Judin N.O v Jankelowitz and Another (2010/26572) [2010] ZAGPJHC 117 (22 November 2010)

Judin N.O v Jankelowitz and Another (2010/26572) [2010] ZAGPJHC 117 (22 November 2010)

The court found that the applicant's application was not urgent and that the relief sought related primarily to trust matters, which were not properly before the court. The applicant, having been disinherited and acting with emotional involvement and apparent bias, was not impartial and his continued appointment as executor was undesirable. The respondents, as sole heirs, established a right to relief in their counter-application for removal of the applicant as executor. The court held that the Master should appoint an independent executor, neither the applicant nor the respondents, to ensure proper administration of the estate. Costs of the main application were awarded against the...

Citation
[2010] ZAGPJHC 117
Parties
Applicant: Alan Michael Judin N.O.; Respondent: Michael Charles Jankelowitz; Respondent: Sheena Marcelle Heikel
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 November 2010
Case Number
2010/26572
Procedural Posture
Urgent Application / Final Judgment After Opposed Application and Counter Application
Outcome
Application dismissed with costs; applicant removed as executor; Master to appoint independent executor; costs of counter-application to be paid by the estate.
Judges
C G Lamont
Legal Topics
Removal of Executor, Administration of Estates Act, Hostility Between Parties, Trust and Estate Management
Civil Procedure Family and Children Removal of Executor Administration of Estates Act Hostility Between Parties Trust and Estate Management

Case Brief

Summary, issues, holding and outcome

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Parties

Alan Michael Judin N.O.

Applicant

Michael Charles Jankelowitz

Respondent

Sheena Marcelle Heikel

Respondent

Procedural Posture

Urgent Application / Final Judgment After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the applicant is entitled to urgent interdictory relief regarding estate and trust assets.
  2. 2 Whether the applicant should be removed as executor of the estate of the late Harold Montague Judin.
  3. 3 Whether the respondents' counter-application for removal of the applicant as executor should succeed.

Ratio Decidendi

The court found that the applicant's application was not urgent and that the relief sought related primarily to trust matters, which were not properly before the court. The applicant, having been disinherited and acting with emotional involvement and apparent bias, was not impartial and his continued appointment as executor was undesirable. The respondents, as sole heirs, established a right to relief in their counter-application for removal of the applicant as executor. The court held that the Master should appoint an independent executor, neither the applicant nor the respondents, to ensure proper administration of the estate. Costs of the main application were awarded against the...

Court Disposition

Application dismissed with costs; applicant removed as executor; Master to appoint independent executor; costs of counter-application to be paid by the estate.

Orders

  • The applicant's application in his representative capacity is dismissed with costs, including any reserved costs.
  • All interim orders are set aside.