FILTERS:

Testate or intestate?

26 August 2004

Problem
Where an estate transfer is lodged for examination at the deeds office and it is uncertain as to whether the estate is to be administered in terms of the Intestate Succession Act, Act 81 of 1987, it is a practice that this fact be determined from the death notice lodged. However, where the death notice is silent in this regard, no certainty prevails as to what proof should be required to prove intestacy.

Possible solutions

  • An affidavit by the executor of the estate to the effect that no live will is in existence.
  • A certificate issued by the Master of the High Court to the effect that no will was lodged with the office of the Master of the High Court.
  • If the executor executed the Power of Attorney to transfer, the facts as disclosed therein should be taken on face value. Therefore, if the Power of Attorney to transfer states that the deceased person died leaving no will then the signature of the executor on such Power of Attorney will be deemed sufficient proof of such fact.
  • The section 42(1) certificate by the conveyancer lodged as a supporting document to the transfer. (This certificate states that the transfer is taking place free from objection and that the Liquidation and Distribution Account has lain for inspection and that after the lapsing of the required time period, it was accepted by the Master of the High Court free from objection.)

    When Immovable property is dealt with in a Liquidation and Distribution Account, then such account must state whether or not the estate is devolving intestate or testate.
As this certificate is, however, not required for the transfer from an estate administered in terms of Section 18(3) of the Administration of Estates Act, 66 of 1965, this possible solution cannot be applied with such transfers.

Which of the aforementioned solutions solve the problem?
Jones, Conveyancing in South Africa(4th Edition) by HS Nel clearly states that ,
"the registrar of deeds does not regard himself bound by any view of the Master of the High Court or that the executor of an estate, as far as interpreting a will or the determination of heirs are concerned."
The same view is held as far as the proof as to whether an estate should devolve testate or intestate, despite the fact that the conveyancer is required under the Administration of Estates Act, 66 of 1965, to have certified that the transfer is in accordance with the Liquidation and Distribution account. To date no one has queried whether the registrar of deeds has the right to go beyond the account and raise objections after the period of lodging objections as advertised has lapsed.

The opinion is expressed that the executor is in the best position to testify to the fact of whether or not a live will is in existence or not. Furthermore, a certificate by the Master of the High Court to the effect that no such will is in existence will also suffice, due to the fact that the Liquidation and Distribution Account has lain for inspection and if any person was in possession of a live will he or she would have lodged it with the Master of the High Court.

Republished with permission

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