Administration of Estates Act, 1965
Act 66 of 1965
- Published in South African Government Gazette no. 1128 on 4 June 1965
- Commenced on 1 April 1972 by Act 54 of 1970
- [Up to date as at 9 April 2021]
- [Amended by General Law Amendment Act, 1967 (Act 102 of 1967) on 21 June 1967]
- [Amended by Establishment of the Northern Cape Division of the Supreme Court of South Africa Act, 1969 (Act 15 of 1969) on 1 May 1969]
- [Amended by Administration of Estates Amendment Act, 1971 (Act 79 of 1971) on 14 July 1971]
- [Amended by Administration of Estates Amendment Act, 1970 (Act 54 of 1970) on 1 April 1972]
- [Amended by General Law Amendment Act, 1975 (Act 57 of 1975) on 20 June 1975]
- [Amended by Administration of Estates Amendment Act, 1978 (Act 15 of 1978) on 15 March 1978]
- [Amended by Native Laws Amendment Proclamation, 1979 (Proclamation AG3 of 1979) on 1 August 1978]
- [Amended by Divorce Act, 1979 (Act 70 of 1979) on 1 July 1979]
- [Amended by Administration of Estates Amendment Act, 1981 (Act 17 of 1981) on 17 December 1981]
- [Amended by Administration of Estates Amendment Act, 1986 (Act 6 of 1986) on 14 April 1986]
- [Amended by Administration of Estates Amendment Act, 1987 (Act 2 of 1987) on 1 April 1987]
- [Amended by Married Persons Equality Act, 1996 (Act 1 of 1996) on 15 July 1996]
- [Amended by Administration of Estates Amendment Act, 2001 (Act 15 of 2001) on 1 July 2002]
- [Amended by Estates and Succession Amendment Act, 2005 (Act 15 of 2005) on 29 December 2005]
- [Amended by Magistrates Amendment Act, 2009 (Act 5 of 2009) on 29 July 2009]
- [Amended by Administration of Estates Amendment Act, 2018 (Act 22 of 2018) on 31 December 2018]
- [Amended by Child Care and Protection Act, 2015 (Act 3 of 2015) on 30 January 2019]
2. Appointment of Masters and Deputy Masters
3. Master’s office to be at seat of provincial division of Supreme Court
4. Jurisdiction of Masters
4A. Minister may assign functions of Master to magistrates
5. Records of Master’s office, etc.
6. Appraisers for the valuation of property
7. Death notices
8. Transmission or delivery of wills to Master and registration thereof
10. ***[section 10 deleted by Act 6 of 1986]
11. Temporary custody of property in deceased estates
12. Appointment of interim curator
13. Deceased estates not to be liquidated or distributed without letters of executorship or direction by Master
14. Letters of executorship to executors testamentary
15. Endorsement of appointment of assumed executors on letters of executorship
16. Letters of executorship and endorsements to or in favour of corporationsIf any person referred to in sub-section (1) of section fourteen or in sub-section (1) of section fifteen is a corporation, the relevant letters of executorship or endorsement, as the case may be, shall be granted or made -(a)to or in favour of any person who is an officer or director of the corporation and has been nominated by the testator or, if the testator has not nominated any person, by the corporation; and(b)in the event of the death, resignation or dismissal of such person, or of his vacating for any reason the office with reference to which he has been so nominated, to or in favour of his successor in office so nominated,for whose acts and omissions as executor the corporation accepts liability.
17. ***[section 17 deleted by Act 1 of 1996]
18. Proceedings on failure of nomination of executors or on death, incapacity or refusal to act, etc.
19. Competition for office of executorIf more than one person is nominated for recommendation to the Master, the Master shall, in making any appointment, give preference to -[introductory phrase of section 19 amended by Act 6 of 1986](a)the surviving spouse or his nominee; or(b)if no surviving spouse is so nominated or the surviving spouse has not nominated any person, an heir or his nominee; or(c)if no heir is so nominated or no heir has nominated any person, a creditor or his nominee; or(d)the tutor or curator of any heir or creditor so nominated who is a minor or a person under curatorship, in the place of such heir or creditor:Provided that the Master may -(i)join any of the said persons as executor with any other of them; or(ii)if there is any good reason therefor, pass by any or all of the said persons.
