Estates Notes 2

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ADMINISTRATION OF ESTATES COURSE MATERIAL

The purpose of the course is to supply a broad overview of the subject from a practical point of view. During training, instructors will only cover those aspects which candidate attorneys will encounter most often in practice. The remainder of the course is self study. The purpose of the notes is to supplement the presentation of the instructors and, hopefully, be of use in practice. Notes do not form a complete manual on the subject - the use of relevant sources is still necessary. It must be borne in mind that the administration of estates is a specialist subject and that the few hours spent during training sessions will not be sufficient to ensure a pass in the examinations. As with the other subjects needed, intensive study of the various statutes and other authorities, both before and after the training sessions is essential. These notes are based on the notes of the Association of Law Societies of the Republic of South Africa and I am indebted to this Association who has given permission to make use of these notes. The section on wills is based on notes compiled by Arnold Shapiri, practising attorney, Johannesburg. The section on the administration of estates is based on notes compiled by David Burdette, lecturer at Justice College Pretoria. These notes have been edited and amplified to comply with Namibian law, for use by the University of Namibia, Justice Training Centre, by T.Taylor, ex Master of the High Court. A B C D E F G

INDEX SYLLABUS AND AIM OF COURSE PRACTICE NOTES PRECEDENTS SOURCE REFERENCES DEFINITIONS FORMS

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[Page 2] [Page 4] [Page 6] [Page 105] [Page 126] [Page 127] [Page 129]

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A. INDEX ADMINISTRATION OF ESTATES SECTION B SYLLABUS AND AIMS - ADMINISTRATION OF ESTATES. SECTION C PRACTICE NOTES. 1

INTRODUCTION.

1.1

Statutes.

2

WILLS.

2.1

AIMS

2.2

INTRODUCTION

2.3

Place of the will in estate planning.

2.4

Requirements for a valid will.

2.5

Consultation with client.

2.5

Drafting of wills.

2.6

General comments.

2.7

Concise notes as to the interpretation of wills.

2.8

Use of word processors.

3.

INTESTATE SUCCESSION

3.1

Aims

3.2

Terminology

3.3

History and common law

3.4

STATUTORY LAW

3.5

Practical examples.

3.6

Estates of Rehoboth Basters.

3.7

Estates of Black Namibians

4.

ADMINISTRATION OF ESTATES.

4.1

Aims.

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3 4.2

Introduction

4.3

A brief overview of the administration process.

4.4

The most important parties involved in the administration of a deceased estate

4.5

Various categories of deceased estates.

4.6

Taking of the instruction to administer the estate.

4.7

First consultation

4.8

Reporting the estate.

4.9

Steps to be taken while waiting for letters of executorship to be issued.

4.10

Steps to be taken after receiving letters of executorship but before lodging the liquidation and distribution account.

4.11

Estate massing.

4.12

Extension.

4.13

Drafting the liquidation and distribution account

4.14

Query sheet issued by the Master.

4.15

The inspection period.

4.16

Finalisation after the inspection period.

4.17

Other types of estates.

SECTION D PRECEDENTS. 5.1

Specimen Wills.

5.2

Certificate by the certifying officer.

5.3

Adiation and Repudiation.

5.4

Practical example of the administration of an estate.

SECTION E SOURCE REFERENCES. SECTION F DEFINITIONS. SECTION G FORMS.

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B. SYLLABUS AND AIMS ADMINISTRATION OF ESTATES 1.WILLS. 1.1

After having dealt with this section of the work, candidates should have a sound understanding and knowledge of the following:

1.1.1

The subject terminology which applies to wills.

1.1.2

The provisions of the Wills Act no 7 of 1953, as amended.

1.1.3

The definition (in section 1 of the Wills Act 7 of 1953) of who is competent to sign a will as a witness, what the concept "sign" entails, the meaning of "amendment", and the meaning of the term "will".

1.1.4

The formal requirements for a valid will and amendments to a will as stipulated in section 2(1) and 2(2) of the Wills Act No 7 of 1953 (as amended).

1.1.5

The rebutable presumption in section 2(2).

1.1.6

The more important stipulations in other statutes applicable to wills.

1.1.7

Cognisance of the decided cases applicable to wills.

1.1.8

Who is competent to make a will.

1.1.9

The effect of repudiation, incapacity to inherit or disqualification to inherit on the object of the testamentary bequest. The practical implications must be seen in the context of the distinction between an heir and a legatee as far as substitution and accrual is concerned.

1.1.10

Disqualifications in respect of benefiting under the will where the heir or legatee has signed as a witness (section 4) or wrote or typed the will.

1.2

Students should be able to draw the various sections of a simple will. A sound notion of what a testamentary trust is, who the parties to a trust are, when a testamentary trust should be recommended to a client and what stipulations a testamentary trust deed should contain, is also important in this regard. A sound knowledge of the provisions of the Trust Monies Protection Act No 34 of 1934.

2.INTESTATE SUCCESSION 2.1 2.1.1

This section deals with the laws applicable to the estates of persons who die without leaving a valid will. After completion of this section the candidate must: Know and understand the problems that will arise in case of intestate succession.

2.1.2

Know and understand the common law rules of intestate succession as applicable in Namibia.

2.1.3

Know the provisions of the Intestate Succession Ordinance No 12 of 1941 (as amended)

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2.1.4

Know the provisions of the Children's Act No 33 of 1960 in so far as it relates to inheritance of an adopted child

2.1.5

Know the provisions of the Estates and Succession Amendment Act No15 of 2005

2.1.6

Know the provisions of the Children’s Status Act no …... of 2005 that affect the intestate succession of children born out of wedlock.

2.1.7

Know the provisions of Schedule 2 of the Administration of Estates (Rehoboth Gebied) Proclamation no 36 of 1941 in respect of intestate succession of Rehoboth Basters.

3 THE ADMINISTRATION OF DECEASED ESTATES. 3.1

3.1.1

This section deals with the administration process of deceased estates according to the current Namibian law and practice and matters relating thereto. After completion of this section candidates must: Know the sequence of events in the administration process of deceased estates.

3.1.2

Know the most important aspects of the function of the Master of the High Court, The Magistrate and that of the Executor;

3.1.3

Know the contents of the more important sections of the Administration of Estates Act No 66 of 1965 and the more important regulations promulgated in terms of section 103;

3.1.4

Be able to report an estate to the Master of the High Court; and/or the Magistrate.

3.1.5

Be able to manage the various consecutive steps in the administration process;

3.1.6

Be able to identify the various subsections of the liquidation and distribution account and to describe these; 3.1.7 Be in a position to draw the complete liquidation and distribution account and know which supporting documents is required for each item;

3.1.8

Know how the various estate assets are valued.

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C. PRACTICE 1

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NOTES

INTRODUCTION.

The administration of estates is a specialised subject and a considerable effort must be put into your studies if you want to make a success in this regard. The mere study of these notes will be insufficient to be successful. The study of the relevant statutes and handbooks and decided cases on the subject is imperative. Be careful however that the statutes and handbooks studied are relevant to the Namibian situation. Although basically the same statutes are used in South Africa, where most handbooks are printed, there are differences as a result of various amendments to statutes made in Namibia as well as South Africa. The latest handbooks will, for example, deal with the 1988 Intestate Succession Act and the 1992 amendment to the Wills Act which is not applicable to Namibia. 1.1

STATUTES.

It is essential that candidates have access to at least the following statutes, which as mentioned above MUST be annotated to conform to the Namibian law. 1.1.1

Intestate Succession Ordinance no 12 of 1946

1.1.2

Wills Act No 7 of 1953

1.1.3

Administration of Estates Act no 66 of 1965. Together with regulations thereto.

1.1.4

Children's Act No 33 of 1960 (section 74)

1.1.5

Native Administration Proclamation No 15 of 1928 (section 18(2))

1.1.6

Administration of Estates (Rehoboth Gebiet) Proclamation No 36 of 1941.(Schedule 2)

1.1.7

The Estates and Succession Amendment Act No 15 of 2005

Candidates should also be aware of the provisions of the following statutes: 1.1.9

Immovable Property (Removal or Modification of Restrictions ) Act no 94 of 1965.

1.1.10

Subdivision of Agricultural Land Act No 70 of 1970.

1.1.11

Recognition of Certain Marriages Act No 18 of 1991.

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7 2.

WILLS

2.1

After this session the student should be able to:

2.1.1 Define the following subject terminology: a/ b/ c/ c/ d/ e/ f/ g/ h/ i/ j/ k/ l/ m/ n/ o/ p/ q/ r/ s/ t/

Will Statutory Will Testate succession Intestate succession Testator Witness Signature/Sign Initials Soldiers Will Amendment/Deletion The Master Revocation Executor Security Legacy Heirs/Legatees Fide Commissum/Fide Commissum Residue Usufruct Collation Funeral Direction Per Stirpes/Per Capita

2.1.2

Explain the formalities to comply with to execute a valid will, with reference the provisions of the Wills Act no 7 of 1953.

2.1.3

Indicate who is competent to sign a will as witness

2.1.4

List the formalities required for amendments to a will in terms of section 2(b)(i)-(iv).

2.1.5

explain the rebuttable presumption in section 2(2) with regard to amendments to a will.

2.1.6

Distinguish between an heir and a legatee.

2.1.7

Explain the effect of repudiation, incapacity to inherit, failure or disqualification to inherit the object of a bequest. Refer to substitution and accrual.

2.1.8

Explain the position of an adopted child.

2.1.9

Indicate who is competent to make a will.

2.1.10

Indicate who will be disqualified from benefiting under a will.

2.1.11

Draw a simple will and the various subdivisions with regard to a given set of facts.

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2.2.

INTRODUCTION.

2.2.1

A will is a unilateral juristic act in which a testator or testatrix according to applicable legal directions and by way of a free, written declaration stipulates on which basis and in favour of which beneficiaries his assets must be distributed after his death. A second or supplementary will as annexure or an addition to an existing will is called a codicil. Initially there were important differences between a will and a codicil especially with regard to the formalities in the execution thereof. These differences have gradually disappeared and at present, as far as Namibian law is concerned, a will and a codicil are in all respects the same thing. All testamentary dispositions executed after 1553 must comply with the legal requirements as laid down in the Wills Act No 7 of 1953, as amended, and the name codicil has thus no separate meaning.

2.2.2

Joint and reciprocal wills Any two or more persons capable of making a will may contain their wills in one single document. Such a will is known as a joint will. In practice it is normally a married couple who makes use of the joint will. The parties do not have to leave any benefits to one another and each one of them is free to alter his/her will,(which is contained in such a joint will) or to revoke such a will without the consent or participation of the other party. The principle is that the joint will is in fact the separate will of each party contained in one single document. A reciprocal will is a joint will in which the parties benefit one another. A reciprocal will is thus a joint will, but a joint will is not necessary a reciprocal will. Also in a reciprocal will each party is entitled to revoke or amend his own will (contained in the reciprocal will) without the consent or participation of the other party/parties. There is a presumption that bequests in joint or reciprocal wills are only applicable to the individual property of each participating testator. However, where two or more testators in a reciprocal will consolidated or massed their separate estates into a single unit where-after they jointly dispose of the massed estate you get estate massing and then the principle with regard to the amendment and revoking of wills alters. Once adiation has taken place after the death of the first dying the survivor may not alter the provisions of the joint will.

2.2.3

TYPES OF WILLS. As regards the various forms of wills which we currently have in Namibia, we have the underhand will which from a formality point of view is prepared in terms of section 2(1) of the Wills Act and the notarial Will which is executed by a notary and filed in his protocol. This form of will (notarial will) has to a large extent lapsed due to disuse. The Wills Act does not make provision for notarial wills and any "Notarial Will" must comply with the normal provisions of the act. The Wills Act provides in section 3 for a Soldiers Will which is the only privileged form of will recognised in the Act. It can be executed without the formalities prescribed in section 2(1)(a) of the act.

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2.3.

THE PLACE OF THE WILL IN THE ESTATE PLANNING OF A PERSON

2.3.1

INTRODUCTORY REMARKS The will is directed to that part of the planning of a person's affairs which is aimed at the "post mortem" situation. This facet of estate planning aims to ensure that after the death of a person his next-of-kin will be properly maintained and that the fruits of the deceased's economic activities during his life time will in a sensible way, and in their best interests, be awarded to his next-of-kin. Here the will therefore plays an important role: It is more or less the hinge on which the said facet in the estate planning process hangs. The will performs the function of a conduit through which the assets collected during his life time can be channelled to his beneficiaries and to let this process run smoothly and without any hitches a well considered and properly drafted will is of prime importance. Unfortunately this aspect of estate planning is often neglected. It is therefore a catastrophe if a particular will is invalid because the formal requirements were not followed when it was prepared. Sometimes however, as far as the contents is concerned a valid will will be as great a disaster if it was not properly considered at the drafting stage. To prepare a significant will capable of being implemented and which will result in a trouble free estate administration, a sound knowledge of the law of succession and other similar areas are indispensable. The ability to pronounce oneself, concise, clear and correct on paper without falling in linguistic gymnastics and cumbersome sentences is a strong recommendation. The drafter of wills must be able to set out the wishes and instructions of his client in such a way that the end result will be what was actually intended. That is not always an easy task. It must throughout be guarded against that words and expressions, especially words and expressions with a certain legal technical content, do not create a false impression with regard to the intention of the testator. In short: the drafting of a will is not work for a layman.

2.3.2

THE IMPORTANCE OF A WILL In the event of a person dying without a will the following problems will arise: a/ b/

There will be a delay in the appointment of an executor who will, unless exempted by section 23 of the Estates Act, have to furnish security incurring unnecessary costs. The estate will devolve in terms of the Laws of Intestate Succession.

c/

An intestate estate situation very often has the result that it is difficult or totally impossible to divide the estate according to the fractions to which each heir is entitled to in terms of the Laws of Intestate Succession as the case study will illustrate.

d/

An intestate estate often means the unnecessary or forced sale of assets to be able to finalise the estate.

e/

Where the deceased leaves a wife and children the inheritance of the wife is limited which may create problems to the daily attention and maintenance of the children.

f/

The Master of the High Court requires proper security in respect of minor's inheritances. Cash inheritances must be deposited to the Guardians Fund under the control of the Master of the High Court until they become majors.

g/

When both parents die simultaneously (eg. in a motor accident) and they leave minor children, there will be no executor, no guardian, no trustee who can administer their inheritances until they attain the age of 21 with the result that everything hangs in the air. This brings unnecessary costs for the estate such as the appointment of tutors and/or curators.

h/

If the deceased was a business man or a farmer who managed his affairs personally chaotic circumstances may arise. The enterprise must be continued and debts must be paid. Bank accounts are frozen at death and because there is no will in which an executor has been nominated, it may take a few months before an executor is appointed. The surviving spouse

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and the children often suffer substantial discomfort because the assets and bank accounts are frozen and they have no access thereto.

2.3.3

i/

The application of rules in terms of intestate succession which is contrary to the Koran, places the heirs of a Muslim who dies without a will, in a very difficult position. The deviation from the directions of the Koran about succession is considered by the Muslims in a very serious light and it is therefore of great importance for a Muslim testator to have a valid will in terms of which his estate id divided in terms of Islamic Law.

j/

It will in general be more advantageous for black property owners to have a will drawn instead of relying on the distribution in terms of the Native Administration Proclamation No 15 of 1928

THE ROLE AND FUNCTION OF THE DRAFTSMAN OF WILLS The draftsman of the will is, especially in bigger and more complicated estates, a member of the "planning team". He forms an important link in the "expertise chain" which consists of himself as a legal practitioner, the chartered accountant, the insurance expert, the financial planner or the expert on the terrain of the capital market. The person drawing the will is especially contributing the following expertise: a/

Linguistic ability and formulating.

b/

Technical expertise with regard to the norms of the law of succession.

c/

Statuary law applicable to wills and estates. d/ The way in which principles of the law of succession, certain aspects of the law and statute law are applied and interpreted by the courts.

e/

2.3.4

He maintains his expertise by taking notice of new developments in the field of his subject in order to provide an updating service to the client with a view to revising his testamentary estate plan. POSSIBLE CLAIM FOR DAMAGES.

The draftsman could lay himself open for a claim for damages if for any reason the will drawn up by him is declared invalid. There have been cases where a beneficiary has entered a claim for damages because he suffered loss as a result of an invalid will. In the case of Pretorius V McCallum (so far unreported), the defendant attorney prepared a will for the first plaintiff's father and signed as one of the witnesses. He only initialled the first page and the will was invalid by reason of non-compliance with section 2(1)(a)(iv) of the Wills Act. The court upheld the plaintiff's claim for the difference between what they would have inherited under the will and what they in fact inherited on intestacy. Similar decisions have been given in several reported cases in England and New Zealand.

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REQUIREMENTS FOR A VALID

WILL

STATUARY WILL. The Wills Act No 7 of 1953 prescribes the requirements and formalities of a valid will. In order to be valid, wills executed on or after 1 January 1954 must comply with the formalities prescribed by section 2 of the Act. The requirements are peremptory and failure to comply strictly therewith renders the will invalid: a/

The will must be in writing.

b/

The will must be signed at the end thereof by the testator or by some other person in his presence and by his direction - section 2(1)(a)(i).

c/

The testator's signature must be made by him or by such other person, or be acknowledged by the testator and by such other person, in the presence of two or more competent witnesses present at the same time -section 2(1)(a)(ii). A competent witness is any person of the age of 14 years or older who is competent to give evidence in a court of law - section 1.

d/

The same witnesses must then attest and sign the will in the presence of the testator and of each other and in the case where someone else signs on the testator's behalf in the presence also of that person - section 2(1)(a)(iii). A witness must sign the will and unlike a testator may not sign by means of a mark - section 1.

e/

If the will consists of more than one page each page other than the page on which it ends must also be signed by the testator and by the same witnesses anywhere on the page - section 2(1)(a)(iv).

f/

If the will is signed by the testator by the making of a mark or by some other person in his presence and by his direction, then a Magistrate, Justice of the Peace, Commissioner of Oaths or Notary Public (a certifying officer) must certify at the end of the will that he has satisfied himself as to the identity of the testator and that the will so signed is that of the testator. If the will consists of more than one page, each page other than that on which it ends must also be signed by the certifying officer anywhere on the page - SECTION 2(1)(a)(v). If there is insufficient space after the testator's mark, the certificate can be endorsed at the top of the next page. Stemmet v The Master 1957(3) S.A. 404. If the space between the top of the page and the certificate is too large the will will be invalid Volscheng v The Master 1958(2) S.A. 363. Nor will a certificate made in the margin be acceptable Gantsho v Gantsho 1986(2) S.A. 321. There have been conflicting opinions as to when the certificate must be made. The general feeling is and in my opinion the certificate should be made as soon as possible after execution of the will but before the death of the testator. Refer in particular to Ex parte Goldman and Kramer N.N.O. 1965(1) S.A.464 and Soonaram v The Master 1971(3) S.A.588.

2.4.2

POINTS TO NOTE. a/

In the case of Dempers v the Master 1977(4) S.A. 44, which decision was confirmed in the Appellate decision in Harpur v Govindamal 1993(4) S.A. 751, it was decided that initials do not amount to a signature. If a witness initialled a will this did not comply with the formalities and the will would be invalid. It is therefore advisable not to make use of a witness whose "signature" looks like being merely his initials as this could cause difficulties after the testator's death.

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b/

The testator has the right to sign the will either in the presence of two witnesses or he may acknowledge his signature later to two or more witnesses Bosch v Nel 1992(3) S.A. 600.

c/

Failure to sign each page renders the will invalid.

d/

The witnesses may not sign with a mark. (section 1). The same witnesses must sign and attest each page of the will. The witnesses need not know that the document they are signing is a will, nor the contents thereof; no attestation clause is necessary; "attest" is a synonym for "sign". The Leprosy Mission v the Master 1972(4) S.A. 173 - A two page will was held to be invalid because the witness who had signed page 1 were different from those who had signed page 2. There was no doubt that the document in question genuinely represented the last will of the testatrix but considerations of policy and principles "transcend the equities of the particular case".

2.4.3

e/

The certificate required by Section 2(i)(a)(iv) is peremptory. Strict compliance thereof in required otherwise the will is invalid. Certificate is held to be a requirement of execution indicating a continuous process but must be completed before the testator's death.

f/

The signatures must appear at the end of the will. See Kidwell v the Master 1983(1) S.A. 509. A will failed because the Court held that a space of 9 cm between the end of the typing and the signatures was too great for the signatures to be said to be at the end of the will.

g/

The certifying officer may act in the capacity as witness and certifying officer. He must then sign the will separately in each capacity, ie. he must sign each page twice.

h/

The certifying officer must state his capacity and failure to do so renders the certificate invalid. Radley v Stopforth 1977(2) S.A. 516. In Jeffry v the Master 1990(4) S.A. 759 the Court held that a certificate signed by a person as "a practising attorney" did not comply with the statutory requirements of the Wills Act, no matter that every such attorney is by legislative enactment a Commissioner of Oaths.

SOLDIERS WILL. This is the only privileged Will recognised without observing the formalities prescribed by section 2 of the Wills Act. It applies to any person on active service in any war in which Namibia or her Allies is involved. For the will to be valid it had only to be in writing. No signature or witnesses is necessary, and the testator must have died on active service or within one year after ceasing to be on active service. If the Will was signed the Master had a discretion to accept it. If the will was not signed, application has to be made to Court before it can be accepted by the Master.

2.4.4

AMENDMENTS TO WILLS. a/

Amendment means any deletion, addition, alteration or interlineation. Section 2(2) provides that any amendment is presumed, unless the contrary is proved, to have been made after the will was executed. The formalities of amending the will are contained in section 2(b) of the Act and provide that:

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i/

the amendment must be identified by the signature of the testator or the signature of some other person made in his presence by his direction.

ii/

the signature must be made, or acknowledged, by the testator and if made by some other person, also such other person, in the presence of two or more competent witnesses all present at the same time,

iii/

the amendment must further be identified by the signatures of such witnesses made in the presence of the testator and if the amendment is signed by some other person also such person.

iv/

If the amendment is identified by a mark or the signature of some other person in the presence and by his direction, a Magistrate, Commissioner of Oaths, Notary Public or Justice of the Peace, must certify that he has satisfied himself as to the identity of the testator and that the amendment has been made by or at the request of the testator. On condition that the amendment is identified and properly executed in the presence of the certifying officer, he may attend to the certificate as soon as possible after the amendment has been identified. The Act is silent as to where this certificate must appear. However such certificate should clearly identify the amendment. There is no requirement in respect of the certifying officer, testator or witnesses or person signing on behalf of the testator signing all the pages of the will. The requirement is simply that they must clearly identify the amendment.

2.4.5

COMPETENCY TO MAKE A WILL. Section 4 provides that a person of the age of 16 years or older may make a will on condition that he has the mental capacity to appreciate the nature and effect of his act. The right to make a will is determined by the age of the individual and is not affected by his emancipation, marriage, qualifications, financial status, etc. If a person is under the age of 16 he may not make a will. A mental patient can execute a will during a lucid moment. Although there is no provision in the Act for such a case, it would be advisable for a certificate by a doctor to be attached to the will certifying that the testator was aware of the fact that he was making a will and understood the nature of the document. This will avoid problems after the testator's death of determining the testator's mental capacity at the time the will was executed.

2.4.6

CAPACITY TO WITNESS A WILL. The Act defines a "competent witness" as a person of the age of fourteen years or older who at the time he witnessed the will was not incompetent to give evidence in a Court of Law.

2.4.7

DISQUALIFICATION OF CERTAIN PERSONS FROM RECEIVING BENEFIT. A witness to a will and the person signing the will on the direction of the testator or his/her spouse are incapable from inheriting under the will or of receiving any benefit thereunder. This includes being appointed as executor, administrator etc. (sections 5 and 6). Note the difference in the wording of these two sections. Under common law the following persons are also disqualified:

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a/

The person who writes or types the will. Smith and another v Clarkson and others 1925 A.D. 501. and v Rensburg v v Rensburg 1963(1) S.A. 555. Note the person who dictated the will to another to write is not so disqualified. The writer may however inherit if the benefit awarded under the will is less than what he would have received in terms of the laws of intestate succession or if the testator confirmed the bequest.

b/

A person who has unduly influenced the testator to give him a benefit under the will.

c/

A person who is unworthy ("Die Bloedige Hand Erft Niet"). It includes a person who negligently causes the death of another. A spouse married in community of property is not precluded from taking his half share on the death of the other spouse where he has wrongfully caused that spouse's death. The survivor's half share accrues to him by virtue of his marriage and not because of the other's death. Where the killer was mentally disturbed at the time of the killing and not criminally responsible for his actions, he is not precluded from inheriting.

d/

A person who has concealed the will of the testator Yassen v Yassen 1965(1) S.A.438.

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2.5. 2.5.1

2.5.2

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CONSULTATION

The following aspects should be borne in mind when your client consults you to draw up his will. a/

Provide sufficient time for the consultation.

b/

Let the client feel at ease and win his confidence.

c/

Give the client the opportunity to ask questions.

d/

Answer the clients questions without bombarding him with technical terminology; communicate with him as far as possible on a basis of equality.

e/

Explain the importance of the will and emphasise that it is a free testamentary disposition and also explain what his rights are.

f/

Discuss the choice of an executor and the question of provision of security by the executor.

g/

Discuss the implications of a testamentary trust where minor children are involved.

h/

Discuss the choice of a guardian or guardians where minor children are involved.

i/

The client would like to know what the preparation of the will will cost him, discuss the professional fee with him.

j/

Warn your client not to revoke the will or amend it in any way on the do-it-yourself basis.

k/

Point out to your client the importance of putting the will in safe custody and advising members of the family where it is being kept.

l/

Ascertain the wishes of the testator. i/

Exactly what does he want?

ii/

Can his wishes be implemented in practice?

iii/

Are his wishes in the best interest of his beneficiaries?

GET CLARITY ON THE STATUS OF YOUR CLIENT. a/

Competency to make a will (Section 4 of the Wills Act No 7 of 1953).

b/

Marital status. Unmarried. Married (place and date). In community of property. Out of community of property. Marriage in terms of foreign laws-details of factors applying to the marriage.

c/

Common law marriages. Hindu or Muslim marriages. Traditional customary unions of black people.

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16 Place and date. Apart from the customary union have they also contracted a civil marriage and if so where, when, with whom and what is the matrimonial regime of this marriage? d/

Previous marriages. If the client was previously married, obtain full details as set out above as well as the following information: Dissolved by death. Does the will of the predeceased spouse contain any conditions which will affect the ability of the client to make a will or his financial position and if so to what extent? (Obtain a copy of the previous will). Does the will of the predeceased spouse contain any limiting conditions which have been registered against the title deed of the client. Dissolved through divorce. Does the final divorce order, or the settlement agreement between the parties, contain any conditions which might affect the financial position of the client or the preparation of the proposed new will? (obtain a copy of the divorce order and the settlement agreement if applicable).

2.5.3

A COMPLETE INVENTORY OF THE CLIENT'S ASSETS. It must be considered that apart from a complete account of the client's assets a complete statement of his liabilities and obligations must also be made. It is useful to write down other information with regard to the client's personal and financial position which although not necessary for preparing the will but may be useful for the eventual administration of the estate.

2.5.4

REHOBOTH BASTERS. Wills executed prior to the Estates and Succession Amendment Act of 2005 are valid if they comply with the provisions of the Administration of Estates (Rehoboth Gebied) Wills executed after this date must comply with the Wills Act of 1941.

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2.6

DRAFTING OF WILLS.

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Freedom of testation is the freedom to execute a will in compliance with the prescribed formalities whereby the testator can leave his assets to whoever he pleases. See however paragraph 2.7.6. The wills Act prescribes the formalities to be complied with in order for a will to be valid. The Wills Act does not prescribe the content of a valid will. The validity of a will, will not be affected by the inclusion or non-inclusion of any clause. There is accordingly no clause that must appear in a will for it to be valid i.e., nomination of an executor, nomination of an heir, attestation clause, etc. There is no requirement that the will must be dated but for practical reasons in order to determine the last will of a deceased, this is advisable. In drawing up a will for your client the following should be borne in mind: a/

Avoid complicated long-winded sentences.

b/

Avoid a senseless repetition of synonyms.

c/

Differentiate between imperative directions and mere requests("verbis imperativis" and "verbis precativis").

d/

Make sure of the legal terminology and the exact result of the legal concepts such as usufruct, fideicommissum and trust which are used in the will.

e/

You must have a proper notion of the basic rules, regarding the interpretation of wills.

f/

You should be aware of the interpretation that the Courts have placed on certain words. See section "F" for examples of words that have been defined by the Courts.

What is stated below are examples of clauses that may or may not be included. 2.6.1

HEADING. The will usually contains a heading citing the testator by his name and also by a pseudonym or alias or other name by which he is generally known. The will must be identified as that of the testator.

2.6.2

REVOCATION. The will should contain a revocation clause: "I revoke all previous wills". Where there is no revocation all wills of the deceased will apply. A later will in conflict with an earlier will, will by implication revoke the earlier provisions, on the assumption that the later will represents the testator's last wishes. Clauses which are not inconsistent or in conflict will all apply. A testator may revoke his will by destroying it provided that the act is done with the animus revocandi. There is a presumption that a testator destroyed his will animus revocandi if it was known that the original or copy thereof was in the testator's possession but cannot be found after his death or is found to have been destroyed. There is no such presumption if the will was in the keeping of a third person. The presumption is rebuttable.

