Think twice before choosing an executor
The nomination of an executor is an important aspect of a Last Will and Testament. An executor is nominated in a Last Will and Testament and, upon death, he or she administers and distributes the estate in accordance with the testamentary wishes of the deceased. Importantly, although a person can nominate an executor, the executor is appointed by the Master of the High Court through the issuing of Letters of Executorship. The executor is responsible for, amongst other things, interpreting the Last Will and Testament, collecting information on all the assets and liabilities of the deceased, and distributing inheritances to beneficiaries in accordance with the Last Will and Testament. Although it is possible to appoint a family member as executor, it should be kept in mind that, not only is executorship an onerous and complex task, but the Master may in some cases refuse to appoint a nominated executor, or only grant Letters of Executorship if the nominated executor is assisted by a fiduciary professional or provides security, normally by way of an insurance policy, to the satisfaction of the Master. It is also important to keep in mind that, should a family member be nominated, the family member will have to make decisions about the administration of the estate during an emotionally difficult time, and it may become difficult for the family member to remain impartial and objective. In a recent case in the Western Cape High Court it was found that the executors, the daughters of the deceased, were conflicted and not in a position to exercise their fiduciary duty as executors properly. The facts in the matter of Brimble-Hannath v Hannath & Others were as follows: Hannath was married to Brimble-Hannath when he passed away. Hannath’s daughters were, in terms of his Last Will and Testament, the nominated executors of his estate and were appointed as such by the Master of the High Court. In terms of his Last Will and Testament, his surviving spouse Brimble-Hannath receives a lifelong right to inhabit and use the residence where she lived with the deceased, while the residue of his estate was bequeathed to a trust of which his daughters are trustees and beneficiaries. The Last Will and Testament did not provide any settlement on the surviving spouse to provide for her maintenance. She submitted a claim under the Maintenance of Surviving Spouses Act, amounting to more than R6m. It was not disputed that she is entitled to make a claim against the deceased estate. Hannath’s daughters, in their capacities as trustees of the trust, instituted a claim of R4m against the estate based on a loan extended by the trust to the deceased to finance the purchase of the residence in question. Brimble-Hannath brought an application for the removal of Hannath’s daughters as executors in their late father’s deceased estate. The Court emphasised the basic principle that nobody should be the judge in his/her own case and that because the executors had to take decisions about two competing claims which would influence their own interests, they were insurmountably conflicted. “I am accordingly satisfied, in the context of the applicant [Brimble-Hannath] disputing of the trust’s claim against the estate, woolly as her grounds for doing so might appear to be at this stage, that it is undesirable that the first and second respondents [Hannath’s daughters], who are the co-trustees and beneficiaries of the trust, should remain in office as executrixes of the deceased’s estate,” judge Binns-Ward found. The judge ordered the Master to appoint a substitute executor to wind up the estate. In view of this, it is advisable for you to consult your attorney or a fiduciary expert before deciding who to nominate as the executor of your estate in your Last Will and Testament. Reference list: Brimble-Hannath v Hannath and Others (3239/2021) [2021] ZAWCHC 102 (25 May 2021) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
The legal duty of a grandparent to maintain a grandchild
By operation of law, the liability to maintain someone is based on three factors: firstly, the claimant’s inability to support himself or herself; secondly, his or her relationship to the person from whom he or she claims support; and thirdly, the latter’s ability to provide support. The common law and the Children’s Act recognise that parents are the primary caregivers of their children by imposing on them a duty of support insofar as they are able to do so. There is a reciprocal duty of support between parents and children. In terms of the common law, a parent has a legal duty to maintain a child and the deceased estate of a parent also has the legal duty to support the child. Furthermore, the common law recognises that the duty of support of a child will, if both the parents of the child are unable to maintain the child, fall upon the maternal and paternal grandparents of the child if they are able to provide support. In terms of the common law, however, the duty to support a grandchild is not enforceable against the deceased estate of a grandparent. In the case Phillipa van Zyl NO v Keith Getz NO, the Supreme Court of Appeal (“the SCA”) was asked to develop the common law by recognizing a duty of support on the part of the deceased estate of a grandparent. The background to the case considered by the SCA is as follows: Father (F) and mother (M) had a daughter (D) before they were divorced. After the divorce, F left South Africa and went to live in the United States of America. M raised D on her own. D’s paternal grandfather (GF) and grandmother (GM) were both alive at the time of the divorce. GF supported D during his lifetime to the extent that F did not, and M could not. Upon the death of GF, a claim for maintenance was lodged with the executor (E) of the deceased estate of GF, on behalf of D. The claim was rejected by E on the basis that there is no obligation in law on a grandparent’s estate to maintain a grandchild. The SCA found that the common law, as it currently exists, recognises the special role and responsibility that parents have in raising children, and that the role and responsibilities which attach first to the relationship between parents and their child may only be passed on to other family members where parents are unable to fulfil them. The SCA ruled against the development of the common law to include a liability on the deceased estate of a grandparent to maintain a grandchild. The SCA held that the development of the common law would be inappropriate, given the effect it may have on the law of succession and other foundational values of the Constitution. Reference List: Children’s Act 38 of 2005 Van Zyl NO v Getz NO (548/19) [2020] ZASCA 84; [2020] 3 All SA 730 (SCA) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)