When a person passes away, his estate must be administered by someone who, once authorized by the Master of the High Court, will be known as the Executor of the deceased estate.  The executor can be appointed in terms of the provisions of a will or where the deceased passed away without a valid will, the executor will be nominated by the heirs of the deceased.

The Executor must administer the estate honestly and with integrity and must at all times act in line with the provisions of the Administration of Deceased Estates Act 66 of 1965 (hereinafter referred to as “the Act”)

Is it possible to remove an executor from his office?  Yes, it is possible. Where an executor fails to administer the deceased estate honestly and with integrity it is possible to have the executor removed from his office.  In terms of Section 54(1) of the Act, the Executor can only be removed from office by the Master of the High Court or by a court of law, depending on the grounds for removal.

Removal of an executor by a court of law

In terms of Section 54(1)(a) an executor can be removed from his office by the court if

  1. he has at any time been a party to an agreement or arrangement whereby he has undertaken that he will, in his capacity as executor, grant or endeavor to grant to, or obtain or endeavor to obtain for any heir, debtor or creditor of the estate, any benefit to which he is not entitled; or
  2. he has by means of any misrepresentation or any reward or offer of any reward, whether direct or indirect, induced or attempted to induce any person to vote for his recommendation to the Master as executor or to effect or to assist in effecting such recommendation; or
  3. if he has accepted or expressed his willingness to accept from any person any benefit whatsoever in consideration of such person being engaged to perform any work on behalf of the estate; or
  4. for any other reason the Court is satisfied that it is undesirable that he should act as executor of the estate concerned

Removal of an executor by the master of the high court

In terms of Section 54(1)(b) the Master of the High Court may remove an executor from his office if:

  1. he has been nominated by will and that will has been declared to be void by the Court or has been revoked, either wholly or in so far as it relates to his nomination, or if he has been nominated by will and the Master is of the opinion that the will is for any reason invalid; or
  2. he fails to comply with a notice under section 23 (3) within the period specified in the notice or within such further period as the Master may allow; or
  3. he or she is convicted, in the Republic or elsewhere, of theft, fraud, forgery, uttering a forged instrument or perjury, and is sentenced to imprisonment without the option of a fine, or to a fine exceeding R2 000; or
  4. if at the time of his appointment he was incapacitated, or if he becomes incapacitated to act as executor of the estate of the deceased; or
  5. he fails to perform satisfactorily any duty imposed upon him by or under this Act or to comply with any lawful request of the Master; or
  6. he applies in writing to the Master to be released from his office

Removal of an executor in practice

Even though it is possible to have an executor removed from office as it is provided for in the Act, the process and evidence required in practice to succeed with such application is very difficult.

In the matter of Volkwyn NO v Clarke and Damant 1946 WLD 456 the court held that the court considers it very serious to interfere with the management of the estate of a deceased person by removing the executor from the control of the estate where the executor was appointed in terms of the provisions of the will of the deceased, as the deceased deliberately selected the said person to carry out his wishes and who based his decision to elect the said person in reliance upon their ability and character.

The fact that the executor exercised his duties incorrectly or failed to strictly observe the strict requirements of the law is not enough.  The court must be satisfied that it would be undesirable for the executor to continue to act in such capacity and that the executor conducted himself in such a manner that it imperiled his property administration of the estate.

Our courts have also held that the mere fact that there are disagreements between the Executor and the beneficiaries of the estate is not sufficient grounds to remove an executor from his offices.  The court will only grant an order to remove the executor if the applicant can prove a high standard of undesirability or wrongdoing on the part of the Executor.

It can be deduced from the above that despite disagreements, a Court places a high regard on the wishes of the deceased in authorizing someone to be their will’s executor. Although it is practically difficult to remove an executor from his post, it is not impossible.

Contact us for further advice

Even thought it has been proven difficult to have an executor removed, it is not impossible.  The executor of a deceased estate plays a crucial role in the administration of the estate.  The court and the Master has a discretion to remove an executor based on the facts and merits of each case.

Should you require any assistance or advice in respect of the removal of an executor from his/her office, kindly contact our experts at Jarvis Jacobs Raubenheimer Incorporated to assist you.

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