eventuality referred to in paragraph (b), (c), (d), (e) or (f) of sub-section (1) of section eighteen occurs with reference to any person who has been nominated as provided in paragraph (a), (b) or (c) of sub-section (1) of section seventy-two, or to whom letters of tutorship or curatorship have been granted under the latter section or under this sub-section,

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) Sub-sections (2), (4), (5) and (6) of section eighteen shall mutatis mutandis apply with reference to tutors and curators: Provided that for the purposes of the application under this sub-section of the said sub-section (2), the reference to sub-section (3) of section eighteen and to section nineteen, shall be deemed to be omitted.

(3) The Master may, without any notice under sub-section (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.

Foreign letters of tutorship or curatorship

74. 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.

Notifications in respect of tutors and curators

75. 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.

Authority conferred by letters of tutorship and curatorship

76. (1) The Master may -

(a) by any letters of tutorship granted by him, authorize the tutor to administer the property 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 undertaking 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 sub-section (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 sub-section, or in sub-section (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 undertaking of the minor or other person concerned, authorize the curator to administer the property or, as the case may be, authorize the tutor or curator to carry on such business or undertaking subject to any law which may be applicable.

Security by tutors and curators

77. (1) Every person appointed or to be appointed tutor or curator as provided in paragraph (d) of sub-section (1) of section seventy-two or in sub-section (2) of that section or under section seventy-three or seventy-four, shall, before letters of tutorship or curatorship are granted or signed and sealed, or any endorsement is made, as the case may be, find 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 sub-section (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 Republic, or if there is any good reason therefor, the Master may, notwithstanding the provisions 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 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 satisfaction 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.

Inventories by tutors and curators

78. (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;

(c) if any immovable property is included in any such inventory, specify therein all particulars 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.

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

79. (1) The Master shall forthwith after receipt by him of any inventory under section seventy-eight in which immovable property has been included, furnish to the registration officer concerned a return specifying the name of the minor or other person concerned 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.

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

80. (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 four thousand rand and the alienation would be in the interest of the minor or of such person, as the case may be; and

(b) any mortgage of any such immovable property to an amount not exceeding in the case of any one such minor or person, four thousand rand, 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.

Purchase by tutor or curator of property administered by him

81. 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.

Payment to Master of certain moneys

82. 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

(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.

Accounts by tutors and curators

83. (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 sub-section (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.

Remuneration of tutors and curators

84. (1) Every tutor and curator shall, subject to the provisions of sub-section (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.

Application of certain sections to tutors and curators

85. Sections seventeen, twenty-four, twenty-six, twenty-eight and thirty-six, sub-section (2) of section forty-two, sections forty-six and forty-eight, sub-section (2) of section forty-nine and sections fifty-two, fifty-three, fifty-four and fifty-six shall mutatis mutandis apply with reference to tutors and curators: Provided that-

(a) 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; and

(b) notwithstanding the provisions of section seventeen as so applied, letters of curatorship may be granted to a married woman as curatrix of her husband or his property, without his consent.

CHAPTER 5: THE GUARDIAN'S FUND

Existing guardian's fund to continue

86. (1) The guardian's fund established by section ninety-one of the Administration of Estates Act, 1913 (Act No. 24 of 1913), shall continue in existence, and shall consist of all moneys -

(a) in that fund at the commencement of this Act; or

(b) received by the Master under this Act or any other law or in pursuance of an order of Court; or

(2) Whenever any money is so received or accepted by the Master, he shall open in the books of the guardian's fund an account in the name of the person to whom that money belongs or the estate of which that money forms part: Provided that if it is not known to whom any such money belongs, or if it is more convenient, the account may be opened in the name of the person from whom that money has been received, or of the estate from which that money is derived, as the case may be.

Moneys in guardian's fund to be deposits for purposes of Act 45 of 1984

87. The moneys in the guardian's fund shall be deemed to be deposits for the purposes of the Public Debt Commissioners Act, 1911, and the Master may from time to time pay out of any working balance retained at his disposal under the said Act, any amounts due and payable out of the said fund.

Interest on certain moneys in guardian's fund

88. (1) Subject to the provisions of sub-sections (2) and (3), interest calculated on a monthly basis at the rate per annum determined from time to time by the Minister of Finance, and compounded annually at the thirty-first day of March, shall be allowed on each rand of the principal of every sum of money received by the Master for account of any minor, lunatic, unborn heir or any person having an interest therein of a usufructuary, fiduciary or fideicommissary nature.