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If a testator destroys a will on the mistaken belief that a later will was valid, when in fact the later will is invalid, it is regarded that the destruction of the earlier will was not done with the necessary animus revocandi. Note there is no formal requirements in the Wills Act for the revocation of a will. The doctrine of Dependent Relative Revocation. There is a strong presumption against intestacy, therefore if a testator makes a will revoking a prior will, and thereafter destroys the earlier will, and it turns out that the later will is invalid, the earlier will will be held not to have been revoked. The testator's animus revocandi will be assumed to be dependent on the condition that the second will is valid Moses v Abinader 1951(4) S.A. 537 and Le Roux v Le Roux 1963(4)S.A. 273. The difference must be clearly understood between the case where the second will is invalid and the case where the beneficiary under the second will can not inherit. Ex parte Whiting 1910 T.P.D. 529. 2.6.3

APPOINTMENT OF EXECUTOR/ADMINISTRATOR. "I nominate "A" failing him "B" and "C" to be my executor/s of my will and Administrator/s of my trust. In the event of any one of my Executors and or Administrators ceasing for any reason to act I direct that the other or remaining Executor or Administrators shall be entitled to act alone" The executor occupies a fiduciary position and must not therefore engage in transactions by which he will personally acquire an interest adverse to his duty. It is for this reason that the executor who acts on behalf of the estate in a professional capacity cannot charge fees for the work he may perform in that capacity. Thus it has been held that an executor is not entitled to fees for acting for the estate in his capacity as attorney, auctioneer etc. Meyerowitz comments that so strict is the principle that even if the estate is successful in legal action and costs are awarded against the other party the costs cannot be recovered except for disbursements. Where the executor is a shareholder in a company, that company is also prohibited from charging any costs against the estate. If any fees are recovered by the executor they must be paid into the estate. See also in this regard the decisions in In re Pretorius 1917 T.P.D. 211 and Die Meester V Meyer 1975(2) S.A. 1. One therefore should make provision to include these charges claimable by the executor or administrator. "we direct that our executor or administrator shall in addition to the normal remuneration be entitled to charge all such professional and legal fees to which he would be entitled if he were not acting as executor or administrator herein."

2.6.4

ASSUMED EXECUTOR. The right to assume (co-opt) another as co-executor is not a common law right. This right can only be exercised by an executor who is named in a will, and who is specifically given the right of assumption. "I give my executor and administrator the power of assumption."

2.6.5

SECURITY. Every executor and every assumed executor, except for certain persons mentioned in section 23 of the Estates Act, is obliged to furnish security before he can be appointed. If any default is made by the executor in the performance of his duties, the Master may enforce the security and recover from the executor or his sureties the loss to the estate. A testator has however the right to direct the Master to dispense with his executor furnishing security (subject to the Master's overriding discretion), as is required by the said section.

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"The Master of the High Court is directed to dispense with the necessity of my executor, or any assumed executor, furnishing security for the administration of my estate." " It is advisable to exempt the executor even if such executor is one of the persons mentioned in section 23. Note that there is no automatic exemption of administrators from furnishing security. They must be formally exempted by the will. 2.6.6

REMUNERATION. The testator can direct in his will what remuneration the executor may take for the administration of the estate. If no remuneration is fixed by will, the executor is entitled to a fee as laid down in the regulations to the Estates Act. Section 51 of the Act makes provision for the Master (for special reasons) to reduce or increase the executor's remuneration as prescribed. The section also allows the Master to disallow the fee where the executor acts improperly. The tariff rate of executor's fee is 2 1/2% on the gross value of the assets in the Liquidation and Distribution account and 5% on income earned after death. VAT is payable on the executor's fee where the executor is a professional person. Where however a layman is an executor and appoints an agent to assist him, VAT is still payable as the agent normally takes the executor's fee.

2.6.7

DUTIES. The executors and administrators may be the same persons although their functions are different. The executors are concerned with the administration and liquidation and distribution of the estate property. The executor will finalise the estate and distribute the assets to the named beneficiaries. If a testamentary trust is created the executor will discharge his duties by transferring the assets to the administrators who will then attend to the administration of the trust in terms of the provisions, powers and conditions of the will which should be clearly set out. Refer to the relevant text books as well as paragraph 5.1.3 for examples of powers and duties that can be given to an administrator.

2.6.8

LEGACIES. The estate of a predeceased person is distributed after payment of liabilities by first handing over pre-legacies and then legacies. "I bequeath the following legacies: a/ As a pre-legacy the sum of $10 000.00 to my wife. b/ The sum of $5 000.00 to my cousin Michael Smith. c/ The sum of $2 000.00 to Primrose Ndlovu on condition that she is still in my employment at the time of my death. d/ The sum of $1 000.00 to my uncle Donald Smith.

2.6.9

THE HEIRS. The heirs succeed to the residue of the residue of the estate after payment of administration expenses, debts, maintenance claims. pre-legacies and legacies. "I bequeath the residue of my estate to my wife Mary Smith failing her to the children born of our marriage per stirpes".

2.6.10

DIRECT SUBSTITUTION AND FIDEICOMMISSARY SUBSTITUTION.

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Direct substitution occurs when the testator in his will directs that, if the bequest to a certain heir or heirs fail, the benefit must pass to a named successor or successors. There is no limit to the number of substitutes a testator may nominate. He may nominate them one after the other, or together or he may nominate different substitutes for different heirs. The substitutes can also be nominated per stirpes. The object of direct substitution is to avoid intestate succession in respect of a bequeathed benefit. It also serves to exclude ius accrescendi Fiduciary substitution Occurs where in a will a testator directs that the whole or part of his estate, or a part thereof must devolve, after his death, on a whole series of successors, so that the bequest passes from one successor to another. The different successors thus inherit the same property of the testator one after the other. The first beneficiary is called the fiduciary and the following successors who receive the benefit after the fulfilment of the prescribed condition are called the fideicommissaries. In practice it is an everyday task to determine, in interpreting wills to decide whether a direct or fideicommissary substitution was contemplated. As a fideicommissium is burdensome to the parties involved, the common law was not in favour of a fideicommissium, and in a case of doubt, there is a presumption against a fideicommissium. In van Zvl and others v van Zvl and others 1951(3) S.A. 288, the appellate division made it clear that where the wording of a will clearly incorporates a fideicommissary substitution, effect must be given to it. It is only where there is a reasonable doubt whether the testator envisaged a direct substitution or a fiduciary substitution that there is a presumption in favour of direct substitution. 2.6.11

FIDEICOMMISSUM. In a fideicommissum, the position is that the testator has left property to a fiduciary, subject to the condition that after the occurrence of a certain event or time, the fiduciary must hand the property to the fideicommissary. There is always at least three parties involved, namely, the testator, the fiduciary and the fideicommissary. The will can provide for more than one fideicommissary, in which case the property will pass to each fideicommissary in turn. Although there can in theory be an unlimited number of fideicommissaries, the Immovable Property (Removal or Modification of Restrictions) Act no 94 of 1965 limits the fiduciary interests in fixed property to two successive fideicommissaries only. There is no limit to fideicommissaries in respect of other property or the proceeds of fixed property subject to a fideicommissum alienated within the period allowed by the said act. The fiduciary becomes the owner of the property subject to the onus to pass it onto the fideicommissary as directed by the testator in his will. The fideicommissary then becomes full owner, or if it is a continuing fiduciary interest, the next fiduciary. The fiduciary must keep the property in good order so that it can be passed to the fideicommissary in the same condition that he received it. Unless he has been given the power in the will, he may not alienate the property without the consent of the fideicommissary or, if the fideicommissary is a minor or undetermined, the court. If however the interest created is a fide commissum residue the fiduciary can alienate the assets but in terms of the 108 the Novelle of Juatinian, at least one quarter must remain to be passed over to the fideicommissaries. The fiduciary interest does not fall into the community estate of a person married in community of property but the fruits thereof will. Should the fiduciary become insolvent, his interest in the fiduciary assets can be realised. ie. the purchaser will take over the assets subject to the existing fiduciary right. The fideicommissary is the person to whom the assets must be delivered. He need not be in existence at the date of the testator's death. In fact he can be born generations after the testator. It is essential that he be alive or already conceived at the moment of delivery of the fiduciary assets. If the fidei

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commissary dies before acquiring the assets the fiduciary interest falls away and his heirs acquire no right to the property. The fiduciary then acquires full ownership of the assets, unless the testator ordered otherwise in the will. Pending the fulfilment of the condition, the fidei-commissary has apparently only a personal right as against the fiduciary for the delivery of the property when the condition is fulfilled. Barnhooren v Duvenaqer 1964(2) S.A. 486. The testator can positively settle a fideicommissum, ego "I leave my farm to A and on his death it must go to B", or in a negative manner, ie. if the property is left to A subject to the condition that it may not be alienated outside the family but must pass from generation to generation. A prohibition of alienation without directing in whose favour such prohibition is created is a nudo prohibitio and of no legal effect. A fidei commissum falls away and is terminated if the fideicommissary expressly repudiates it or if all the interested parties consent thereto. If the ultimate heirs are minors or are undetermined, the court as upper guardian must consent thereto. 2.6.12

DISTINCTION BETWEEN FIDEI COMMISSUM AND USUFRUCT. Although a fidei commissum and a usufruct appear to be similar, there are fundamental differences between the two institutions. The basic principle is that in a fidei commissum, ownership vests in the fiduciary and later passes to the fideicommissary when the condition is fulfilled or if it is not fulfilled, then it forms part of the estate of the fiduciary. In a usufruct, the usufructuary never has ownership, only a real right in the property. Ownership of the property remains in the bare dominium holder who cannot be the usufructuary. If the usufructuary does become owner, then the usufruct ceases by merger. The basic question to be answered in a doubtful case is therefore whether the testator intended the ownership to vest in the second beneficiary at the time of the testator's death or at some later time. If ownership is intended to vest as at the date of death then a usufruct and not a fiduciary interest is created. If ownership is intended to vest in the first holder immediately subject to the condition that if he dies before the second holder, it will not fall into his estate but will pass to the second holder, then the bequest will be a fidei commissum. Although if it is not clear whether a fiduciary substitution or a direct substitution was intended, then there is a presumption against it being a fidei commissum, however there is no such presumption if there is doubt as to whether a fiduciary interest or a usufruct was intended Example of a fideicommissum residui. "We appoint the survivor of us to be the sole and universal heir of the first dying with full and absolute power to alienate all or any portion of the estate, subject to the condition that upon the death of the survivor whatever shall be left of the estate shall devolve upon the children of our marriage then alive, and the issue per stirpes of any child who may have predeceased the survivor leaving issue.". Example f a fide commissum: "I bequeath my estate to "A" subject to the condition that on "A"'s death my estate shall devolve on "B"." Example of a usufruct:

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"I bequeath the residue of my estate to the children born of our marriage subject to the life usufruct therein in favour of my wife Sandra." "Subject to the usufruct of my wife Francis, I appoint as heirs of my estate such of my children who survive my wife and the lawful issue per stirpes of any child who may have predeceased my wife leaving issue alive as at date of her death." In terms of section 44 of the Estates Act, a fiduciary or a usufructuary, even if such fiduciary or usufructuary is the natural guardian, must furnish security to the Master if the ultimate heirs are minors. Under common law, major fideicommissary or bare-dominium heirs can demand that the fiduciary or usufructuary furnish security for the ultimate payment of the amounts due to them. It is therefore advisable for the fiduciary or usufructuary to be exempted from furnishing security. "My wife shall not be required to furnish security for the payment of the amounts due to our children or their issue." 2.6.13

HEIRS TO INHERIT FREE OF COMMUNITY. "In the event of any beneficiary being married or subsequently married in community of property, any share of my estate shall be specifically excluded from such community of property and such beneficiary's share shall not form part of any joint estate, it being my express intention that the benefit shall be for the exclusive, unrestricted, sole use of my named beneficiary."

2.6.14

COLLATION. The only persons obliged to collate are the direct descendants of the deceased who are heirs ab intestato, or would have been the deceased's intestate heirs had there been no will. Collation takes place by operation of the law and consequently it is not necessary to provide in the will that heirs should collate. If the testator does not wish collation to take place he must specifically say so. "There shall be no collation". See paragraph 4.13.5 ii. for a further discussion on collation. If there is a likelihood of dispute or doubt as to what must be collated, this should be stated. "I direct that my son John and my daughter Mary shall collate the sum of $2 000.00 each which I gave to them as wedding gifts. Save for these amounts I direct that neither of them nor any of my other children shall collate any gifts or amounts which I may have given to them."

2.6.15

APPOINTMENT OF GUARDIANS AND TUTORS he Matrimonial Affairs Act no 37 of 1953 prevents a parent of a minor who does not have sole guardianship by testamentary disposition from appointing any person as guardian of a minor unless such parent was the sole natural guardian immediately before his death(section 5(3)(b)). Where a parent who does have sole guardianship has appointed a guardian, the court, upon application of the other parent, made after the death of the testator, can make such order in regard to guardianship as the court may deem in the interest of the minor. "If when the survivor of my spouse and I dies, any of our children are still minors, I appoint "AB" and "CD" or, failing either of them, the other of them as the guardian/s of such minor children and tutor/s of their assets. I direct that

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the tutor so nominated Master of the High Court." 2.6.16

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shall be exempt from furnishing security to the

FUNERAL DIRECTIONS. A testator should be asked what he requires shall be done with his body upon his death and should he indicate a preference, a specific clause should be inserted in his will. Where a testator has not provided funeral directions the heir shall determine the manner, time and place of the funeral. "I direct that upon my death my body shall be cremated and I record a desire that my ashes shall thereafter be scattered upon my farm Happy Home" " I direct that upon my death my body shall be utilised by the University of ....... for the purposes of medical research as the medical faculty of that university may in its entire discretion decide, and further direct that after such utilisation my remains shall be cremated". "I direct that upon my death my body shall be buried in the Windhoek cemetery alongside that of my deceased wife ................ " "I direct that any usable tissue and/or organs to any hospital or institution selected by my nominated executor to be used for organ transplant and/or such other purpose as they may deem fit".

2.6.17

SIMULTANEOUS DEATHS AND THE WILL OF THE SURVIVOR. We are living in dangerous times. Families are travelling by motorcar, by train and by aeroplane and accidents as a result thereof are common. Testators are often not satisfied to let the person whom he nominated as heir in his estate, determine in his own will how the assets inherited from the deceased should devolve as will happen if the heir dies simultaneously with the testator or shortly thereafter. Spouses very often nominate each other as sole beneficiary and should they die simultaneously in a motorcar accident, both estates are intestate. The draftsman is very often requested to insert a clause in the will to cover such an eventuality. A good example of problems which may occur in case of simultaneous death of two spouses in the same disaster, is found in the case of Greyling NO v Greyling NO and others 1978(2) S.A. 144. The testators a husband and wife who were married in community of property had a joint will in which they stipulate that if the husband should be the first dying their one son will inherit all fixed property and farming implements subject to the usufruct of his wife while she would inherit the remainder of the estate. In the following clause they stipulated that should the wife be the first dying the husband would inherit everything. In the following clause they merely stipulated that should they die simultaneously the estate will be divided on a particular basis between the children. The couple were on occasion travelling alone and were involved in a serious motor accident. Mrs Greyling died instantaneously while Mr Greyling died in the ambulance on the way to the hospital. In Namibian law it is accepted that if two people died in the same disaster and there is no proof who died first, it is considered that they have died simultaneously. In the Greyling case there was evidence to prove that they did not die simultaneously but the one after the other. This state of affairs had the result that the Greyling children got divided into two camps and the court was approached to interpret the word "gelyktydig" or simultaneously as it was used by the testators in the particular clause in the joint will. The court ultimately decided that with the word "simultaneously" the testators have foreseen their simultaneous death in the same accident and that they wanted to arrange their affairs accordingly. Should the "common disaster clause" used in the will have been described more properly this drawn out court case which must have been an expensive process, would have been avoided.

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When considering the eventuality of the testators dying simultaneously it should be borne in mind that where, as in most cases, the survivor has been nominated as executor, provision should be made for an alternative executor. There is no presumption in our law arising from age or sex as to survivorship nor is there any presumption of simultaneous death. The question is one of fact depending upon the evidence. Survivorship is essential to inherit and is all important in determining beneficiaries. Ex parte Graham 1963(4) S.A. 145. Although a joint will is the separate will of both testators, these wills are normally drawn up in such a way as to be only the will of the first dying. the following suggestion can be used in order to provide for the death of the survivor as well. The nomination of executors will have to be worded so as to provide for the appointment in the estate of the survivor. "In the event of our simultaneous deaths or should the survivor die within 30 days of the death of the first dying or should the survivor having survived the first dying by 30 days but die without making a further will, we bequeath our joint estate or the estate of the survivor of us, as the case may be, as follows .............."

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2.7 2.7.1

GENER COMMENTS. JOINT WILLS AND MASSING. A joint will is a document containing the wills of two or more persons set out in one document for convenience. It is the separate will of the parties and consequently each testator is at liberty to revoke or alter his will without the knowledge or collaboration of the other testator. It may operate as the will of the first dying and it may also operate as the will of the survivor. If a joint will provides for the consolidation of some or all of the property of both testators into one unit for the purposes of a joint disposition to a third party upon the death of the first dying, or upon the death of the survivor and also confers a benefit out of the property of the first dying upon the survivor, then, if the survivor adiates, it is said that a massing has been effected. There is a presumption against massing but one must be careful not to create a situation imputing a massed estate such as where: a/

the first dying disposes not only of his own property but also of that of the survivor; and

b/ the survivor accepts some benefit under the will of the first dying testator. Then it will be said to be a "massed estate" 2.7.2

VESTING. Unless there is a clear indication to the contrary in the will, every bequest is presumed to be unconditional and vests in the beneficiary on the testator's death. The vesting gives the beneficiary the right to claim the benefit which is only payable after the executor's liquidation and distribution account has lain free from objections for inspection i.e. dies cedit occurs immediately after death but time for payment, dies venit, occures only after compliance with section 35(12) of the Estates Act. e.g. If a cash legacy is bequeathed the legatee will not be entitled to interest from date of death until date when he is entitled to claim payment unless the testator has specifically so directed in the will.

2.7.3

PROHIBITIONS AND FORFEITURES. A prohibition or forfeiture is in itself ineffective unless it becomes enforceable against the beneficiary penalised, and it can only be enforced if the will provides for a substitution of another beneficiary on the breach of the condition. If there is no substitution or "gift over" the prohibition or forfeiture is said to be "nude" and will have no effect.

2.7.4

PER STIRPES AND PER CAPITA. Per stirpes means adistribution by representation e.g. where the bequest is left to the issue per stirpes of A and B, one half must be divided among the children of A and one half among the children of B. If any child has died leaving children, those children will receive the share that their parents would have received had he been alive to take. Per capita means a distribution in equal shares among the persons entitled to take e.g. where a bequest is left to the children per capita of A and B, all the children of A and B share the bequest equally.

2.7.5

ADIATION AND REPUDIATION.

Every beneficiary has the right to decide whether or not he wishes to inherit. Choosing to inherit is known as adiation and refusing to inherit is repudiation. In practice formal adiation is only required from an heir if the bequest is subject to a condition or burden. 2.7.6

FREEDOM OF TESTATION. Although there is freedom of testation in Namibia, certain statutes do limit testation in certain respects. a.

Agricultural land. The provisions of the sub-division of Agricultural land Act no 70 of 1970 limit the testator's power to subdivide agricultural land.

b/

Pension funds. The Pension Fund Act provides that any benefit payable by a Pension Fund in respect of a deceased member does not form part of the member's estate. If, within one year of the member's death, the fund discovers a dependant of his, the benefit has to be paid to the dependant (in proportions deemed equitable by the trustees of the fund). If no dependants are discovered and the member has designated in writing a nominee dependant to receive the benefit, that benefit has to be paid to him. It is only if no dependants are discovered that the pension proceeds will be paid to the estate.

c/

Fideicommissum in perpetuity. Section 6 of the Immovable Property (removal or modification of Restrictions ) Act no 94 of 1965 limits the number of fideicommissa that may be created in respect of immovable property which, notwithstanding the terms of the will, is limited to two successive fideicommissaries, ie. the property will be transferred to the third beneficiary who will then acquire full ownership notwithstanding the creation of subsequent fideicommissa.

2.7.7

FAILURE OF BENEFICIARIES. What happens to the share of a beneficiary who predeceases the deceased or for any other reason is unable to inherit will depend on the intention of the testator as reflected in the will read as a whole. The possibilities are as follows: a/

Direct substitution. The testator can state in his will what must happen should a legatee or heir fail. For example. "I appoint "A" as my heir, failing which I appoint "B". Although there is a presumption against a fideicommissum, the wording of the will where direct substitution is contemplated must be such that it cannot be interpreted as being a fideicommissum.

b/

Jus Accrescendi. (right of accrual).

Jus Accrescendi is the right of co-heirs or co-legatees to succeed to the share of the heir or legatee who cannot inherit. Whether Jus accrescendi is applicable or not will depend on the testator's intention from the wording used. The case of Winstanley v Barrow 1937 AD 75 laid down guidelines to determine whether Jus accrescendi will be applicable, nl. if the testator has not separated the interests of the beneficiaries from each other, i.e. if there is a joiner re tantum or re et verbis, there is a presumption that jus accrescendi will operate. Where however the testator has separated the interests of the beneficiaries, i.e. a joiner verbis tantum, there is a presumption against jus accrescendi. For example if the testator left specific portions of the estate or an asset to various beneficiaries, or where the estate is bequeathed to the heirs in equal shares. These presumptions must yield, however, if it appears from the will read as a whole that the testator intended otherwise. In the case of Lello v Dales 1971(2) S.A. 330 it was held that although the bequest was "in equal shares" (ie. verbis tantum) it was clear that the testator did not intend that the laws of intestate succession should apply and jus accrescendi was applicable. c/

Section 115(bis) of Act 24 of 1913. This little known section of the 1913 Act was not repealed when the Estates Act of 1965 came into force in 1970 and is therefore still part of our law. This Section reads as follows “ Desendants of predeceased child of testator entitled to benefit under

will

115bis. Whenever according to the terms of the will of a testator who dies after the date of commencement of the Administration of Estates Amendment Ordinance, 1961, a predeceased child of that testator would have become entitled to any benefit under that will if he had survived the testator, the lawful descendants of that child shall be entitled per stirpes to that benefit unless the terms of the will indicate a contrary intention.". This can be regarded as an exception to the Jus Accrescendi rule. d/

Intestate succession. Where neither a/ b/ or c/ above apply, the general rule is that legacies that fail, fall into the residue of the estate and if a residuary heir fails, his share would devolve on the intestate heirs of the testator. NB. NOT THE INTESTATE HEIRS OF THE DECEASED HEIR.

2.7.8

Keep stipulations as simple as possible however, be cautious not to oversimplify matters. The draftsman must know the rules of succession and similar areas of the law and must be able to apply his knowledge.

2.7.9.

Be aware of interpretations that the courts have given to certain words. For example in Coetzee versus the Master and others 1982(1) S.A. 295 "cash" was interpreted to be only cash on hand as at date of death or cash on savings or current account in a bank or building society. See section "F" for further examples.

2.7.10

ADOPTED CHILDREN.

In terms of section 74 of the children's Act, an adopted child cannot inherit under a will executed prior to the date of adoption. If your client has adopted children or considers adopting children, include a clause in the will to the effect that "children" shall include any adopted children. 2.7.11

CHILDREN BORN OUT OF WEDLOCK Under Common Law, children born out of wedlock can not inherit under a will or intestate UNLESS of their fathers the will clearly indicates that they should inherit. It is the intention in terms of the Children’s Bill which is at present under discussion in Parliament to make children born out of wedlock entitled to inherit from their fathers. Until such time that this statute is passed, the Common law will apply.

2.7.12. SAFE CUSTODY. a/

Discuss the safe custody of the original will and duplicate originals with the client and explain the status of a signed duplicate original.

b/

The client must be warned, not to attend personally to alterations or deletions on the will or on the duplicate original under any circumstances.

c/

Your client should tell his family members where the original will is being kept in safe-keeping. It has happened that an estate of a deceased has been administered as intestate only to have the will discovered after the estate has been finalised, resulting in the estate having to be reopened. If minors are involved and fixed property has been transferred into their name on intestacy, it will require an application to court to rectify the position.

2.7.13. PERIODIC REVIEWING OF THE WILL. The client must be informed about the importance of having his will reviewed on a regular basis. Circumstances change as the time goes by and it is not "touting" to periodically get in touch with your client and ask him to call for a follow up consultation. Wills should be revised at least in the following instances:

2.7.14

a/

Change in status of the testator and/or beneficiaries.

b/

Birth or death of children of the testator.

c/

Purchase or sale of major assets.

d

etc.

ADEMPTIO. There is a presumption that, if a testator alienates an asset that has been specially bequeathed, he has revoked that bequest. A good reason for the revision of the will. A bequest, for example of "My Toyota Sedan motor car no N1234W" will lapse if the testator trades this vehicle in, for example, for a Ford station wagon no N76543W, even if it is his intention that the legatee should get this vehicle.

2.8.

CONCISE NOTES REGARDING THE INTERPRETATION OF WILLS. The whole question regarding the interpretation of wills revolves around the single concept namely to determine the true intention of the testator as it appears from the words used in his will. Words are interpreted according to their general grammatical meaning ("dictionary meaning and technical terms such as "usufruct", "fideicommissum", "trusts" etc according to their legal technical meaning). However the rules just mentioned must also in some cases make way for the actual intention of the testator and this can be explained as follows: One of the important aids used to determine the intention of the testator is the "scheme" of the will as a whole; words. expressions or phrases are not seen in isolation, but against the background of the total structure of the whole will. The "physical construction of the will is therefore taken into account, matters such as the division into paragraphs, punctuation, the place of a stipulation in the will in relation to other stipulations etc. Furthermore, if it is evident from the scheme of the will that a word, expression or phrase as it would be interpreted in the normal grammatical or technical sense as the basic rules require, will lead to absurd results which clearly does not agree with what the testator had in mind, then the grammatical and technical meaning of the word need not be followed and expression is given to the word which will be in line with the obvious intention of the testator. On this basis the courts have on numerous occasions determined that a usufruct has been created although the testator used the word fideicommissum in his will. A further important principle in interpreting wills is that should it clearly appear from the will what the testator's intention was, no evidence "aliunde" (that is evidence outside the will), may be used to add, amend or to do away with contents of the will. Such evidence, also known as "parol evidence", is only allowed when the intention of the testator is not clear and it is therefore necessary to determine what the intention was and when the court is not in a position to reach a decision by just looking at the will. Extrinsic evidence (aliunde evidence) is for example allowed to determine the meaning of illegible or incomprehensible words or phrases or of abbreviations, initials, nicknames, technical and scientific expressions, foreign words, words used in the context of certain commercial practices or which may be used in relation to certain groups, places, ethnic instances or religious matters or where normal words in the context of the will were obviously used in a certain sense by the testator. Thus intrinsic evidence can therefore be used to prove that the testator has meant with the words "my wife" the woman with whom he lived together at the time of his death without being legally married to her, or "the brother of my daughter" a strange son which he allowed for many years to stay with him in his house and whom he brought up as his own child, etc. Evidence was allowed in the past that the word "ram" is not a male sheep but in fact a certain type of water pump. The court is entitled to place itself in the position in which the testator was at the time when he made the will and then out of the arm chair position to be able to look at all relevant facts and circumstances which was known to the testator, in order to determine what the testator had in mind by using certain words and expressions. The so called "armchair evidence" is always allowed. Furthermore "alliunde" evidence can also be used to determine the contents of a will where the will has been lost or destroyed in error. The interpretation of wills must be distinguished from the rectification or amendment of a clear mistake in a will. A good example of rectification can be found in the case of Ex parte Blasberg 1979(2) S.A. 589. A key judgement in the modern South African law regarding the rectification of wills is found in the case of Aubry-Smith v Hofmeyer NO 1973(1) S.A. 655. In an extraordinary decision in Administrators estate Richards v Nichol and another 1996(4) S.A. 253 the Courts varied the terms of a will to take the effects of inflation into consideration. The last important point: the court cannot rectify the will if the testator himself forgot or for one or other reason neglected to include a certain stipulation in the will. It is a basic rule that the court cannot make a new will for the testator. If there are no words or phrases that can be interpreted as is

the case where the testator left out certain stipulations there is nothing capable of being rectified. Therefore: 2.8.1.

Consult comprehensively with the client and make sure what he wants and also be aware of language usage and the technical terminology applicable to the law of succession. 2.8.2 A final consultation before signing where the whole will is discussed with the client in order to determine that it contains his wishes, is most important.

2.8.3

It may be a good idea before the will is finally signed to draw up a test distribution account, using the information obtained from your client, to ascertain whether the will as drawn is in fact practical, and will carry out the testator's intention. For example in one instance the testator, who had donated say, $1 000.00 to one of his children wanted his two children to share equally and stated ".. the $1 000.00 must be deducted from the award to "A" and given to "B".". If a test had been done it would have been clear that the result of this clause would be that "B" would receive $2 000.00 more than "A" and not $1 000.00 as the testator intended.

2.9

THE USE OF WORD PROCESSORS. In these days of computerisation, Most firms have access to word processors. These can be used to great advantage in drawing up wills for your clients or for amending will already executed. The various clauses of wills are more or less standard and if these are saved separately, they can be recalled and strung together to suit your client's requirements, with only the additional details of names, amounts and/or details of legacies needing to be added. In this way errors and omissions of important provisions can be avoided. The most important advantage of this procedure is that your client's will can be printed out and be ready for signature within a few minutes. It has happened that due to delays in drawing up a will, the testator has died before his will could be signed. It would be a good idea if a copy of your clients will, saved on computer disk, is kept with the original or copy in your files. Minor alterations can then easily and quickly be made at the testator's request and again much time can be saved in having the amended document ready for signature.

