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An executor had to sell a home to settle estate debts, but the widow refused to consent to the sale. An examination of Bester NO v Master of the High Court [2023] ZAWCHC 208.
To finalise the estate, the executor (the applicant) needed to have sufficient funds to pay creditors, the administration costs of the estate, the advertising, the Master’s fees, and the executor’s fees. To raise such funds, he had no option but to sell the estate’s Hout Bay property. However, the surviving spouse and sole heir did not want the property to be sold, for several reasons, the main one being that she would then have nowhere to stay.
Under section 47 of the Administration of Estates Act (the Act), such a sale requires the heir’s consent to the manner and conditions of the sale and, if such consent is not given, then the property is to be sold in a manner and on conditions approved by the Master.
The reason for this is that the Master plays an oversight role in relation to the manner and conditions of sale of an estate’s assets. In situations like this one, where there was a sole heir who did not consent, the Master’s approval was required.
The executor wrote the Master who was grossly dilatory in failing to respond to the applicant’s request for approval.
As the Master failed to respond to the applicant’s request for approval under section 47 of the Act, the executor approached the court for an order authorising him to sell the house on specified terms and conditions, so that sufficient funds were realised to finalise the estate. The widow opposed the application.
The Master’s failure to respond to the applicant’s request for approval under section 47 of the Act was reviewed and set aside. The decision was remitted to the Master who was directed to decide on the manner and conditions of the sale of the immovable property within two months of the date of service of the order.