Beukman v Pieterse N.O and Others [2024] ZAWCHC 391
The applicant (SB) approached the Western Cape High Court for an order removing the 1st (P) and 2nd (L) respondents as executors in the deceased estate of RB, ordering the Master of the High Court: Cape Town to appoint a new executor, and ordering P and L to supply the new executor with a full account of their administration of the estate up to the date of their removal. L and RB were life partners for the latter part of RB’s life. She (L) managed a guesthouse on his (RB’s) property. There was a dispute about the interpretation of RB’s will with L averring that she is entitled to the full income of the guesthouse and that the guesthouse as a business does not form part of the deceased estate because the income from it was always reflected as hers for income tax purpose and never as RB’s income in his income tax returns. Despite SB demanding disclosure of these records, L refused to do so on the basis that the records are confidential information. Returns for three years for RB were disclosed, showing no guesthouse income. SB averred in his papers that, on a proper interpretation the proceeds (income less liabilities) of the guesthouse business are to be shared equally between him and L. The rest of the will was not in dispute and bequeathed certain movables to each of L and SB, and the residue equally between them. SB asked the court to remove P and L as executors because they refused him any information about the guesthouse income since RB’s death and their administration of the estate, as well as on the basis that L was conflicted in her role as executor due to her interest as an heir and manager of the guesthouse.
The court (Mangcu-Lockwood J), after referring to case law about the interpretation of a will, held that SB’s interpretation is supported by the wording of the will, namely that L is remunerated for her management of the guesthouse by being allowed to live rent-free on the premises, while he (SB) is left with an option to move to the premises and forfeit his share of the income, or continue to reside elsewhere and retain his right to half the proceeds of the guesthouse. The court also held that L is fatally conflicted and that P did not demonstrate herself to be able to avoid bias in her role as executor. The court ordered that both P and L be removed as executors, that the Master must appoint a new executor, and that P and L must supply the newly appointed executor with a full account of their administration of the estate. The court awarded costs on attorney and client scale against P and L, to be paid by them personally.
Comment:
Practitioners should always bear in mind that an executor must act in an unbiased way and that anybody who is in a position of a conflict of interest should disclose their interest and consider not taking up executorship.