20. Application of section 21 to foreign letters of executorship
21. Sealing and signing of letters granted in a StateWhenever letters of executorship granted in any State and authenticated as provided in the rules made under section forty-three of the Supreme Court Act, 1959 (Act No. 59 of 1959), are produced to or lodged with the Master by the person in whose favour those letters have been granted or his duly authorized agent, those letters may, subject to the provisions of sections twenty-two and twenty-three, be signed by the Master and sealed with his seal of office, and such person shall thereupon with respect to the whole estate of the deceased situate in the Republic, for the purposes of this Act be deemed to be an executor to whom letters of executorship have been granted by the Master: Provided that before any such letters are signed and sealed a duly certified and authenticated copy of the will (if any) of the deceased and an inventory of all property known to belong to him within the Republic shall be lodged with the Master.[The Supreme Court Act 59 of 1959 has been replaced by the Supreme Court Act 15 of 1990.]
22. The Master may refuse to grant, endorse or sign and seal letters of executorship in certain cases
23. Security for liquidation and distribution
24. Reduction of security given by executorsIf any executor who has given security to the Master for the proper performance of his functions, has accounted to the satisfaction of the Master for any property, the value of which was taken into consideration when the amount of such security was assessed, the Master may reduce the amount of the security to an amount which would, in his opinion, be sufficient to cover the value of the property which such executor has been appointed to liquidate and distribute, and which has not been so accounted for.
25. Estates of persons who upon their death are not resident in the Republic and do not own any property other than movable property in the Republic
26. Executor charged with custody and control of property in estate
27. Inventories by executors and valuation at instance of Master
28. Banking accounts
29. Notice by executors to lodge claims
30. Restriction on sale in execution of property in deceased estatesNo person charged with the execution of any writ or other process shall -(a)before the expiry of the period specified in the notice referred to in section twenty-nine; or(b)thereafter, unless, in the case of property of a value not exceeding the amount prescribed, the Master, or in the case of any other property, the Court otherwise directs,[paragraph (b) amended by Act 15 of 1978, Act 6 of 1986 and Act 15 of 2001; punctuation change made by Act 15 of 2001 not indicated by amendment marking]sell any property in the estate of any deceased person which has been attached whether before or after his death under such writ or process: Provided that the foregoing provisions of this section shall not apply if such first-mentioned person could not have known of the death of the deceased person.
31. Late claimsIf any person fails to lodge his claim against any deceased estate before the expiry of the period specified in respect of that estate under sub-section (1) of section twenty-nine, he shall -(a)if he lodges his claim thereafter and does not satisfy the Master that he has a reasonable excuse for the delay, be liable for any costs payable out of the estate, in connection with the reframing of any account or otherwise, as a result of the delay; and(b)whether or not he lodges his claim thereafter, not be entitled in respect of his claim to demand restitution from any other claimant of any moneys paid to such other claimant at any time or before he lodged his claim, as the case may be, in pursuance of a valid claim against the estate.
32. Disputed claims
33. Rejected claims
34. Insolvent deceased estates
35. Liquidation and distribution accounts
36. Failure by executor to lodge account or to perform duties
37. Massed estatesIf any two or more persons have by their mutual will massed the whole or any specific portion of their joint estate and disposed of the massed estate or of any portion thereof after the death of the survivor or survivors or the happening of any other event after the death of the first-dying, conferring upon the survivor or survivors any limited interest in respect of any property in the massed estate, then upon the death after the commencement of this Act of the first-dying, adiation by the survivor or survivors shall have the effect of conferring upon the persons in whose favour such disposition was made, such rights in respect of any property forming part of the share of the survivor or survivors of the massed estate as they would by law have possessed under the will if that property had belonged to the first-dying; and the executor shall frame his distribution account accordingly.
38. Taking over by surviving spouse of estate or portion thereof
39. Registration of immovable property in deceased estate
40. Endorsement of testamentary trusts against title deeds and bonds
41. Production of title deed or bond to executor
42. Documents to be lodged by executor with registration officer
43. Movable property to which minors and moneys to which absentees or persons under curatorship are entitled
44. Movable property to which minor or unborn heir is entitled subject to usufructuary or fiduciary rights or other like interests
45. Payment of moneys to minors or persons under curatorship domiciled outside the Republic
46. Failure to pay over moneysAny executor who fails to pay over any money to the Master or to any other person or to deposit it in any banking account under section twenty-eight when required by or under this Act to do so, or who uses or knowingly permits any co-executor to use any property in the estate except for the benefit of the estate, shall pay into the estate an amount equal to double the amount which he has so failed to pay over or to deposit or to double the value of the property so used: Provided that the Master may, on good cause shown, exempt any executor, in whole or in part, from any liability which he may have incurred under this section.