2.10 EXAMPLE OF A WILL. SEE SECTION D FOR FURTHER EXAMPLES. LAST WILL OF DONNA WANNADIE widow of Windhoek. 1.

PREAMBLE.

1.1

Unless it appears otherwise from the context, words importing the masculine gender will include the feminine and visa versa, and words importing the singular will include the plural and visa versa.

2.

REVOCATION OF FORMER WILLS.

2.1

I revoke all previous wills.

3.

APPOINTMENT OF EXECUTOR AND ADMINISTRATOR.

3.1

I nominate ANTONIO ANNA, or failing him my sister, TOSCA VERDI and JOHN SIMM, or the survivor of them as executor of my will and administrator of the trust.

3.2

I give my executor and administrator the power of assumption and the Master of the High Court is directed to dispense with the necessity of furnishing security in respect of his administration, or the administration of any person assumed by or succeeding him.

4

APPOINTMENT OF HEIRS

4.1

I bequeath my entire estate to my children, failing whom their issue per stirpes, subject to the Trust created in Clause (5) below.

5

CREATION OF TRUST

5.1

If an heir has not attained the age of 25 (TWENTY FIVE) years, such heir's share of my estate shall not vest in him but shall be paid over to my nominated Administrator, upon trust for the following intents and purpose:

5.2

INVESTMENT OF TRUST FUNDS

5.2.1

My Administrator shall be entitled to retain the trust assets in the same form as they are handed to him or in his sole discretion may convert same into cash at such time and in such manner as he may deem fit and invest or re-invest the proceeds thereof in such securities including equities of any nature, as he may form time to time in his absolute discretion decide with the specific power to acquire immovable property, mortgage same or grant mortgage bonds, it being my intention that my Administrator shall be absolute unfettered in his choice of investments and shall have the power to vary such investments as he shall think fit.

5.3

USE OF CAPITAL AND INCOME DURING OPERATION OF THE TRUST.

5.3.1

My administrator shall utilise so much of the income accruing to the trust estate(after deductions of all fees, disbursements and if any, taxes) as he in his sole discretion may deem necessary for the maintenance, education, advancement in life, will being and travel of an heir, subject however to the condition that no heir shall receive more than his proportionate share of the income.

5.3.2

I further give to my administrator the power to make advances to an heir out of capital for such purposes as he may deem reasonable or desirable giving him full discretion as to what advances he makes from time to time, and such heir's estate shall not be obliged to refund any such advances should the heir die before attaining the age of 25 (twenty five) years.

5.4

PROHIBITION OF DISPOSAL OF RIGHTS IN TRUST.

5.4.1It is a special term and condition of the creation of this trust that no heir shall be entitled to alienist, pledge, cede, mortgage or deal with his capital or his income or other interest or benefits thereunder in any way whatsoever, and any such attempted alianation or dealing shall be null and void as far as my administrator is concerned. 5.4.2

If the estate of an heir is surrendered or declared insolvent or made subject to any like process, the right of the heir to any benefits from the trust shall immediately and entirely and ipso facto be deemed to have ceased, and shall vest in the other heirs provided for in my will or his trust as the case may be, to all intents and purposes as if the heir concerned had died.

5.4.3

Notwithstanding the foregoing, my administrator shall have the power in his sole and absolute discretion and at such time or times as he may deem fit, to apply income or if that be insufficient, capital for the maintenance, support of or otherwise for the benefit of that heir concerned, his spouse, if any, and any issue of that heir.

5.5

PAYMENT TO HEIRS.

5.5.1

As soon as an heir attains the age of 25(twenty five) years his share of the trust shall then be capitalised and the capital and interest together with accumulated income, less advances made in terms of Clause 5.3 above, shall devolve upon him entirely to deal with as he deems fit.

5.5.2

In the event of an heir dying before attaining the age of 25 (twenty five) years then on his death the share which he would have been entitled shall devolve upon his issue, if any, subject to the trust, failing which to the surviving heir or his trust as the case may be.

5.5.3

I give to my administrator the power to defer the payment of any bequest or inheritance for a period not exceeding 12 (twelve) months from the date of such bequest and/or inheritance is due in order to avoid liquidating my or the trust's business interest or other assets or investments at the time when he, in his discretion, considers it inadvisable to do so.

5.6

LIMITATION OF ADMINISTRATOR'S LIABILITY. My administrator shall not be liable to make good to any heir of my estate any loss occasioned or sustained from any cause however arising except such loss as may be arise from or be occasioned by his own personal dishonesty or other wilful misconduct.

5.7

PAYMENT IN CASH OR KIND. My executor and administrator shall be entitled to pay or make over any amount due to a beneficiary in cash or in kind whether for the purpose of allocating assets or for the purpose of payment to a beneficiary, to distribute the assets of my estate in such manner as he considers fit in accordance with the valuations made or obtained by him in his discretion which valuation shall be final and binding upon all persons affected thereby.

5.8

HEIRS TO INHERIT FREE OF COMMUNITY. Should any person who will benefit under this my will be married in community of property or subject to any law of accrual, then notwithstanding such community of property or accrual, the benefits payable to him under this will shall devolve upon and belong to him personally and shall not form part of any such community or accrual.

5.9

GENERAL PROVISIONS. Any beneficiary under this will shall be entitled to repudiate the whole or a part only of his inheritance or legacy without affecting his right to the remainder of the inheritance or legacy, and notwithstanding, shall remain entitled to any other benefits provided for in this will.

5.10

COLLATION. There shall be no collation. THIS DONE AND SIGNED AT ................................ on this the day of ........................199 ... in the presence of the undersigned witnesses all being present at the same time. Testator .............. Witness ............... ...............

WILLS Exercises to be completed without reference to the notes or handbooks. QUESTION 1 Draft a simple joint will in which the survivor is appointed sole heir and executor. QUESTION 2 Draft the following clauses that could be included in a will: a/

The nomination of you as legal practitioner as executor with all necessary powers.

b/

The appointment of the survivor as sole heir but also making provision for simultaneous deaths or the subsequent death of the survivor without making a further will.

c/

The appointment of the testators children as sole heirs with vesting taking place at the testator's death but possession taking place only at the death of the survivor.

d/

Where the children obtain vesting and possession only on the death of the survivor but obtaining a right at the testator's death.

QUESTION 3. a/

Draft the certificate to a will signed with a mark.

b/

Write notes on where the certificate by the certifying officer must appear. Give authority for your answer. What is the position with regard to the certificate to an amendment to a will.

3.

INTESTATE SUCCESSION.

INTRODUCTION The Estate and Succession Amendment Act no 15 of 2005, recognises three types of intestate succession rules, Namely, Common Law Rules, Intestate Succession rules for Rehoboth Basters Customary laws of certain Black Namibians COMMON LAW RULES OF INTESTATE SUCCESSION. After this session the student should be able to: 3.2.1

Define the following subject terminology: a/ Ascendants. b/ Descendants. c/ Collaterals. d/ Parental. e/ Per Stirpes. f/ per Capita. g/ Representation. h/ Degree of relationship. i/ Child's Share.

3.2.2

Have a good knowledge of the various statutes constituting the Namibian laws of intestate succession ie. a/ b/ c/ d/ e/

3.2.3 .

The Political Ordinance of 1580. The interpretation of 1594. The Octrooi of 1661. The intestate succession ordinance of 1946 (as amended). Section 74 of the Children's Act 33 of 1960.

Be able to divide an estate in terms of the provisions of the above statutes.

36(b) 3.3

TERMINOLOGY. The following terms will be encountered in intestate estates and candidates must know the meaning thereof:

3.3.1

BLOOD RELATIONS. a/

Ascendants

include parents, grand-parents, great grand-parents, etc.

b/

Descendants include children, grandchildren, great grandchildren, etc.

c/

Collaterals those persons related to the deceased through a common parent or grandparent such as brothers, sisters uncles, aunts, nephews, etc

d/

Collaterals of full blood are persons who are related to the deceased through two common ancestors, eg brothers

e/

Collaterals of the half blood are persons who are related to the deceases through one common ancestor such as step brothers and - sisters

f/

Parental consists of a particular parent and his or her decedents, eg the deceased and his decedents will be the first parental, the deceased's parents and their decedents will be the second parental and the deceased's grandparents and their decedents will be the third parental, etc.

g/

Stirpes. A person will have as many stirpes as he has surviving children or predeceased children who are survived by descendants.

h/

Representation takes place when the child of a predeceased blood relative is called to be heir in the place of the relative who would have inherited had the predeceased person survived the deceased

i/

Degree of relationship is calculated by counting from the deceased to the ascendant or descendant. In the case of collaterals, count from the deceased through to the common ancestor then down to the relation. Do not count the deceased.

j/

Succession per capita. No representation. Persons in the nearest degree of relationship to the deceased inherit to the exclusion of further relations.

k/

Child's share. Children and spouse to inherit; child's share will be the number of stirpes plus 1.

37(b) 3.4.

HISTORY AND COMMON LAW. Our law of intestate secession is derived from the laws of the Netherlands. There was originally two systems of intestate succession which depended on the residence of the citizens at the time of death ie.

3.4.1

"AASDOMSERFEG". This law was applied to the region north of the Ysel river. Succession in terms of this law was based on the principle of "het naaste bloed erft het goed per capita" or the nearest blood relatives inherited to the exclusion of all others.

3.4.2

"SKEPENDOMSERFREG" . This was applicable in the region to the South of the Ysel river. This was based on the principle of representation (per stirpes) subject to the following rules:

3.4.3

a/

"Het goed klim niet graag". The inheritance would only go to the next ascendant (or their issue) if there were no descendants in that parental.

b/

"Het goed moet gaan aan de zynde waar het gekomen is" and "er komt niets van een die leeft". That is to say that in the ascendent line, if one parent or grandparent is deceased, the inheritance would go the issue of the predeceased parent or grand parent to the exclusion of the surviving parent or grandparent.

POLITICAL ORDINANCE OF 1580. In order to create a unified system in the Netherlands, the Political Ordinance of 1580 (as amplified by the Interpretation of 1594) was introduced. In terms of this ordinance, the Skependomserfreg was made applicable to the whole of the country, with the proviso that succession per stirpes was only applicable in the collateral line up to the fourth degree, thereafter succession was per capita. This was called the "Nuwe Skependomserfreg" The northern territories were however not satisfied with this arrangement and reverted back to the Aasdomserfreg (duly altered) by the Plakaat of 1599. This however was never applicable to Southern Africa, and is therefore not discussed.

3.4.4.

THE POSITION AT THE CAPE. The problem arose at the Cape as to which of the above rules would be applicable to the settlers at the Cape. Clarity was reached with the Octrooi of 1661. In terms of this law, the Nuwe Skepensdomserfreg was to be applied in the Cape with the following amendments: a/

The surviving parent (second parental) would be entitled to inherit a half share

b/

If there were no descendants within the fourth degree of the predeceased parent, the surviving parent would also inherit the other half share.

Except for alterations brought about by legislation i.e. Intestate Succession Ordinance etc. the above laws are still applicable in Namibia today.

3.4.5.

FAMILY TREE.

38(b) It is often difficult to picture how the various relatives are related to each other and to the deceased. It is therefore essential that in all but the very simplest estate to draw out the family tree (often called the "spinnekop"). It is then just a matter of following the rules to determine, not only who the heirs are but also the percentage that each must inherit. 3.5.

STATUTORY LAW. The common law has been amended over the years by a number of statutes i.e.:

3.5.1

THE INTESTATE SUCCESSION ORDINANCE NO 12 OF 1946 (AS AMENDED). This ordinance makes provision for the surviving spouse to inherit a share of the estate subject to the following conditions: a/

Surviving spouse married in community of property and descendants who are entitled to inherit ......... Survivor would inherit a child's share or an amount that together with her half share by virtue of the marriage as does not exceed N$50 000.00 whichever is the greater.

b/

Surviving spouse married out of community of property and descendants who are entitled to inherit ....... Survivor would inherit a child's share or N$50 000.00 whichever is the greater.

c/

Surviving spouse married either in or out of community of property, no children but a parent or brother or sister ........ Survivor would inherit one half of the deceased's estate or N$50 000.00 whichever is the greater.

d/

In all other cases the survivor would be the sole heir.

It should be borne in mind that the above is only applicable to valid marriages or marriages that are recognised in Namibia. The balance of the estate after making provision for the surviving spouse's share would devolve in terms of the Common Law as discussed above. 3.5.2

CHILDREN'S ACT NO 33 OF 1960 (SECTION 74). This Ordinance provides as follows: a/

b/

An order of adoption shall for all purposes whatsoever be deemed in law to be the legitimate child of the adoptive parents: Provided that an adopted child shall not by virtue of the adoptioni/

become entitled to any property devolving on any child of his adoptive parents by virtue of any instrument executed prior to the order of adoption unless the instrument clearly conveys the intention that the property shall devolve on the adopted child.

ii/

inherit any property ab intestato from the relative (Afrikaans "bloed verwant") of his adoptive parent

An order of adoption shall terminate all the rights and legal responsibilities existing between the child and his natural parents and their relatives, except the right of the child to inherit from them ab intestato.

39(b) c/

As an adopted child is for all purposes deemed to be the legitimate child of the adoptive parents, except as mentioned above, the adoptive parents and their relatives are entitled to inherit ab intestato from the adoptive child.

QUERY? Can A, who was adopted by B who was adopted by C, inherit from C? The problem is the interpretation of the word "relative" in section 74(2)(b) of the act. The Afrikaans text, that was signed, uses the words "bloedverwant" ("blood relative") To date there has been no clear decision by any Court on this point although it would appear that the courts will apparently favour the position that A would be incapable of inheriting from C. See Cohen v The Minister of the interior 1942 T.P.D. 151 and section 2 of Ordinance 12 of 1946. 3.5.5

PRACTICAL EXAMPLES. COMMON LAW.. Example 1. Deceased left children ....... Children would inherit in equal shares Example 2. Deceased left 2 surviving children and 3 grandchildren, children of predeceased child..... Surviving children would inherit 1/3 share each and the grandchildren 1/3 of the remaining 1/3 or 1/9 each Example 3. Deceased was unmarried but left his father and 2 brothers ........ Father would inherit 1/2 and brothers each 1/4 Example 4. Deceased was unmarried with both surviving grandparents on mother's side, surviving grandfather on father's side and an uncle on father's side......... Grandparents on mother's side would each inherit 1/4 and the surviving uncle the other ½ Example 5. As in 4 above, but with also two children, N and M being the issue of a predeceased cousin who was the child of a predeceased aunt on father's side See drawing below........ As these children are related more than four degrees to the deceased, they would be excluded as there are relatives in that parental who are related within the fourth degree. See drawing of family tree below. "D" is the deceased, "X" represents predeceased family.

40(b)

STATUTORY LAW. Example 6 Surviving spouse married in community of property and 2 children...balance for distribution $120 000. Surviving spouse will receive by virtue of marriage $60 000 child's share 20 000 each child will receive 20 000 ( child's share plus half by virtue of the marriage exceeds $50 000). Example 7 Surviving spouse married in community of property and 2 children balance for distribution $60 000. Survivor will receive by virtue of marriage (as child's share (10 000) together with share by virtue of the marriage is less than $50 000 she will inherit $20 000 to bring the amount to $50 000)

$30 000

the children will share the remainder of

$10 000.

$20 000

Example 8 Surviving spouse married in community of property and 1 child $40 000. Survivor will receive by virtue of the marriage (as the child's share (10 000) together with share by virtue of marriage less than 50 000 therefore she will inherit the balance of

Balance for distribution

$20 000

20 000

I.e. if the balance for distribution is $50 000 or less the surviving spouse will be the sole heir.

Example 9

41(b) Surviving spouse married out of community of property plus 3 children distribution $240 000. Survivor will inherit Children will each inherit

balance for

$60 000 60 000

(the child's share exceeds 50 000). Example 10 Surviving spouse married out of community distribution $120 000.

of property plus 2 children

Child's share is 40 000. As this is less than 50 000 she will inherit

$50 000

Children will each inherit

35 000

balance for

Example 11 Surviving spouse married out of community of property plus 2 children distribution $40 000.

balance for

As this is less than 50 000, the survivor will be the sole heir. Example 12 Surviving spouse married in community of property, no children but leaving his mother. Balance for distribution $240 000. Survivor will receive by virtue of the marriage In terms of intestate (as i/2 deceased's estate exceed 50 000 she will inherit Mother will inherit

$120 000 60 000 60 000

Example 13 As 7 above but married out of community of property. Balance for distribution $240 000. Survivor will inherit I/2 of deceased's estate Mother will inherit

$120 000 120 000

`

Example 14 Surviving spouse married in community of property, no children bur leaving his mother. Balance for distribution $120 000.

42(b) Survivor will receive by virtue of the marriage As i/2 of deceased's share is less than 50 000 she will inherit Mother will inherit

$60 000 50 000 10 000

Example 15 Surviving spouse married out of community of property no children but he left his mother. Balance for distribution $120 000. Survivor will inherit I/2 of deceased's estate Mother will inherit

$60 000 60 000

Example 16 Surviving spouse married out of community of property plus mother. Balance for distribution $45 000. Survivor will inherit the whole estate.

$45 000

Example 17 Surviving spouse married out of community of property plus half brother on mother's side and uncle on father's side.

Survivor will inherit 1/2 share A will inherit 1/2 of a 1/2 from father's side B will inherit 1/2 of a 1/2 from mother's side

$60 000 30 000 30 000

Example 18 As in example 17 above but B predeceased D but left child E. As there is no surviving parent or brother or sister, the survivor will inherit to the exclusion of A and E. Example 19 Deceased leaves an own child as well as an adopted child. Adopted child will share equally with the deceased's own child.

43(b)

Example 20. Deceased leaves two children, one of whom was adopted by a third party. Both children will share equally even though one was adopted by another. Example 21 Deceased leaves no descendants but an own brother and an adopted sister. Brother will inherit the whole estate as the adopted sister cannot inherit from the blood relatives of her adoptive parents. NOTE 1/In the Ordinance references to the child, parent, brother or sister means a child, parent ,brother or sister who are entitled to inherit from the deceased. 2/The intestate succession ordinance only determines the share of a surviving spouse. Any balance after the survivor has taken her share will devolve in terms of the normal rules of intestate succession ie. the Nuwe Schependomserfreg as amended by the Oktrooi. 3.5.6

Deceased dying partly testate and partly intestate.

It can happen that, due to poor estate planning when the will was executed, provision is not made for the divestment of all the assets of the testator. This can be because the will only distributes part of the estate or that certain of the heirs who are nominated are unable or unwilling to accept the benefit bequeathed. 3.5.7

Will only bequeathing part of the estate.

These cases will normally not create too many problems as the residue of the estate, after providing for the special bequests, will devolve in terms of the laws of intestate succession in the normal way. Any awards in terms of the will must be ignored in determining the intestate division. The half share by virtue of a marriage in community of property must however be taken into consideration in calculating the award in terms of section 1(i)(a) of the intestate succession ordinance. 3.5.8

Testate heirs who cannot inherit.

Before a division in terms of the laws of intestate succession can be considered it must be determined who can inherit in terms of the will and how much each will inherit under the will. It is suggested that you proceed as follows. a/

Make a list of all the awards in terms of the will, including those where the "heirs" are disqualified.

b/

Indicate which "heirs" are disqualified to inherit.

c/

With reference to the terms of the will, determine whether or not Jus Accrescendi is applicable in respect of these awards.

d/

Where Jus Accrescendi is not applicable in respect of legacies, these amounts must be added to the residue and the awards of the residue adjusted accordingly. Any awards of residue in respect of which Jus Accrescendi is not applicable must be distributed intestate in the normal way.

44(b) e/

3.6

Bear in mind that it could happen that an heir may not be entitled to inherit in terms of the will, for example a witness to the will, but this will not prevent this heir from inheriting intestate.

GUIDE TO SOLVING COMMON LAW INTESTATE SUCCESSION PROBLEMS.

Step 1

Draw family tree correctly.

Step 2 from.

Are there adopted children? If so remember the rules as to who an adopted child can inherit

Step 3

Did the deceased leave a surviving spouse? No --- Go to step 4 Yes --(1) determine the survivor's share. sections 1(1) (a) 1(1) (b) 1 (1) (c) 1(1) (d) of intestate succession ordinance (2) Any balance over? Yes go to step 4 No go to step 9

Step 4

Did the deceased leave any descendants? No go to step 5 Yes (1) distribute the balance per stirpes to descendants. (2) go to step 9

Step 5

Are both parents alive? No go to step 6 Yes (1) distribute to both parents equally (2) go to step 9

Step 6

Is only one parent alive? No Go to step 7 Yes Go to step 8

Step 7

Are there brothers and sisters or descendants within 4 degrees? No (1) Surviving parent sole heir (2) go to step 9 Yes (1) surviving parent 1/2 share (2) Children and descendants within 4 degrees 1/2 share per stirpes.

Step 8

Both parents deceased, (1) divide in terms of the new Schependomserfreq. (2)(2) Go to step 9

Step 9

Do the various amounts distributed total the amount for distribution?

45(b) No Go back to step 1 and try again. Yes Good! If you have followed these steps and the intestate rules correctly, your distribution should be correct.

46(b) 3..6

INTESTATE SUCCESSION OF REHOBOTH BASTERS. Although the Administration Of Estates (Rehoboth Gebiet) Proclamation No 36 Of 1941.has been repealed by the Estates and Succession Amendment Act of 2005, Schedule 2 of the proclamation has been reinstated as far as members of the Rehoboth Baster Community is concerned. This schedule deals with the rules for intestate succession.

3.6.1

Who is a member of the Baster Community or a Rehoboth Baster? Section 29 of the proclamation describes a Rehoboth Baster as follows: “Member of the Rehoboth Bastard Community" shall mean and include any person who, by reason of his birth or parentage. possesses full burgher rights in the Gebiet under the laws and constitution of the Rehoboth Bastard Community. or any non-European person whose application to be accepted as a burgher of the Gebiet has been approved in accordance with the laws and constitution of the Rehoboth Bastard Community, or the wife of any born or accepted burgher, or any legitimate child of any parents both of whom are members of the Rehoboth Bastard Community as aforesaid, or any illegitimate child whose mother is a member of the Rehoboth Bastard Community as aforesaid:” As the Advisory Council for the Rehoboth Gebiet no longer exists, only persons born of Rehoboth Basters can obtain the status as Rehoboth Basters

3.6.2

INTESTATE RULES APPLICABLE TO REHOBOTH BASTERS. Schedule 2 of the proclamation provides as follows” “When in any estate no valid will is left by the deceased the assets thereof shall be distributed among the heirs in the manner following:(I) (a) Where the deceased is survived by a wife or husband and children. Half of the estate shall devolve upon the surviving spouse, and the other half upon the surviving spouse and the children in equal shares. Children of pre-deceased children shall succeed to the shares of their deceased parent per stirpes. (b) Where the deceased is survived only by children. The whole estate shall devolve upon the children in equal shares children of predeceased children succeeding to the shares of deceased parent per stirpes. (c) Where the deceased leaves only a wife or husband. Half of the estate shall devolve upon the surviving spouse, who shaIl also be entitled to one-third of the remaining half. The remaining two thirds of the remaining half shall devolve in equal shares upon the mother and father of the deceased. or if there be only a mother or a father surviving. such mother or father shall receive the whole of the remaining two-thirds of one half of the estate. Should both parents of the deceased have pre-deceased him, then the remaining two-thirds of one' half of the estate shall devolve in equal shares upon the brothers and sisters of the deceased. Provided that in any ease the- surviving spouse of the deceased shall be entitled to the full usufruct of all the assets in the estate until such time as he or she dies or remarries. (d) Where the deceased leaves no surviving spouse or children. The entire estate shall devolve upon the family of the deceased in accordance with the rules set out in paragraph (c) hereof. (e) In cases not falling under paragraphs (a). (b). (c) or (d). The matter shall be placed before the Magistrate and Advisory Council, who may give such directions in regard to the disposal of the assets as may seem to them proper.

47(b) In the absence of an “Advisory Council” the Magistrate will now have to determine who the intestate heirs under Sub-section (e) will be. No guidelines have been given to assist the Magistrate in this regard but he may look to the Common Law rules for guidance. Another problem will be the fact that certain of these estates will be administered under the supervision of the Master. Will he/she now be the person to give directions under this subsection? NOTE that the intestate succession rules will apply to a Rehoboth Baster whether he/she is resident in the district of Rehoboth or not.

48(b) 3.7

ESTATES OF BLACK NAMIBIANS We must differentiate between Black Namibians resident North of the Police Line and those resident South of the line. What has been overlooked for years is the fact that the provisions of the Native Administration Proclamation only applied to Black Namibians residing North of the police line. Estates of persons who resided South of the line will be administered and distributed in terms of our Common Law as described above. The definition of the Police Line can be found in Proclamation 26 of 1928. This is too lengthy to include here but interested candidates can trace this line on a map by referring to the said proclamation. In the same way that the Rehoboth proclamation was repealed with the intestate rules reinstated, SubSections 18(1), (2) and (9) of the Native Administration proclamation of 1928 has been repealed but the rules of intestate succession also retained. In terms of the Regulations to the said Proclamation, (Government Notice No 70 of 1954), the estates of Black Namibians (North of the Police Line) who dies intestate, will be distributed as follows (a) If the deceased, at the time of his death, was(i) a partner in a marriage by civil rites; or (ii) a widower, widow or divorcee, as the case may be, of a marriage by civil rites and was not survived by a partner to a customary union entered into subsequent to the dissolution of such marriage, the property shall devolve in terms of the Common Laws of intestate succession.. (b) If the deceased does not fall in a class described in paragraph (a) hereof, the property shall be distributed according to Customary Law. Where a black person leaves a valid will but such will does not make provision for the distribution of the whole estate, It is presumed that the deceased did not wish Customary Law to apply to his estate. That portion of the estate not bequeathed in terms of the will shall devolve in terms of the Common Laws of intestacy. A problem that will be encountered is the fact that Customary Laws of the various tribes have not been codified with the result that it is seldom certain which rules must be applied especially in cases where the deceased’s parents are from different ethnic groups. Which laws must be applied? Letters that were received from the Headmen of the various Ethnic Groups seen to indicate, although not very clearly, that the spouse and/or children will be the heirs under the various Customary Laws. This view was confirmed by the Headmen who attended a recent workshop on women’s rights. It would appear however that this is not followed in practice as at the same workshop, a number of widows reported that they, and sometimes their children, were evicted from their homes where they lived with their husbands before death without receiving any inheritance from the estate. An interesting exercise will be for students of various ethnic groups to get together and discuss the practice of their various groups. A summary of the conclusions reached will be of interest and benefit to your fellow students as well as myself.

49(b)

INTESTATE SUCCESSION EXERCISES. QUESTION 1. a/

State the sources of the Namibian laws of intestate succession.

b/

In what way did each of these statutes change the "Skeependomserfreg".

QUESTION 2. In what way does the inheritance of the surviving spouse differ depending on whether she was married in or out of community of property. QUESTION 3A. The deceased A dies intestate leaving: i/ ii/ iii/ iv/ v/

B his wife married out of community of property K a half brother on fathers side H the child of a predeceased full brother T the adopted child of a predeceased full brother R the grandchild of a predeceased half brother on mothers side.

a/

How will you divide A's estate amounting to $120 000.00

b/

To what extent would the fact that K murdered the deceased alter your division?

c/

How will the distribution be if the deceased also left 2 children C and D?

QUESTION 2B How will the distribution in QUESTION 2A a/ differ if the deceased was a member of the Rehoboth Baster Community? QUESTION 3. It can happen that a deceased could die partly testate and partly intestate. Distribute the following estate stating whether the awards are in terms of the will or intestate. A dies leaving a will in which her husband B is appointed as heir to one half of the estate and their children C, D, E and F appointed as heirs to the residue in equal shares. The will was written by B and witnessed by C's husband as one of the witnesses. A left the following family: i/ B her husband married out of community of property. ii/ C her daughter. iii/ G the adopted child of her predeceased son D. iv/ H son of predeceased son D. v/ E her stepson, son of her husband B. vi/ F her son. The balance for distribution amounts to $240 000.00

50 4. 4.1 4.1.1

THE ADMINISTRATION OF A DECEASED ESTATE After this session students should be able to: Define the following subject terminology: a/ b/ c/ d/ e/ f/ g/ h/ i/ j/ k/ l/

Administration of a deceased estate. Estate. Liquidation and distribution account. Death Notice. Inventory. Letters of Executorship. Awards "in specie" Awards "per stirpes". Section 38 take-over. Redistribution agreement. Estate massing. Adiation/repudiation.

4.1.2

List the most important duties of the executor.

4.1.3

Indicate how to report an estate to the Master of the High Court.

4.1.4

Indicate who will issue letters of executorship. 4.1.5 Explain the procedure in full, to be followed in the administration process, once the estate has been reported to the Master.

4.1.6

Indicate how the various assets are valued and by whom.

4.1.7

List the various subsections of the liquidation and distribution account.

4.1.8

With regard to a given set of facts, draw a complete liquidation and distribution account and list the supporting documents required for each item.

4.1.9

Explain the significance of the so-called Master's "filing notice".

4.1.10

Know when and how an executor can apply for his discharge after the estate has been finalised.

