Britz NO v Strydom and Another [2019] ZAECPEHC 17
The applicant (B) is the surviving spouse of the deceased and is the appointed executor in the estate. The only asset in the estate is a fixed property (a house) in which the deceased, the applicant, and the first respondent (S) lived until the death of the deceased. S is the nephew of the deceased and was raised by the deceased.
The deceased’s last will bequeaths the property to S.
A professional executor (T) was initially appointed, but resigned. While in office T received a claim from B under the provisions of the Maintenance of Surviving Spouses Act, 27 of 1990, and accepted the claim. Due to the fact that the house is the only asset of any real value, the house would have to be sold to satisfy the claim. B moved out of the house after the deceased’s death, but S was still living there at the time of the application and refused to move out. B brought the application for the eviction of S to enable B, as executor, to take possession and control of the house. S maintained that, as a result of the bequest of the property to him, he is the new owner of the property and cannot be evicted. He also averred that the claim for maintenance was not lodged with the Master and was defective.
B, as executor, informed the Master that the estate is insolvent and that she will proceed to act in accordance with the provisions of sec 34 of the Administration of Estates Act, 66 of 1965. This, in essence, means that the estate is deemed to be sequestrated. No creditor, however, formally instructed B to surrender the estate.
The court (Beyleveld AJ) held that the executor is the owner of the estate assets, in a fiduciary capacity, while the estate is under administration and is entitled to the possession of all estate assets. An heir does not have any rights to the possession of the assets until after the account lay open for inspection, free from objections, and is approved by the Master. S is free to object to the account and therefore the maintenance claim once the account is lodged. In the meantime the executor is entitled to free and unfettered possession of the estate assets and is therefore entitled to have S evicted from the property.