(2) No interest shall be allowed on any sum of money-

(a) in the case of money which became legally claimable before the first day of April, 1962, in respect of any period after it became so claimable;

(b) in the case of money which became legally claimable on or after the said date, in respect of any period after the expiration of five years after it became so claimable, unless it is legally claimed before such expiration.

(3) Interest shall be calculated in the case of any sum of money held by the Master on the first day of April, 1962, from that date, and in all other cases from the first day of the month following that in which the money has been received by the Master, until-

(a) in the case of any sum of money claimed after the expiration of a period of five years after it became claimable, the last day of the month preceding the month during which such period expires;

(b) in all other cases, the last day of the month preceding the month during which the money is paid out.

Payments from guardian's fund

89. The Master shall, upon the application of any person who has become entitled to receive any money out of the guardian's fund, pay that money to that person.

Payments to natural guardians, tutors and curators, or for and on behalf of minors and persons under curatorship

90. The Master may, subject to the terms of any will or written instrument disposing of the money or, in the case of a tutor or curator, by which the tutor or curator has been nominated, pay to the natural guardian or to the tutor or curator, or for and on behalf of the minor or other person concerned, so much of any moneys standing to the credit of the minor or other person in the guardian's fund as may be immediately required for the maintenance, education or other benefit of the minor or other person or any of his dependants, or for any purpose referred to in sub-paragraph (i), (ii) or (iv) of paragraph (c) of the proviso to section eighty-two, or for any investment in immovable property within the Republic or in any mortgage over such immovable property on behalf of the minor or other person, approved by the Master: Provided that, subject to the terms of any such will or instrument, the aggregate of the payments made in the case of any minor or other person for purposes of maintenance, education or other benefit shall not, without the sanction of the Court, exceed four thousand rand of the capital amount received for account of the minor or other person concerned.

Publication of list of unclaimed moneys

91. The Master shall in the month of September of each year cause to be published in the Gazette a list of all amounts of twenty rand or more in the guardian's fund which have been claimable and have remained unclaimed by the persons entitled thereto for a period exceeding one year but not exceeding five years.

Forfeiture to State of moneys unclaimed for thirty years

92. Any money in the guardian's fund (whether such money has been paid into the said fund before or after the commencement of this Act) which has remained unclaimed by the person entitled thereto for a period of thirty years as from the date upon which such person became entitled to claim the said money, shall be forfeited to the State.

Statements of certain unclaimed moneys to be published, and amounts unclaimed to be paid into guardian's fund

93. (1) Every person carrying on business in the Republic shall in the month of January in each year prepare in the prescribed form and publish in the Gazette separate detailed statements in respect of all amounts of one rand or more but of less than twenty rand and all amounts of twenty rand or more which were held by him or by any agent on his behalf in the Republic on the thirty-first day of December of the immediately preceding year and which were not his property or subject to any valid lien, but at the time of the preparation of the said statements have remained unclaimed for a period of five years or more by the rightful owners.

(2) Any person who has prepared the said statements for publication, may deduct from the said amounts the cost of publication apportioned as far as possible among the owners.

(3) After the expiration of three months from the date of publication of the said statements, such person shall forthwith transmit a statement and affidavit in the prescribed form-

(a) to the Master and deposit in the guardian's fund to the credit of the rightful owners all such amounts still remaining unclaimed by the rightful owners who are not Bantu as defined in section one of the Population Registration Act, 1950 (Act No. 30 of 1950); or

(b) to the Secretary for Black Administration and Development and deposit in the South African Black Trust Fund established under section eight of the Bantu Trust and Land Act, 1936 (Act No. 18 of 1936), to the credit of the rightful owners all such amounts still remaining unclaimed by the rightful owners who are Black as so defined.

CHAPTER 6: MISCELLANEOUS PROVISIONS

Consent of Master to sub-division of immovable property on behalf of minor or unborn heir

94. If the Master is satisfied that it is expedient to partition any immovable property which is registered in the name of any minor or in which any minor has or any unborn heir may acquire any interest, and that the proposed sub-division is fair and equitable, he may, upon such terms as to costs or otherwise as he thinks fit, and subject to the provisions of section 30 of the Deeds Registries Act, 1937 (Act No. 47 of 1937), consent, on behalf of such minor or heir, to the sub-division and to any exchange of property, payment of money or mortgage incidental to the sub-division.

Review of Master's appointments etc.

95. Every appointment by the Master of an executor, administrator, tutor, curator or interim curator, and every decision, ruling, order, direction or taxation by the Master under this Act shall be subject to appeal to or review by the Court upon motion at the instance of any person aggrieved thereby, and the Court may on any such appeal or review confirm, set aside or vary the appointment, decision, ruling, order, direction or taxation, as the case may be.