47. Sales by executorUnless it is contrary to the will of the deceased, an executor shall sell property (other than property of a class ordinarily sold through a stockbroker or a bill of exchange or property sold in the ordinary course of any business or undertaking carried on by the executor) in the manner and subject to the conditions which their heirs who have an interest therein approve in writing:Provided that -(a)in the case where an absentee, a minor or a person under curatorship is heir to the property; or(b)if the said heirs are unable to agree on the manner and conditions of the sale,the executor shall sell the property in such manner and subject to such conditions as the Master may approve.[section 47 substituted by Act 6 of 1986 (formatting as in OfficialGazette)]
48. Extension of time and compounding of debtsAn executor may accept from a debtor of the deceased estate who is unable to pay his debt in full, any reasonable part of the debt in discharge of the whole debt or grant any debtor of the deceased estate an extension of time for the payment of his debt in so far as this is compatible with the provisions of section thirty-five: Provided that if the debt exceeds two hundred rand, an executor shall, subject to the terms of the will (if any) of the deceased, not accept a part of the debt in discharge of the whole debt, unless he has been authorized to do so by the Master.
49. Purchases by executor of property in estate, or mortgaged or pledged to the deceased
50. Executor making wrong distributionAny executor who makes a distribution otherwise than in accordance with the provisions of section thirty-four or thirty-five, as the case may be, shall -(a)be personally liable to make good to any heir and to any claimant whose claim was lodged within the period specified in the notice referred to in section twenty-nine, any loss sustained by such heir in respect of the benefit to which he is entitled or by such claimant in respect of his claim, as a result of his failure to make a distribution in accordance with the said provisions; and(b)be entitled to recover from any person any amount paid or any property delivered or transferred to him in the course of the distribution which would not have been paid, delivered or transferred to him if a distribution in accordance with the said provisions had been made: Provided that no costs incurred under this paragraph shall be paid out of the estate.
51. Remuneration of executors and interim curators
52. No substitution or surrogationIt shall not be competent for any executor to substitute or surrogate any other person to act in his place.
53. Absence of executor from RepublicAn executor shall not be absent from the Republic for a period exceeding 60 days unless -(a)the Master has before his departure from the Republic granted him permission in writing to be absent;(b)he complies with such conditions as the Master may think fit to impose; and(c)he has given such notice of his intention to be so absent as the Master may have directed.[section 53 substituted by Act 6 of 1986]
54. Removal from office of executor
55. Continuance of pending legal proceedings by remaining or new executor
56. Discharge of executors, and proceedings against discharged executors
[Chapter III, comprising sections 57-70, was not brought into force in South West Africa. It was repealed in South Africa by the Trust Moneys Control Act 57 of 1988 (RSA GG 11357), which was enacted after the date of transfer and did not apply to South West Africa because it was not made expressly so applicable.]
57. In certain cases property not to be administered without letters of administratorshipNo person shall -(a)administer any property which has by the will of any person who dies after the commencement of this Chapter, been given under his control to be administered for the benefit, whether in whole or in part, of any other person; or(b)after the death of any donor who dies after the commencement of this Chapter, administer any property which has by any written instrument operating inter vivos been given under his control by such donor for the said purpose,except under letters of administratorship granted or signed and sealed under this Chapter, or under an endorsement made under section fifty-nine.
58. Orders by Master prohibiting administration without letters of administratorship
59. Letters of administratorship to administrators nominated by deceased persons, and endorsements in case of assumed administrators
60. Proceedings on failure of nomination of administrators, or on death, incapacity or refusal to act, etc.
61. Competition for office of administratorIf at any meeting in pursuance of a notice under subsection (1) of section sixty more than one person is nominated for recommendation to the Master, the Master shall, in making any appointment, prefer the nominee of a more immediate beneficiary to the nominee of a more remote beneficiary: Provided that the Master may -(a)join the nominee of a more immediate beneficiary with the nominee of a more remote beneficiary; or(b)if there is any good reason therefor, pass by any or all of such nominees.
