Britz N.O. v Strydom and Another (2849/2018) [2019] ZAECPEHC 17 (29 March 2019)
The applicant was the appointed executrix of the estate of her husband. The First Respondent was the nephew of the deceased, and lived on the deceased property. The deceased bequeathed the property to the First Respondent in terms of a testamentary disposition. The property was the only asset in the estate of the deceased. The Applicant submitted a claim against the estate for maintenance and the claim was accepted. The Maintenance claim was in excess of the value of the assets in the estate, therefore the property would have to be sold. The First Respondent was evicted from the property. The Court stipulated that a beneficiary never becomes the owner of any inherited asset upon the death of the deceased. Ownership only commences when the Liquidation and Distribution Account has been approved by the Master of the High Court and certain final requirements are met.
Written by: Richard Mokhele (LL. B); source: https://www.lexisnexis.co.za/
LEXISNEXIS SUMMARY:
Britz N.O v Strydom and another
[2019] JOL 41683 (ECP)________________________________________
Case Number: 2849 / 2018
Judgment Date: 29 / 03 / 2019
Country: South Africa
Jurisdiction: High Court
Division: Eastern Cape, Port Elizabeth
Bench: A Beyleveld AJ
________________________________________
Keywords:
Wills, Trusts & Estates – Deceased estate – Administration of – Duties and powers of executrix
Mini Summary:
The applicant was the appointed executrix of the estate of her late husband. The first respondent was the nephew of the deceased, and lived on the deceased’s property. In terms of a testamentary disposition, the deceased bequeathed the property to the first respondent. The property was the only asset in the estate of the deceased. The applicant submitted a claim against the estate for maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The claim was accepted by the previous executrix, who then advised that as the claim was in excess of the value of the assets in the estate, the property would have to be sold.
The first respondent disputed the applicant’s claim for maintenance. He refused to vacate the property, leading to the present application for his eviction.
Held that a notice to creditors in terms of section 34 of the Administration of Estates Act 66 of 1951 has the effect of a sequestration order, although no order of court is in fact granted. A beneficiary never becomes the owner of any inherited asset upon the death of the deceased. The executor of a deceased estate is the owner of the assets during the period of the administration of such estate. An executor takes into custody and control all the property in the estate. The applicant was thus entitled to take possession of the immovable property occupied by the first respondent.
The eviction order was granted by the court.