Posthumus and Another v Master of the High Court, Johannesburg and Others (30268/2018) [2019] ZAGPJHC 424 (25 June 2019)

Posthumus and Another v Master of the High Court, Johannesburg and Others (30268/2018) [2019] ZAGPJHC 424 (25 June 2019)

The court held that the Administration of Estates Act does not require a formal nomination or application for appointment as executor when no notice is published. The Master is empowered to appoint any person deemed fit and proper, and must consider all candidates who have made themselves known, including both the first applicant and the second respondent. The applicants failed to establish a legal basis for exclusive consideration of the first applicant, and their argument that the second respondent could not be considered due to lack of nomination or application was incorrect. The Master must exercise discretion and may use the statutory hierarchy as a guideline, but is not bound by it...

Citation
[2019] ZAGPJHC 424
Parties
Applicant: Michael Clayton Posthumus; Applicant: Johnathan Brian Posthumus; Respondent: The Master of the High Court, Johannesburg; Respondent: Maria Posthumus; Respondent: Annalise Neyt
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 June 2019
Case Number
30268/2018
Procedural Posture
Civil Application / Opposed Motion for Declaratory and Mandatory Relief
Outcome
Application partially granted. The Master is ordered to consider both the first applicant and the second respondent for appointment as executor. Costs orders made against the applicants for urgent application and affidavits; each party to pay own remaining costs.
Judges
Yacoob
Legal Topics
Appointment of Executor, Administration of Estates Act, Nomination of Executor, Fit and Proper Test, Costs Order
Civil Procedure Family and Children Appointment of Executor Administration of Estates Act Nomination of Executor Fit and Proper Test Costs Order

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Parties

Michael Clayton Posthumus

Applicant

Johnathan Brian Posthumus

Applicant

The Master of the High Court, Johannesburg

Respondent

Maria Posthumus

Respondent

Annalise Neyt

Respondent

Procedural Posture

Civil Application / Opposed Motion for Declaratory and Mandatory Relief

Legal Issues

  1. 1 Is the Master of the High Court obliged to consider the nomination of the first applicant as executor before appointing an executor in the deceased estate?
  2. 2 Can the second respondent be considered for appointment as executor in the absence of a formal nomination or application?
  3. 3 Does the Administration of Estates Act prescribe a mandatory procedure for such appointments when no notice is published?

Ratio Decidendi

The court held that the Administration of Estates Act does not require a formal nomination or application for appointment as executor when no notice is published. The Master is empowered to appoint any person deemed fit and proper, and must consider all candidates who have made themselves known, including both the first applicant and the second respondent. The applicants failed to establish a legal basis for exclusive consideration of the first applicant, and their argument that the second respondent could not be considered due to lack of nomination or application was incorrect. The Master must exercise discretion and may use the statutory hierarchy as a guideline, but is not bound by it...

Court Disposition

Application partially granted. The Master is ordered to consider both the first applicant and the second respondent for appointment as executor. Costs orders made against the applicants for urgent application and affidavits; each party to pay own remaining costs.

Orders

  • The Master is to consider both the first applicant, Michael Clayton Posthumus, and the second respondent, Maria Posthumus, as potential executors in the deceased estate of the late Gerhardus Roedolf Posthumus (Master’s reference 006444/2016), and thereafter decide who to appoint in terms of section 18(1) of the...
  • The applicants are to pay the costs of the urgent application.