51 4.2

INTRODUCTION. At the very outset it is important to point out that the administration of a deceased estate is a process or procedure which must be followed in order to divest a deceased person of his assets and to transfer those assets, after payment of any debts in the estate, to the testamentary or intestate heirs. During this process other incidental matters may also come into play. As will be pointed out below, the administration process can be divided into clearly defined categories which, when followed to the letter, will lead to the speedy conclusion of the administration process. It is a well known fact that in general legal practitioners are not well known for the speedy administration of estates. However if the sequence set out below is adhered to, there is no reason why most estates cannot be finalised within three to six months of the death of the deceased. Your first contribution to the administration of the estate may have been the drawing up of the will of the deceased. When your client dies, the acid test will be to see how well you have done your estate planning. You may find that the will you drafted (and which you were so proud of) is not capable of being put into effect in a practical manner, and now a redistribution agreement or a section 38 takingover has to be entered into. One way of avoiding problems of this nature is of course to gain experience in the administration of estates. But of course by that time you may have been put off estates altogether. The other way of avoiding problems is to know how the administration process works before drawing up the will. By having the necessary knowledge beforehand, means that the pitfalls will be avoided before they come into play. The Estates Act and the regulations promulgated in terms of section 103 can be considered as the "constitution" of the estate administrator. It is a hopeless task to attempt the administration of a deceased estate without knowledge of the structure of the Estates Act in general and the more important sections in particular. A thorough knowledge of the Estates Act as well as the Regulations will be required from students if they wish to succeed in the examinations. It is essential that students have these statutes on hand during the course.

52 4.3

A BRIEF OVERVIEW OF THE ADMINISTRATION PROCESS. For the purposes of this section of the course material, it will be assumed that the will has already been drafted. In other words this section deals with the process from the moment the deceased passed away.

4.3.1

TAKING OF INSTRUCTIONS. The first time you will normally become aware of the estate is when the family or heirs approach you to administer the estate.

4.3.2

FIRST CONSULTATION WITH FAMILY MEMBERS. The first consultation with the family of the deceased is the most important. A lot of important information must be obtained at this stage of the process, information which will be needed in order to administer the estate. If all the information is not obtained at this stage, it will mean that it will have to be obtained piecemeal at a later stage, and this can be very frustrating.

4.3.3

REPORTING THE ESTATE. Once all the necessary information has been obtained, the estate must be reported to the Master of the High Court. The Master will open a file and allocate an estate number to the deceased. This number must be used in all correspondence to the Master.

4.3.4

NOTICE TO CREDITORS (SECTION 29). Once the Master has issued Letters of Executorship, the executor must place a notice advising creditors to prove their claims within a specified period.

4.3.5

OPENING OF A BANKING ACCOUNT.(SECTION 28). An executor must in terms of the Estates Act open a banking account in the name of the estate as soon as he has cash on hand exceeding $500.00. Since a copy of the Letters of Executorship will have to be furnished to the bank before an account will be opened, this can obviously only be done after the appointment has been received.

4.3.6

GATHERING OF INFORMATION, VALUATIONS, BALANCE CERTIFICATES, REALISATION OF ASSETS ETC. Once you have obtained all the information in respect of the assets and liabilities from the family members, valuations must be made, balance certificates obtained, etc. All this information is required not only to be able to transfer the assets into the names of the heirs, but also in order to draft the liquidation and distribution account for submission to the Master.

4.3.7

DETERMINING THE SOLVENCY OF THE ESTATE. Once the executor has information as to the liabilities of the estate it must be determined whether or not the estate is solvent. If the estate is insolvent the executor must act in terms of section 34. See paragraph 4.17.3.

53 4.3.8

DECIDING ON THE MODE OF DIVESTMENT. How the executor intends to deal with the various assets will depend on the cash position, the number of heirs etc. the executor will make this decision in consultation with the heirs.

4.3.9

DRAFTING THE LIQUIDATION AND DISTRIBUTION ACCOUNT. Once all the information pertaining to the estate has been obtained, the executor must draft a liquidation and distribution account which must be submitted to the Master. The account is an account of the administration of the estate by the executor, and is of particular importance to interested parties who wish to scrutinize what the executor has done.

4.3.10

QUERIES BY THE MASTER. Upon submission of the executor's liquidation and distribution account, the Master will examine the account as to form and content. If he is of the opinion that the account is incorrect in any way, he will issue a query sheet containing inter alia preliminary requirements. These preliminary requirements will have to be complied with before the account will be accepted by him as being correct.

4.3.11

THE INSPECTION PERIOD. Once the Master is satisfied that the account has been correctly drawn, the account may be advertised (in terms of section 35 of the act) as lying for inspection for a period of 21 days. During this period the account is made available to interested parties who wish to scrutinize the account. If any interested person is dissatisfied with the account, he may object to the account in terms of section 35 of the act.

4.3.12

FINALISATION OF ESTATE AFTER INSPECTION PERIOD. Once the account has lain for inspection free from objections, or if the objections have been disposed of in the prescribed manner, the executor must give effect to the account by paying out the heirs, (within two months after the account has lain for inspection), Transferring the property into their names, etc.

4.3.13

FINAL REQUIREMENTS. After having given effect to the account, the executor must lodge his final requirements with the Master. These include the lodging of the heirs' acquittance, receipts by the creditors, proof of transfer of fixed property, the lodging of a complete set of bank statements and paid cheques, etc. This is the most important phase of the administration process as far as you are concerned, since it is at this stage that you will debit your fees.

4.3.14

FILING NOTICE. Once all the Master's requirements have been complied with, he will issue a filing notice stating that the estate has been finalised. this serves as proof to the heirs and family members that the estate has been finalised. This notice will also allow the executor to cancel any bond of security that may have been given.

4.3.15

DISCHARGE OF THE EXECUTOR. Once the estate has been finalised, the executor can apply to the Master for his discharge. It is only after the executor has been discharged that he can destroy the records of the estate.

4.4 4.4.1

THE MOST IMPORTANT PERSONS INVOLVED IN THE ADMINISTRATION OF A DECEASED ESTATE. THE MASTER OF THE HIGH COURT. The Master of the High Court (Master) is a statutory creation in terms of section 2 of the administration of Estates Act, and has his seat at Windhoek. The Master's functions are not limited to a supervisory one in respect of deceased estates alone, he is also responsible for supervising the administration of insolvent estates, the estates of persons placed under curatorship, the estates of prodigals, the estates of minors and the administration of the Guardians Fund. In respect of the administration of deceased estates he has several functions:

a/

SUPERVISORY FUNCTION. This can probably be regarded as his most important function. He is responsible for the supervision of the administration of all testate estates as well as the intestate estates of white persons. At present the estates of Rehoboth Basters and the intestate estates of black persons are still dealt with under the supervision of the Magistrates of the various districts.

b/

ADVISORY FUNCTION. As far as the public is concerned, this is a very important function performed by the Master. Practitioners also benefit from this function. Although the Master will give advice where necessary, it is not his duty, and he will refuse, to advise legal practitioners as to their clear duty in the administration of an estate.

c/

ADMINISTRATIVE AND DISCRETIONARY FUNCTION. In terms of the Estates Act the Master also has a very important administrative and discretionary function. The master's office is an office of record and very important documentation ie filed there and used by researchers, the public and practitioners on a daily basis. The Master has quite a wide discretion in certain instances, especially pertaining to the streamlining of the administration process and the lodging of certain requirements.

d/

JUDICIAL FUNCTION. The Master also has a limited judicial function. An example is the Master's duty to rule on objections lodged against the liquidation and distribution accounts of executors.

4.4.2

THE EXECUTOR. The executor is the person to whom the Master issues letters of executorship, and who is then empowered to administer the estate of the deceased. The executor has very important powers and functions and is solely responsible for the administration of the estate in question. It is of course possible that the deceased nominated more than one executor. In such a case the Master will appoint all the nominated executors, provided they are capable and willing to accept the appointment. Certain persons are disqualified from being appointed as executor. In this regard you may consult section 54 of the Estates Act and Meyerowitz paragraph 9.3. As regards the rights, duties and powers of executors you may consult Meyerowitz chapter 12 and Wiechers and Vorster (English version) chapter 4. More about appointments and powers and duties of the executor is discussed below. Also take note that it is not always necessary for the Master to appoint an executor. In estates under $100 000.00 the Master can act in terms of section 18(3). See paragraph 4.17.1.

4.4.3

CONVEYANCERS AND THE REGISTRAR OF DEEDS. The transfer of fixed property out of a deceased estate is attended to by a conveyancer who attends to the transfer in a prescribed manner into the name of the heir or legatee. Except for the relevant stipulations of the Deeds Registry Act, sections 39, 40, and 42 of the Estates Act are of particular importance.

4.4.4

THE RECEIVER OF REVENUE. When a person who pays tax died, his deceased estate is responsible for the payment of any income tax payable in respect of the tax year in which he dies. It is the duty of the executor to get in touch with the Receiver of Revenue as soon as possible after his appointment where the deceased is a registered taxpayer, in order to prepare for the issuing of an income tax assessment in respect of the estate.

4.4.5

THE SURVIVING SPOUSE AND HEIRS. These persons naturally have a particular interest in the estate of the deceased, and a sensible executor will therefore maintain a sound relationship with the family members/beneficiaries throughout the administration process. It is especially important to keep them abreast of the progress made in finalising the administration of the estate.

4.5

VARIOUS CATEGORIES OF DECEASED ESTATES The following discussion will be of the type of estate most frequently encountered. There are however several other types of estates such as: a/

Estates not exceeding $100 000.00.

b/

Foreign estates, ie. persons leaving assets abroad or estates of persons not resident in Namibia but leaving assets here.

c/

Insolvent deceased estates.

These will be discussed later . See paragraph 4.17.

4.6

TAKING OF INSTRUCTIONS TO ADMINISTER THE ESTATE. By whom will you be approached to administer the estate? There are basically two ways in which an estate will be referred to a legal practitioner. The will of the deceased may be filed with him in safe custody or he may have drawn up the will of the deceased. On the other hand the surviving spouse or beneficiaries in the estate may approach him to administer the estate due to the fact that a will cannot be found. In the first instance mentioned above we are dealing with a testate estate, and in the second an intestate estate. The testate estate will devolve in terms of the will of the deceased, while the intestate estate will devolve in accordance with the provisions of the laws of intestate succession. Bear in mind that a person's estate may also devolve partly testate and partly intestate. This can happen where the deceased's will only deals with special bequests of specific property, without a clause determining the residuary heirs. In such case the reside (if any) will devolve intestate, while the special bequests are dealt with in terms of the will. Where a family member is appointed as executor, the Legal Practitioner only acts as agent on behalf of the executor under power of attorney. However where an attorney is named as executor in a will, he will obviously receive the appointment in his own name. Where a will appoints the attorney's firm as executor, all members of the partnership will be appointed. An example of a special power of attorney to administer the estate can be found in section G. In view of the specialised nature of the work, the Master will normally not appoint a layman as executor unless he is assisted by a professional agent. In some Master's offices in South Africa, the Master will insist on security by such a layman if he is not so assisted. It is a known fact that a layman will not be able to acquire the security if application is not made through a legal practitioner or a trust company.

4.7

FIRST CONSULTATION. Once the instruction to administer the estate has been accepted, an appointment with the surviving spouse or family members will have to be arranged. This must be done as quickly as possible, not only to set the family member's mind at ease that the estate has been placed in capable hands, but also due to the fact that the Estates Act provides that the estate of a deceased person must be reported to the Master within 14 days of the death of the deceased. (sections 7 and 8). It is at the first consultation that one obtains all the information required in order to administer the estate. If the first consultation is dealt with properly, it will obviate the need to consult with the family or beneficiaries again. after the first consultation one can keep the beneficiaries abreast of developments by making a couple of telephone calls. In order to ensure that one obtains all the relevant information, it is a good idea to make use of a checklist. The family members or beneficiaries can be informed by telephone before the consultation in respect of what information or documentation must be furnished. For an example of a typical checklist, see Wiechers and Vorster annexure 8. It is also a good idea to inform the family of the deceased how the administration of the estate will be performed. By doing this it will save a lot of time in answering enquiries by the beneficiaries. After all, they do want to know when they are going to receive their inheritances. See Wiechers and Vorster annexure 12 for an example of a memorandum which can be handed to the family members and which sets out the administration process for them in layman's terms.

4.8

REPORTING THE ESTATE. Section 7 of the Estates Act provides that whenever a person dies within Namibia leaving any property or any document purporting to be a will, the persons mentioned in the section must report the estate to the Master within 14 days of the date of death. Where a person, although not resident in Namibia, leaves assets in Namibia such person's estate must also be so reported to enable an executor to be appointed to deal with these assets. Reporting the estate is an important step in the administration process, unless one wants to experience a great deal of frustration, it is suggested that this part of the process be dealt with correctly from the beginning. One should be in a position to report the estate immediately after the first consultation. Remember to have the necessary reporting documents signed by the family members/surviving spouse at the first consultation. This means that the reporting documents must be readily available at the first consultation. The main reporting documents will now be dealt with in detail.

4.8.1

THE DEATH NOTICE. The death notice is a prescribed form (form J294 (12-0/0032)) which must be completed by someone familiar with the personal details of the deceased, preferably a family member who was present at death, or who identified the body after death. This document must be completed carefully and accurately since it contains important information which will enable the Master to determine who to appoint as executor. It also contains important information relating to the family of the deceased. An example of a death notice can be found in section "G".

4.8.2

THE DEATH CERTIFICATE. If the person signing the death notice was not present at death, or did not identify the body after death, then a certified copy of the death certificate must be lodged together with the other reporting documents. If the deceased died outside Namibia or if the estate is only reported long after the deceased's death, the Master may also insist on a death certificate even though the death notice was signed by someone that identified the deceased after death.

4.8.3

THE ORIGINAL WILL. In terms of section 8 of the Estates Act all wills in the possession of any person must be sent to the Master. In terms of section 8(3) the Master will register such wills which are sent to him. Even though a will may be invalid (for whatever reason), the Master must still register the will. Registration of a will must not be confused with the acceptance of a will. The Master will register all wills received by him but will not necessarily accept all wills (section 8(4)). When in possession of a will, it is important to check it in order to determine certain facts before sending it to the Master. The first thing that should be done is to determine whether it is the original will. Once satisfied that it is the original will, it is also useful to check whether the will complies with the requirements of a valid will. These requirements have already been dealt with above and will not be repeated here. Before sending the will to the Master it is advisable that a certified copy be made. It has happened that wills have been lost in the post and if there is a copy available, permission can be obtained from

the court to act on the copy. There will however be problems should there be no certified copy available. 4.8.4

Inventory. In terms of section 9 of the Estates Act, a provisional inventory must be lodged with the Master when the estate is reported. Please note that this is merely a provisional inventory and that a final list of assets, and the valuations of such assets, will appear in the liquidation and distribution account which will be lodged at a later stage. The main function of the section 9 inventory is to enable the Master; a/ to determine what type of appointment to make (a section 18(3) appointment if the value of the estate is under $100 000.00 and letters of executorship if the value of the estate is over $100 000,00.) b/ to determine the amount of the security which must be furnished by the executor (if the Master requires security to be lodged in terms of section 23). An example of an inventory (form J243 (12-o/1681)) can be found in section "G". If security must be lodged in terms of section 23, form J262 must be used. An example of this form can also be found in section "G".

4.8.5

THE ACCEPTANCE OF TRUST BY THE EXECUTOR. The acceptance of trust (form J190 (12-0/0042) must be completed by the nominated executor before the Master will issue letters of executorship. The reason this form has to be completed, is as a result of the provisions of section 14(1) which states that the Master must issue letters of executorship "on written application of any person ..." In other words a written application must be made to the Master before he will issue letters of executorship. An example of this form can be found in section "G". Normally the nominated executor will be a family member, and not an attorney assisting the family with the administration of the estate, hence the personal particulars of the nominated executor must be completed on the form. The name of the executor's agent, which will be the name of the legal practitioner assisting the family with the administration, must be inserted on the form. As the administration of an estate is a specialised operation, the Master will normally not appoint a layman as executor unless he will be assisted by an qualified agent. Note that as there are no postal deliveries in Namibia, no purpose is served by stating the executor's residential address on the acceptance of trust. The executor's postal address should be given to enable the Master to contact the executor should it become necessary. An address c/o the agent will not be accepted. Note that the form must be completed in duplicate.

4.8.6

NEXT OF KIN AFFIDAVIT AND NOMINATIONS BY HEIRS. Where there is no will, or if the will does not nominate an executor, it will be necessary for the Master to make a dative appointment. In order to do this the Master will require a next of kin affidavit, relating to the next of kin of the deceased, as well as nominations from the heirs/family members, nominating a person as executor. On must bear the provisions of section 23 (furnishing of security) and section 13 (who may be appointed as executor)in mind when nominating a person to be appointed as executor. Refer to the provisions of section 19 if more than one person is nominated as executor. Where there is no will, or a class of persons has been nominated as heirs in the will(for example; "To my grandchildren alive as at date of my death I bequeath ......"), a next-of-kin affidavit will have to be lodged. However, if the next-of-kin affidavit is only required for distribution purposes, the affidavit can be lodged together with the liquidation and distribution account, and need not be lodged when the estate is reported.

An example of the next of kin affidavit (form J192 (12-0/0105) can be found in section "G". 4.8.7

BOND OF SECURITY. Where the executor nominated by the heirs or in terms of the will has or is not exempted from furnishing security, A Fidelity Bond as security in terms of section 23 must be lodged. This security is normally obtained from an approved insurance company or a bank. This security must be for an amount to the satisfaction of the Master. The Master will normally not accept security unless it is for the full value of the assets that will be dealt with by the executor. In terms of section 23 the surviving spouse, a child or parent of the deceased are exempted from furnishing security as executor. The Master can, even if the executor is exempted by the will or by section 23, insist on security by the executor. See section 23(3). An example of the bond of security (form J 262) can be found in section "G".

4.8.8

POWER OF ATTORNEY. If you will administer the estate on behalf of the executor, a power of attorney or a duly certified copy thereof must be sent to the Master either when reporting the estate or at a later stage. This power must be stamped as required by law, and if the power was given by an executor who is not resident in Namibia, it must also be certified by you as to the date on which it was received within Namibia. Powers not stamped within the prescribed period is subject to penalty duty and must have the stamps cancelled by the Receiver of Revenue. See section"G" for an example of a power of attorney.

4.8.8

COVERING LETTER TO MASTER. The forms referred to above should be sent to the Master under cover of the firm's letterhead.

4.9 STEPS WHICH CAN BE TAKEN WHILE WAITING FOR THE LETTERS OF EXECUTORSHIP TO BE ISSUED. Valuable time can be saved by obtaining information pertaining to the estate in question while waiting for the letters of executorship. The following are examples of the information which can be obtained: 4.9.1

PERSONAL DETAILS. Obtain all the personal details that were not available at the first consultation.

4.9.2

DOCUMENTATION. Make sure the following documentation is on file; bank books/ statements, investment certificates, insurance policies, share certificates, deeds of transfer and bond documents, registration papers of motor vehicles, acknowledgement of debt, contracts, identity documents, birth certificates, the antenuptial contract, death certificate, divorce order with annexures, the surviving spouse's identity document (if applicable) etc.

4.9.3

WRITE LETTERS. Letters can be written to all financial institutions applying for balance certificates, to the Receiver of Revenue advising of the death of the deceased and requesting that he sends a tax return for completion, to the deceased's employer applying for outstanding salary, leave pay, pension benefits and possibly group life insurance benefits, and to insurance companies, requesting death benefits to be paid out, etc.

4.9.4

OBTAIN VALUATIONS. Valuations of property which will probably not be sold, can also be obtained in the meantime.

4.10

STEPS TO BE TAKEN AFTER RECEIPT OF THE LETTERS OF EXECUTORSHIP BUT BEFORE LODGING THE LIQUIDATION AND DISTRIBUTION ACCOUNT. The following steps must be taken after receiving the letters of executorship but before the account is lodged.

4.10.1

NOTICE TO CREDITORS. In terms of section 29 the executor must place a notice in the Government Gazette and in a local newspaper circulating in the district where the deceased was ordinarily resident. The notice calls on all creditors of the estate to prove their claims against the estate within a certain period of time. This period must not be less than 30 days and not more than three months. The prescribed form for the notice in the Government Gazette (form J193 (12-0/2960)) can be found in section "G". This form must be accompanied by a cheque for $20.00 made out to the Ministry for Justice. A similar notice is placed in the newspaper, circulating in the district where the deceased was resident, to appear on the same date. If the deceased was not ordinarily resident in Namibia, the notice must be placed in a newspaper circulating in the district where the deceased's property is situated. If the deceased resided in more than one district during the 12 months prior to death, the notice must appear in newspapers circulating in each of the said districts. See paragraph 5.4.4 for an example of a notice to creditors in the newspaper.

4.10.2

OPEN A BANKING ACCOUNT. Once the letters of executorship have been received, the executor must open a banking account in the name of the estate, in terms of section 28. The account must be a cheque account and all moneys received by the executor must be deposited therein. It is very important to note that in terms of section 28(4) all cheques drawn on the estate banking account must contain the following information; a/

the name of the payee

b/

the cause (reason) of payment,

c/

must be drawn to order; and

d/

must be signed by every executor or his/her authorised agent.

The executor may also open a savings account (section 28(1)(b) or place money on interest bearing deposit (section 28(1)(c). However, moneys received must first be paid into the estate banking account. Only thereafter may moneys be transferred to the savings or interest bearing deposit. The money which is so transferred must not be immediately required for the payment of any claim against the estate. NB.

4.10.3

THE MASTER EXAMINES ALL CHEQUES AND BANK STATEMENTS VERY CAREFULLY. AVOID UNNECESSARY QUERIES AND/OR INVESTIGATIONS BY THE MASTER BY HANDLING THE BANKING AFFAIRS OF THE ESTATE IN THE PRESCRIBED MANNER.

DETERMINING THE SOLVENCY OF THE ESTATE (SECTION 34).

Once the period for the lodging of claims in terms of section 29 has expired, the executor must determine the solvency of the estate. If the estate is insolvent (ie the liabilities exceed the assets) the provisions of section 34(1) have to be complied with. This will be dealt with in paragraph 4.17.3. 4.10.4

OBTAINING VALUATIONS, ETC. If not already done at this stage, the executor must have all the movable and immovable assets valued and must obtain balance certificates in respect of all bank accounts, investments, etc. The different valuations which must be obtained will be discussed in the section where the liquidation and distribution account is dealt with.

4.10.5

SELECTING THE METHOD OF LIQUIDATION. The method of liquidation which the executor will use, will be determined by a number of factors. For example, the will may direct that a total sale must take place, or the deceased may have bequeathed agricultural property to more than one person, which may necessitate the sale of the property or the conclusion of a redistribution agreement. For this reason it is not possible to lay down hard and fast rules as to what method of liquidation must be used. Each estate must be dealt with on its merits. Suffice to say that the method of liquidation should be selected in consultation with the heirs and family members of the deceased. The following possible methods of liquidation may be employed by the executor: a/

AWARD IN SPECIE. Whenever possible this method should be applied. In terms of this method the assets are handed to the heirs in the same form as they are left behind by the deceased. A testator who has done adequate estate planning would have provided for sufficient cash in the estate to pay the estate debts. In such a case it is normally not necessary to sell any of the estate assets and they can be awarded to the heirs in the same form as they are left behind by the testator. Even where there is insufficient cash in the estate, this method may be used, provided the heirs are prepared to make up the cash shortfall. This method of liquidation has a number of advantages and is also preferred by our courts. One of the greatest advantages lies in the fact that the executor does not have to sell assets, and the administration of the estate is therefore finalised a lot faster. For a list of advantages and disadvantages, see Wiechers and Vorster paragraph 5.1. There may of course be circumstances which make the award of an asset in specie impossible. For example, where the beneficiary is not in a position to take possession of the asset bequeathed, or where the beneficiary is a minor or other person without full capacity to act, and can for that reason not take possession of the bequeathed asset.

b/

PARTIAL SALE OF ASSETS. While it is desirable to award the assets to the beneficiaries in specie, it may not always be possible. For example, there may be a cash shortfall in the estate or the heirs may require the assets to be reduced to cash. It is the inherent function of the executor to pay the debts of the estate before distributing the available funds/assets to beneficiaries. The beneficiaries obtain no right to the inheritances before the estate's obligations have been settled in full. Although an executor's powers are wide in this respect to the extent that he can sell assets in direct contradiction to a clause in the will forbidding it, he still has an obligation towards the heirs, and must therefore follow certain guidelines in deciding which assets must be realised in order to bridge the cash

shortfall. The executor should however only sell so much of the assets as is necessary to pay debts and/or cash legacies. Where there is a cash shortfall in the estate the executor should obviously not first sell assets which have been specially bequeathed to legatees. He must first try and settle the cash shortfall by selling assets which form part of the residue. If the assets which form part of the residue are insufficient, the executor must then sell assets which have been bequeathed to legatees and then only property awarded to pre-legatees. The first assets which should be reduced to cash are cash investments such as shares, unit trusts, fixed deposits, etc. Only if these assets do not raise enough cash should the executor sell first the movables and then, if necessary the immovable property. See Wiegers and Vorster paragraph 5.2. c/

TOTAL SALE OF ASSETS. A total sale of assets will normally only take place in exceptional circumstances. Although these circumstances are mentioned here, candidates should refer to the handbooks for a more detailed discussion. In the first place a total sale may have been provided for in the testator's will. The principle of freedom of testation is applicable here and the executor will be bound by the provisions of the will. In the second place a total sale may take place due to necessity. One of the circumstances in which a total sale may be necessary is when the estate is insolvent and has to be reduced to cash in terms of section 34(2). In the third place a total sale may be requested by the heirs. The method of realisation and how an executor must go about selling assets is discussed in paragraph 4.10.6 below. See Wiegers and Vorster paragraph 5.3.

d/

TAKING OVER BY THE SURVIVOR IN TERMS OF SECTION 38. This method of liquidation is only used in exceptional circumstances and, as the method indicates, can only be used when the testator is survived by a spouse. This method basicly entails the surviving spouse "buying out" the other heirs, normally in order to retain the family home. The surviving spouse "buys" the estate assets, or a portion thereof, at a valuation acceptable to the Master, and pays the cash into the estate which is then applied in paying out the other heirs. Although it is not a sale in the normal sense of the word, the result is the same as far as the other heirs are concerned. A surviving spouse may take over the assets even though he/she is not an heir in the particular estate. In terms of section 38 the Master has a discretion to allow a taking over. This function exercised by the Master is an administrative one, and no appeal to a higher authority is allowable. The Master's decision in this regard is therefore final. Due to the fact that it is an administrative function, the Master may of course be requested to furnish reasons for his decision. His decision may then be attacked on the grounds that he did not apply his mind, or on grounds that he acted mala fide. It will of course be very difficult to prove that the Master did not apply his mind, or that he did in fact act mala fide. An application for a section 38 taking over is in the form of an affidavit by the surviving spouse, which must be signed by her personally. The executor confirms the application by signing it in his capacity as executor (this is not necessary if the survivor is also the executor.)

The information that must be provided in the application is set out in detail by Wiegers and Vorster paragraph 5.4. One of the most important parts of the application is the reason for the application. These will of course depend on the circumstance, but normally one of the most important reasons is to retain the family home, especially where there are minor children for whom the spouse must provide. From the requirements set out by Wiegers and Vorster, it will be noted that additional information is required where minors are involved. The prescribed form setting out the Master's requirements, and which must be complied with before the Master will approve a section 38 take over, can be found in section "G". Candidates must know the contents and requirements set by the Master in this form. A complete example of an application in terms of section 38 can be found in section "D". Paragraph 5.4.5. Please note that before the Master will issue a certificate in terms of section 38:

e/

i/

The liquidation and distribution account must have lain for inspection free from objection,

ii/

Minors portion must have been paid into the Guardians Fund or suitably secured. NOTE Security can only be accepted if the surviving spouse is the natural guardian of the minors. Section 43.

iii/

Proof of payment of the creditors in the estate must be furnished,

iv/

Master's fees must have been paid, and

v/

Receipts of major heirs must have been lodged.

REDISTRIBUTION AGREEMENT. Redistribution agreements are found mainly in intestate estates, but can also take place in testate estates. What in effect happens is that the assets are redistributed in such a way that, while resulting in more or less an even distribution of the assets, beneficiaries obtain sole ownership in particular assets instead of an undivided share in all the assets. Redistribution agreements can for example be concluded where agricultural property is awarded to more than one heir, or to all the residuary heirs in equal shares. Since Act 70 of 70 prohibits the transfer of agricultural property into more than one person's name, a redistribution agreement must be entered into if the property is not to be sold. In terms of such agreement, one heir takes the property and the remainder (if sufficient) is distributed amongst the other heirs. If the remaining assets are insufficient, the heir obtaining the property may bring in cash or movables (but not immoveables) in order to make the distribution more equal. Where all the beneficiaries are majors, there is normally not a problem. However where minor heirs are involved the Master will ensure that they are not prejudiced in any way. although the Master does not decide on the legal validity of the redistribution agreement, he does examine the agreement as part of the executor's liquidation and distribution account (see Regulation 5(1)(e) to the Estates Act which provides that the redistribution agreement forms part of the account). If the Master is not satisfied as to the validity of the agreement, he may refuse to accept it. If he accepts it he will endorse the agreement with the word "accepted". In an agreement the parties involved must each contribute something and receive something otherwise it could amount to a donation, a simulated sale or a waiver of an inheritance.

It must be borne in mind that only the beneficiaries of an estate and the surviving spouse married in community of property who can be a party to such an agreement. Third parties who are not heirs may not receive any benefit under a redistribution agreement, nor can children etc who have been omitted as heirs under the will be brought in as heirs under the agreement. Redistribution agreements are exempt from stamp duty if immovable property is redistributed in terms of the agreement. However if the only assets referred to in the agreement are movable assets, stamp duty of $5.00 is payable. Students are expected to study Wiechers and Vorster paragraph 5.5 in connection with redistribution agreements. EXAMPLE OF A REDISTRIBUTION The following is an example of a redistribution agreement in which an estate consisting of immovable property, movables and cash are distributed between three children of the deceased, one of which is a minor. REDISTRIBUTION AGREEMENT We the undersigned, Sarah Jones, Peter Smith and William Smith duly assisted by Mary Smith his natural guardian, the heirs of Victor Smith, hereby agree to distribute the assets of the estate of the deceased as follows: Sarah Jones will receive: Fixed property being Erf 123 Windhoek valued at Less cash to be paid in

$900 000 400 000

$500 000

Peter Smith will receive: B M W motor vehicle valued at Furniture valued at Cash

$200 000 170 000 130 000

$500 000

William Smith will receive: Cash

$500 000

$500 000 $1 500 000

Signed . .(Sarah Jones). (Peter Smith) (Mary Smith) Natural guardian of William Smith Witnesses .............. ..............

