The Master of the High Court is asking the North Gauteng High Court to rescind an application that reinstates the executor it removed from an estate that has yet to be wound up 14 years after it was first registered.
This is the second High Court application relating to the estate of a Cape Town doctor, which has also resulted in complaints to the Law Society, criminal charges and even complaints to the Public Protector and the Department of Justice.
The matter has incurred thousands of rands in legal fees for the executor and one of the heirs to the estate, as well as the state, and has caused distress for family members, particularly the deceased’s widow.
The application by the Master was recently delayed until May.
The case highlights the need for you to ensure that your will is well drafted and to consider very carefully who you appoint as the executor of your estate.
When the doctor died in 1998, he appointed his son-in-law as the executor of his estate.
He left his surgery and practice to his son, but did not specify whether this included the property in which it was situated.
He also left two-thirds of the residue of the estate to his son.
He gave his wife the right to use the assets in his estate and to sell them if she had good reason to do so.
The first High Court application, to the South Gauteng High Court, by the doctor’s son to remove the doctor’s son-in-law as the executor for breaching his fiduciary and administrative duties, more than 10 years after the estate was opened, was dismissed. The application cost the son R150 000 in legal fees.
One of the issues that the son raised in his application was that the property in which the practice was situated was sold without his permission, and the proceeds had not been distributed to him.
In his replying papers, the executor said the proceeds had been paid to the doctor’s widow to fund a plea bargain for her son, who pleaded guilty to fraud charges.
The executor alleged that the son’s court application was motivated by malice towards his family and that this was also the reason for his objections to the four liquidation and distribution accounts filed by then, which had delayed the finalisation of the estate.
In December 2011, the Master’s office removed the son-in-law as the executor of the estate for failing to comply with the Administration of Deceased Estates Act. In particular, the executor failed to show rental income due to the estate, provide proof that creditors had been paid, that assets had been distributed to the heirs and that he had complied with the section of the Administration of Deceased Estates Act that requires an executor who disposes of property in an estate to provide proof that the heirs do not object to such disposal.
In 2012, the son-in-law applied to the North Gauteng High Court for an order reinstating him as the executor. He was granted an exemption from complying with the requirement to file proof that the doctor’s son did not object to the sale of the property.
The Master’s office did not oppose the application and filed only its report on the estate.
The Master’s office wants the order reinstating the son-in-law as the executor to be rescinded and lodged its application to this effect in the North Gauteng High Court in July 2012, but the case has been subject to numerous delays.
In her affidavit in the latest application, Assistant Master Emma Mphahlele says the son-in-law was reinstated as the executor without the court being told that the property that was sold out of the estate had been bequeathed to the doctor’s son, because the will was not placed before the court.
The executor, in his replying papers, describes the Master of the High Court’s latest application as “bizarre” and an “abuse of authority”, because the Master’s office had the opportunity to oppose his 2012 application for reinstatement.
He argues that the practice, but not the property in which it was situated, was bequeathed to the son.
The executor’s attorney has sent a complaint to the Department of Justice, describing the Master’s latest court action as a “shocking waste of taxpayers’ money”.