Proceedings by Master

96. (1) Notwithstanding anything in any other law contained, the Master may-

(a) institute any civil proceedings in pursuance of the provisions of this Act, against any executor, administrator, tutor, curator or interim curator, in the division of the Supreme Court within whose area of jurisdiction the appointment of such executor, administrator, tutor, curator or interim curator was made, whether or not such executor, administrator, tutor, curator or interim curator is resident within that area or otherwise subject to the jurisdiction of that division; and

(b) in any such proceedings, proceed by way of application or motion and report to the Court in writing the facts upon which he relies instead of stating them in an affidavit.

(2) Whenever in the course of his duties the Master finds it necessary to lay any facts before the Court otherwise than upon formal application or motion, he may do so by a report in writing: Provided that the Court may refer any such report back to the Master and direct him to proceed by way of formal application or motion.

(3) Whenever any difference of opinion upon a question of law arises between the Master and an executor in the distribution of an estate and a minor is interested in the decision of that question, the Master and the executor may state a case in writing for determination by a judge in chambers, and the determination of the judge shall be binding upon the Master and the executor, without prejudice to the rights of other persons interested in the distribution: Provided that the judge may refer the matter to the Court for argument.

Master's costs

97. All costs incurred by the Master in the exercise of his powers and the performance of his duties under this Act or in any proceedings in pursuance of the provisions of this Act which cannot be recovered from any other source may, unless the Court has ordered that they be paid by him de bonis propriis, be paid out of the guardian's fund: Provided that the Minister may specially authorize that any costs ordered to be paid by the Master de bonis propriis be refunded to him or be paid out of the said fund.

Recovery of costs ordered to be paid de bonis propriis by executor, etc.

98. Whenever any executor, administrator, tutor, curator, interim curator or surety has been ordered to pay de bonis propriis the costs of any proceedings instituted by the Master, the Master may, if he is unable to recover the said costs from any property belonging to the executor, administrator, tutor, curator, interim curator or surety, recover them from the property in the deceased estate or the property subject to the administration of the administrator, tutor or curator, as the case may be.

Master incapacitated from being executor, etc.

99. No Master shall in his official capacity be capable of acting as executor, administrator, tutor or curator.

Exemption from liability for acts or omissions in Master's office

100. No act or omission of any Master or of any officer employed in a Master's office shall render the State or such Master or officer liable for any damage sustained by any person in consequence of such act or omission: Provided that if such act or omission is mala fide or if such Master or officer has, in connection with such act or omission in the course of his duties or functions, not exercised reasonable care and diligence, the State shall be liable for the damage aforesaid.

Evidence

101. (1) A copy certified by the Master of any letters of executorship, administratorship, tutorship or curatorship lodged with him under section twenty-one, or under the said section read with section sixty-two or seventy-four, as the case may be, or of a copy of any such letters, shall be admissible in evidence as if it were the original letters.

(2) A certificate under the hand of the Master that any person named in the certificate has under any such letters signed and sealed by him been authorized-

(a) in the case of an executor, to liquidate and distribute the estate in the Republic of the deceased person named in the certificate;

(b) in the case of an administrator, to administer and distribute the property in the Republic given under his control by the person so named; and

(c) in the case of a tutor or curator, to perform any act in respect of or to take care of or administer the property in the Republic of the minor or other person so named, or to carry on any business or undertaking in the Republic of such minor or person, as the case may be,

shall be admissible in evidence as prima facie proof that such first-mentioned person has been so authorized.

(3) A certificate under the hand of the Master shall be prima facie proof of any loss referred to in sub-section (5) of section twenty-three, or in the said sub-section as applied by sub-section (4) of section sixty-three, or in sub-section (5) of section seventy-seven, and of any value referred to in sub-section (1) of section thirty-five, or in section forty-six or in the last-mentioned section as applied by section seventy or by section eighty-five.

