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Court case on heirs’ legal right to take legal action

In a recent Supreme Court of Appeals (SCA) judgement with fairly complex facts – Standard Bank v July [2018] ZASCA 85 – the court held that J, as the intestate heir of his late wife L, has locus standi in a dispute over fixed property in the deceased estate of E from whom L was supposed to inherit.

Z and E had been married out of community of property and Z bequeathed an immovable property to E and their children, R and L.  R was the executor in Z’s estate and transferred the property only to E.  E subsequently died intestate, resulting in L and R being the only heirs.  R’s spouse, T, bought the property from the estate while R was the executor in E’s estate, but without consent from the Master.  E’s estate was still not finalised.  T financed the sale through a loan from Standard Bank (SB) secured by a bond, and later borrowed more money from SB against a second bond over the property.  When L also subsequently died J uncovered what he alleged to be the fraudulent sale to T without the Master’s consent.  When he entered into litigation to recover the property SB, as the bond holder, raised the exception that J did not have locus standi as he was not the executor in E’s estate.  The High Court applied the so-called Beningfield exception following the decision of the Privy Council in Beningfield v Baxter (1886) 12 AC 167 (PC), ruling that, because there is no executor left in E’s estate after R’s death and it is the conduct of the erstwhile executor himself that is at the centre of the dispute, an heir in the estate can act to protect his/her own interests.  As the heir, L, was by that time also deceased, J, as L’s executor and heir, acquires locus standi.

SB lodged an appeal against this judgement.  The SCA dismissed the appeal and held that the Beningfield exception was appropriately applied in the circumstances.

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