Husselmann and Others v Saem and Others (229 of 2016) [2017] NAHCMD 183 (7 July 2017)

Husselmann and Others v Saem and Others (229 of 2016) [2017] NAHCMD 183 (7 July 2017)

An executor who has been released from duties is functus officio and cannot be joined in proceedings challenging the validity of a will; the Master of the High Court must appoint a new executor to represent the estate's interests in such proceedings. The special plea of non-joinder is upheld, and proceedings are stayed pending appointment of a new executor.

Citation
[2017] NAHCMD 183
Parties
Plaintiff: Erika Penelope Husselmann; Plaintiff: Sharon Hillary Saem; Plaintiff: Mildred Julianan Besser; Plaintiff: Anna Jeanette Diergaardt; Plaintiff: Glynis Beatrice Saem; Plaintiff: Elrika Saem; Defendant: Elroy Harold Saem; Defendant: Norman Lyndon Saem; Defendant: Ian Robert McLaren; Defendant: The Master of the High Court
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
7 July 2017
Case Number
229 of 2016
Procedural Posture
Civil / Ruling on Special Plea of Non Joinder
Outcome
Special plea of non-joinder upheld; proceedings stayed.
Legal Topics
Non Joinder, Validity of Wills, Executor Appointment, Estate Administration
Source Language
English
Succession Law Civil Procedure Non Joinder Validity of Wills Executor Appointment Estate Administration

Case Brief

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Parties

Erika Penelope Husselmann

Plaintiff

Sharon Hillary Saem

Plaintiff

Mildred Julianan Besser

Plaintiff

Anna Jeanette Diergaardt

Plaintiff

Glynis Beatrice Saem

Plaintiff

Elrika Saem

Plaintiff

Elroy Harold Saem

Defendant

Norman Lyndon Saem

Defendant

Ian Robert McLaren

Defendant

The Master of the High Court

Defendant

Procedural Posture

Civil / Ruling on Special Plea of Non Joinder

Legal Issues

  1. 1 Whether an executor who has been released from duties must be joined as a party in proceedings challenging the validity of a will
  2. 2 Whether failure to comply with rule 32(9) and (10) affects the special plea of non-joinder

Ratio Decidendi

An executor who has been released from duties is functus officio and cannot be joined in proceedings challenging the validity of a will; the Master of the High Court must appoint a new executor to represent the estate's interests in such proceedings. The special plea of non-joinder is upheld, and proceedings are stayed pending appointment of a new executor.

Court Disposition

Special plea of non-joinder upheld; proceedings stayed.

Orders

  • The special plea of non-joinder is upheld.
  • The Master of the High Court is directed to appoint a new executor for the estate of Harold Adolf Saem within 30 days.