Introduction
An executor
had to sell a home to settle estate debts, but the widow refused to consent to
the sale. An examination of Bester NO v Master of the High
Court [2023] ZAWCHC 208.
Background
To finalise
the estate, the executor (the applicant) needed to have sufficient funds to pay
creditors, the administration costs of the estate, the advertising, the
Master’s fees, and the executor’s fees. To raise such funds, he had no option
but to sell the estate’s Hout Bay property. However, the surviving spouse and
sole heir did not want the property to be sold, for several reasons, the main
one being that she would then have nowhere to stay.
Under section
47 of the Administration
of Estates Act (the Act), such a sale requires the heir’s consent to the
manner and conditions of the sale and, if such consent is not given, then the
property is to be sold in a manner and on conditions approved by the
Master.
The reason for
this is that the Master plays an oversight role in relation to the manner and
conditions of sale of an estate’s assets. In situations like this one, where
there was a sole heir who did not consent, the Master’s approval was
required.
The executor
wrote the Master who was grossly dilatory in failing to respond to the
applicant’s request for approval.
Legal
Proceedings
As the Master
failed to respond to the applicant’s request for approval under section 47 of
the Act, the executor approached the court for an order authorising him to sell
the house on specified terms and conditions, so that sufficient funds were
realised to finalise the estate. The widow opposed the application.
The Court's
Ruling
The Master’s
failure to respond to the applicant’s request for approval under section 47 of
the Act was reviewed and set aside. The decision was remitted to the Master who
was directed to decide on the manner and conditions of the sale of the
immovable property within two months of the date of service of the order.
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