What is a “foreign estate?”
Where a deceased left asset in the Republic, whether or not he or she was ordinarily resident in the Republic, no person may deal with the South African assets unless authorized thereto by a Master of the High Court in South Africa (section 13(1) of the Administration of Estates Act 66 of 1965 (the Act). This means that a person who has received letters of executorship in some country other than the Republic of South Africa will not be entitled to deal with the assets of the estate within the Republic. He/she must, before he/she can do so, be authorized by a Master in the Republic. The Master gives this authority either by issuing letters of appointment or, in certain circumstances which will be discussed below, by signing and sealing letters of appointment previously issued by some other State.
Which Master has Jurisdiction in a “foreign estate”?
Contrary to what many people believe, it is not the Master in whose area of jurisdiction the property or the greater portion thereof is situated that has jurisdiction in a foreign estate. In terms of section 4(1)(b) of the Act, any Master to whom application is made to grant letters of executorship or to sign and seal any such letters already granted in respect of the estate concerned, has jurisdiction in a foreign estate.
The question arises, how can registration of the same estate at more than one Master’s Office be avoided if any Master has jurisdiction? The answer is found in section 22(2)(c) of the Act, which provides that the person who applies for letters of executorship in a foreign estate or for the signing and sealing of letters of appointment issued in another State, must lodge a declaration under oath with the Master that letters of executorship have not already been granted or signed and sealed by any other Master in the Republic.
“Proclaimed” and “non-proclaimed” States
Not all foreign estates are treated the same. Foreign estates of the so-called “proclaimed States” receive special treatment, in that the Master may, instead of issuing letters of executorship in those estates, merely sign and seal the letters of appointment already issued in the foreign State (section 21 of the Act refers).
What is a “proclaimed State”? Section 20(1) of the Act provides that the Minister may by Government Gazette declare which country is regarded as a proclaimed State for the purpose of section 21.
No proclamation has, however, been issued under section 20(1) of the 1966 Act, and therefore section 20(3) applies which provides that any proclamation issued under section 40 of the Administration of Estates Act, 24 of 1913, shall be deemed to have been issued under sub-section 1.
The following states have been proclaimed under section 40 of the Administration of Estates Act, 1913.
- Basutoland (Lesotho)
- Bechuanaland Protectorate (Botswana)
- Province of British Columbia (in Canada)
- British Guiana
- Channel Islands
- New South Wales (in Australia)
- New Zealand
- Northern Rhodesia (Zambia)
- Southern Rhodesia (Zimbabwe)
- South West Africa (Namibia)
- Tanganyika (Tanzania)
- United Kingdom of Great Britain and Ireland
- Victoria (in Australia)
Types of Appointments in Foreign Estates
There are seven (7) types of appointments which can be made in foreign estates. They are as follows:
- Signing and sealing of foreign letters of appointment issued in a proclaimed State (section 21).
- Three shortened procedures in terms of section 25 where the only assets in South Africa consists of movables:
- Signing and sealing of foreign letters of appointment in terms of section 21, with directions, where the only assets in the estate consist of movables (section 25(1)(a)(i)).
- Letters of executorship, with directions, where the only assets in the estate consist of movables, and the deceased was not resident in a proclaimed state or where no letters of appointment were issued in a proclaimed State (section 25(1)(a)(ii)).
- Appointment by means of form J128 where the only assets in the estate are shares (second portion of section 25(1)(a)(ii) which reads “…or direct the manner in which the estate shall be liquidated and distributed;”)
- Ordinary letters of executorship issued in terms of section 14 of the Act.
- Ordinary section 18(3) appointments.
- Appointments in estates of Mozambican nationals governed by the provisions of the Mozambican Labour Agreement of 1964, Treaty Series 11.
Each of the above types of appointment will now be discussed separately.
Signing and Sealing of Foreign Letters of Appointment Issued in a Proclaimed State (section 21)
Where the estate originates in one of the “proclaimed States” and the deceased left assets other than only movables or shares in the Republic of South Africa, then the Master may sign and seal the letters of appointment granted by the proclaimed state.
The person in whose favour letters of appointment were issued or his/her duly authorised agent, may lodge with the Master to whom application is made, an authenticated copy of the letters of appointment, which may then, subject to the provisions of section 22 and 23 of the Act, be signed and sealed by the Master in terms of section 21. When this has been done the person appointed in terms of the foreign letters of appointment is deemed to be an executor to whom letters of executorship have been granted by the Master for purposes of administering the South African assets of the deceased. From that point onwards all the procedures in the Administration of Estates Act apply to the estate, which means that the duly appointed person or his/her agent must advertise the estate in terms of section 29, thereafter lodge a liquidation and distribution account in terms of section 35, and then finalise the estate as prescribed by the Act.
It is important to note that the person who applies for the signing and sealing of an appointment issued in a proclaimed State must be capable of taking up an appointment in the Republic of South Africa – in other words he/she may not be a person prohibited from administering an estate in South Africa (section 13(2) and regulation 9(1) refers).
It may happen that a will appoints different executors to administer the South African and foreign estates. Should this be the case, signing and sealing of letters of executorship issued by the foreign country to the person who is not nominated as the executor of the South African estate will not be the appropriate procedure. The person nominated to be executor of the South African estate would then have to apply for appointment in the normal way and lodge the documents normally required.
The Master may also in certain instances refuse to sign and seal letters of appointment issued in a foreign State.
