- The High Court removed the executor after she failed to disclose eight of the deceased’s children to the Master of the High Court.
- The court directed the former executor to give a full account of all money, assets, and records she handled in her role.
- The legal guardians of the minor children were allowed to nominate two executors among themselves.
The rights of minor children to inherit from their late father were at the heart of a dispute that ended with the removal of an executor who left them out of the estate records.
In the High Court in Johannesburg, Judge G Malindi found that leaving eight children out of the estate paperwork and failing to perform statutory duties was reason enough for removal under Section 54 of the Administration of Estates Act.
The families and parties before the court
The first applicant, ZM, lives in Sandown, Johannesburg. She is the mother of GKM, a minor born on 31 March 2006, and the deceased, BMM, who died on 24 June 2018. The second applicant, NB, works in Edenvale, Johannesburg, and is the mother of MTB, a minor boy born on 11 September 2011, also with the deceased.
The third applicant, LCM, works in Sandown, Johannesburg, and is the mother of TKPM, a minor girl born on 22 October 2009. The fourth applicant, IPM, works in Randburg and is the mother of ONM, a minor girl born on 18 May 2010.
The fifth applicant, PSZ, lives in Amanzimtoti, KwaZulu-Natal, and is the mother of OMZ, a minor girl born on 9 August 2016. All five applicants went to court as legal guardians for their children, whose inheritance was at stake.
Carol Thandi M, the first respondent, lives in Mondeor, Johannesburg. She was the appointed executor of the late BMM’s estate, with letters of authority from the Master of the High Court. The Master of the High Court in Johannesburg was the second respondent, but the court did not seek relief from that office except as needed to carry out any order. The Minister of Justice and Constitutional Development was the third respondent, also without any relief sought.
A complex family structure
Carol Thandi M and the deceased were married on 5 December 1992 in Dobsonville, Johannesburg, in community of property. They had three children: Obakeng Tiro M (born 14 May 1989), MTM (born 28 October 1994), and MM (born 15 December 1997).
Although still legally married at the time of death, the couple had separated about 14 years earlier. During the separation, the deceased entered two customary marriages with SZ and IPM and had children with them. He also had children with other women, including the applicants. In total, the deceased fathered 11 children.
He died without a Will, so the estate was to be managed under the Intestate Succession Act.
Serious allegations about the estate’s management
The applicants said there were serious failures in reporting and managing the estate. They claimed that when the death was reported to the Master, the executor listed only her three children and left out the other eight. Everyone agreed these children existed. Judge Malindi recorded, “it [is] common cause that the applicants’ children are not listed as the deceased’s children.”
They also said the executor failed to report all the deceased’s assets, even though she knew he owned more than one property. They argued she had not done her job as executor and did not collect or control all the estate’s property and records. Some assets, easy for her to access, were sold, and the proceeds allegedly squandered. The applicants said this broke both the Intestate Succession Act and the Administration of Estates Act.
They claimed the required notice to creditors was not published and that no liquidation and distribution account was lodged, even though it was due on 12 January 2019. No extension was requested from the Master.
Citing Section 54 of the Administration of Estates Act, the applicants asked the court to remove the executor. They also wanted her to account for every action and every sum of money handled, and for any stolen funds to be taken from her share of the estate.
The executor’s response and court’s findings
The executor opposed the application. She did not dispute the existence of the children but argued that Section 53 of the Administration of Estates Act had been repealed and could not be used. Still, the central fact remained that eight children were not disclosed to the Master.
Judge Malindi found the omissions and failures were serious enough to warrant intervention. The judge said, “I am satisfied that it, being common cause that the applicants’ children are not listed as the deceased’s children, and that the first respondent has not executed her duties and function, as executor of the deceased estate, she stands to be removed as prayed for.”
The court ordered the executor removed under Section 54 of the Act. She must account for all money, assets, and records she managed, and transfer everything to a new executor. The court warned that if money or property had been misappropriated, her share in the estate from her marriage could be forfeited.
The applicants can nominate two executors among themselves, and the Master will appoint a new executor. The former executor was ordered to pay the costs of the application, including counsel’s fees, on Scale B.
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