Govindasamy and Another v Pillay and Others (D7270/2015) [2020] ZAKZDHC 49 (12 October 2020)

Govindasamy and Another v Pillay and Others (D7270/2015) [2020] ZAKZDHC 49 (12 October 2020)

The court found that the animosity and inability of the heirs to agree on the sale or value of the property constituted unforeseen circumstances not contemplated by the testator. This justified a departure from the will’s prohibition on sale without mutual consent. The court held that the property should first be offered to either heir at a fair market value, as determined by independent valuations (R710 000), within a reasonable period (30 days). If neither heir purchases, the executor is authorised to sell the property by public auction or private treaty at not less than the determined value, and if unsuccessful, at a price in the best interests of the heirs. The court’s intervention...

Citation
[2020] ZAKZDHC 49
Parties
Applicant: Pragasen Govindasamy; Applicant: Pragasen Govindasamy N.O.; Respondent: Sindy Pillay; Respondent: Master of the High Court, Durban; Respondent: Registrar of Deeds, Kwazulu-Natal
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
12 October 2020
Case Number
D7270/2015
Procedural Posture
Civil Application / Judgment on Application to Vary Testamentary Prohibition and Authorise Sale of Immovable Property
Outcome
Application granted. The prohibition in the will against sale without mutual consent is set aside. The executor is authorised to offer the property to either heir at R710 000, failing which the property may be sold by auction or private treaty, and ultimately at a price in the best interests of the heirs. Costs to...
Judges
M R Chetty
Legal Topics
Variation of Will, Executor Powers, Sale of Estate Property, Administration of Estates Act, Testamentary Dispute
Land and Property Civil Procedure Variation of Will Executor Powers Sale of Estate Property Administration of Estates Act Testamentary Dispute

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Parties

Pragasen Govindasamy

Applicant

Pragasen Govindasamy N.O.

Applicant

Sindy Pillay

Respondent

Master of the High Court, Durban

Respondent

Registrar of Deeds, Kwazulu-Natal

Respondent

Procedural Posture

Civil Application / Judgment on Application to Vary Testamentary Prohibition and Authorise Sale of Immovable Property

Legal Issues

  1. 1 Whether the court can exercise a discretion to vary or depart from the terms of the will prohibiting sale without mutual consent.
  2. 2 Whether the sale of the property to a third party would benefit the heirs.
  3. 3 What is the fair market value of the property for purposes of sale.

Ratio Decidendi

The court found that the animosity and inability of the heirs to agree on the sale or value of the property constituted unforeseen circumstances not contemplated by the testator. This justified a departure from the will’s prohibition on sale without mutual consent. The court held that the property should first be offered to either heir at a fair market value, as determined by independent valuations (R710 000), within a reasonable period (30 days). If neither heir purchases, the executor is authorised to sell the property by public auction or private treaty at not less than the determined value, and if unsuccessful, at a price in the best interests of the heirs. The court’s intervention...

Court Disposition

Application granted. The prohibition in the will against sale without mutual consent is set aside. The executor is authorised to offer the property to either heir at R710 000, failing which the property may be sold by auction or private treaty, and ultimately at a price in the best interests of the heirs. Costs to...

Orders

  • The prohibition against selling the immovable property without mutual consent, as contained in clause 7 of the will, is set aside.
  • The executor is authorised to offer the property to either heir at a price not less than R710 000.