4.10.6

HOW TO GO ABOUT SELLING ESTATE ASSETS. Up to now quite a few references have been made to the sale of assets by an executor. The question arises as to how the executor must go about selling the assets whenever it is required of him.

There are basicly three methods which can be employed in selling estate assets, viz public auction, private treaty or public tender. It is generally accepted that the best price will be obtained by public auction, although this will not always be the case. Section 47 is important in respect of the sale of assets. Candidates must take note of the contents of this section. Another important section in the Estates Act relating to the sale of immovable property, is section 42(2). Section 42(2) requires the executor to lodge with the Registrar of Deeds a certificate by the Master to the effect that there are no objections to the transfer of the immovable property, where the transfer is taking place as a result of a sale of the property. See the form in section "G", which sets out the requirements before the Master will issue his section 42(2) certificate. Note that the sale of quoted shares (or property of a class ordinarily sold through a stock broker) must be sold by a stock broker. Candidates must study the handbooks in respect of the sale of assets out of a deceased estate, how such sales are conducted, the conditions to which sales can be subject, and when the Master will lay down conditions in respect of such sales. 4.10.7

CONCLUDING REMARKS. Once all the above steps have been taken, the executor should be in a position to draw up the liquidation and distribution account and to submit it to the Master. however, before going over to a detailed exposition of the liquidation and distribution account, it is necessary to discuss one particular concept in the administration of deceased estates, viz estate massing. Massing results in quite a lot of confusion in practice, and consequently justifies separate discussion.

4.11

ESTATE MASSING (SECTION 37 OF THE ACT). The concept "massing" as discussed here, refers to statutory massing in terms of section 37 of the Estates Act and does not include a discussion of common law massing. Massing amounts to two or more persons massing (or lumping together) their estates (or portion thereof), and then bequeathing it to an heir or heirs nominated in the joint will creating the massing. This has the effect of the executor including the assets of the survivor in the administration of the estate, which are then bequeathed to the heirs. In order for massing to be present all the following requirements must be met: -

there must be a joint will,

-

there must be a joint bequest of the joint assets,

-

a limited interest must be created in favour of the survivor, and

-

the survivor must adiate the conditions of the will.

The first two requirements merit no discussion, save to state that the clause in the joint will creating the massing must be drawn up in such a way that there is no doubt that massing is being created. Especially the clause bequeathing the joint estate to the heirs must be carefully worded. 4.11.1

LIMITED INTEREST. In order for a joint will bequeathing joint assets to be valid as regards massing, a limited interest must be created in favour of the survivor over assets of such survivor, as well as over the assets of the deceased. By limited interest is meant a usufruct, fiduciary interest or income beneficiary of a trust. If a limited interest is not created, it will not be a massing but election. Massing entails the survivor bringing assets into the estate of the deceased and bequeathing them, together with the deceased's assets, to the beneficiaries named in the will. This means that the survivor's assets are awarded to the beneficiaries while the survivor is still alive. In return for this, the survivor obtains a limited interest over both his or her own property as well as over the assets of the deceased. Massing is especially popular where spouses are married in community of property and want to benefit their children but at the same time want to provide for the maintenance of the survivor of them. By massing their respective half shares of the joint estate, the community estate is bequeathed to the children. Instead of becoming entitled to the half share of the community estate due to the dissolution of the marriage (by death), the survivor obtains a limited interest (normally a usufruct over the whole of the joint estate. In this way the children obtain ownership of the joint assets, while the welfare of the survivor is still catered for by the limited interest.

4.11.2

ADIATION AND REPUDIATION. The mere existence of a will in which massing is created, is not sufficient for the enforcement thereof. A further requirement which must be met before massing will take place, is that the survivor must adiate (accept) the terms of the will. Adiation by the survivor means that the survivor has accepted the terms of the will and is willing to abide by those terms and provisions. Once a spouse has elected to adiate or repudiate, he or she cannot at a later stage have a change of heart. It is for this reason that strict requirements have been set to which an adiation certificate must comply.

The only way in which an adiation or repudiation can be withdrawn is with the consent of the court. This consent will only be given if the survivor can satisfy the court that he/she was not aware of the consequences of his/her actions. The courts will not lightly give this consent. It is therefore imperative that you as legal practitioner clearly and carefully explain the consequences of such decision before your client signs the adiation or repudiation certificate. An adiation /repudiation certificate must contain the following information: It must be clearly declared that the surviving spouse is fully aware of his or her legal position and that he/she is acquainted with the results of the adiation/repudiation. A declaration that the legal implications of the adiation has been fully explained to him/her and that he understands the consequences of the adiation. A declaration that notwithstanding the right to adiate and the legal consequences of adiation, he/she still wishes to adiate in terms of the will. Reference must be made to the joining or massing mentioned in the will and the assets which are affected thereby. There must be a clear declaration that the massing (or the applicable testamentary stipulations which brings about the doctrine of election) was envisaged by the testator. A signed declaration by an attorney (or person with the necessary capacity) at the end of the certificate, in which it is stated that the legal consequences of adiation has been explained to the survivor, that the survivor intimated that he/she understands the consequences of his/her actions, and that notwithstanding such consequences the survivor has elected to adiate the terms of the will. The adiation certificate must be signed by the survivor in the presence of witnesses. The survivor must adiate within a reasonable time but need not do so until he is aware of what the consequences of the adiation will be. Repudiation by the survivor will mean that the massing envisaged by the testators fails. The survivor is under no obligation to accept the terms of the joint will, especially since it means losing ownership in his or her assets. Where spouses married in community of property have massed their estates, and the survivor repudiates the terms of the will, the survivor will be entitled to retain his/her half of the community estate but will not be able to benefit under the joint will in terms of which the massing was created. Therefore repudiation has the effect of the survivor retaining his/her own assets, but obtaining no benefit in respect of the deceased's assets in terms of the will. The deceased's assets will then be distributed amongst his heirs in terms of the will as far as possible. If the terms of the will fail entirely due to the repudiation, the estate will devolve intestate. As the executor is distributing less than envisaged by the deceased, the heirs and legatees will receive less than they would have received had the survivor adiated. Where the parties were married in community of property the legatees will only receive half of what they would have received had the survivor adiated. A repudiation certificate must comply with the same requirements as an adiation certificate as set out above. Obviously the terms of the certificate will then refer to the repudiation by the survivor. See paragraph 5.3 for examples of an adiation/repudiation certificates. See Wiegers and Vorster paragraphs 6.2 to 6.5 for a further discussion on massing and adiation and annexure 19 for a further example of an adiation certificate.

4.11.3

THE PROVISIONS OF SECTION 37. Section 37 states that the beneficiaries obtain the same rights in respect of the survivor's assets as they would have had if the property belonged to the first dying. In other words, although the survivor is still alive, the beneficiaries obtain ownership in respect of the survivor's property. Section 37 further states that the executor must frame his distribution account accordingly. See also regulation 5(1)(a)(vii) which states that the heading of the account must state that it is the massed estate of the deceased and the person adiating.

4.11.4

ELECTION. Where a testator disposes of the assets of another as well as his own, we could have a case of "Common Law massing" or election. An example is where a testator married in community of property, bequeaths his half share in an asset as well as the survivor's half share. In this instance the survivor must decide whether to adiate, and allow her assets to devolve in terms of the will, or repudiate and retain her assets. As in statutory massing, a repudiation will mean that she will forfeit any benefit that she would have received.

4.11.5

HOW ASSETS OF SURVIVOR ACCOUNTED FOR. If the deceased and the survivor are married in community of property, the assets and liabilities of the joint estate will be accounted for in the normal way. The survivor will however not be entitled to claim her half share by virtue of the marriage. Where the estates of persons married out of community of property or who are not married to each other, are massed, the property of the deceased and the survivor must be shown separately in the account. The survivor's liabilities will also have to be reflected, as well as the executor's remuneration on these assets. No Master's fee will be payable on the survivor's assets.

4.12

EXTENSION. In terms of section 35 of the Estates Act an executor must lodge an account of his administration with the Master within 6 months of his appointment, or within such extended time as allowed by the Master after application has been made in terms of regulation 6. Where an executor is unable to lodge his account within the period mentioned in the Act, he must, before the due date of the account apply to the Master for an extension. Regulation 6 states what information must be included in such application and this must be strictly complied with. Note the Master may not grant extension if the application is not lodged before the due date of the account or if the application does not comply with the provisions of Regulation 6.

4.13

DRAFTING OF THE LIQUIDATION AND DISTRIBUTION ACCOUNT.

In terms of section 35 of the Estates Act an executor must lodge an account of his administration with the Master within 6 months of his appointment, or within such extended time as allowed by the Master after application has been made in terms of regulation 6. The account of the executor's administration is called a liquidation and distribution account and must be lodged in the prescribed form. The "prescribed form" is regulation 5(1) of the Estates Act. These provisions should be strictly complied with. although the Master has a discretion to accept an account that does not fully comply with these regulations. However for examination purposes, an account (or portion thereof) will not be accepted if these regulation are not complied with. Regulation 5(1) will now be dealt with in detail. The approach taken here is first to discuss the contents of the different sub-sections of the regulations, to discuss the specific information required to be inserted by the regulation and to provide extensive examples. For example, under regulation 5(1)(c) the contents of the regulation will first be discussed. Thereafter the different assets and liabilities which are most often encountered in practice will be discussed, as well as the manner in which they must be reflected in the account. Finally, examples of each will be provided. The liquidation and distribution account consists of the following sub-sections: a heading .......................... 5(1)(a) a money column ..................... 5(1)(b) a liquidation account .............. 5(1)(c) a recapitulation statement ........ 5(1)(d) a distribution account ,........... 5(1)(e) an income and expenditure account .. 5(1)(f) a fiduciary asset account .......... 5(1)(g) a certificate by the executor ...... 5(1)(i) Note

As there is no Estate Duty payable in Namibia, the provisions of Regulation 5(1)(h) can be ignored.

Each of these sub-regulations will now be dealt with in more detail. Please remember that the liquidation account must reflect the value of the assets as at date of death. If the assets are realised the sale price must be reflected. 4.13.1

THE HEADING.(regulation 5(1)(a)). This sub-regulation provides for a heading to the account, and states which information must be provided in each case. Bear in mind that this part of the account is of utmost importance to the Master and other third parties who may have an interest in the affairs of the deceased. From the contents of this sub-regulation it is clear that the following information must be furnished in the heading of all accounts lodged by executors. The account must be described as a liquidation and distribution account. The ordinal number (first second etc) of the account must be stated (when an interim account, which is not a final account, is lodged, it will be a first account. When a final account is lodged at a later stage, it will then be termed a second and final account). Whether it is a final account or a supplementary account (where an account has already been advertised to lie for inspection in terms of section 35, and the account is then amended, it

must be termed an "amended first" or "amended first and final account". If the account is changed before it has lain for inspection in terms of section 35, then the heading does not change and it will retain its description as originally lodged. Where a final account has been lodged and additional assets are found after the initial account(s) have been finalised, the account will be termed a "supplementary account", not a "supplementary first and final account". State the full names and surname of the deceased. State the date of death. State the identity number of the deceased. State the marital status of the deceased as at date of death. If the deceased was married as at date of death, it must be stated whether the marriage was in or out of community of property. If the marriage was in community of property, the full names (including the maiden name) and identity number of the surviving spouse must be stated. If massing has taken place and the survivor has adiated, this fact must be stated as well as the name of the person who has adiated, and finally The Master's reference number must be specified. Documents that may be of some importance, and which relate to the information required by regulation 5(1)(a) are the following. the death notice, the will (especially in the case of massing), the antenuptial contract (in cases of marriages out of community of property), the marriage certificate (may be important if the marriage is in terms of the laws of another country), the next of kin affidavit, and the divorce order(s) with annexures. Some examples of the heading to the account. i/

UNMARRIED PERSON. First and final liquidation and distribution account in the estate of the late John Smith who died on .... identity no .... and who was unmarried as at date of death. Master's reference number ....

ii/

MARRIED IN COMMUNITY OF PROPERTY. First and final liquidation and distribution account in the estate of the late John Smith who died on .... identity no .... and who was married in community of property to Mary Smith (born Jones) identity no ..... Master's reference number ....

iii/

MARRIED OUT OF COMMUNITY OF PROPERTY. First and final liquidation and distribution account in the estate of the late John Smith who died on .... identity no .... and who was married out of community of property. Master's reference number ....

4.13.2

THE MONEY COLUMN. (regulation 5(1)(b)). This sub-regulation simply makes provision for the inclusion in the account of a money column. Most executors make use of a double money column, using the first for sub-totals and the second for grand totals.

4.13.3

THE LIQUIDATION ACCOUNT. (regulation 5(1)(c)). The liquidation account makes up the main part of the account, wherein all the assets and liabilities of the deceased are set out in detail. In the main this sub-regulation distinguishes between immovable property, movable property, claims in favour of the estate, administration expenses, and claims against the estate. Please note that assets over which the deceased enjoyed a fiduciary or usufructuary right are excluded from this portion of the account. Fiduciary assets will be reflected in the fiduciary asset account (regulation5(1)(g)) but assets subject to a usufruct will not be reflected at all. i/

ASSETS a/

IMMOVABLE PROPERTY (regulation 5(1)(c)(i)). Any immovable property belonging to the deceased must be reflected in the liquidation account. The description of the property in the account must be according to the title deed of the property in question, irrespective of whether the property has been sold or is awarded in specie. If the description of the property has changed, both the previous as well as the current description of the property must be furnished. The value at which the property is reflected, will depend on the method of liquidation which has been used. If the property was sold by the executor, the proceeds of the property must be reflected. If the property has been awarded in specie, the property must be reflected at value. The value so reflected could be a sworn appraisement, the municipal valuation or an estimated value. Where minors, absentees or unknown heirs are involved, a sworn valuation will always be used. However where the surviving spouse is the sole heir the master will probably accept the municipal valuation or an estimated value, since no prejudice can be suffered. Where there is any doubt as to which value should be used, it is always safer to obtain a sworn valuation. An example of the description of immovable property in the account is the following:

Erf 114 being the remainder of erf713 Windhoek, held under deed of transfer 123/75, dated 24 March 1975. At sworn valuation.

b/

150 000.00

MOVABLE PROPERTY. (regulation 5(1)(c)(ii)). Movable property includes all things that are not immovable. This means all the remaining property in the estate, after the immoveables have been dealt with, will be dealt with under this sub-regulation. Normally one would distinguish between movables as such, movable property reduced to cash( including cash found in the estate) and claims in favour of the estate. Once again the method of liquidation which has been employed will determine at which value the property will be reflected in the liquidation account. Some of the assets most frequently found in practice will now be discussed. MOTOR VEHICLES. Motor vehicles found in an estate will only cause problems where the heirs are minors, or where they are majors but cannot come to an agreement amongst themselves as to how the assets should be divided. In these circumstances it may be necessary to sell the vehicle(s) or to enter into a redistribution agreement. The valuation to be used is a sworn valuation, or where no prejudice will take place, a motor dealer's valuation or an estimated value. Where the vehicle is sold, the proceeds must be reflected. This type of asset will be reflected in the account as follows:

" 1984 Ford Laser motor vehicle, registration number N1234W

8 000.00"

or "Proceeds of 1984 Ford Laser motor vehicle, registration number N1234W

8 000.00"

FURNITURE AND PERSONAL EFFECTS. These assets can be given a brief overall description in the account and each item need not be specified separately. a sworn valuation of the property is the most acceptable proof of the value, but the Master will accept an appraisement by two independent persons or even an estimated value. Where minors are involved it is doubtful whether the Master will accept an estimated value.

Where furniture and effects have been bequeathed separately to specific beneficiaries, it will be necessary to specify them separately in the account. Foe example if Aunt Mavis bequeathed the dining room suit to Susan and the lounge suit to Anne, these items will be specified separately in the liquidation account. This will facilitate the award to the heirs in the distribution account. Furniture and effects will generally be described in the account as follows:

"Furniture and effects at valuation

5 000.00"

SHARES. When dealing with shares, one must distinguish between shares quoted on the stock exchange and shares in private companies. In the case of shares quoted on the stock exchange, a stockbroker must value the shares if awarded in specie, and sell them if the shares are to be reduced to cash. When the share broker values the shares, he will determine the middle market value as at date of death. Shares in private companies must be valued by the auditor of the company in question. Normally shares in private companies will not be sold, mainly due to the fact that the articles of association limit the transferability of shares in private companies. where the shares are sold, the proceeds will be reflected in the account. The vouchers which must be supplied in support of the valuation of shares in private companies is the following: the balance sheets of the company for the three years immediately prior to death, the profit and loss accounts of the company for the same three years and a statement by the auditor as to how he calculated the value of the shares. Shares will be reflected as follows in the liquidation account: "450 ordinary shares in De Beers Consolidated mines ltd @ 1653 cents a share as per valuation by broker Peter and Paul.

7 438.00

or 149 shares of $2.00 each in Georges Investments (Pty) ltd valued by the auditor @ $2342.00 per share.

348 958.00"

INSURANCE POLICIES It must be borne in mind that only insurance policies which are paid to the estate as beneficiary must be reflected in the liquidation account. Policies which are paid outside the estate directly to nominated beneficiaries, are not reflected in the account. If the policy has been ceded as security or if the deceased had a loan against the policy or if there is outstanding premiums, the full proceeds of the policy will be

reflected as an asset with the debt, loan or outstanding premiums reflected as a contra liability, even if only the nett proceeds are received by the executor. Where the deceased was the owner of a policy on the life of another, the surrender value of the policy will be reflected as an asset. This surrender value will be awarded to the deceased's heirs who will not necessary be the same as the person on whose life the policy is. The voucher in support of this asset will be a certificate from the insurance company. The description in the account will be the following: "Proceeds of Old Mutual Life policy on the life of the deceased, policy number 123456.

30 000.00

or The surrender value of Old Mutual Life policy number 123456 on the life of .....

10 000.00"

CASH ASSETS The deceased may have had various cash assets at the time of his death. These are the easiest assets to deal with since a certificate of balance can be obtained without difficulty from the bank, and serves as the voucher which must be lodged in support thereof. Bear in mind that only the balance as at date of death must be included in the liquidation account. Interest earned after date of death will be reflected in the income and expenditure account. The certificate of balance will normally reflect the capital balance on the account, the interest earned before and up to date of death, and any interest earned after date of death. The capital amount and the interest earned up to date of death must be included in the liquidation account. Examples of how cash assets are reflected in the account are as follows:

"Credit balance on current account at Bank Windhoek account number 987654.

2 719.86

or Credit balance on savings account with Swabou Building society account number 123456. Capital

6 500.00

interest to date of death

250.00 6 750.00

or Fixed deposit with First National Bank certificate number 567890 Capital interest to date of death

5 000.00 950.00 5 950.00"

Further examples of movable assets and how they must be reflected in the liquidation account, can be found in the relevant text books and chapter 7 of Wiegers and Vorster. c/

VOUCHER NUMBERS. (regulation 5(1)(c)(iii)). In terms of this sub-regulation, each voucher must be numbered consecutively. The corresponding number must be stated in the account, the applicable number being inserted next to each asset. Please note that the vouchers in support of the account need only be lodged if the Master calls for same. Vouchers will definitely be called for if minors, unknown heirs or absentees are involved. In all other cases vouchers must remain on the executor's file as the Master may request them at any time. Where one voucher is in support of two or more assets, eg. the voucher stating the balance on the savings account as well as the amount of interest accrued after death, rather give this one number and not different numbers.

d/

DIVESTMENT NOTES. (regulation 5(1)(c)(v)). In terms of this sub-regulation the executor must state how he intends dealing with all assets which have not been realised but are being awarded in specie. This can be done beneath each asset separately, or under a group of assets. Where many different assets are being awarded to several heirs, it is preferable to include the divestment note under each asset. where there is only one heir, or many heirs inheriting in equal shares, the divestment note can be included under a group of assets. The Term "taken over" has over the years been come to mean a taking over in terms of section 38, and should not be used where assets are awarded to heirs.

The following will illustrate: "1984 Ford Laser motor vehicle, registration number N1234W at valuation Awarded to Peter Smith in terms of clause 5 of the will"

8 000.00

Take note that separate divestment notes are only necessary where assets are awarded in specie. When assets are realised the words "proceeds" or "sold" are in themselves "divestment notes" Once all of the above has been completed, the money column must be totalled to reflect the total amount of the assets in the estate. ii/

LIABILITIES. Liabilities can be grouped under two basic headings, ie. administration expenses and claims against the estate. a/

ADMINISTRATION EXPENSES. (regulation 5(1)(c)(vi)). Administration expenses include all the expenses incurred by the executor in administering the estate. Each of these will be dealt with individually. Master's fees. Master's fees is calculated on the gross value of the estate as a whole, and is payable in terms of section 103(1)(d) of the Estates Act, read with regulation 16 (Schedule 2). The amount of Master's fees payable is calculated as follows: On estates of which the gross value is: less than $100 000.00 over $100 000 for every completed $1 000 With a maximum of

nil $3.00 $3 000.00

Master's fees is reflected as an administration expense and is paid to the Receiver of Revenue. When the Master issues a query sheet in respect of an account lodged by the executor, he will enclose his assessment for Master's fees. This assessment must be sent, together with an estate cheque for the required amount, to the Receiver. The Receiver will issue an official receipt which, when received, must be sent to the Master as proof of payment (see Schedule 2, item 1(2)). Bear in mind that where spouses are married in community of property, Master's fees is assessed on the gross assets of the joint estate. Where estates of parties not married in community of property are massed, fees are only assessed on the deceased's assets. Executor's remuneration. From a legal practitioner's point of view this is probably the most important part of the account! The executor's remuneration is prescribed by tariff in terms of section 51(1)(b) read with regulation 8 of the Estates Act. In the first place, if the executor's remuneration has been fixed in the deceased's will, the executor (if he accepts the appointment) will be bound by the remuneration so fixed (section 51(1)(a)). If the nominated executor is not satisfied with the amount as determined in the will, one of the options would be to decline the appointment. Another alternative would be to accept the appointment, and then ask the Master to allow and approve a special fee. However, there is no guarantee that the Master will approve such a fee and this option therefore has its own inherent

risks. Where a legal practitioner and a client have agreed on the fee payable, and included this as a provision in the will, the practitioner should of course accept the appointment and fee agreed upon. This is another good reason why wills should be revised on a continual basis. The best way to avoid inflation corroding the agreed remuneration, is to agree to a percentage ( for example 2% instead of 3.5%) instead of a fixed sum of money. Where no provision in the will exists in respect of the executor's remuneration, the executor is entitled to a remuneration assessed according to a prescribed tariff, and is taxed by the Master (section 51(1)(b). The tariff referred to here is the tariff set out in regulation 8. Regulation 8 provides for the following remuneration: 3.5% on the gross value of the assets (reflected in the liquidation account and the fiduciary asset account. See however section 51(3)(c): and 6% on any income collected after date of death (and which will be reflected in the income and expenditure account (see below)). A minimum fee of $350.00 is payable. Take note that section 51(3) allows the Master a wide discretion in reducing or increasing the remuneration payable to executors. In the light of the fact that the Master has a discretion in terms of section 52(3), no fixed guidelines can be laid down in order to pre-empt what his decision in any particular estate might be. Normally the Master will allow the fee in terms of the tariff. However in large estates the Master will ask the executor (or his agent) why he is of the opinion that the fee as claimed should be allowed. What the Master requires when he asks this, is motivation by the executor as to why he feels that the fee is justified. Normally the Master will weigh the amount of work done by the executor in relation to the type of assets in the estate. If the executor can show that he has done a reasonable amount of work in administering the estate, the Master will allow the fee. However if the only estate asset is a farm of $5 000 000.00, he is hardly likely to approve a fee of $175 000.00! In addition, do not be surprised to find a variation in approach by the Deputy Master (or Master whoever it is taxing the fee) in the same office. On one day a fee may be disallowed which could be allowed in the same circumstances a few days later. Sales tax of 15% is payable on executor's remuneration in all cases except where the executor is a private person who does not employ an agent. Where an agent is employed, he normally takes the remuneration and must pay sales tax thereon.

NOTE THAT IN TERMS OF SECTION 51(4) THE EXECUTOR'S REMUNERATION MAY ONLY BE TAKEN ONCE THE ESTATE HAS BEEN DISTRIBUTED IN TERMS OF SECTION 35(12). IN OTHER WORDS THE LAST PAYMENT FROM THE BANKING ACCOUNT SHOULD BE THE EXECUTOR'S REMUNERATION. REMUNERATION MAY ONLY BE PAID OUT BEFORE THIS TIME WITH THE APPROVAL OF THE MASTER. ESTATE ADVERTISEMENTS.

There are two statutory notices which must be advertised by the executor in a local newspaper and the Government Gazette. The costs involved in publishing these notices is defrayed out of the estate as an administration expense. The section 29 advertisement (creditors) must be published in the Government Gazette and a local newspaper. By the time the account is drawn the exact cost of these notices will be known, and this amount is therefore inserted. The invoice and extract from the local newspaper which is sent to the executor by the newspaper concerned, must be lodged with the Master together with the liquidation and distribution account. It is not necessary to send an extract of the Gazette to the Master as he receives the Gazette himself. It may however be necessary to advise him of the number and date of the Gazette in which the notice(s) appeared. The second notice which must be published by the executor is in respect of the liquidation and distribution account which must lie for inspection for a period of 21 days. This notice is also published in the Government Gazette and a local newspaper, and advises all interested parties that the liquidation and distribution account is lying open for inspection. This affords interested parties the opportunity of inspecting the account which has been prepared by the executor, and lodging an objection with the master if they are dissatisfied with its contents (more about this in paragraph 4.15 below) Since the account can only lie for inspection after it has been lodged, the executor will have to make provision for an amount for placing these advertisements. Normally the amount will be the same as in the case of the section 29 advertisement. Due to the fact that the amounts charged by newspapers and Government Gazette change on a regular basis, no attempt has been made to set out the applicable tariffs. Kindly note that these notices must be in the official language. "ADVERTISEMENT COSTS. Section 29 advertisement (creditors) The Advertiser Government Gazette

180.00 20.00 200.00

Section 35 advertisement (inspection) The Advertiser Government Gazette

180.00 20.00 200.00"

An example of how these amounts will be set out in the account is the following: BANK CHARGES. The bank charges referred to here are those levied on the estate banking account. As stated above, the executor has to open an estate banking account in terms of section 28 of the Estates Act. All bank charges charged by the bank on this account may be deducted as an administration expense. This will include the monthly bank charges as well as the government levy on debit entries. Since the account is not supposed to go into overdraft, this will not include interest on debit balances. Some banks will not levy bank charges but a one-off bank charge when the account is opened. Since the bank account will not have been closed by the time the liquidation and distribution account is lodged, provision must be made for bank charges which will

accrue after the date the account is lodged. As long as the amount is reasonable, the Master will not query the amount of the provision. An example of how bank charges will be reflected in the account is the following: " BANK CHARGES. Debited (current account provision

65.75 50.00 115.75"

TRANSFER COSTS. The executor is obliged to transfer immovable property which has been awarded to heirs, into their names (section 39(1) of the Estates Act). The costs incurred in doing so form part of the administration costs of the estate. An executor who is also a conveyancer is not allowed to charge the transfer costs as an administration expense against the estate. This is due to the fact that a legal practitioner, in his capacity as executor, was supposed to use his expertise to the benefit of the estate. This is not the case where a conveyancer acted as agent on behalf of the appointed executor. If the surviving spouse takes over the fixed property in terms of section 38, she and not the estate must bear the costs of transferring the property into her name. Since the property can only be transferred after the liquidation and distribution account has been lodged, and lain for inspection free from objection, the executor must make provision for the inclusion of these costs. Since the fees are prescribed by tariff, making provision for the correct amount will be no problem. The voucher for this item will be a pro-forma account by the conveyancer, certified that the fees are in accordance with the prescribed tariff. Transfer duty is a form of tax which is paid to the Receiver of Revenue when immovable property is transferee. Normally transfer duty is not payable on transfers out of a deceased estate. The only time there may be transfer duty payable, is where the deceased and the survivor, married out of community of property, have massed their estates. Duty is payable on the transfer of the survivor's immovable property into the names of the beneficiaries. The following is an example of how these costs will be reflected: TRANSFER FEES Anderson and partners, provision for transfer costs

12 560.00"

FUNERAL EXPENSES. Some executors prefer to reflect these expenses as a claim against the estate, and not as an administration expense. It however makes no difference whether reflected as a claim or administration expense. These expenses are self-explanatory but it is necessary to point out a few important aspects. The Master will not allow the costs for the erection of a tombstone against the estate unless provision has been made for this in the will.

