Reed and Others v Master of the High Court and Others (ECJ 002/2005) [2005] ZAECHC 5; [2005] 2 All SA 429 (E) (27 January 2005)

Reed and Others v Master of the High Court and Others (ECJ 002/2005) [2005] ZAECHC 5; [2005] 2 All SA 429 (E) (27 January 2005)

The court held that section 35(10) of the Administration of Estates Act does not create an internal remedy as contemplated by section 7(2) of PAJA, and thus the applicants were not required to exhaust internal remedies before seeking judicial review. The bequest to Dominic Niland was subject to a suspensive condition—namely, the assumption of liability for a portion of the estate's debts—which was never fulfilled, and therefore the bequest did not vest in him prior to his death and was not transmissible to his intestate heirs. Clause 6 of the will, properly interpreted in the context of the entire will and the testators' intentions, constituted a fideicommissary substitution rather than a...

Citation
[2005] ZAECHC 5
Parties
Applicant: Stanley Trevor Reed; Applicant: Michael Harvey Reed; Applicant: Ann Margaret McKay; Applicant: Stanley Trevor Reed NO; Applicant: Michael Harvey Reed NO; Applicant: Ann Margaret McKay NO; Respondent: The Master of the High Court of South Africa; Respondent: Clem Geraghty NO; Respondent: Mona Myra Mary Niland; Respondent: Anthony Desmond Niland
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
27 January 2005
Case Number
925/03
Procedural Posture
Review Application / Judgment on Merits After Dismissal of Points in Limine
Outcome
Application for review granted; Master's decision set aside; bequests devolve upon applicants; costs to be borne by the estate.
Judges
Plasket, Dambuza
Legal Topics
Administration of Estates Act, Promotion of Administrative Justice Act, Interpretation of Wills, Vesting of Bequests, Fideicommissary Substitution, Internal Remedies
Land and Property Civil Procedure Administrative Law Administration of Estates Act Promotion of Administrative Justice Act Interpretation of Wills Vesting of Bequests Fideicommissary Substitution +1 more

Case Brief

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Parties

Stanley Trevor Reed

Applicant

Michael Harvey Reed

Applicant

Ann Margaret McKay

Applicant

Stanley Trevor Reed NO

Applicant

Michael Harvey Reed NO

Applicant

Ann Margaret McKay NO

Applicant

The Master of the High Court of South Africa

Respondent

Clem Geraghty NO

Respondent

Mona Myra Mary Niland

Respondent

Anthony Desmond Niland

Respondent

Procedural Posture

Review Application / Judgment on Merits After Dismissal of Points in Limine

Legal Issues

  1. 1 Whether section 35(10) of the Administration of Estates Act creates an internal remedy as contemplated by section 7(2) of PAJA.
  2. 2 Whether the bequest to Dominic Niland vested in him prior to his death and was transmissible to his intestate heirs.
  3. 3 Whether clause 6 of the will provides for a fideicommissary substitution or a direct substitution.

Ratio Decidendi

The court held that section 35(10) of the Administration of Estates Act does not create an internal remedy as contemplated by section 7(2) of PAJA, and thus the applicants were not required to exhaust internal remedies before seeking judicial review. The bequest to Dominic Niland was subject to a suspensive condition—namely, the assumption of liability for a portion of the estate's debts—which was never fulfilled, and therefore the bequest did not vest in him prior to his death and was not transmissible to his intestate heirs. Clause 6 of the will, properly interpreted in the context of the entire will and the testators' intentions, constituted a fideicommissary substitution rather than a...

Court Disposition

Application for review granted; Master's decision set aside; bequests devolve upon applicants; costs to be borne by the estate.

Orders

  • The decision of the first respondent dated 4 June 2003 is set aside.
  • It is declared that the bequests set out in clause 7(d), read with clause 8(d) of the will, did not vest in Dominic Niland prior to his death.