Penalties

102. (1) Any person who -

(a) steals or wilfully destroys, conceals, falsifies or damages any document purporting to be a will; or

(b) wilfully makes any false inventory under this Act; or

(d) wilfully makes any false valuation for the purposes of this Act; or

(e) when being interrogated under oath under section thirty-two, makes, relative to the subject in connection with which he is interrogated, any statement whatever which he knows to be false or which he does not know or believe to be true; or

(f) being an executor or administrator, wilfully distributes any estate or property otherwise than in accordance with the provisions of sub-section (12) of section thirty-five, or of the relevant will or written instrument operating inter vivos; or

(g) contravenes or fails to comply with the provisions of sub-section (1) or (3) of section nine, section thirteen, sub-section (1) or (3) of section twenty-seven or of the last-mentioned section as applied by sub-section (2) of section seventy, sub-section (13) of section thirty-five, section fifty-seven, sub-section (1) of section sixty-five, section seventy-one, section seventy-eight, section eighty-three, sub-section (1) or (3) of section ninety-three, or with any notice under sub-section (2) of section nine or any order under sub-section (1) of section fifty-eight, or hinders or obstructs any accountant nominated by the Master in terms of paragraph (a) of sub-section (1) of section sixty-five in the execution of his duty; or

(h) contravenes or fails to comply with the provisions of sub-section (4) of section six, sub-section (1) or (2) of section eight, sub-section (1) of section eleven, sub-section (1) of section twenty-six or of the last-mentioned section as applied by section eighty-five, sub-section (1), (2) or (3) of section twenty-eight or of the last-mentioned section as applied by sub-section (7) of section twelve or by sub-section (1) of section seventy or by section eighty-five, section thirty, sub-section (1) of section thirty-five, or with any direction under sub-section (2) of section thirty-five or any notice under sub-section (2) or (3) of section forty-three, or of the last-mentioned section as applied by sub-section (2) of section sixty-six; or

(i) contravenes or fails to comply with the provisions of sub-section (1) or (2) of section seven, sub-section (8) of section thirty-five, sub-section (1) of section forty-one or the last-mentioned section as applied by section seventy, sub-section (5) of section fifty-four or of the last-mentioned section as applied by sub-section (1) of section seventy or by section eighty-five, or with any notice under sub-section (3) of section seven or any direction under sub-section (6) of section twenty-eight or of the last-mentioned section as applied by sub-section (1) of section seventy or by section eighty-five, or fails without reasonable excuse to comply with a notice under paragraph (b) of sub-section (1) of section thirty-two, or, having appeared in answer to such notice, refuses to take the oath or to submit to examination or to answer fully and satisfactorily any lawful question put to him,

shall be guilty of an offence and liable on conviction -

(i) in the case of an offence referred to in paragraph (a), to a fine not exceeding two thousand rand or to imprisonment for a period not exceeding seven years or to both such fine and such imprisonment;

(ii) in the case of an offence referred to in paragraph (b), (c), (d) or (e), to a fine not exceeding one thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment;

(iii) in the case of an offence referred to in paragraph (f) or (g), to a fine not exceeding two hundred rand or to imprisonment for a period not exceeding twelve months or to both such fine and such imprisonment;

(iv) in the case of an offence referred to in paragraph (h), to a fine not exceeding one hundred rand or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment; and

(v) in the case of an offence referred to in paragraph (i), to a fine not exceeding fifty rand or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.

(2) The court convicting any person for failure to perform any act required to be performed by him by or under this Act may, in addition to any penalty which it imposes, order such person to perform such act within such period as the court may fix.

Regulations

103. (1) The State President may make regulations -

(a) providing for the custody and preservation of any records, moneys or securities in the offices of Masters, the removal from such offices and preservation in any other place of such records and the destruction of such records of an ephemeral nature;

(b) as to payments out of working balances of the guardian's fund;

(d) prescribing the matters in respect of which Master's fees shall be payable, the tariff of such fees and the manner in which such fees shall be payable;

(e) prescribing a tariff of remuneration payable to any person performing any act relating to the liquidation or distribution of an estate on behalf of the executor of the estate in question and prohibiting the charging or recovery of remuneration at a higher tariff than the tariff so prescribed;

(f) as to all matters which by this Act are required or permitted to be prescribed; and

(g) generally, as to all matters which he considers it necessary or expedient to prescribe in order that the purposes of this Act may be achieved.

(2) Any regulations made under sub-section (1) may prescribe penalties for any contravention thereof or failure to comply therewith not exceeding a fine of fifty rand or imprisonment for a period of three months.

(3) Any regulations made under sub-section (1) may prescribe penalties for any contravention thereof or failure to comply therewith not exceeding a fine of fifty rand or imprisonment for a period of three months.

Application of Act

104. (1) This Act shall not apply -

(a) to the property on board any vessel in any port or harbour of the Republic and belonging to any person who, being one of the officers or crew or a passenger of that vessel, dies when on land within the Republic or on board that vessel while it is lying in such port or harbour unless at the time of his death the person so dying has left any property other than personal effects within the Republic, or was domiciled within the Republic; or

(b) to the property of any person belonging to and serving with any visiting force as defined in section one of the Defence Act, 1957 (Act No. 44 of 1957), who dies within the Republic while on service with that force, unless it be shown to the satisfaction of the Court or the Master that for the proper liquidation and distribution of that property it is expedient that it be dealt with under this Act.

