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Power of executor

14 December 2006

The question examiners are often confronted with is whether it is the duty of the registrar of deeds to determine whether the date of transaction entered into by the executor is subsequent to the date on which the executor was appointed by the Master of the High Court.

When comparing the date of sale with the date of appointment of the executor, it often occurs that the date of the transaction was prior to the date of appointment. Conveyancers and executors alike are of the opinion that, in some instances, an urgent sale can be concluded prior to the executor being appointed, and that the executor has the power to ratify the transaction subsequent to the appointment of the executor.

Another school of thought is of the opinion that this is not the responsibility of the registrar, as the preparer of the power of attorney assumes responsibility that the executor has been appointed and is acting within the powers conferred upon him by law (see regulation 44A).

Section 13(1) of the Administration of Estates Act 66 of 1965, however, has a peremptory provision in this regard and provides that no person shall liquidate or distribute the estate of any deceased person, except under letters of executorship granted or signed and sealed under Act 66 of 1965, or under an endorsement made under Section 15, or in pursuance of a direction by a Master.

Given the provisions of Section 13(1) and the fact that a registrar of deeds must register an indisputable title deed, it is abundantly clear that any transaction entered into by an executor or representative prior to his or her appointment is ab initio null and void and must be rejected by the deeds examiners concerned. The mere fact that the preparer has assumed responsibility for the fact that the executor is acting within the powers conferred to him/her by law does not detract from the fact that a registrar of deeds must examine deeds, and should these not comply with any law, he/she may reject them (see Section 3(1)(b) of Act 47 of 1937).

Republished with permission of SA Deeds Journal

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