62. Foreign letters of administratorshipWhenever the provisions of section twenty-one apply, in terms of section twenty, to letters of executorship granted in any State, the said provisions shall mutatis mutandis also apply to letters of administratorship so granted.
63. Security by administrators
64. Transfer and mortgage of immovable property by or in favour of administrators
65. Accounts by Administrators[The term “administrators” is not capitalised elsewhere in the Act.]
66. Movable property to which minors and moneys to which absentees or persons under curatorship are entitled
67. Payment of moneys to minors or persons under curatorship domiciled outside the Republic
68. Administrator making wrong distributionAny administrator who makes a distribution otherwise than in accordance with the provisions of the relevant will or written instrument operating inter vivos -(a)shall be personally liable to make good to any beneficiary or creditor any loss sustained by such beneficiary in respect of the benefit to which he is entitled, or by such creditor in respect of his claim, as a result of his failure to make a distribution in accordance with the said provisions, unless the court otherwise directs; and(b)shall be entitled to recover from any person any amount paid or any property delivered or transferred to him in the course of the distribution, which would not have been paid, delivered or transferred to him if a distribution had been made in accordance with the said provisions: Provided that no costs incurred under this paragraph shall be paid out of the property in respect of which such administrator has been appointed or out of any income therefrom.
69. Remuneration of administrators
70. Application of certain sections to administrators
Tutors and Curators
71. Certain persons not to administer property as tutor or curator without letters of tutorship or curatorship
72. Letters of tutorship and curatorship to tutors and curators nominate and endorsement in case of assumed tutors and curators
73. Proceedings on failure of nomination of tutors or curators, or on death, incapacity or refusal to act, etc.
74. Foreign letters of tutorship or curatorshipWhenever the provisions of section twenty-one apply, in terms of section twenty, to letters of executorship granted in any State, the said provisions shall mutatis mutandis apply also to letters of tutorship or curatorship so granted.
75. Notifications in respect of tutors and curatorsThe Master shall, whenever he has granted or signed and sealed letters of tutorship or curatorship or has made an endorsement under section seventy-two, to or in favour of any person, and whenever any such person ceases to be a tutor or curator, cause to be published in the Gazette and in one or more newspapers circulating in the district in which the minor or person under curatorship is ordinarily resident, or if he is not so resident in any district in the Republic, in one or more newspapers circulating in the area in which such minor or person owns property, a notice stating that a tutor or curator has been appointed to such minor or person, and specifying the names and addresses of the tutor or curator and of such minor or person, or stating that the tutor or curator has ceased to be a tutor or curator and specifying the names and addresses aforesaid, as the case may be.
76. Authority conferred by letters of tutorship and curatorship
77. Security by tutors and curators
78. Inventories by tutors and curators
79. Returns by Masters to registration officers of immovable property included in inventory
80. Restriction on alienation or mortgage of immovable property by natural guardian, tutor or curator
81. Purchase by tutor or curator of property administered by himIf any tutor or curator or the spouse, parent, child, partner, employer, employee or agent of any tutor or curator, purchases any property which he has been appointed to administer, the purchase shall, subject to the terms of any will or written instrument by which he has been nominated, be void, unless it has been consented to or is confirmed by the Court or the Master.
82. Payment to Master of certain moneysEvery tutor and curator shall, whenever he receives any money belonging to the minor or other person concerned, from any person other than the Master, forthwith pay the money into the hands of the Master: Provided that the foregoing provisions of this section shall not apply -(a)if the Court appointing the tutor or curator or if the Master otherwise directs; or(b)if any will or written instrument by which the tutor or curator has been nominated or by which the money has been disposed of, otherwise provides; or(c)to so much of the money as is immediately required (i)for the payment of any debt of the minor or other person; or(ii)for the preservation or safe custody of any property of the minor or other person; or(iii)for the maintenance or education of the minor or other person or any of his dependants; or(iv)to meet any current expenditure in any business or undertaking of the minor or other person carried on by the tutor or curator.