Section 22 of the Act, provides as follows:
“(1) If it appears to the Master or if any person having an interest in the estate lodges with the Master in writing an objection that the nomination of any person as executor testamentary or assumed executor is or should be declared invalid, letters of executorship or an endorsement, as the case may be, may be refused by the Master until-
(a) the validity of such nomination has been determined by the Court; or
(b) the objection has been withdrawn; or
(c) the person objecting has had a period of fourteen days after such refusal or such further period as the Court may allow, to apply to the Court or an order restraining the grant of letters of executorship, or the making of the endorsement, as the case may be.
(2) The Master may-
(a) if any person to whom letters of executorship are to be granted or in whose favour an endorsement is to be made under section fifteen, or at whose instance letters of executorship are to be signed and sealed under section twenty-one, resides or is outside the Republic and has not chosen domiciliumcitandi et executandi in the Republic; or
(b) if any such person could, if he is appointed as executor, be removed from his office under sub-paragraph (ii), (iii) or (iv) of
paragraph (a) of sub-section 1 of section fifty-four or sub-paragraph (iii) of paragraph (b) of that subsection; or
(c) if any such person fails to satisfy the Master by a declaration under oath that letters of executorship have not already been granted or signed and sealed by any other Master in the Republic,
refuse to grant letters of executorship or to make the endorsement or to sign and seal the letters of executorship, as the case may be.
With the exception of section 22(2)(b) above, all the other grounds for refusal to sign and seal foreign letters of appointment are clear and need no further explanation.
The grounds for refusal referred to in section 22(2)(b) above, namely those instances where a person could, if he is appointed as executor, be removed from his office as such, are listed in section 54 as follows:
“54(1) An executor may at any time be removed from his office-
(a) by the Court –
(ii) if he has at any time been a party to an agreement or arrangement whereby he has undertaken that he will, in his capacity as executor, grant or endeavour to grant to, or obtain or endeavour to obtain for any heir, debtor or creditor of the estate, any benefit to which he is not entitled, or
(iii) If he has by means of any misrepresentation or any reward or offer of any reward, whether direct or indirect, induced or attempted to induce any person to vote for his recommendation to the Master as executor or to effect or to assist in effecting such recommendation, or
(iv) if he has accepted or expressed willingness to accept from any person any benefit whatsoever in consideration of such person being engaged to perform any work on behalf of the estate”
(b) by the Master-
(iii) if he or she is convicted, in the Republic or elsewhere, of theft, fraud, forgery, uttering a forged instrument or perjury, and is sentenced to imprisonment without the option of a fine, or to a fine exceeding R2 000, or” …
Although a foreign executor may apply for the signing and sealing of his appointment issued in a proclaimed State he/she can also choose to apply for appointment in the normal way and lodge the documents normally required.
What is an Authenticated Document?
Section 21 provides that documents must be authenticated as provided in the rules made under section 6(1)(i) of the Rules Board for Courts of Law Act, No. 107 of 1985. In terms of these rules any “document executed in any place outside the Republic for use in South Africa must be authenticated by the signature and seal of office:
(a) of the head of the South African diplomatic or consular mission or a person in the administrative or professional division of the public service serving at a South African diplomatic, consular or trade office abroad or a South African foreign service officer grade VI or an honorary South African consul-general, consul, vice-consul or trade commissioner; or
(b) of a consul-general, consul, vice-consul or consular agent of the United Kingdom, or any person acing in any of the aforementioned capacities or a proconsul of the United Kingdom; or
(c) of any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or
(d) of any notary public or other person in such foreign place who shall be shown by a certificate of any person referred to in
para (a), (b) or (c) or of any diplomatic or consular officer of such foreign country in the Republic to be duly authorised to authenticate such document under the law of that country; or
(e) of a notary public in the United Kingdom of Great Britain and Northern Ireland or in Zimbabwe, Lesotho, Botswana or Swaziland.
Requirements for the signing and sealing of foreign letters of appointment
The following documents must be lodged before foreign letters of appointment can be signed and sealed:
(a) Death Notice – J 294.
(b) Death certificate.
(c) Authenticated copy of the letters of appointment granted in the proclaimed State – section 21 refers. This document must be lodged in duplicate. If not, the Master may make a copy thereof and certify it on payment of the prescribed fee for certified copies.
(d) A duly certified and authenticated copy of the will of the deceased (if any) (section 21 refers). Where the will is in a foreign language it is the practice to require a sworn translation thereof by a sworn translator appointed by the Republic courts.
(e) An inventory (J 243) reflecting all property known to belong to the deceased within the Republic of South Africa
– (section 21 refers).
(f) A bond of security by the foreign executor for the full value of the assets, unless he is exempted in terms of the provisions of section 23(1) or (2). Also refer to the proviso to section 23(2) in terms of which the Master may, notwithstanding the exemptions provided for in sub-section (2), call for security in certain circumstances. One of these circumstances is where the nominated person resides or is about to reside outside the Republic.
(g) An affidavit in terms of section 22(2)(c) in terms of which is declared that letters of executorship have not already been granted or signed and sealed by any other Master in the Republic.
(h) Where the person applying is not resident in the Republic, an authenticated document choosing a domicilium citandi et executandi within the Republic is required–(section 22(2)(a) refers).
(i) Where the foreign executor is represented by an agent in the Republic of South Africa a certified copy of the Power of Attorney must be lodged.
Should you require any more information on this matter, do not hesitate to contact us.
TONKIN CLACEY PRETORIA
012 346 1278