Repeal of laws, and savings

105. (1) Subject to the provisions of sub-sections (2) and (3), the laws set out in the Schedule are hereby repealed to the extent specified in the third column thereof.

(2) The estate of any person who died before the commencement of this Act shall be liquidated and distributed, and any matter relating to the liquidation and distribution of such estate shall be dealt with as if this Act had not been passed.

(3) If the surviving spouse of any person -

(a) who died in the Republic before the commencement of this Act; or

(b) who dies after such commencement but before the date referred to in sub-section (3) of section forty-four leaving a will in terms of which any minor child of the deceased and such spouse is or will when born be entitled to any movable property subject to usufructuary or fiduciary rights or any other like interest in favour of such spouse,

intends to marry under circumstances where a certificate under section fifty-six of the Administration of Estates Act, 1913 (Act No. 24 of 1913), would, but for the repeal of that Act by sub-section (1), have been required before the intended marriage could be solemnized, the provisions of the said section fifty-six shall apply in relation to the intended marriage as if this Act had not been passed.

Re-instatement for certain purposes of the provisions which were contained in sub-section (2) of section 5 of Act 24 of 1913 prior to its substitution in terms of section 16 of Act 68 of 1957

106. For the purposes of the application of sub-section (2) of section one hundred and five in respect of any estate which prior to the substitution effected by section sixteen of the General Law Amendment Act, 1957, was being dealt with under the provisions which prior to such substitution were contained in sub-section (2) of section five of the Administration of Estates Act, 1913, the said provisions shall with effect from the date of commencement of the said section sixteen, be deemed not to have been affected by such substitution.

Amendment of section 62 of Act 38 of 1916 as amended by section 1 of Act 13 of 1946

107. Section sixty-two of the Mental Disorders Act, 1916, is hereby amended by the substitution in sub-section (1) for the words "in respect of his property any act or power referred to in section sixty-five or generally to take care of or to administer his property and so to perform and exercise all the acts and powers referred to in the said section" of the words "any particular act in respect of his property or to take care of or administer his property or to carry on any business or undertaking of such person".

Limitation of application of Act 34 of 1934

108. The Trust Moneys Protection Act, 1934, shall not apply with reference to any moneys in respect of the administration of which security has been given under this Act.

Short title and commencement

109. (1) This Act shall be called the Administration of Estates Act, 1965, and shall, subject to the provisions of sub-section (2), come into operation upon a date to be fixed by the State President by proclamation in the Gazette.

(2) Different dates may in terms of sub-section (1) be fixed in respect of Chapter III and the remaining provisions of this Act.

Schedule: Laws repealed

Number and year of law	Short title	Extent of repeal
No. 24 of 1913.	Administration of Estates Act, 1913	The whole.
No. 38 of 1916.	Mental Disorders Act, 1916 [repealed in 1977]	Sections sixty-four and sixty-five.
No. 44 of 1926.	Financial Adjustments Act, 1926 [repealed in 1977]	Section three.
No. 45 of 1931.	Financial Adjustments Act, 1931 [repealed in 1977]	Section four.
No. 49 of 1935.	Finance Act, 1935 [repealed in 1977]	Section eight.
No. 17 of 1938.	Finance Act, 1938 [repealed in 1977]	Sections twenty and twenty-one.
No. 46 of 1944.	Finance Act, 1944 [repealed in 1977]	Section eighteen.
No. 57 of 1946.	Finance Act, 1946 [repealed in 1977]	Section nineteen.
No. 45 of 1953.	Finance Act, 1953 [repealed in 1977]	Section twelve.
No. 62 of 1955.	General Law Amendment Act, 1955	Sections eight to twelve, inclusive, and the First Schedule.
No. 68 of 1957.	General Law Amendment Act, 1957	Sections fifteen to twenty-one, inclusive.
No. 81 of 1957.	Finance Act, 1957 [repealed in 1977]	Section eight.
No. 37 of 1958.	Finance Act, 1958 [repealed in 1977]	Section ten.
No. 76 of 1961.	Finance Act, 1961 [repealed in 1977]	Section five.
No. 93 of 1962.	General Law Further Amendment Act, 1962.	Sections six to twelve, inclusive.
No. 93 of 1963	General Law Further Amendment Act, 1963.	Section one.

Commencement

2 October 1967