83. Accounts by tutors and curators
84. Remuneration of tutors and curators
85. Application of certain sections to tutors and curatorsSections 24, 26, 28, 36, 42(2), 46, 48, 49(2), 52, 53, 54 and 56 shall mutatis mutandis apply with reference to tutors and curators: Provided that any reference in any of the said sections to a will shall, for the purposes of its application under this section, include a reference to any written instrument by which the tutor or curator concerned has been nominated.[section 85 substituted by Act 1 of 1996]
The Guardian’s Fund
86. Existing guardian’s fund to continue
87. Banking account of guardian’s fund
87A. Payment of certain moneys in respect of minors and persons under curatorship
88. Interest on certain moneys in guardian’s fund
89. Payments from guardian’s fundThe Master shall, upon the application of any person who has become entitled to receive any money out of the guardian’s fund, pay that money to that person.
90. Payments to natural guardians, tutors and curators, or for and on behalf of minors and persons under curatorship
91. Publication of list of unclaimed moneysThe Master shall in the month of September of each year cause to be published in the Gazette a list of all amounts of the amount prescribed or more in the guardian’s fund, other than the amounts deposited therein in terms of section 93(3)(a), which have been claimable and have remained unclaimed by the persons entitled thereto for a period exceeding one year but not exceeding three years.[section 91 amended by Act 6 of 1986 and by Act 15 of 2001]
92. Forfeiture to State of moneys unclaimed for thirty yearsAny money in the guardian’s fund (whether such money has been paid into the said fund before or after the commencement of this Act) which has remained unclaimed by the person entitled thereto for a period of thirty years as from the date upon which such person became entitled to claim the said money, shall be forfeited to the State and shall be deposited into the Central Revenue Fund.[section 92 amended by Act 2 of 1987]
93. Statements of certain unclaimed moneys to be published, and amounts unclaimed to be paid into guardian’s fund
94. Consent of Master to sub-division of immovable property on behalf of minor or unborn heirIf the Master is satisfied that it is expedient to partition any immovable property which is registered in the name of any minor or in which any minor has or any unborn heir may acquire any interest, and that the proposed sub-division is fair and equitable, he may, upon such terms as to costs or otherwise as he thinks fit, and subject to the provisions of section 30 of the Deeds Registries Act, 1937 (Act No. 47 of 1937), or section 30 of the Deeds Registries Proclamation, 1939 (Proclamation No. 37 of 1939), of the territory, consent, on behalf of such minor or heir, to the sub-division and to any exchange of property, payment of money or mortgage incidental to the sub-division.[Section 94 is substituted by Act 54 of 1970][The Deeds Registries Proclamation 37 of 1939 was repealed by the South African Deeds Registries Amendment Act 3 of 1972, which made the South African Deeds Registries Act 47 of 1937 applicable to South West Africa.]
95. Review of Master’s appointments etc.[Elsewhere in the Act, “etc.” is preceded by a comma.]Every appointment by the Master of an executor, administrator, tutor, curator or interim curator, and every decision, ruling, order, direction or taxation by the Master under this Act shall be subject to appeal to or review by the Court upon motion at the instance of any person aggrieved thereby, and the Court may on any such appeal or review confirm, set aside or vary the appointment, decision, ruling, order, direction or taxation, as the case may be.
96. Proceedings by Master
97. Master’s costsAll costs incurred by the Master in the exercise of his powers and the performance of his duties under this Act or in any proceedings in pursuance of the provisions of this Act which cannot be recovered from any other source may, unless the Court has ordered that they be paid by him de bonis propriis, be paid out of the guardian’s fund: Provided that the Minister may specially authorize that any costs ordered to be paid by the Master de bonis propriis be refunded to him or be paid out of the said fund.[section 97 amended by Act 6 of 1986 and by Act 2 of 1987]
98. Recovery of costs ordered to be paid de bonis propriis by executor, etc.Whenever any executor, administrator, tutor, curator, interim curator or surety has been ordered to pay de bonis propriis the costs of any proceedings instituted by the Master, the Master may, if he is unable to recover the said costs from any property belonging to the executor, administrator, tutor, curator, interim curator or surety, recover them from the property in the deceased estate or the property subject to the administration of the administrator, tutor or curator, as the case may be.
99. Master incapacitated from being executor, etc.No Master shall in his official capacity be capable of acting as executor, administrator, tutor or curator.