Where the spouses are married in community of property the funeral expenses are only paid out of the deceased's half of the community estate. See paragraph 4.13.3(ii), under marriage claims, for an example of how this is reflected in the distribution account. The following is an example of how these costs are reflected: "FUNERAL EXPENSES AVBOB -funeral expenses

8 579.00"

VALUATION COSTS. As pointed out under the discussion of the estate assets above, it is necessary for the executor to have certain assets valued for estate purposes. Normally a sworn appraisal will be required and must be made by an appraiser appointed under section 6 of the Estates Act. The appraiser is entitled to remuneration as per the tariff set out in regulation 9 to the Act. In any case where there is a dispute in respect of the amount charged by the appraiser, the Master must tax the appraiser's fee in terms of section 6(3). Where minors or other persons under disability are involved, the Master will insist that the fee be taxed. An example of how these expenses are reflected in the account: "VALUATION COSTS. B Joseph costs of appraisement of fixed property.

1 350.00"

COSTS OF REALISATION Where property in the estate has been sold by a specific person, for example a stock broker, the amount he charges for selling the property will be reflected as an administration expense. For example: COSTS OF REALISATION. Peter and Paul brokers, commission on sale of De beers shares. ii/

882.60

CLAIMS AGAINST THE ESTATE.(regulation 5(1)(c)(vii)). General

Reference has already been made to the lodgement of claims in paragraph 4.10.1 above. It is all very well calling upon creditors to lodge their claims with the executor, but how will the executor know which claims to allow and which to dismiss, if any? In terms of section 29(2) all claims which are capable of proof in the case of insolvency, may be lodged with the executor. If one looks at which claims are capable of proof upon insolvency, it is clear that only liquid claims may be lodged against an estate (see section 44(1) of the Insolvency Act of 1936). Normally there will be no problem in respect of the claims which are lodged against a deceased estate. However, what would the case be where a "creditor" lodges a claim in respect of a "loan made to the deceased before his death", but for which there is no written agreement or proof? Can the executor merely allow the claim, even if the heirs and beneficiaries state that no such loan was ever made? What type of supporting voucher would you lodge with the Master in such a case? The answer in a case such as this, would be to follow the procedure set out in section 32 of the Estates Act. First the executor would request thew creditor to lodge an affidavit setting out details of the alleged claim (section 32(1)(a)). If this does not resolve the issue, the creditor may be summoned to appear before the Master or a magistrate in order that he may be questioned in regard to the alleged claim (section 32(1)(b)). Take note of the provisions of section 32(2) in respect of who may question the creditor. Also take note of the provisions of section 31 in respect of late claims. DIVERSE CLAIMS. Here one has to deal with the normal claims against an estate by creditors, for example the balance outstanding on a mortgage bond, the balance owing on an overdraft facility, outstanding amounts On clothing accounts etc. The voucher which must be obtained in support of these types of claims, will be a certificate of balance in respect of amounts owing to banks, etc and a statement of account in the case of open accounts such as the chemist.

Examples would be as follows: CLAIMS AGAINST THE ESTATE. 1

Edgars balance outstanding as at date of death

2

Bank Windhoek overdraft on current account Capital interest to date of death

712.56

856.38 37.65 894.03

See also Wiechers & Vorster paragraph 8.3 for further examples, and a discussion of sections 31 and 32.

CLAIMS FOR FUTURE MAINTENANCE. a/

MAINTENANCE CLAIMS IN RESPECT OF MINORS.

Both parents have a duty to maintain their children. This duty does not cease upon death. It would appear that a claim for future maintenance against the estate of a deceased parent can only be justified if the surviving spouse is unable to support the child(ren) by his or her own means. Obviously a claim for future maintenance will only be lodged where the minor child has not been provided for in the will or by some other suitable means. For example, where the deceased has bequeathed his estate to a trust in favour of his minor child and nominated the surviving spouse as income beneficiary, it would be pointless to lodge a claim for future maintenance. However, it may be justified in certain circumstances for the guardian of the child to lodge a claim for future maintenance, where the child has not been benefitted in any way in the estate. For example A and B are married and have one child C a minor. A and B get divorced and A marries D. A and D have two children E and F. When A dies he only benefits D, E and F. B lodges a claim for future maintenance against A on behalf of C. It must be noted that a claim for future maintenance cannot compete with the claims of the deceased's creditors. Only once the creditors have been paid in full will a claim for future maintenance be met. ie. The claim for future maintenance is paid after the debts of the estate have been settled but before any legacies or heirs are paid. It should be noted that a minor"s claim for maintenance must be reduced by any benefit that he receives from the estate of the deceased. Zietsman in re estate Bastard The amount of the claim can be calculated in various ways. For example: aa/ Simple calculation. The total claim can be determined by multiplying the monthly maintenance by the number of months until the minor becomes self supporting, usually 18 years. The interest on this amount will normally take care of increased needs due to inflation, etc. bb/

Using tables. Tables are available that can be used to determine the amount that must be invested to provide for an annuity of $X per month for Y years and these can be used to calculate the amount of the claim.

cc/

Actuaries report. An actuary can be consulted to calculate the amount of the claim. In his calculations he would take into consideration such factors as inflation, increased needs as the minor becomes older, increase in school fees as minor passes to senior school, etc.

As provision is being made for possible expenses that may or may not be necessary in the future, it is customary for the Master to call for an agreement between the guardian and the executor as to what must happen to any balance that may be over after the minor becomes self supporting. Whether this balance will accrue to the "minor" or be refunded to the estate will determine how much can be paid for the minor's maintenance from the Guardians Fund. It must also be noted that the provisions of section 43 of the Estates Act do not apply to a minor’s claim for future maintenance. The total of the claim must be deposited into the Guardians Fund.

The guardian of a minor child may also lodge a claim for arrear maintenance where the deceased fell into arrears with the payment of maintenance during his lifetime. A claim for arrear maintenance is a normal claim, and will therefore compete with the claims of the other creditors. See Meyerowitz paragraph 21.30 for a full discussion of this important aspect. b/

CLAIM FOR MAINTENANCE BY DIVORCED SPOUSE.

It could happen that the deceased's divorced spouse could also have a claim for future maintenance. This claim can be dealt with as follows: aa/

Payment of a lump-sum in full settlement of calculated in a similar way as for a claim by claim would be based on the provisions of the respect of inflation and or other increases considered.

the claim. This would be a minor, however as such divorce order, increases in would normally not be

bb/

Creating an inter-vivos trust and awarding a sum of money to the trustees to provide for the continual payment of maintenance to the divorced spouse.

cc/

The heirs with the consent of the divorced spouse can take over responsibility for the payment of the maintenance.

Whatever method is used, any other benefit that the divorced spouse receives from the estate will be set off against her claim. NOTE THAT THE SURVIVING SPOUSE HAS, UNDER NAMIBIAN LAW, NO CLAIM FOR MAINTENANCE AGAINST THE ESTATE OF THE DECEASED, NOR IS THERE ANY PROVISION FOR A "LEGITIMATE PORTION" THAT SHE MUST RECEIVE FROM THE ESTATE. MARRIAGE CLAIMS Where the spouses were married in community of property the survivor obviously has a claim for half of the estate by virtue of the marriage. Strictly speaking this claim for half of the community estate, should be reflected in the account as a claim against the estate in terms of regulation 5(1)(c)(vii). However, the practice has evolved to reflect this claim for half of the estate in the distribution account. Most people find this to be the easiest method since the liabilities are also the liabilities of the joint estate. The claim for half is then based on what remains after the liabilities have been met. It has already been stated that funeral expenses are only payable from the estate of the deceased. This will also be taken into consideration in the distribution account. This will normally be reflected in the distribution account as follows, assuming that the surviving spouse and one child are the sole heirs: Balance for distribution To Anne Brown surviving spouse One half by virtue of the marriage in community of property 50 000.00

100 00.00

Plus 1/2 funeral expenses 1/2 in terms of will

2 000.00 24 000.00

To Peter Brown Major 1/2 in terms of will

76 000.00 24 000.00 100 000.00

CLAIMS UNDER THE ACCRUAL SYSTEM Although not compulsory in Namibia, many spouses include the accrual system in their Antenuptial contract. In terms of the accrual system, the party, whose estate increased less during the marriage than that of the other party, will have a claim against the party whose estate has increased more during the marriage. This agreement will give rise to either a claim in favour of or against the estate of the deceased that will be shown as a normal asset or liability in the liquidation account. The parties should indicate in the agreement the net value of each party’s estate as at date of marriage. If no value is given, it is presumed that the value is nil for each party. The net value of the estates of each party as at the date of marriage, adjusted with the consumer price index, is compared with the net value of each party’s estate as at date of death. The increase of the estates after marriage is then shared equally between the parties. CALCULATION OF THE CLAIM The following example shows how this claim is calculated. Value of A’s estate as at marriage adjusted by the CPI $100 000 Value as at date of death $ 200 000 Increase $100 000 Value of B’s estate as at marriage adjusted by the CPI $50 000 Value as at date of death $ 90 000 Increase $40 000 Total increase $140 000 B having the smaller increase will have a claim for ½ the total increase less B’s increase ie. ($140 000 +2) - $40 000 = $30 000. This claim will be shown as an asset in B’s estate or as a liability if A is the first dying. iii/

TOTALS AND THE BALANCE FOR DISTRIBUTION. After regulations 5(1)(c)(i) to 5(1)(c)9viii) have been complied with, the regulation states that the amounts reflected in the money column must be totalled, and any balance for distribution to be carried forward to the distribution account to be reflected in such column. An example to illustrate: ASSETS XXXXXX XXXXXX XXXXXX TOTAL ASSETS

XXXXX XXXXX XXXXX 100 000

LIABILITIES XXXXXXX

XXXXX

XXXXXXX XXXXXXX TOTAL LIABILITIES BALANCE FOR DISTRIBUTION

4.13.4

XXXXX XXXXX 10 000 100 000

90 000

THE RECAPITULATION STATEMENT. (regulation 5(1)(d)) In terms of regulation 5(1)(d) the account must contain a recapitulation statement. From the contents of this sub-regulation it should be clear that it's aim is to reflect the cash position in the estate. This is important since, as was seen under the discussion of the possible methods of liquidation (paragraph 4.10.5 above), it may happen that a cash shortfall exists in the estate. If there is a cash shortfall the Master will most definitely inquire as to how such a cash shortfall is to be met. The heirs may want to retain certain assets, and as a result a cash shortfall results. If the heirs are prepared to meet this shortfall, there will be no problem. The executor must however ensure that he is in receipt of this contribution from the heirs before the account has finished lying for inspection as he must at that stage be in a position to pay all creditors and heirs. NOTE IN TERMS OF THE ACT NO EXTENSION CAN BE GRANTED FOR THE LODGEMENT OF RECEIPTS. SEE ALSO THE PENALTY IN SECTION 46 OF THE ACT FOR FAILURE TO FURNISH RECEIPTS. Where there is a cash surplus, such surplus will be reflected as part of the residual awards in the distribution account (see paragraph 4.13.5 below) In terms of this sub-regulation the total amount of the cash assets and assets reduced to cash must be reflected. From this must be deducted all the debts and charges reflected in the liquidation account (administration expenses and claims against the estate), as well as all cash legacies. If there is a shortfall after having done all this, there is a cash deficiency and the executor must state how the deficiency will be met. If there is a surplus, the amount of such surplus must be reflected (and carried over to the distribution account).For example:

000

CASH RECAPITULATION STATEMENT Cash and assets realised 50 000 (items 3,4,8 and 9 in the liquidation account) Liabilities as per liquidation account 10 000 Cash legacies 60 000 Cash shortfall 20 000 70 000 Cash shortfall to be paid in by residuary heirs OR

70

CASH RECAPITULATION STATEMENT Cash and assets realised 80 000

000

(items 3,4,8 and 9 in the liquidation account) Liabilities as per liquidation account Cash legacies Cash surplus

10 000

60 000 10

80 000 80 000

4.13.5

THE DISTRIBUTION ACCOUNT. (5(1)(e)). Regulation 5(1)(e) states how the distribution account must be drawn up. Firstly the distribution account must reflect the balance available for distribution, (which has been carried over from the liquidation account as per paragraph 4.13.3 above), as well as any rights conferred in terms of section 37 (which refers to massing - see paragraph 4.11.3 above). The remainder of the provisions in this sub-section are self-explanatory, and will be illustrated with the aid of examples. Only the different causae in terms of which the awards are made, will be explained in any detail. A couple of simple examples of how the awards must be made in the distribution account:

DISTRIBUTION ACCOUNT Balance for distribution Anne Brown, major surviving spouse of the deceased, sole heir in terms of clause 3 of the will. Award consists of: Fixed property Movables Less cash shortfall

100 000.00

100 000.00

80 000.00 32 000.00 112 000.00 12 000.00 100 000.00 100 000.00

000.00 or DISTRIBUTION ACCOUNT Balance for distribution

100 000.00

100

Shane Brown, major son of he deceased. Cash legacy in terms of clause 2 of

the will

10 000.00

Megan Smith (born Brown) Major daughter, married in community of property to Jack Smith. Cash legacy in terms of clause 3 of the will.

10 000.00

Jean Stone (born Brown)Major daughter, married out of community of property to Peter Stone. Cash legacy in terms of clause 6 of the will

10 000.00

Peter Brown, minor son of the deceased, Born 27/06/1986, identity no .……..... Cash legacy in terms of clause 5 of the will

10 000.00

Anne Brown born Jones, major surviving spouse of the deceased, residue in terms of clause 3 of the will. Award consists of: Movables cash

60 000.00

32 000.00 28 000.00 60 000.00

_________

000.00

_________ 100 000.00

100

Note the various details that must be stated where the heir/legatee is a married woman or is a minor. It will be noted that in the above awards the causa was the terms and provisions of the will. However, where the deceased died wholly or partially intestate, the causa of the specific award may then be in terms of the laws of Intestate succession. (Not necessaty the Intestate Succession Ordinance). i/

Intestate succession It is presumed that the candidates have a sound knowledge of the provisions of the laws of intestate succession as applicable to Namibia. (See paragraph 3 above).

An example of where the award is made in terms of the laws of intestate succession:

DISTRIBUTION ACCOUNT Balance for distribution Anne Brown, major surviving spouse of the deceased, one half by virtue of the marriage in community of property

100 000.00

50 000.00

Half in terms of section 1(1)(c) of the Intestate Succession Ordinance

50 000.00

Award consists of: Fixed property 80 000.00 Movables 32 000.00 112 000.00 Less cash shortfall 12 000.00 100 000.00 100 000.00 100 000.00

ii/

COLLATION. First a brief discussion of what is meant by collation. Collatio bonorum was a Roman law practice that was taken over by the Roman Dutch Law. See section 29 of the Political Ordinance. In terms of this doctrine, descendants who have received a benefit from the deceased during his lifetime, must collate that benefit (or its value) before he can inherit. The basis of this doctrine is that it is presumed that the deceased wished to benefit his descendants equally. This is the position unless the parents expressly provided otherwise in their will. Collation only takes place in the direct line among descendants whether the deceased died testate or intestate. The obligation to collate rests on the deceased's descendants if they are heirs of the deceased, on the understanding that testate heirs are obliged to collate only if they would have inherited ab intestato. Descendants who inherit as legatees, usufructuaries, fiduciaries or fideicommissaries are not obliged to collate. A surviving spouse who was married in community of property, can claim that the deceased's descendants collate what they have received from the deceased before the division of the community estate. Where a testator nominated both his children and grand-children as heirs, no obligation rests on the grand-children to collate as they would not have inherited ab intestato. However if the testator appoints his children, and in the event of their predecease their children per stirpes, those grand-children who inherit per stirpes are obliged to collate not only what they have received but also that which their predeceased parent received regardless of whether they inherited anything from their predeceased parent or not. Although the assets normally collated are donations made by the deceased, debts due to the deceased that can not be claimed because the debt has become prescribed or because it has been extinguished due to the insolvency of the heir, must also be collated. Amounts that must be collated are only reflected in the distribution account. Debts that are still claimable are assets of the deceased estate and do not fall to be dealt with under collation. When a descendent is called upon to collate and he refuses to do so, he forfeits any right to inherit from the deceased. Only co-descendants and the surviving spouse married in community of property to the deceased can benefit from the assets collated. It does not operate in favour of ascendants, collateralls or strangers. Nor does it operate in favour of creditors. What is collated is not an asset of the estate and is not reflected in the liquidation account of the executor. It is only reflected in the distribution account. For example if A leaves an estate of $6000 to his children B and C. B must collate $2000 and C$1000. The balance after collation is $9000 so that B and C ought each to inherit $45000 but as the amounts of $2000 and $1000 must be deducted respectively, so that B will inherit $2500 and C will inherit $3500.

It could happen that some co-heirs are obliged to collate while others not. Those who are not obliged to collate may however not benefit in the assets collated by the others. For example if A leaves his estate of $60 000 to his two children A and B and his illegitimate daughter D. During his lifetime A donated $12 000, $8 000 and $5 000 to B, C and D respectfully. Here B and C are obliged to collate whereas D is not. D will receive $20 000 and keep her $5 000. After collation, B and C should each receive $30 000, but from B's share $12 000 will be deducted and from C's share, $8 000 so that B and C will receive $18 000 and $22 000 respectfully. The distribution account of the above example will be as follows:

DISTRIBUTION ACCOUNT Balance for distribution Amounts to be collated: Brian 12 000 Carol 8 000 Add balance for distribution 60 000

60 000

20 000 80 000

To Brian Brown, major son of the deceased. 1/3 in terms in terms of clause 2 of the will, and 1/2 of amount collated. Less amount to be collated Award consists of cash. To Carol Brown Major daughter, !/3 in terms of clause 2 of the will and 1/2 of the amount collated 30 000 Less amount to be collated Award consists of cash To Dorris Stone Major illegitimate daughter, of the deceased 1/3 in terms of clause 2 of the will Award consists of cash.

iii

30 000 12 000 18 000

8 000 22 000

20 000 60 000 60 000

BEQUEST PRICES It can happen that a bequcst in terms of the will is subject to the payment into the estate or to a co-heir of a sum of money. Just as the amount colated does not form part of the estate, so the bequest prices are only shown in the distribution account as a deduction from the award of the heir/legatee who must pay the bequest price and added to the heir/legatee who must receive same. Where the bequest price is payable to the estate it is only deducted from the heir/legatee who must pay same, The fact that the award is reduced automaticly increase the awards to the other heirs.

iv/

REDISTRIBUTION AGREEMENTS. Where the awards are made in accordance with a redistribution agreement, reference must be made in the distribution account to the specific clause(s) of the agreement in terms of which the awards are being made. Take note that in terms of the last part of regulation 5(1)(e) the redistribution agreement forms part of the account and must be attached to it.

An example of an award to heirs in terms of a redistribution agreement is the following: DISTRIBUTION ACCOUNT Balance for distribution

100 000.00

To Peter Smith 1/2 in terms of clause 3 of the will and clause 5 of the redistribution agreement Award consists of: Fixed property Less cash contribution

80 000 30 000 50 000

To Paul Smith 1/2 in terms of clause 3 of the will and clause 5 of the redistribution agreement Cash

iv/

50 000.00

50 000.00 100 000.00

100 000.00

TAKING OVER IN TERMS OF SECTION 38. Please note that a section 38 taking over does not affect the awards in the distribution account. The awards to the heirs will remain in terms of the will or in terms of the laws of intestate succession. It is only in respect of the assets awarded that will be affected. ie. The survivor , if also an heir will receive the assets in specie (less any amount that she must contribute) and the other heirs will only receive cash. See the following example: DISTRIBUTION ACCOUNT Balance for distribution

100 000.00

To Peter Smith Surviving spouse 1/2 in terms of clause 3 of the will Award consists of: Fixed property Less cash contribution

50 000.00 80 000 30 000 50 000

To Paul Smith, major son 1/2 in terms of clause 3 of the will. Award consists of cash.

v/

AWARDS TO ADMINISTRATOR(S).

50 000.00 100 000.00

100 000.00

Where a trust has been created in the will, the award in the distribution must be to the administrators. The names of the administrator and the conditions of the will should not be mentioned. The names of the beneficiaries are also normally not mentioned The award in the distribution account will be as follows: To Administrators in terms of and subject to the conditions of the will.

20 000.00

For more examples of awards in distribution accounts, see Meyerowitz paragraphs 18.22 to 18.25. 4.13.6

THE INCOME AND EXPENDITURE ACCOUNT (regulation 5(1)(f)). From the wording of this regulation it is clear that only income collected and expenses incurred after death must be reflected in this part of the account. Obviously it will not be possible to reflect all income and expenditure after death, since more income may be earned, or expenses incurred, after date of lodging the account. Where this is the case, a final cash reconciliation statement can be drawn up, and distributed amongst the heirs, when final payment of inheritances is made. This will especially be necessary where minor beneficiaries are involved, and the minor's portion is paid into the Guardians Fund, or secured. The Master will insist on a final cash statement, supported by vouchers, from the executor in such a case. As to whom the balance of the income collected after death will be awarded, will depend on the provisions of the will, or who the intestate heirs are. For example if rent is earned on fixed property which has been awarded to a legatee, the legatee will be entitled to the rent on the property since he is entitled to the fruits yielded by such property. He is likewise responsible for any expenses that may have been incurred in respect of the said property. However, where the same property has been awarded to a legatee subject to a usufruct of someone else, the usufructuary will be entitled to the income earned on that property. If the property has been awarded as part of the residue, the income earned will be divided equally between the residuary heirs. An example of an income and expenditure account: INCOME AND EXPENDITURE ACCOUNT INCOME 1 Income earned from investments after death 2 Dividend on De Beers shares

3 700.00 900.00

EXPENDITURE. 1 Executors remuneration 6% on 4 600.00 15% sales tax

276.00 41.40

Balance awarded as follows To Anne White as sole heir in the estate

4 269.40 4 600.004 600.00

Where there is no income nor expenditure, this fact must be stated. 4.13.7

THE FIDUCIARY ASSET ACCOUNT.(regulation 5(1)(G)).

Where the deceased enjoyed a fideicommissum during his lifetime, such fiduciary right must be reflected in the liquidation and distribution account if the fiduciary right ceases as a result of his death. Although the fiduciary right passes to the fideicommissaries on the death of the deceased, it must still be reflected in the account. Normally the executor will have to distribute the fiduciary assets among the fideicommissary heirs, and for this reason the assets are reflected in the account. The fiduciary assets account amounts to an account within an account, since the fiduciary assets are reflected in the same way as the deceased's assets were reflected under regulation 5(1)(c). In other words the assets are reflected first, and then the liabilities which relate to the fiduciary assets. The balance is distributed amongst the (fideicommissary) heirs. any income earned on fiduciary assets after date of death must be reflected separately, and distributed amongst the fideicommissary heirs. Since the liquidation account (regulation 5(1)(c)), the distribution account (regulation 5(1)(e)), and income and expenditure account (regulation 5(1)(f)) have been dealt with above, this information will not be repeated here. As can be seen from the regulation, the fiduciary assets are dealt with in a complete account within the liquidation and distribution account. One of the obvious reasons for this is that the fideicommissary heirs have already been determined - in the instrument creating the fideicommissum in favour of the deceased - and the executor is obliged to transfer these assets to them. Master's fee on fiduciary assets is calculated on the total of the personal assets and the fiduciary assets and then apportioned pro-rata between the two accounts. The second important factor is that executor's remuneration can be claimed on the fiduciary assets. The same tariff, ie. 3.5% on the fiduciary assets and 6% on any income earned on the fiduciary assets after death, is claimable. See in this regard Meyerowitz paragraph 14.4. The contents of this regulation can be explained by the following example: FIDUCIARY ASSET ACCOUNT ASSETS 1 Immovable property Erf 234 Gobabis, held by deed of transfer no 456/78 at sworn appraised value

(2)

220 000.00

Movable property Furniture and effects (3) 20 000.00 Total assets 240 000.00 The fiduciary interest was created under the will of Edward Smythe who died at Windhoek On 27/10/76, estate number 456/76. LIABILITIES Pro-rata Master's fee Executor's remuneration 3.5% on 240 000.00 15% sales tax T Jones appraiser's fee Balance for distribution

720.00 8 400.00 1 260.00 1 000.00 11 380.00 228 620.00 240 000.00

240 000.00

DISTRIBUTION ACCOUNT. Balance for distribution

228 620.00

To Patricia Smythe, Major daughter of the deceased as sole fiduciary heir. award consists of: Fixed property Movables Less cash Contribution

4.13.9

228 620.00 220 000.00 20 000.00 240.000.00 11 3800.00 228 620.00

228 620.00

228 620.00

THE EXECUTOR'S CERTIFICATE.(regulation 5(1)(i)). This is the final part of the executor's account, and consists of a statement by him that the account is a true and correct account of his administration of the estate, as well as a statement to the effect that all the assets and income after death to date of the account has been accounted for. If the account is not a final account, details of all assets and/or debts that must still be accounted for as well as an explanation as to why these assets and/or liabilities can not be accounted for. Although not stated in the regulation, it is advisable to state the approximate value of the assets that will be reflected in the next account(s). This will facilitate at a later stage the reduction of the executor's security (if any). An example of a certificate by the executor is as follows: CERTIFICATE I the undersigned ............ the duly appointed executor in the estate of the late ………. .... estate number …..... declare as follows: That the attached account is to the best of my knowledge a true and correct account of the liquidation and distribution of the estate: the

That this is a final account and to the best of

my knowledge and belief all

assets and income collected subsequent to the death of the deceased to the date of this account have been reflected herein. Signed on this ..... day of .... ……..20000. EXECUTOR

4.14

QUERY SHEET ISSUED BY THE MASTER. Once the liquidation and distribution account has been drafted, it must be lodged with the Master of the High Court. The Master will examine the account and issue a query sheet. in which all his requirements will be set out. This query sheet will normally consist of three separate parts:

4.14.1

REQUIREMENTS BEFORE THE ESTATE ACCOUNT IS ADVERTISED. These requirements relate to the correctness of the contents of the liquidation and distribution account. In order to check whether the account is correct, the Master will require the executor to lodge certain documents and provide certain information in respect of the account. It is a good idea to check the list of documents beforehand, and to lodge them if they find application in the estate which is being administered. This will obviate the need for the Master to request the documents and/or information. Since the account may be queried by the Master and may consequently have to be changed by the executor, the account should not be advertised as lying open for inspection before the Master's preliminary queries have been attended to. If the account has been advertised, and must be changed after such advertisement has been placed, the account will be termed an amended account and will have to be re-advertised at the executor's own expense. It is a good idea to try and reply to all the Master's queries at once. Once this has been done and the Master has informed the executor that the queries have been deleted, the account may be advertised as lying for inspection for a period of 21 days. See paragraph 4.15 below. When advertising ensure that the notices appear in the newspaper and the Government Gazette on the same date. The Government printer requires that the notice must reach him at least 6 working days before the date on which the notice must appear. If the executor is resident outside Windhoek, allowance must be made for the post to Windhoek. which could be considerable from some centres. Payment for the advertisement must accompany the notice to the Government printer. Notices in the Gazette appear only on a Friday (unless the Friday is a public holiday in which case it will appear on the Thursday) and as stated the notice in the newspaper should appear on the same day. If the newspaper in question is not published on a Friday, the notice must clearly state from which date the account will lie for inspection. Any errors in the notices will result in the account having to be re-advertised at the executor's own expense. If the deceased was resident outside Windhoek, a copy of the account must lie for inspection at the office of the magistrate of the district in which the deceased resided. Ensure that this copy reaches the magistrate before the start of the inspection period. If there has been amendments to the account, ensure also that the correct copy is lodged with the magistrate concerned.

4.14.2

REQUIREMENTS BEFORE DISTRIBUTION. Before the estate can be distributed, the account must lie open for inspection for a period of 21 days. Proof of this advertisement must be lodged with the Master before distribution can be made See below

4.14.3

REQUIREMENTS AFTER THE ESTATE ACCOUNT HAS LAIN FOR INSPECTION FREE FROM OBJECTION. Once the account has lain for inspection free from objections, the estate may be distributed. This part of the Master's query sheet deals with the requirements he needs before he can issue a filing notice, which serves as proof that the estate has been finalised.

4.15

THE INSPECTION PERIOD.(Section 35). As stated above, once the account has been accepted by the Master as being correct, the account must be advertised as lying for inspection for a period of 21 days. The inspection must be advertised by placing a notice in the Government Gazette and a local newspaper in the district where the deceased was ordinarily resident during the 12 months which preceded death. If he was ordinarily resident in more than one district during the twelve month period, then the notice must appear in a local newspaper in all the places where he so resided. As stated above care must be taken to place the advertisements on the same day otherwise the inspection period will not be the same as advertised. This may lead to the Master requiring the account to be readvertised at the executor's own expense. The form that must be used fo the Gazette will be enclosed with the query sheet by the Master. See section "G" for an example. See paragraph 5.4.11 for an example of an advertisement in the newspaper. The aim of the inspection period is to allow interested parties (such as creditors and heirs) the opportunity of inspecting the account, and objecting to it if they are dissatisfied in some way with its contents. Section 35 also deals with the procedure which must be followed when an objection is made against the account. After having obtained all the facts, the Master will rule on the objection. Any party dissatisfied with the Master's decision, may take his decision on review in the High Court. It has been held in the decision of Broodryk v Die Meester en andere 1991(4) S.A. 825, that the Master cannot rule on objections based on questions of fact. In these cases the objecting party will be directed to apply to the High Court to obtain a ruling on the question. The Master will normally set a time limit in which the application must be made otherwise the objection will be overruled and the executor will be directed to distribute the estate. If the Master rejects the objection, and the objecting party does not take the decision on review, the executor may distribute the estate as set out in the account. If the objection is upheld, and the executor does not take the Master's decision on review, the account will have to be amended in accordance with the Master's ruling. The amended account which is then lodged with the Master will have to go through the whole procedure as set out above, as well as being re-advertised as an amended account. Once the amended account has lain open for inspection free from objections, the executor may pay out in accordance with such account. Section 35 of the Estates Act provides that when an account has been amended in terms of an objection and the interests of any other person is affected by such amendment, the Master may dispense with the re-advertisement of such an account, provided the person whose interest is affected, consents in writing that the amended account need not be re-advertised. In this way unnecessary delays in the finalisation of the estate is avoided.

