Renouncing Executor

The plaintiff (“M”) and  Andrew Moffa were appointed executors and trustees in a Will made in November 2016. M sought a grant of probate. A beneficiary of the Will lodged a caveat at the Probate Registry.

A Probate Caveat [Administration and Probate Act 1919 (SA) s 26; Supreme Court Probate Rules 2015 (SA) Rule 52(1)] temporarily prevents an executor or administrator from obtaining a grant of probate or letters of administration; allowing  the person lodging the caveat to raise concerns they may have before probate or letters of administration is granted. It could be due to concerns the testator lacked testamentary capacity, or there is a later Will that revokes the earlier Will- the caveat should not be used as a tool simply to frustrate the estate process.

A probate caveat will expire 6 months after it is lodged unless it is otherwise withdrawn, dealt with, or extended in that time [See Supreme Court Probate Rules 2015 (SA) Rule 52(4)].

In August 2018 the Court appointed M the Administrator pendente lite “administrator pending litigation” to begin probate proceedings` pending the resolution of this dispute.

M liaised with the managing agent, insured and secured the deceased’s real estate, organised the removal and sale of furniture, the payment of rates from rent, reinvested term deposits, and received rent to his trust account; no other  assets of the estate (other than the items of furniture and personal effects) were sold.

The beneficiary sought orders to pass over the 2016 Will and obtain a grant of probate for a will made in 2013. Several issues were pleaded in respect of the 2016 Will. M and his firm were involved in the preparation of the 2016 Will. In the circumstances, M has determined that he should renounce his role as the executor of the 2016 will; however M has intermeddled in the estate; usually, an executor who has intermeddled may not ordinarily renounce the executorship of the will.

The court has the power to accept a renunciation by an executor who has intermeddled in the estate after taking into account the interests of the beneficiaries and the creditors of the estate.

In this matter, the beneficiaries all consent to M renouncing is role as executor. The Court held that it would be appropriate to permit M to renounce without that consent noting that the steps taken in dealing with the estate assets were necessary and appropriate in the circumstances; were protective and for the benefit of all defendants. Importantly there have been no adverse effects caused as a result of M’s actions.

The Court believed that it is appropriate that M be permitted to renounce.


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