100. Exemption from liability for acts or omissions in Master’s officeNo act or omission of any Master or of any officer employed in a Master’s office shall render the State or such Master or officer liable for any damage sustained by any person in consequence of such act or omission: Provided that if such act or omission is mala fide or if such Master or officer has, in connection with such act or omission in the course of his duties or functions, not exercised reasonable care and diligence, the State shall be liable for the damage aforesaid.
“Anything done under section 103(1)(b) of the principal Act [Act 66 of 1965] before the commencement of this Act [Act 2 of 1987], shall be deemed to have been done under that section as amended and applied by and by virtue of the provisions of this Act [Act 2 of 1987].”](c)providing for the good conduct of Masters’ offices or prescribing the practice and procedure to be observed therein;(d)prescribing the matters in respect of which Master’s fees shall be payable, the tariff of such fees and the manner in which such fees shall be payable;(e)prescribing a tariff of remuneration payable to any person performing any act relating to the liquidation or distribution of an estate on behalf of the executor of the estate in question and prohibiting the charging or recovery of remuneration at a higher tariff than the tariff so prescribed;(f)as to all matters which by this Act are required or permitted to be prescribed; and(g)generally, as to all matters which he considers it necessary or expedient to prescribe in order that the purposes of this Act may be achieved.
104. Application of Act
105. Repeal of laws, and savings
106. Re-instatement for certain purposes of the provisions which were contained in sub-section (2) of section 5 of Act 24 of 1913 prior to its substitution in terms of section 16 of Act 68 of 1957For the purposes of the application of sub-section (2) of section one hundred and five in respect of any estate which prior to the substitution effected by section sixteen of the General Law Amendment Act, 1957, was being dealt with under the provisions which prior to such substitution were contained in sub-section (2) of section five of the Administration of Estates Act, 1913, the said provisions shall with effect from the date of commencement of the said section sixteen, be deemed not to have been affected by such substitution.
107. Amendment of section 62 of Act 38 of 1916 as amended by section 1 of Act 13 of 1946Section sixty-two of the Mental Disorders Act, 1916, is hereby amended by the substitution in sub-section (1) for the words “in respect of his property any act or power referred to in section sixty-five or generally to take care of or to administer his property and so to perform and exercise all the acts and powers referred to in the said section” of the words “any particular act in respect of his property or to take care of or administer his property or to carry on any business or undertaking of such person”.[The Mental Disorders Act 38 of 1916, with the exception of sections 27 to 29bis inclusive, was replaced by the Mental Health Act 18 of 1973. The remaining provisions were repealed by the Criminal Procedure Act 51 of 1977.]
108. Limitation of application of Act 34 of 1934The Trust Moneys Protection Act, 1934, shall not apply with reference to any moneys in respect of the administration of which security has been given under this Act.
108A. Application of this Act to South-West AfricaThis Act and any amendment thereof shall apply also in the territory, including the Eastern Caprivi Zipfel, but shall, in the territory known as the “Rehoboth Gebiet” and defined in the First Schedule to the agreement referred to in the Schedule to Proclamation No. 28 of 1923, of the territory, not apply to the estate of any person to whom Proclamation No. 36 of 1941, of the territory, applies.[Section 108A is inserted by Act 54 of 1970, which provides the following additional repeals and transitional provisions in section 11:][“11. Repeal of laws][(1) Subject to the provisions of subsection (2), the laws of the territory of South-West Africa set out in the Schedule are hereby repealed to the extent specified in the third column thereof.][(2) The estate of any person who died before the commencement of this Act shall be liquidated and distributed, and any matter relating to the liquidation and distribution of such estate shall be dealt with as if this Act had not been passed.][(3) This section shall apply also in the Eastern Caprivi Zipfel.”][Schedule][Laws Repealed]
|No. and year of Law.||Short title.||Extent of repeal.|
|Proclamation No. 52 of 1921.||Better Administration of Justice Proclamation, 1921.||The whole, except in so far as it relates to section 115bis of the Administration of Estates Act, 1913 (Act No. 24 of 1913), as applied to the territory.|
|Ordinance No. 22 of 1958.||General Law Amendment Ordinance, 1958.||Sections 3, 4, 5, 6, 7, 8 and 9.|