4.16

FINALISATION OF THE ADMINISTRATION OF THE ESTATE.

4.16.1

PAYMENT OF HEIRS ETC. AFTER INSPECTION PERIOD. Once the account has lain open for inspection free from objection, the executor must distribute the estate in accordance with the account. The heirs and creditors must be paid out at this stage of the administration process. In terms of section 35(13) of the Act, the executor must within two months after the account has lain for inspection, (or two months after any objection to the account has been finalised), lodge with the Master the Heir's and creditor's receipts. Any amount, that the executor has been unable to pay to the parties concerned, must be deposited into the Guardians Fund to the credit of the person(s) entitled thereto. It is important to ensure that if any shortfall must be collected from the heirs, such amount should be in the executor's possession not later that the date on which the executor must make payment. Failure to do so will put the executor in a very difficult position as: There is no provision in the Act for the granting of extension to the executor for the payment of the amounts due to heirs and creditors, If these amounts are not paid to the heirs and creditors within the two month period and same is not deposited into the Guardians Fund as required by section 35(13), the executor will be liable to pay a penalty, in terms of section 46 of the Estates Act, of double the amount which he has failed to pay over. Only after the inspection period has expired may the immovable property be transfered into the names of the heirs. The conveyancer will have to lodge a certificate certifying that transfer is in accordance with the liquidation and distribution account (see section 42(1) of the Estates Act). This can obviously only be done once the account has lain open for inspection free from objection.

4.16.2

THE MASTER'S FINAL REQUIREMENTS. Once the estate has been distributed, the Master's final requirements must be logged., These include proof of payment of Master's fees, proof of transfer of the fixed property, etc. For a more complete list of what the final requirements are, see Wiechers and Vorster annexure 19. Instead of lodging separate proof of payment in respect of each beneficiary and creditor in the estate, the executor may lodge an affidavit in which it is stated that all creditors and heirs have been paid (see section 35(12)). This affidavit must be signed by the executor personally. The agent of the executor may not give this affidavit on behalf of the executor. The final requirements must be lodged with the Master within two months after the estate becomes distributable, and all moneys which have not been distributed must be deposited into the Guardians Fund in terms of section 35(13). See also section 46 and 4.16.1 above with regard to moneys not so deposited.

4.16.3

FILING NOTICE. Once all the Master's requirements have been complied with, the Master will issue a filing notice which certifies that the estate has been completely finalised. A copy of this can be given to the heirs as proof that the estate has been completed and finalised. Where the executor has furnished security for the administration of the estate, the insurance company will require such filing notice before they will cancel the security bond.

4.16.4

DISCHARGE OF THE EXECUTOR.

Once the estate has been finalised, the executor will be entitled to his discharge in terms of section 56 of the Estates Act. An affidavit on the form 11 as in section G must be lodged with the Master together with the original Letters of Executorship. After the executor has been discharged, he can not be held responsible for any claim against the estate unless such executor has committed any fraudulent act.(Section 56(2). One disadvantage of discharging the executor is that if further assets are discovered, a new executor will have to be appointed to deal with same. 4.16.5

DESTRUCTION OF ESTATE RECORDS. In terms of section 56(3)(a) the "executor" may with the consent of the Master in writing, two years after he has been discharged, destroy all books and documents in his possession relating to the estate in which he was appointed as executor.

4.17

OTHER TYPES OF ESTATES. The discussion above covers the majority of estates that will be encountered. Other types of estates will be discussed briefly. Refer to the relevant text-books for further information on these matters:

4.17.1

SMALL ESTATES. ie. estates where the gross value does not exceed N$100 000.00. These estates are known in practice as "Section 18(3) estates" as the stipulations of section 18(3) of the Estates Act direct that the Master of the High Court may dispense with the appointment of an executor and the Master of the High Court can give directions that the estate be administered in a specific manner. This method is much shorter and more simple than the process which is normally followed in bigger estates. PLEASE NOTE THE MASTER IS NOT OBLIGED TO ISSUE AN APPOINTMENT IN TERMS OF THIS SECTION IF THE ASSETS DO NOT EXCEED $100 000. THE MASTER IN HIS DISCRETION CAN ISSUE LETTERS OF EXECUTORSHIP IN THESE CASES. Where the surviving spouse is the sole heir or where there is only one or two heirs in equal shares, the Master will consider issuing an appointment as an Estate Representative in the names of the heirs jointly. The acceptance of trust makes special provision for the applicant to accept responsibility for the debts of the estate. The Master will normally call for a section 27 inventory in order to satisfy himself that there are no assets dealt with except those disclosed in the section 9 inventory. Where there are a number of heirs or if minors are involved, it is impractical to appoint all as representatives, the Master will then appoint a suitable person with directions to lodge an account of his administration. This account will normally not be advertised. The provisions of section 18(3) will not be used if the estate is insolvent. An executor will be appointed who will administer the estate in the normal way. See paragraph 4.17.3 below. In terms of section 4A of the Estates Act, the Minister can assign certain of the functions of the Master under section 18(3) to the Magistrate.

4.17.2

FOREIGN ESTATES. Here it must be differentiated between two situations:

a/

ORDINARILY RESIDENT IN NAMIBIA.

The fact the a person who at date of death was ordinarily resident in Namibia, dies outside Namibia, is immaterial, the Namibian estate must be liquidated in the usual manner. It may happen that, although the deceased was ordinarily in Namibia at the date of his death, his original will is lodged with the proper authorities in a foreign country. The Master may act on an authenticated copy of the said will, without having to apply to court for authority to accept the copy. The Master will then appoint an executor or in a suitable case may "Sign and Seal" the appointment granted in the foreign country.(See below) The estate will then be administered in the usual manner. What if the deceased was domiciled in Namibia and apart from assets in Namibia also had assets abroad? Normally the concept "Estate" includes all the assets of the deceased where situated, but in practice it normally happens that the executer only deals with the deceased's Namibian assets. It can also be argued that the deceased estate for purposes of the Estates Act only pertains the deceased's Namibian estate, and the estate will have to be reported to the authorities of the foreign country as well. b/

ORDINARILY RESIDENT OUTSIDE NAMIBIA.

Where a person, who is not resident in Namibia, leaves assets in this country, his estate must be reported and someone appointed or authorised to administer such estate. An "executor" can either be "appointed" by "Signing and Sealing" the foreign letters of appointment or by the issue of Letters of Executorship to a suitable person. The executor who has been appointed by the Master of the High Court in terms of the Estates Act for the Namibian assets will only be responsible for the administration and distribution of the deceased's Namibian assets. i/

SIGNING AND SEALING THE FOREIGN APPOINTMENT.

Section 21 provides that if there is lodged with the Master a certificate of appointment granted in a State as determined by the Minister, the Master may resign the said appointment under his seal of office, whereupon the person in whose favour the appointment was granted will have the same powers and be subject to the same obligations as an executor appointed under the Act. The States for which these provisions apply are as follows: Botswana British Guinea British Columbia (Canada) Channel Islands Eire Great Britain and Northern Ireland Kenya Lesotho Malawi New South Wales (Australia)New Zealand Republic of South Africa Swaziland Tanzania Victoria (Australia) Zambia Zimbabwe

Requirements before signing and sealing appointment. (i) (iii) (v) (vi) (vii)

(viii)

Death Notice (ii) Death Certificate. Inventory of the assets situated in Namibia (iv) Copy of the will of the deceased, certified for use in Namibia. If this will is in a foreign languaga sworn translation must also be lodged. Evidence that the will has been accepted as a valid document by the authorities where the will is lodged. Two copies of the letter of appointment, certified for use in Namibia. Power of attorney in favour of a local agent authorising the agent to: (a) Apply to sign and seal the appointment (b) To choose domicillium in Namibia (c) To enter into the necessary security (d) To exercise such powers as the executor may think fit. This power of attorney must be endorsed with the date on which it was received, and stamped with a N$5.00 revenue stamp. Security on form J262 if necessary The appointment is confirmed by endorsement on the copy of the appointment (b) FORMAL APPOINTMENT OF AN EXECUTOR. Irrespective whether the provisions of section 21 can be applied or not, Letters of Executorship may be issued to a suitable person. The requirements will be the same as for the appointment of an executor for a person resident in Namibia. (c) SECTION 25. Although not a separate form of appointment, section 25 provides that if the deceased was not resident in Namibia and left only movable property in Namibia, the Master can dispense with the necessity of furnishing security or lodging an account. Before dispensing with security or an account, an affidavit in terms of Regulation 4 as well as proof of payment of Master's fees must be lodged.

4.17.3

INSOLVENT DECEASED ESTATES. If, after the claims have been lodged after the advertisement in terms of section 29 of the Estates Act, the executor discovers that the estate is insolvent, he must report this fact to the Master in terms of section 34 of the Act. If the value of the estate does not exceed $50 000.00, the Master will give the executor directions as to how the estate must be administered. If the value of the estate exceeds $50 000.00, The executor must report the matter to the creditors and ask whether the estate must be sequestrated in terms of the Insolvency Act or whether the executor must administer the estate in terms of the provisions of section 34 of the Estates Act. (a) SEQUESTRATION OF ESTATE. If the creditors direct the executor to sequestrate the estate, an application will have to be made to the High Court in terms of the Insolvency Act. After the order is granted, a Trustee will be appointed who will continue the administration of the estate. The executor is not relieved of his duties however as he must still account for and distribute any funds reverting back to the deceased estate, such as protected policies, etc.

(b) ADMINISTERED IN TERMS OF SECTION 34. If the creditors do not direct the executor to sequestrate the estate, same will be administered by the executor in terms of the provisions of sections 34(5) to 34(7) of the Estates Act. Note that in terms of section 34(8) the account must be advertised as an account in an insolvent estate ie. in two newspapers and in the Gazette for 14 (not 21) days. The confirmation of the account does not however have to be advertised.

Administration of estates Exercises. N.B. Use your own facts where necessary. QUESTION 1 Draft a letter to the Master reporting the estate of a deceased who died intestate in which all the necessary documents are enclosed to enable you to be appointed as executor. QUESTION 2. List the steps to be taken by an executor in administering an estate fron receipt of the letters of executorship until the estate is finalised. QUESTION 3 Using the following facts draw up the complete liquidation and distribution account of Tom Jones. i/

In terms of the will the survivor will receive the fixed property as well as the movables. The residue to the testator's 4 children equally.

ii/

The deceased's family consisted of: Mary Jones his wife married in community of property. A major son Trevor Jones. Pam Smith, a daughter married in community of property to Jacj Smith. Jenny Nel, a daughter married out of community of property to Paul Nel. A minor son Peter Jones.

iii/

His assets consisted of: Fixed property valued at $400 000.00 Movables valued at $50 000.00 Cash and cash investments at the bank $200 000.00

iv/

The liabilities total $100 000.00 which include the normal administration expenses, Mortgage bond as well as funeral expenses of $4 000.00.

QUESTION 4. Draft an adiation certificate.

D. 5.1

PRECEDENTS. SPECIMEN WILLS The following are examples of various types of wills as suggested by D Shrand in his book "Administration of Estates" second edition, page 28 et seq.

5.1.1

Simple will of one person This is the will of ....................... of ................ 1.

I revoke, cancel and annul all previous wills, codicils and other testamentary writings heretofore made or executed by me.

2.

I appoint .................. of ................. as the sole and universal heir of all my estate and effects, movable and immovable, wherever situate.

3.

I nominate ...................... of ..................to be the Executor of this my will and Administrator of my estate with power of assumption, and exempt him from furnishing security to the Master.

In witness whereof I have hereunto set my hand at ............. this ....... day of ............. 19 ....... in the presence of the undersigned witnesses, all being present at the same time and who together with me have hereunto subscribed their signatures in my presence and in the presence of each other. As Witnesses

...........................

1. ....................... 2. ....................... 5.1.2

Mutual will of spouses appointing survivor as sole heir and executor This is the last will and testament of Henry Jones and Mary Jones (born Williams), Spouses married in/out of community of property and residing at ................ 1.

We revoke, cancel and annul all previous wills, codicils and testamentary writings heretobefore made or executed by us.

2.

We appoint the survivor of us to be the sole heir or heiress of all our estate and effects, movable and immovable and wherever situate. We nominate the survivor of us to be the Executor or Executrix of this our will granting unto each other reciprocally all such power as is allowed by law, and especially the power of Assumption.

3.

In witness ................... , etc. 5.1.3

Joint will containing provisions in respect of administrator and dealing with circumstances where both spouses die simultaneously and where the survivor fails to make a further will.

We the undersigned ............................. married out of community of property declare this to be our last will and testament, hereby revoking all previous wills, codicils and testamentary writings made by us or either of us. 1.

The first dying of us hereby appoints the survivor of us as the sole heir and executor of his or her estate, giving to such executor all powers allowed by law, especially that of assumption and failing whom we appoint as executor the person referred to in paragraph 2 hereof, with the powers therein referred to.

2.

Should we die simultaneously, or should we die within 30 days of each other or, should the survivor, having survived the first dying by 30 days die without having made a further will, we direct that our separate estates or the estate of the survivor, as the case may be shall devolve in equal shares on our child or children, or their issue who survive us, and in this event the following further provisions shall apply; (a)

We appoint as Executor and Administrator of our separate estates the senior partner of ................... attorneys of .........., whom failing, the Trustee Manager of ................ Bank, giving our said Executor all powers allowed by law, especially that of assumption. We direct that he shall not be required to give security to the Master of the High Court in either capacity.

(b)

We appoint ...................... as Guardian and Tutor of such of our children who may still be minors as at date of our death, and exempt such Tutor from furnishing security to the Master of the High Court.

(c)

We direct that the inheritances of any of our heirs who may still be minors at the date of our death, shall not be paid into the Guardians Fund but shall be handed to our Administrator to administer same on behalf of our heirs.

(d)

We direct that our Administrator shall in respect of each of the said estates, which shall be administered separately, have full power, in his discretion; (i) To take over from our executor any investments that may be found in our estates at the time of our deaths, but all cash received by our administrator from our Executor and the proceeds of any investments that may be sold by our Administrator may be invested or reinvested from time to time in such shares, securities and estates of whatever nature including land and property and mortgage bonds as he may deem fit, and anywhere in the world, provided they are safe and non-speculative. (ii)

(iii)

To carry on business or partnership which either of us may be carrying on at our dates of death and to convert such business or partnership into a private or public liability company. To open and operate upon Banking Accounts; to appear before any Registrar of Deeds or other proper officer, either in person or by agent for the purpose of effecting, executing or cancelling any transfers and partition transfers, cession of bonds, writing down capital of bonds, granting releases, procuring copies of lost transfer deeds or bonds or for any similar purpose; to enter into

leases for such periods and upon such terms as he may deem fit; to transfer or accept transfer of any shares, stock, or debentures and to execute the necessary and usual forms in this connection; to institute or defend any legal proceedings in any competent Court and to withdraw, settle or compromise any claim whether made by or against him; to refer any matter to arbitration and to carry out and perform any award made thereunder; to employ or consult solicitors or other persons as he may deem necessary at the expense of our estates. (iv)

We direct that our Administrator, in consultation with the Guardian(s) of the minors, shall pay to the said Guardian(s) as much of the income and if necessary of the capital of the Trust as he in his sole discretion may consider necessary or desirable, for the maintenance, education and advancement in life of the minors until such time as each child attains the age of 21 (twenty one ) years.

(v)

Any surplus from such periodical income not so required shall become part of the said Trust.

3.

All inheritances of our said heirs shall be free of community of property and of profit and loss and in the case of females, the marital power of their husbands.

4.

In the event of our dying in the circumstances set out in Clause 2 hereof, leaving no child or children or their descendants surviving us, then we direct as follows:

5.

(a)

We appoint as executor the person set out in Clause 2 hereof and subject to the same terms and conditions as therein contained.

(b)

We direct that our joint estate or the estate of the survivor of us, as the case may be, shall be divided into two equal parts, one part to devolve upon the parent or parents, or their issue, of me the husband, and the other part to devolve upon the parent or parents or their issue of me, the wife.

We direct that our Executor and administrator shall, if he is an attorney as hereinbefore provided, be entitled to the normal fees in respect of legal and conveyancing work done by him or the firm to which he belongs, notwithstanding his appointment as Executor or Administrator.

In witness ............ , etc. 5.1.4 5.2

Refer also to paragraph 2.5 for alternative wording that could be used in the various clauses of wills. EXAMPLE OF CERTIFICATE BY CERTIFYING OFFICER I (full names)........................... of (full address)..................... in my capacity as commissioner of oaths, declare that I have satisfied myself as to the identity of the testator and that I am convinced that this is the will of ...........................................

Signed at ............... this ........day of .......... 19 ..... ................................ Commissioner of Oaths. 5.3

EXAMPLE OF AN ADIATION/REPUDIATION CERTIFICATE. Example (A) ADIATION/REPUDIATION Estate Late ................................... no ............ Whereas

it has been explained to me that the last Will and Testament of the deceased and myself dated ............ created a massing of our separate estates into a consolidated whole which has been bequeathed to the heirs subject to the provisions of the said will, and

whereas

the effect of such massing have been fully explained to me and I an fully aware of my legal position and that I am acquainted with the result of adiating and/or repudiating the provisions of the said will, and

whereas

I am aware that my decision to adiate/repudiate is irrevocable, and

After due consideration I have decided to adiate/repudiate the conditions of the said will. Signed this ................. day of ............... 19 ......... Signature .............................. Full names ............................. I .................................... legal practitioner for ....................... hereby confirm that the legal position and the effects of adiation and repudiation were explained to ............... and I am satisfied that she understood the meaning and effect of the above adiation/repudiation. ..................................

Example (B) ADIATION/REPUDIATION ESTATE LATE ................................................ No................ I the undersigned .................................. confirm that it has been explained to me that: the will dated ....................... which was signed by the deceased and myself, created a massing of our separate estates into a consolidated whole which has been bequeathed to the heirs, subject to the provisions of the said will.

I have the right to adiate or repudiate as explained hereunder should I repudiate and thereby choose not to be bound by the provisions of the said will, I will retain full ownership of my separate estate and that I will receive no benefit under the said will my decision to adiate or repudiate is irrevocable. After careful consideration of my rights as mentioned above, which I fully understand, I hereby choose to adiate/repudiate. Signed at ....................... this .............. day of ............... 19.... Signature ....................... I ......................... certify that the implications of massing, adiation and repudiation were explained to ........................... and I am satisfied that he/she understood the meaning and effect of the above adiation/repudiation. ........................... Capacity .........................

5.4.

PRACTICAL EXAMPLE OF THE ADMINISTRATION OF AN ESTATE In the following exercise the administration of a fictitious estate of the late JOHN SMITH who died on 1/3/2006 will be taken step by step with pitfalls and problems pointed out as we go along. NOTE EVERY POSSIBLE SITUATION CAN AND WILL NOT BE COVERED IN THIS ONE EXAMPLE. ONLY THE MORE IMPORTANT DUTIES WILL BE HIGHLIGHTED. THESE NOTES MUST BE READ TOGETHER WITH PRACTICE NOTES C.

5.4.1

The deceased's will reads as follows: "1

This is the last will and testament of John Smith married out of community of property to Mary Smith (born Jones).

2

I revoke all previous wills executed by me.

3

I appoint my wife Mary Smith as Executor of my estate with the power of assumption and I exempt my said executor from the necessity of furnishing security to the Master of the High Court.

4

I bequeath my estate as follows: a/

To my wife my property being Erf 72 Gobabis.

b/

To my daughter Gladys, my Mazda station waggon, licence no N5909GO.

c/

To my son Peter my livestock and farming implements subject to him paying a bequest price of N$20 000.00 to my wife.

d/

To my daughter Jenifer my Toyota sedan, licence No N2345GO.

e/

The residue of my estate to my wife and my children Peter, Gladys and Jennifer in equal shares.

Signed at Gobabis this 14 day of June 1999. Witness .................. .................. 5.4.2

Testator ............

The surviving spouse (your client) gave the following information regarding his affairs: a/

Family: Your client. Son ........ Daughter....

Grandchildren

Mary Smith (born Jones) married out of community of property Peter Smith (major) Gladys van der Merwe married in community of property to Jan van der Merwe Illegitimate son Ben Davis (born 14/1/95). deceased paid his mother N$100.00 per month as maintenance Jenny Peters (born 24/6/95) daughter of predeceased daughter Jenifer Patrick Peters (born 27/6/93) adopted son of Jenifer

Brian Smith (born 27/6/97) illegitimate son of Jenifer

b/

Assets Certain piece of land being the farm Witvlei situate in the district of Gobabis held by deed of transfer no 4356 of 1992 Valued at

N$400 000.00

Certain piece of land being Erf 72 Gobabis held by deed of transfer no 1234 of 1982 valued at

N$200 000.00

Livestock valued at

N$ 50 000.00

Farming implements valued at

N$ 50 000.00

Ford sedan no N5990GO valued at

000.00

Toyota Pick up no N2345GO valued at

N$

20

N$

30

000.00

c/

Fixed Deposit with Standard Bank

N$100 000.00

Interest on fixed deposit to date of death @ 12% After death

N$10 000 N$5000

Rental on Erf 72 at N$ 2000.00 per month from 1/3/2006

N$8 000

Liabilities Funeral expenses

N$8 000.00

Agra

N$ 50 000.00

Future maintenance for Ben Davis Municipal rates for Erf 72 for 1994, payable 31/3/2006

N$ 1 000.00

Usual administration expenses 5.4.3

COMPLETION OF THE DOCUMENTS TO REPORT ESTATE a/ Death Notice item 7 residence

The completion of this form is straightforward but the following should be borne in mind: by this is meant the district(s) where the deceased was resident during the previous 12 months not the various addresses in a particular district at which the deceased may have resided

item 12 will

this is important if the will is not lodged with the Master at the same time as the other documents

item 22 proof of death Should the answer to both of these questions be NO, the death certificate, or a certified copy thereof, will have to be lodged. A death certificate must also be lodged in the following circumstances: where the death notice is signed more than six months after the date of death where the deceased died outside Namibia b/ Inventory

The following should be borne in mind in the completion of this document; A concise but accurate description of the assets should be given The values placed on the assets should represent a reasonable estimate of what these assets would realise at a public auction sale. Often unnecessary costs are incurred by over valuing the assets with the result that Letters of Executorship are issued in an estate that could have been administered in terms of section 18(3). Extra costs could also be incurred if security for a greater amount than is in fact necessary, is called for as a result of incorrect values on the inventory Do not give unnecessary detail. Items such as household furniture can be included as one item, do not enumerate each chair, table etc. Items of particular value, such as antiques etc. especially if they are specially bequeathed in the will, should however be shown separately. Title deed description of fixed property, licence/serial numbers of vehicles and fire arms and certificate and account numbers of investments should if available be given. Liabilities due by the deceased are often included under the heading "Claims in favour of the estate" This leads to confusion. Only Namibian assets must be reflected in the inventory. If the deceased owned assets in a foreign country these assets will have to be accounted for in that country and an appointment of an executor applied for in that country.

c/ Acceptance of Trust

Address of executor This should not be c/o the agent as letters addressed c/o the agent Letters addressed to the executor c/o his/her attorneys is invariably returned marked "unclaimed" or "unknown". As the duties of an Executor is of a specialised nature a layman will seldom be appointed if he is not assisted by an agent who is fully aware of the duties and responsibilities involved. It is insufficient that a

Magistrate or other responsible person merely explains the duties to the executor. d/ Next of Kin Affidavit

5.4.4

Where the deceased died intestate, partly intestate or where the will does not clearly indicate who the heirs are, a next of kin form will have to be completed. This form does not make provision for all family members and details of next of kin that may be required for the administration of the estate for which no provision is made should be entered on a separate sheet of paper and made part of the affidavit.

ON RECEIPT OF LETTERS OF EXECUTORSHIP a/ Notice to creditors. Example of notice in newspaper Estate Late John Smith I.D. No (430714005376) who died at Gobabis on 01/03/05 Estate no ........./05 Creditors in the above estate are hereby called upon to lodge their claims to the undersigned within 30 (thirty) days from date hereof. .......................... P.O. Box............. Windhoek. Agent for the Executrix. A form for the advertisement in the Gazette is obtainable from the Master of the High Court and is normally included with the Letters of Executorship. Payment for this notice must accompany the notice which should be sent to the Government Gazette office at least 8 days before the notice is to appear. b/

OPENING OF THE ESTATE BANKING ACCOUNT.

c/

VALUATION OF ASSETS. An appraiser for the Gobabis district would be approached for an appraisement of the movable and immovable assets. NOTE AN APPRAISER IS ONLY AUTHORISED TO VALUE PROPERTY IN THE DISTRICT FOR WHICH HE HAS BEEN APPOINTED. The Estates Act lays down a tariff of fees that an appraiser may charge and if required these fees may be taxed by the Master in the case of a dispute regarding the correctness thereof. Although the Master will normally not interfere in this matter he may insist on the appraiser's account being submitted for taxation if it appears that the appraiser's charges are abnormally high or if minors are involved.

d/

INTERPRETATION OF THE WILL From a study of the will it is clear that problems with the administration of the estate will be encountered because the deceased failed to review his will from time

to time. The will should have been reviewed and altered on at least the following occasions On the purchase of the farm for which no provision had been made in the will. On the alienation of the motor vehicle that was specially bequeathed to his daughter Gladys. On the death of his daughter Jennifer. The problems associated by last two instances could also have been avoided if more thought was given to the drafting of the will. Other matters to be borne in mind that could affect the administration of the estate are as follows: The bequest of the motor vehicle to the predeceased daughter. The bequest of 1/4 of the residue to the predeceased daughter. The bequest of the motor vehicle that was alienated by the deceased prior to death. To what extent can the children of the predeceased daughter share in the bequest to Jennifer. The possible claim for maintenance by the illegitimate son of the deceased. What effect will the adoption of Patrick Peters have on the distribution of the estate. e/

MODE OF DIVESTMENT OF THE ASSETS. In view of the provisions of The Subdivision of Land Act No 70 of 1970, a distribution of all the assets in specie is out of the question. The fixed property must either be: sold awarded in terms of a redistribution agreement taken over by the surviving spouse in terms of section 38 of the Estates Act. For the purpose of this exercise we will consider a taking over by the surviving spouse.

5.4.5

APPLICATION BY SURVIVING SPOUSE FOR A SECTION 38 TAKING OVER Although the Master's consent to the taking over can only be given after the Liquidation and Distribution Account has lain for inspection free of objection, it may be advisable to obtain the Master's provisional approval to the taking over even before the said account is lodged. This will avoid the necessity of redrawing the account should the taking over not meet with the Master's approval. a/

AFFIDAVIT BY SURVIVING SPOUSE ESTATE LATE JOHN SMITH ESTATE NO ......../05

AFFIDAVIT IN TERMS OF SECTION 38 OF Act 66 OF 1965 I, the undersigned, Mary Smith (born Jones),widow, hereby make oath and say that I an the surviving spouse of the late John Smith to whom I had been married out of community of property. To the best of my knowledge and belief the Estate Assets and Liabilities consist of the following: ASSETS 1.Farm Witvlei in the district of Gobabis

N$400 000.00

2 Erf 72 Gobabis

N$200 000.00

3 Livestock

N$ 50 000.00

4 Farming implements

N$ 50 000.00

5 Ford Sedan car

N$ 20 000.00

6 Toyota pick-up

N$ 30 000.00

7 Fixed Deposit with Standard Bank

N$100 000.00

LIABILITIES 1 Funeral expenses

N$ 3 000.00

2 Claims against the estate

N$55 000.00

3 Administration expenses

N$37 400.00

I hereby request your consent to the taking over of the following assets in terms of section 38 of the Act; 1 Farm Witvlei 2 Ford Sedan car 3 Toyota pick-up

N$400 000.00 N$ 20 000.00 N$ 30 000.00

The reason for the taking over is that these assets, which form part of the residue, can not be transferred to the residuary heirs, two of whom are still minors. All liabilities will be paid in cash out of the estate. The beneficiaries in terms of the Last Will and Testament of the deceased and the laws of intestate succession are I, the surviving spouse, Mary Smith (born Jones), widow, my son Peter Smith, my Daughter Gladys Smith and my grandchildren, Jenny Peters (born 24/6/95) and Brian Smith (born 27/6/97). The taking over will not be to the minor's disadvantage as their inheritances will be paid into the Guardians Fund. I will pay sufficient cash into the estate so that all the liabilities and the cash portions of the heirs will be paid in full. I have no intention of selling the assets in the near future. ................................

Mary Smith Signed and sworn before me in Windhoek, this ...............day .......... of .......... 20.......

b/

............................... Commissioner of Oaths Apart from the affidavit the Master will require the following documents: Valuations of the assets by an appraiser consents of the major heirs consents of guardians of minor heirs if security of a mortgage bond over a property, that is not an estate asset, is offered, appraisement of such property and details of any bond over such property must also be lodged. In this instance, as the surviving spouse is not the natural guardian of the minors, she can not give security but the minor's share MUST be deposited into the Guardians Fund.

5.4.6

EXTENSION TO LODGE ACCOUNT If the executor is unable to lodge his account within the prescribed period an application which must comply fully with Regulation 6 to the Act must be made within the said period. The master is unlikely to grant extension if this Regulation is not complied with or if it appears that the reason why the account can not be lodged is due to the laxness or the failure of the executor to carry out his duties properly. In terms of this regulation, the application must state the following: a/

Reasons why the account cannot be lodged,

b/

what steps have been taken to solve the problem and what progress has been made in that regard,

c/

what progress has been made in the liquidation or realisation of the estate,

d/

what moneys the executor has on hand,

e/

why a first account cannot be lodged.

f/

whether the estate is solvent or not.

