Who consents to your executor selling your estate’s assets?

Under section 47 of the Administration of Estates Act No. 66 of 1965 (“the Act”), an executor may sell the property of the deceased, unless it is contrary to the will of the deceased, in the manner and subject to the conditions which the heirs who have an interest therein approve in writing. If the said heirs are unable to agree on the manner and conditions of the sale, the executor shall sell the property in such manner and subject to such conditions as the Master may approve.

Does the aforementioned section provide the executor with the unfettered power to sell the property of the deceased estate? Does the executor require the consent of the heirs to sell the property of the deceased estate? What happens in a situation where the Master does not respond when the executor requests his approval of the manner and conditions of the sale? These are all questions that the court answered in the Bester N.O v Master of the High Court and Another [2023] ZAWCHC 208 case.

Background Facts

The applicant in the matter was the appointed executor of the deceased estate, who brought an application for an order authorising him to sell the immovable property belonging to the estate on specified terms and conditions. The executor needed to release sufficient funds to finalise the estate and pay the creditors of the estate as well as the administration costs of the estate.

The application was opposed by the second respondent, who was the surviving spouse of the deceased. The estate included immovable property, which was the primary residence of the deceased and the surviving spouse, motor vehicles, furniture, cash, and a claim in favour of the estate relating to money that Mr X owed to the deceased for monies loaned.

Initially, Mr X entered into a payment arrangement to discharge his indebtedness by paying R15,000 per month, but since mid-2020, the payments have ceased. By November 2020, Mr X owed the estate around R120,000, which was still insufficient to settle the estate’s expenses. Due to Mr X’s unwillingness to pay his debt, the only option would be to apply for his sequestration, which would result in legal fees being paid by the estate.

There was no cash in the estate, and at the time of launching the application, the estate was illiquid for some time. The executor required an amount of R206,000 to finalise the estate. The funds in the estate bank account had been depleted due to the payment of maintenance to the surviving spouse pending the finalisation of the estate.

The applicant wrote to the Master of the High Court in September 2020 to seek his approval of the proposed manner and conditions of sale in terms of section 47 of the Act. There was no response from the Master’s office, despite numerous follow-ups. The applicant then wrote to the Minister of Justice to seek his assistance, but that too was unanswered.

The executor then approached the court for an order authorising him to sell the property and asked the court to substitute itself for the Master in taking the decision on the manner and conditions of sale.

Legal Findings

The court accepted that the decision to sell is that of the executor in a deceased estate and that section 47 extends broad discretion to the Master to determine the manner and conditions for sale. The Master therefore plays more of an oversight role in relation to the manner and conditions of sale.

The court also found that it was not appropriate to substitute itself for the Master in taking the decision. The court remitted the decision to the Master and ordered the Master to exercise its discretion about the manner and conditions of sale within two months of the date of service of the order on the Master and warned that failure to do so would amount to contempt of court.

Conclusion

The executor therefore has the authority to sell the property of the deceased, provided it is not contrary to the deceased’s will and subject to the written consent of the heirs as to the manner and conditions of the sale or if they are unable to agree, the consent of the Master.

Furthermore, the court will not easily step into the shoes of the Master to consent to the manner and conditions of the sale of the immoveable property. The court is not in as good a position as the Master would be to make the decision on the manner and conditions of sale. This is problematic if the Master is dilatory in ensuring compliance with its duties and responsibilities to the public.