The law, which
was passed by Parliament changes the procedures when a person dies without
naming an executor in their will or without having a will in the first place.
Under the old
law, the Master of High Court after consulting the heirs laid down in general
law would appoint an executor; the new law now requires this to be confirmed by
a judge of the High Court. Most people who leave a will name their executor in
the will and their wish is almost always confirmed automatically. The problem
arises when there is no will, no executor named, or the named person is dead or
missing or clearly unsuitable.
The coming into
effect of the law was announced in a Statutory Instrument of a Government
Gazette.
In terms of the
law, the Master should not unilaterally remove an executor of an estate. This
is meant to enhance protection of widows, widowers and orphans during disputes
over deceased estates.
The Master of
the High Court will have to approach the High Court and argue his or her case
before appointing or removing any executor of a deceased estate and will have
to seek the approval of the Guardians Fund in making investments of funds
falling under the office.
The law seeks
to provide for better and autonomous administration of the Office of the Master
of the High Court to enable it to serve the people efficiently and in a
decentralised manner through, among other things, removing it from the Judicial
Service Commission.
Clause 4 of the
Act provides that the appointment of an executor or executors of a deceased
estate by the Master, where this is not laid down in a will, must be approved
by the High Court after notifying everyone with a legitimate interest in the
estate, should there be no resolution among stakeholders on who should become
an executor.
Sometimes the
family can unanimously agree, and again that can be confirmed.
But problems
can arise where there is no executor laid down in a will, and where there is a
family disagreement.
Clause 9 deals
with the removal of an executor, tutor or curator from office, where the Master
should apply to the High Court after notifying every person with an interest in
the estate for a determination.
Clause 10
provides that an executor, with the concurrence of the Master and other
interested parties, should approach the High Court before a property is
disposed of or sold, particularly if the sale is not through an auction.
The Clause
reads as follows: “The executor produces to the Master, an affidavit, jointly
sworn by all the persons having an interest in an estate, supporting the
application of the executor to sell specified property of the estate, being
property in respect of which the will of the deceased contains no provision to
the contrary, other than by public auction and the Master is of the opinion
that no good grounds exist for not granting the application.”
During debate
on the law, Justice, Legal and Parliamentary Affairs Minister, who was steering
it said the involvement of everyone, including the High Court, will help deal
with connivance.
There is also a
clause which provides that the Master of the High Court must get approval from
the board before making any investment of funds he is administering, such as
the Guardian Fund, meant to help children particularly orphans. Herald
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