NB. THIS APPLICATION MUST BE LODGED BEFORE THE DUE DATE OF THE ACCOUNT. 5.4.7

THE ACCOUNT Regulation 5 to the Estates Act sets out in detail how the account of an executor must be drawn up. These provisions are imperative and the Master has no authority to permit an executor to depart from the clear provisions thereof. Although the account for this particular estate is set out on page 59, the more important provisions of the regulations are discussed under section 4.13 above and will not be repeated here.

5.4.8

CERTAIN ASPECTS OF THE ACCOUNT HIGHLIGHTED. a/

VOUCHERS.

The Master has the discretion whether or not to call for vouchers. In this particular matter as minors are involved vouchers will be insisted upon. Where a minor is only a legatee who receives his legacy in full, only vouchers in respect of the assets awarded to the minor will normally be called for. b/

TRANSFER COSTS. Where the surviving spouse takes over the fixed property in terms of section 38 she is personally liable for the transfer costs. Only the costs of transferring Erf 72 Gobabis will therefore appear in the account.

c/

FUNERAL EXPENSES. Where minors are involved, only reasonable costs for the funeral will be allowed. Abnormal costs, costs of transporting the body from the place where the deceased was resident as well as costs of a tombstone will normally not be allowed, or if allowed not be taken into consideration in calculating the minor's share. Although not applicable in this example, funeral expenses of a deceased who was married in community of property is only deducted from the deceased's half share as these costs do not form part of the community liabilities.

d/

CLAIM FOR MAINTENANCE. A claim for maintenance is lodged against the estate by the minor's guardian or tutor. If no claim is received the executor should enquire whether or not the guardian intends claiming future maintenance or not. This will definitely be raised by the Master if no claim is reflected in the account. In terms of section 43 of the Estates Act this claim for maintenance must be paid into the Guardians Fund and the guardian will have to apply to the Master, usually on a quarterly basis for the maintenance. The maintenance paid will be based on the amount claimed by the guardian. If due to a cash shortage in the estate, the full claim can not be paid, the allowance from the Guardians Fund will be reduced accordingly.

e/

f/

POSTAGES AND PETTIES. These costs must normally be paid by the executor from his commission. No separate amount will be allowed. In exceptional cases a special fee may be considered by the Master on receipt of a fully motivated application. BEQUEST OF MAZDA CAR TO GLADYS. This vehicle was no longer an asset of the deceased as at date of death and in the absence of evidence that the deceased did not voluntary dispose of same it is presumed that the deceased alienated the asset with the intention to revoke the bequest (ademptio, or the tacit revocation of a bequest)

g/

BEQUEST OF MOVABLES TO PETER SUBJECT TO A BEQUEST PRICE. The legatee must decide whether or not to accept this bequest subject to the condition (adiate/repudiate). A legatee may not accept one benefit and reject another. If a heir or legatee repudiates, he forfeits all benefits under the will

h/

BEQUEST OF TOYOTA TO JENNIFER. As Jennifer predeceased the deceased, and there is no substitutary provision in the will this asset will fall into the residue.

i/

BEQUEST OF RESIDUE TO WIFE AND CHILDREN This bequest of the residue in defined portions excludes the possibility of jus accrescend (accrual) being applicable. (Refer in this regard to the decision in Winstanly and others v Barry and others 1937 A.D. 75 and Lello v Dales 1971(2) S.A. 330.) The share awarded to Jenifer will therefore devolve in terms of the Laws of Intestate Succession. The intestate portion will amount to $111 965.00 (see account) Of this amount the surviving spouse will receive a child's share ($27 991.25.) or $50 000.00 , In this instance $50 000.00. The balance of $61965.00 will be awarded 1/3 each to Peter, Gladys and the issue of Jenifer. The issue of Jenifer who are entitled to inherit are Jenny and Brian. Although Brian is illegitimate he is regarded as the "legitimate" child of his mother. As Patrick is adopted he may not inherit ab-intestato from the relatives of his adopted parent, and is therefore prohibited from inheriting from the deceased.

j/

AWARD TO MINOR GRANDCHILD. Only the natural guardian is entitled to the minor's inheritance subject to security being furnished to the Master. As the surviving spouse not the minor's guardian she may not give security in terms of the taking over but must pay the minor's share out in cash.

k/

INCOME ACCOUNT.

N$10 000.00 of the income collected is from the property specially bequeathed to Mary, and she is entitled to this amount less the debt due on the property (N$ 1 000.00) and a pro-rata share of the administration costs, ie (N$10 000.00/N$15 000.00 x N$832.00). The balance must be awarded to the residuary heirs in proportion to their respective awards of residue under the distribution account. 5.4.9 THE ACCOUNT IN THE ESTATE. First and Final Liquidation and Distribution Account in the estate of the late John Smith (identity no 430714005376) who died on 1 March 2006. Married out of community of property. Estate No ...................... Liquidation Account Assets. 1

2

3

Certain piece of land being farm Witvlei situate in the district of Gobabis held by deed of transfer no 4356 of 1992. Taken over by the surviving spouse in terms of section 38 Certain piece of land being Erf 72 Gobabis held by deed of transfer no 1234 of 1982 Awarded and to be transferred to Mary Smith in terms of the will. Livestock

(1)

400 000.00

(2)

200 000.00

(1)

50 000.00

4

Farming Implements Assets 3 and 4 awarded to Peter Smith in terms of the will

(1)

50 000.00

5

Ford Sedan no N5990GO

(3)

20 000.00

6

Toyota Pick-up No N2345GO Assets 5 and 6 taken over by the surviving spouse in terms of section 38

(4)

30 000.00

7

Proceeds Fixed Deposit First National Bank Certificate no 456789 Capital Interest to date of death

(5) (5)

100 000.00 10 00.00

Liabilities 8

Avbob funeral expenses

(6)

9 000.00

9

Agra Co-Op

(7)

50 000.00

10

Jane Davis Claim for future maintenance for Ben Davis born 14/1/95

(8)

5 000.00

Administration expenses. 10

Advertisement for claims Gazette Newspaper Advertisement of account Gazette Newspaper

20.00 180.00 20.00 180.00

400.00

11

D. Mathews Valuation costs

(9)

870.00

13

Adams and co transfer costs erf 72

(10)

1 000.00

14

Bank charges

64.00

12

Masters fees

2 553.00

Executor's remuneration 3.5% on 851 000 Sales tax 15% on 29 785.00 14 Balance for distribution

29 785.00 4 468.00

97 140.00 747 860.00 851 000.00

851 000.00

Recapitulation Statement Cash available

101 000.00

Liabilities and administration costs

103 140.00

Cash awards to heirs

271 700.00

Shortfall to be contributed by Mary Smith from proceeds of policy paid to her direct

273 840.00 374 840.00

Distribution Account Balance for distribution 1 To Mary Smith (widow) Special bequest of Erf 72 Bequest price payable by Peter Smith 1/4 Share of residue in terms of Will Share in terms of the laws of intestate succession Award consists of: Fixed Property Movables Less cash to be contributed 2 To Peter Smith (major) Special bequest 1/4 Residue in terms of will In terms of laws of intestate succession less bequest price Award consists of movables Cash 3 To Gladys van der Merwe (married in community of property to Jan van der Merwe) 1/4 Residue in terms of will In terms of the laws of intestate succession Award consists of cash

747 860.00 200 000.00 20 000.00 111 965 00 50 000.00

381 965.00

600 000.00 50 000.00 650 000.00 268 035.00 381 965.00 100 000.00 111 965.00 20 655.00 232 620.00 20 000.00 212 620.00 100 000.00 112 620.00 212 620.00

111 965.00 20 655.00 132 620.00

374.840.00

4 To Jenny Peters (minor born 24/6/85) In terms of the laws of intestate succession (cash)

10 327.50

5 To Brian Smith (minor born 27/6/80) In terms of the laws of intestate succession (cash)

10 327.50 747 860.00

747 860.00

Income and Expenditure Account 1 Rental on Erf 72 (from 1/1/94 to 31/5/94) Interest on Fixed Deposit Municipal rates on Erf 72 Executors commission 6% on 15 000.00 VAT 15% on 900.00 Balance for Distribution

(11) (5)

(12)

10 000.00 5 000.00 1 000.00

900.00 135.00 12 965.00 15 000.00 15 000.00

Distribution Account of Income Balance for distribution

12 965.00

1 To Mary Smith Rental less share of liabilities and administration costs Pro-rata share of residue

8 310.00 1 677.00

2 To Peter Smith Pro-rata share of residue

1 381.00

3 To Gladys van der Merwe Pro-rata share of residue

1 381.00

4 To Jenny Peters(minor) Pro-rata share of residue

108.00

5 To Brian Smith (minor) Pro-rata share of residue

108.00 12 965.00 12 965.00

Fiduciary Asset Account No Fiduciary Assets Executors Certificate I Mary Smith in my capacity as executrix hereby certify that to the best of my knowledge and belief, the above account is a true and correct account of the liquidation and distribution of the estate and that to the best of my knowledge and belief all assets and income collected subsequent to the death of the deceased to date of this account have been disclosed therein. Signed at Gobabis this 31 day of May 2006

........................... Executrix Testamentary

5.4.10

5.4.11.

DOCUMENTS TO ACCOMPANY THE ACCOUNT. a/

Newspaper cutting and date and number of the Gazette as proof of advertisement to creditors. Please do not enclose the whole newspaper.

b/

As minors are involved, all relevant vouchers in support of the items in the account.

c/

Application by the surviving spouse in terms of section 38.

d/

Maintenance claim and agreement between the guardian and the executor.

e/

Birth certificate of the minors or certified copies thereof.

f/

Bank statements to date of account.

g/

Adiation by Peter

AFTER APPROVAL OF ACCOUNT. a/

Advertisement of account. Example of notice in newspaper. Estate late John Smith, I.D. no 430714005376, who died at Gobabis on 1 March 2006. Estate no ............. Notice is hereby given that the First and Final Liquidation and Distribution Account in the above estate will lie for inspection at the office of the Master of the High Court Windhoek and the Magistrate of Gobabis for 21 days from date hereof. ....................... P.O. Box ............... Windhoek Agent for the Executrix. Ensure that the notice in the newspaper appears on the same date as the notice in the Gazette. Should the newspaper not appear on a Friday, the day on which the Gazette is published, the notice must state the date from which the account will lie for inspection. Remember that the notice for the Gazette must reach the offices of the Gazette at least 6 working days before the notice must appear. Allow for any public holidays that may occur during this period. A cheque for payment of the notice in the Gazette must accompany the notice. Should the notices for any reason not appear on the same date, arrange with the Magistrate to extend the period to cover both advertised times. Where however the dates are more than 21 days apart the account will have to be re-advertised without cost to the estate.

b/

Send a copy of the account to the Magistrate concerned and advise him of the dates during which the account will lie for inspection. Allow sufficient time for postage so that it will be received before the start of the advertised date.

c/

Pay the fees of the Master to the Receiver of Revenue.

d/

If a cash shortfall is to be collected, do so immediately to ensure that the funds will be available for distribution as soon as the account has lain for inspection.

5.4.12

AFTER THE ACCOUNT HAS LAIN FOR INSPECTION FREE FROM OBJECTION. a/

Pay the heirs their cash awards and deposit minor's portion into the Guardians Fund.

b/

Pay the creditors.

c/

Transfer the motor vehicles, investments etc. to the heirs.

d/

Arrange with the conveyancer for the transfer of the fixed property.

e/

Send final requirements to Master. These will normally be: i/

Newspaper cutting as proof of advertisement of account.

ii/

Receipt for Master's fees.

iii/

Receipts by creditors, heirs and legatees. The executor can in lieu of receipts furnish the Master with an affidavit that the creditors and heirs have been paid.

iv/

Proof that the fixed property has been transferred out of the estate.

v/

The remaining bank statements.

NOTE THE LAST ITEM ON THE BANK STATEMENT SHOULD BE THE WITHDRAWAL FOR THE EXECUTOR'S COMMISSION AS THIS IS ONLY PAYABLE AFTER THE ESTATE HAS BEEN COMPLETELY FINALISED. 5.4.13.

FILING NOTICE. After all the requirements of the Master have been complied with the executor will receive a Filing Notice as proof of this fact. This filing notice is used to cancel any security bond that may have been entered into by the executor. NOTE THIS IS NOT A DISCHARGE IN TERMS OF SECTION 56 OF THE ESTATES ACT.

5.4.14.

DISCHARGE OF EXECUTOR. After the estate has been finalised the executor is entitled to apply for his/her discharge in terms of section 56. The application is made by way of an affidavit as set out on the form as per example in section "G"

5.4.15

DESTRUCTION OF ESTATE RECORDS. Section 56 (3)(a) of the Estates Act provides that after two years have elapsed as from the date on which any person has been discharged as an executor, he may, with the consent in writing of the Master, destroy all books and documents in his possession relating to the estate of which he was the executor. It is advisable however in spite of the above authority to retain sufficient document to enable the executor to sign the necessary identification certificate of any minor or other person whose inheritance has been deposited into the Guardians Fund or to reply to any other enquiry that may be made regarding the estate.

E. SOURCE REFERENCES 1.

LEGISLATION Section 115 of The Estates Act 24 of 1913 (Ordinance 27 of 1964) The Estates Act 66 of 1965 The Wills Act 7 of 1953 The Act on the Removal of Restrictions on Fixed Property 94 of 1965 The Subdivision of Land Act 70 of 1970 The Trust Moneys Protection Act 34 of 1934 The Intestate Succession Ordinance 12 of 1946 The Children's Act 33 of 1960 The Anatomical Donation and Post Mortem Act 24 of 1970 The Estatesand Succession Amendment Act No 15 of 2005 2. TEXTBOOKS. Meyerowitz;

Meyerowitz on Administration of Estates, Estate Duty and Capital Transfer Tax 6th edition.

LAWSA

Part 31; Wills Administration of Estates and Trusts

Wiechers and Vorster

Administration of Estates English edition.

Kewrnick

edition

and

Succession,

Administration of deceased estates 2nd

van der Merwe and Roland Die Suid Afrikaanse Erfreg Shrand

Administration of Deceased Estates in South Africa.

F. DEFINITIONS OF CERTAIN WORDS. The courts have in the various decisions defined the following words and terms. These cases have been reported in the South African Law reports. Bear in mind that this must not be regarded as the only definitions made by the courts. MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF

AGGRIEVED PERSON ANTICIPATION OF INHERITANCE AT THE END THEREOF AT THE END THEREOF ATTESTATION BEHOEFTIGE BEHOEFTIGE BOOK DEBTS BOOK DEBTS BORN AFTER WILL EXECUTED CASH BALANCE OF CASH FOUND IN ESTATE CASH FOUND IN ESTATE CHILD CHILD CHILD OF MARRIAGE CHILDREN CHILDREN CHILDREN CHILDREN OF CHILDREN OF CHILDREN CHILDREN OF..... CREDITOR DEATH DESCENDENT (ADOPTED CHILD) DESCENDANTS DEFUNCT DONATION DUPLICATE WILL EGGENOOT ELDEST MALE HEIR ESTATE AS THEN FOUND FAIR AND REASONABLE FAMILIE BETREKKINDE FIXED DEPOSIT GOING CONCERN GRANDCHILDREN HOSPITAL IN ORDINARY COURSE OF BUSINESS INCUR LIABILITY INSOLVENT IRRESPECTIVE JUST AND EQUITABLE JUST AND EQUITABLE JUST AND EQUITABLE JUST AND EQUITABLE LAWFUL CHILDREN

1977(3) 1978(3) 1983(1) 1986(2) 1979(4)

1985(2) 1992(2) 1991(4) 1982(2)

1980(2) 1977(3) 1982(1) 1980(2) 1971(3) 1978(4) 1980(1) 1962(2) 1965(1) 1982(2) 1988(2) 1993(2) 1976(1) 1976(1) 1971(1) 1979(3) 1992(1) 1976(4) 1977(4) 1990(2) 1994(2) 1976(1) 1975(2) 1983(3) 1990(3) 1965(4) 1980(2) 1982(2) 1975(1) 1986(4) 1981(1) 1991(4) 1980(2) 1979(1) 1994(2) 1,006 552 171 628

159 445 509 321 841 1978(3) 1978(1) 1979(4) 600 750 295 600 366 439 472 360 576 628 160 436 609 412 524 438 629 930 745 786 751 270 412 28 451 783 600 653 441 846 815 508 788 527 240

716 335 452

MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF MEANING OF

LAWFUL ISSUE LEASE LIQUIDATE AND DISTRIBUTE LIQUIDATED CLAIM LIQUIDATED CLAIM MODUS NATURAL GUARDIAN NEW LIABILITY ON THE DEATH ONS WIL EN BEGEERTE ONSE SEUN EN SY VROU ORDINARY PLACE OF RESIDENCE ORDINARY RESIDENT OUR CHILDREN OWNS OR IS ENTITLED TO PROPERTY PREDECEASED CHILDREN PREVIOUS UNSECURED CLAIM PROCEEDS OF SECURITY PROPERTY REGISTERED OFFICE RIGHT OF ENJOYMENT RIGHT OF PRE-EMPTION RIGHT TITLE AND INTEREST RIGHT TITLE AND INTEREST SAAMESPANNING SECURITIES AND SECURITY SIGN AND SIGNATURE SIMULTANEOUS DEATH SON AND HIS WIFE SOON AFTER EACH OTHER SY VROU THE END THEREOF THIRTY DAYS I.T.O. COURT ORDER TO DISTRIBUTE AS HE THINKS FIT TRADING VARIOUS TRANSACTIONS VERVREEMDING WETTIGE AFSTAMELING WETTIGE AFSTAMELINGE WIDOW WIFE WIFE AND CHILDREN WILL AND END I.T.O. WILLS ACT

1989(4) 1969(2) 1975(3) 1992(2) 1970(2) 1987(3) 1985(4) 1980(4) 1972(1) 1965(4) 1966(4) 1991(4) 1978(2) 1991(1) 1992(2) 1975(3) 1987(4) 1996(2) 1972(1) 1977(3) 1968(2) 1994(3) 1992(2) 1988(4) 1982(4) 1982(2) 1971(2) 1978(2) 1966(4) 1957(3) 1966(4) 1980(2) 1982(2) 1971(3) 1980(3) 1993(1) 1982(2) 1975(3) 1974(3) 1975(4) 1975(3) 1976(4) 1980(1)

480 127 881 66 742 530 70 414 168 783 370 414 698 206 748 271 192 133 1 753 78 722 739 714 746 239 370 114 370 653 370 934 94 243 406 454 179 29 867 182 182 338 134

G. FORMS. THE FOLLOWING FORMS ARE ATTACHED HERETO. 1.

Death Notice

2.

Inventory

3.

Acceptance of Trust by Executor

5.

Next of Kin Affidavit

6.

Bond of Security by Executor.

7.

Advertisement for creditors in Government Gazette

8.

Advertisement of Account in Government Gazette

9.

List of requirements for section 42(2) endorsement.

10.

List of requirements for section 38 endorsement.

11.

Affidavit re discharge of executor.

12 Special power of attorney.

UNDERTAKING AND BOND OF SECURITY BY INTERIM CURATOR/ EXECUTOR / FOREIGN EXECUTOR / TUTOR / CURATOR

In the estate of ............................................................... I/We ........................................................................... [full name(s)] of ............................................................................. ............................................................................... ................................................................................. [full residential and business address(es)] do hereby undertake and bind myself/ourselves jointly and severally should I/we be appointed by the Master of the High Court, NAMIBIA to administer the above estate and/or liquidate and distribute the assets thereof as INTERIM CURATOR(S) and/or EXECUTORS or FOREIGN EXECUTOR (S) or TUTOR (S) or CURATOR (S) properly according to law and to pay to the Master of the High Court, Namibia an amount up to: N$ ............................. (............................ dollars) as the Master may claim from me/us in respect of any loss or damage as may be suffered by the said estate or by the minor(s) or person under curatorship or by any other person by reason of the fact that I/we failed to perform properly my/our functions in the above capacities or because of any maladministration in my/our part. A certificate under my hand of the Master or his duly authorised representative to the effect that I/we failed to discharge my/our functions as aforesaid and stating the amount of such loss or damage shall be accepted as prima facie proof of such failure of the extend of such loss or damage. I/we choose as my/our domicilium citandi et executandi and for the purpose of the service of any notices or for the service of any legal process: ................................................................................ ............................................................................. SIGNED at ........................ this ............ day of .............. 19 .. AS WITNESSES

1.

........................ ............................

1.

2.

........................ .............................

2.

(SIGNATURE)

SURETYSHIP BY INSURANCE COMPANY / BANK / FINANCIAL INSTITUTION I/we, ....................................................................................... in my/our capacity as ...................................................................... of the ...................................................................................... my/our principal do hereby interpose and bind my/our principal as surety and co principal debtor in solidum, jointly and severally with ...................................................... (hereinafter referred to as the Incumbent(s) unto and in favour of the Master of the High Court of Namibia ("the Master") for the due and proper performance by the incumbent(s) of his/their duties/functions in aforesaid office(s) and the proper administration of and accounting by him/them for all funds and property of the Estate/Company/Trust under him/them for all funds and property of the Estate/Company/Trust under his administration as required by law and in default thereof to pay to the Master on demand an amount up to the sum of N$..................................(......................................... dollars) as the Master may claim from my/our principal in respect of such loss or damage as may be suffered by the Estate/Company/Trust or any person by reason of such default. Provided that: 1. My/our principal's liability hereunder will not exceed the sum of N$.................... (................................................ dollars); 2. a) in the event of any alleged default on the part of the incumbent(s) in his/their aforesaid office, giving rise to an alleged claim under this suretyship, my/our principal will be notified by the Master in writing of the alleged loss or damage suffered, which notification shall be prima facie proof of such default and the amount of the alleged loss or damage suffered. The Master shall provide my/our principal with full details of the alleged default and loss or damage available to the said Master at the time of making the demand; b) i) the Master shall on request afford my/our principal or any representative appointed by it an opportunity of investigating the alleged default and loss or damage, and shall disclose and make available all information and documents in his possession or under his control relative thereto and shall generally co operate with and assist my/our principal in his investigations to the extent that it is in his power to do so; ii) my/our principal shall notify the Master in writing, of it objection (if any) to the claim or the amount thereof and the grounds therefore within three months from the date of such notification by the Master or within such further period as the Master may allow in writing having regard to the reasonable requirements of my/our principal for purposes of investigation default and the amount of the loss so claimed; c) the Master shall notify my/our principal in writing of this decision on any objection lodged by my/our principal to the claim, the validity or amounts thereof and in the event of any rejection of any objection, the grounds therefore; d) in the event and to the extent that the Master shall reject the objection to the claim or the amount thereof, my/our principal shall be entitled to institute action within four months of such rejection; e) the amount paid by my/our principal to the Master in terms of paragraph 1, shall be kept by the Master in trust pending the expiration of the period of four months mentioned in paragraph (d) or the final determination of any action instituted by my/our principal, whichever occurs last. 3. It is a condition of this bond that if the incumbent(s) shall duly and properly perform his/their duties in relation to the Estate/Company/Trust and the administrator of the assets thereof, then the obligation assumed hereunder shall lapse and be of no further force and effect. 4. I/we on behalf of my/our principal renounce the benefits of excussion and division with the meaning and effect whereof I/we declare my/our principal to be acquainted. 5. As domicilium citandi et executandi I/we hereby choose ................................... .............................................................................................. SIGNED at ....................... on this ........... day of ................... 19 ..... AS WITNESSES 1.

................................ for PRINCIPAL

1.

................................

2.

................................ for PRINCIPAL

2.

..................................

REQUIREMENTS BEFORE AN ENDORSEMENT IN TERMS OF SECTION 42(2) OF ACT 66 OF 1965 CAN BE ISSUED THIS MEMORANDUM MUST ACCOMPANY YOUR APPLICATION

ESTATE LATE: ................................... NO: ........ SHORT DESCRIPTION OF PROPERTY: ................................ ............................................................... ............................................................... A SALE PRIOR TO DEATH: 1.

Certificate by the Executor that he has examined the transaction and that in his opinion the sale is legal and binding.

2.

Certificate by the Executor that the heirs are aware of the sale and have no objection thereto.

3.

Comply with queries B1, 3, 8, 9 and 10 hereunder.

B SALE BY THE EXECUTOR: 1.

Certificate by the Executor that the estate is solvent, unless the account has already been lodged.

2.

Executor's reasons for selling.

3.

Deed of Sale or conditions of Sale.

4.

Written consent by: a) b) c)

Major heirs Guardians/Curator of any Minor heirs or person under disability Creditors if estate is being administered in terms of section 34.

5.

If the sale is by public auction, the names and dates of the newspapers in which the sale was advertised must be furnished.

6.

Sworn appraisement if minors or other persons under disability are involved.

7.

Certificate by the executor that the purchaser is not a person mentioned in section 49(1) of Act 66 of 1965.

8.

confirmation that there is no prohibition to the sale in any law, will or title deed.

9.

Power of attorney to pass transfer.

10.

Certificate by a conveyancer explaining any difference in the description of the property in the account, deed of sale and/or power of attorney.

MEMORANDUM OF MASTER'S REQUIREMENTS BEFORE A TAKING OVER IN TERMS OF SECTION 38 OF ACT 66 OF 1965 WILL BE CONSIDERED 1. A sworn statement by the surviving spouse containing the

following:

1.1

Full names of deceased and reference number of estate.

1.2

An indication as to whether the estate is solvent.

1.3

A concise but accurate list of estate assets and claims against it.

1.4

A specific request by the surviving spouse that authority be granted in terms of section 38(1) of the Administration of Estates Act for the taking over of all assets of the estate. Where it is intended to only take over certain assets then these assets must be identified in the application.

1.5

The reason why the surviving spouse wishes to take over the assets.

1.6

How the rights of claimants against the estate will be protected?

1.7

A list of the names of all beneficiaries of the estate indicating whether they are majors or minors and their relationship to the deceased. (If the deceased died intestate, a next-of-kin affidavit must be completed and lodged with the application).

1.8

Where minor beneficiaries are concerned:

1.8.1

The reason why it is considered that the taking over will be to their advantage.

1.8.2

Whether the minors' portions will be paid into the Guardians Fund in cash. If security is furnished the following additional information is required,

1.8.2.1

The security offered

1.8.2.2

If it is a mortgage bond over immovable property an appointed appraiser's valuation of such property.

1.8.2.3

Where a second or further bond is offered, particulars of excising bonds, how they are being discharged, the balances still owing thereunder as well as the amounts of cost clauses, and

1.8.2.4

Whether any collateral security is available and offered.

1.9

Whether the surviving spouse has any intention of selling the assets which he/she wished to take over. If so full particulars must be furnished.

2.

And which is accompanied by the following:

2.1

Written consents of all major beneficiaries and creditors if estate is being administered in terms of section 34. (married women to be assisted by their husbands), and

2.2

Valuations of the assets to be taken over.

W21 - 09/95 - 100

AFFIDAVIT

(RE: DISCHARGE OF EXECUTOR) ESTATE LATE ............................................ no ............... I, .............................................. the Executor/trix duly appointed by letters of Executorship dated .................... hereby declare the following under oath viz:1. That all assets and property have been duly accounted for. 2. That all liabilities have been paid in full. 3. That Government taxes have been paid in full. 4. That all beneficiaries have been paid the full cash amounts due to them, the movables due to them have been duly handed over, transfer of immovable properties have been duly registered in the name(s) of the person(s) entitled thereto, that no claim for any inheritance remains unsettled. 5. That I have completed all my duties as Executor/trix in terms of and subject to the provisions of the Estates Act 66 of 1965 (as amended) and that nothing further remains to be performed by me as Executor/trix. 6 That I am entitled to my discharge as Executor/trix in terms of section 56 of Act 66 of 1965 (as amended). 7. The original Letters of Executorship are returned herewith and I certify that there are no copies which can be used in connection with the estate in circulation. SIGNED AND SWORN TO AT ..................... on this ........... day of ....................... 19 ........... ................... EXECUTOR/TRIX The deponent acknowledges that he/she understands the contents of this affidavit. Sworn to before me at ................. on this ........ day of ..... 19 ... ..................... COMMISSIONER OF OATHS

SPECIAL POWER OF ATTORNEY I the undersigned ..................................................

in my capacity as Executor/trix in the estate of the late ............... .................by virtue of Letters of Executorship no ........... issued by the Master of the High Court hereby nominate, constitute and appoint ........................................................................... with power of substitution to be my lawful attorney and agent in my name, and place and stead. To sign and execute all documents necessary, including Death Notice, and Liquidation Accounts; To enter into a Bond of Security for the administration of the estate on my behalf; To deal with the assets of the estate in Namibia and for this purpose to pass transfer, cede or assign any assets of the estate, to sell by Public Auction or private Treaty the assets of the estate whether movable or immovable and to grant acquittance or receipts for all payments received; To encash shares or marketable securities or to transfer to the duly appointed heirs in terms of the Will of the deceased to the best of our discretion, bearing in mind the will and/or wishes of the heirs any share or marketable securities held by the deceased; To open and conduct a Banking Account in the name of the estate and to operate thereon by the signing and endorsement of all instruments requisite and necessary in the premises; And generally for effecting the purpose aforesaid, to do or cause to be done whatever shall be requisite, as fully and effectually, for all intents and purposes, as I might or could do if personally present and acting herein, hereby ratifying, allowing and confirming and promising and agreeing to ratify, allow and confirm whatever my said attorney and agent shall lawfully do, or cause to be done, by virtue of these present. SIGNED at ................... on ..................... in the presence of the undersigned witnesses AS WITNESSES. ...................... .....................

.................

EXECUTOR