The executor: dealing with disqualified heirs
01 November 2013 | Magazine Archives FAnews & FAnuus | Life | Ronel Williams, FISA
An executor has many duties. He/she must deal with the assets of the deceased, consider and settle claims against the estate and take steps to transfer the estate assets to the heirs or, where required, sell the assets. Unless the will instructs the executor to sell the assets in a particular manner and/or prescribes the conditions of the sale, he/she may only act on the instructions of the heirs.
The executor must, within six months of his appointment, frame a liquidation and distribution account that reflects all the assets and liabilities of the estate as well as how he will deal with these items. Who the beneficiaries are needs to be determined at the outset so that there can be a consultation process with regards to instructions relating to the assets in the estate, in order to ultimately prepare a liquidation and distribution account.
Rules of inheritance
The fact that a person is mentioned as heir in a will, or qualifies to inherit in terms of the rules of intestacy where there is no valid will, does not automatically mean that he/she will inherit. The general principle in succession law is that all persons have the capacity to benefit in terms of a will or on intestacy, although the latter is subject to certain rules regarding the order of inheritance.
There are however exceptions to this principle. For the sake of brevity, this article will deal only with two such exceptions:
• A person who caused the death of the deceased, whether intentionally or negligently - the so-called ‘bloedige hand’ or bloody hand - is regarded as unworthy to inherit from the deceased. In order to apply this principle, a criminal case must be instituted and the person found guilty of murder or culpable homicide.
• A person, or his/her spouse at the time of execution of the will, who signs a will as witness, or writes out the will or any part thereof in his own handwriting, is disqualified from receiving any benefit from the deceased’s will. The court may however declare him/her competent to inherit if satisfied that he/she did not defraud or unduly influence the testator in the execution of the will.
See you in court
Court cases, whether civil or criminal, take time and the outcome is never assured. The following select examples illustrate the practical impact of a court case:
• Mrs D was found guilty of conspiracy to assault and do grievous bodily harm and assault, with the intention to do grievous bodily harm, after hiring two men to hurt her husband. As neither of these actions made her a bloody hand, the executor had to approach the court for an order declaring her unworthy to inherit. The entire process took 27 months.
• Mr L approached the court to declare him competent to inherit in terms of the will of his late wife, which was written out by him. The court process took nine months.
• The wife of the heir in a will signed the will as witness. The court found that he was competent to inherit as there was no undue influence. The process took eight months.
• The husband of a deceased wife was arrested in 2008 for hiring people to kill her. He confessed, but later alleged that the police forced him to confess. The case has not yet been heard.
It should be evident from the above that the executor will be placed in a difficult position if faced with a situation where an heir is potentially disqualified from inheriting. The executor is effectively forced to wait until judgment is given before being able to determine whether or not the heir is competent to inherit, so that he/she can take instructions from him/her and draft the liquidation and distribution account.
