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Court case about actions taken by an executor – FNB Fiduciary (Pty) Ltd N.O v Anappa and Others [2019] ZAKZDHC 17

FNB Fiduciary (Pty) Ltd N.O v Anappa and Others [2019] ZAKZDHC 17

The fifth respondent (P) was appointed as executor of her late husband’s estate by the Master, acting under section 18 of the Administration of Estates Act, 66 of 1965 (the Estates Act), on the mistaken belief that the deceased died intestate. P and the deceased were married in community of property. While acting as executor P sold the total membership interest in a close corporation (the CC) which was the property of the joint estate to the first respondent (A) who sold it in turn to the second to fourth respondents (the R’s). When the applicants (FNB) notified P and the Master that they held a will of the deceased, P handed her letters of executorship back to the Master and transferred the sale proceeds of the CC membership interest to the trust account of FNB’s attorneys.

FNB applied to the Durban High Court for an order that P’s appointment as executor was null and void ab initio and that all her actions as executor, including the sale of the membership interest in the CC, were therefore also void. FNB argued that the Master had no authority to appoint P as executor under section 18 of the Estates Act, as the deceased had a valid will in which FNB was the nominated executor. The Master therefore only had authority to act under section 14 of the Estates Act and on this basis P’s appointment was void and all her actions as well. FNB further argued that as a result the sales had to be reversed.

The court (Henriques J) held:

  • The Master has authority to appoint an executor either under section 14 or section 18, depending on whether a valid will has been handed in with the Master. The Master and P acted in the bona fide belief that the deceased did not have a valid will on the date of his death.
  • Even if P’s appointment was invalid, this did not automatically invalidate all her actions as executor. In this regard the court referred to Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA); [2004] 3 All SA 1 (SCA).
  • As executor, P was also entitled to deal with the membership interest as a functionary of the CC in two capacities – as owner of one undivided half share due to the marriage in community of property and as executor of the deceased estate.

The application was dismissed with costs.

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