Deceased Estates 11th Edition

Deceased
Estates
Eleventh edition

Deceased Estates
Eleventh edition
B de Clercq
MC Schoeman-Malan
P de W van der Spuy
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ISBN 978 0 409 03887 3
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First Edition 1989 Seventh Edition 2008
Second Edition 1991 Reprinted 2009
Third Edition 1993 Eighth Edition 2010
Fourth Edition 2000 Ninth Edition 2011
Fifth Edition 2003 Tenth Edition 2015
Sixth Edition 2007 Reprinted 2016
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Editor: Lisa Sandford

Technical Editor: Maggie Talanda
Foreword
Due to changes in several of the Acts that deal with the administration of deceased estates, we
found it necessary to update the previous volume on deceased estates. As in previous editions,
a practice-orientated approach has been followed. It is not only administrators of deceased
estates who will find this book indispensable, but other business people as well.
This publication will enable the reader to interpret and apply the laws and procedures
relating to the winding up of a deceased estate. Administrators, attorneys, accountants,
investment advisors, insurance advisors and students in this subject will find this publication
useful.
We follow the approach of referring only to an author’s name in the footnotes. Full details
appear in the bibliography.
v
vi Deceased estates
More about the

authors
De Clercq, Bernadene
BCom (UP), DCompt (Unisa), CA (SA), CFP®
Prof De Clercq is an associate professor in the Department of Taxation at the University of
South Africa where she lectures estates and other tax courses. She is also co-author of other
publications. As a Chartered Accountant and a certified financial planner, she has practical
experience in the planning and administration of estates.
Schoeman-Malan, Magdalena Carolina

BA LLB, LLD (UP)
Prof Schoeman-Malan is a professor in the Department of Private Law at the University of
Pretoria where she teaches the Law of Succession, Trusts and Estates. She is also an Advocate
of the High Court of South Africa. She regularly writes articles for legal publications and is also
co-author of other textbooks.
Van der Spuy, Pieter de Wet

BA LLB (US)
Mr Van der Spuy is a senior lecturer in the Department of Private Law at the University of
Pretoria where he teaches the Law of Succession and Advanced Law of Succession. He is an
attorney of the High Court of South Africa and has also been admitted as a notary and
conveyancer. He acquired practical experience in the planning and administration of estates
while practising his profession as an attorney. He regularly writes articles for legal publications
and is also co-author of other textbooks.
Contents
Page
Foreword ................................................................................................................... v
More about the Authors .................................................................................................... vi
Chapter 1 Introduction............................................................................................... 1
Chapter 2 Types of marriages .................................................................................... 9
Chapter 3 Intestate succession .................................................................................. 19
Chapter 4 Testate succession ..................................................................................... 47
Chapter 5 The Master ................................................................................................ 81
Chapter 6 The executor.............................................................................................. 87
Chapter 7 The executor’s account ............................................................................ 125
Chapter 8 Estate duty ................................................................................................ 145
Chapter 9 Examples of executor’s accounts .............................................................. 183
Chapter 10 Income tax & capital gains tax................................................................... 223
Chapter 11 Donations tax ........................................................................................... 263
Acts, regulations and tables

Schedule 1 Intestate Succession Act ............................................................................ 277
Schedule 2 Wills Act ..................................................................................................... 281
Schedule 3 Administration of Estates Act .................................................................... 288
Schedule 4 Regulations ................................................................................................ 329
Schedule 5 Estate Duty Act .......................................................................................... 337
Schedule 6 Extracts from regulations Table A and B ................................................... 359
Schedule 7 Consumer Price Index................................................................................ 363
Examples of documents
Schedule 8 Death notice ............................................................................................. 369
vii
viii Deceased estates
Page
Schedule 9 Inventory ................................................................................................... 370
Schedule 10 Acceptance of trust as executor ................................................................ 374
Schedule 11 Letter to financial institution ..................................................................... 375
Schedule 12 Letters of executorship.............................................................................. 376
Schedule 13 Executor’s power of attorney .................................................................... 377
Schedule 14 Government Gazette – Notice to creditors in deceased estates .............. 378
Schedule 15 Notice in a newspaper ............................................................................... 379
Schedule 16 Example of Master’s memorandum ......................................................... 381
Schedule 17 Liquidation and distribution accounts in deceased estates lying
for inspection ............................................................................................ 382
Schedule 18 Application for endorsement .................................................................... 383
Schedule 19 Undertaking and acceptance of Master’s directions................................. 384
Schedule 20 Affidavit ..................................................................................................... 385
Schedule 21 Redistribution agreement ......................................................................... 387
Schedule 22 Estate duty ................................................................................................ 388
Schedule 23 Income Tax Return .................................................................................... 396
Bibliography and selected reading.................................................................................... 423

We only refer to an author’s name and the year of the publication in
the footnotes. Full details appear in the bibliography.
Word register .................................................................................................................. 425
1
Introduction
1.1 Concepts ................................................................................................................. 1

1.2 Applicable law ........................................................................................................ 2
1.3 Uniform system of administration of estates ......................................................... 2
1.4 Legislation concerning the administration of estates ............................................. 3
1.5 Assets excluded from the usual administration process ........................................ 6
1.5.1 General ...................................................................................................... 6
1.5.2 Administration in terms of section 18(3) .................................................. 6
1.5.3 Foreign assets ............................................................................................ 6
1.6 Summary of the administration process................................................................. 7
1.7 Use of computer programs ..................................................................................... 8
1.8 Effective administration of estates ......................................................................... 8
1.1 Concepts
A deceased estate consists of all the assets and liabilities which a deceased person leaves
behind at his death.1 The administration of an estate can be briefly defined as the process by
which a deceased person’s debts are paid and the balance of his estate is awarded and trans-
ferred to his beneficiaries. This process takes place in terms of the law and under the supervi-
sion of the Master of the High Court.2
A beneficiary is someone who receives a benefit from the deceased estate in terms of the
will of the deceased or in terms of the law of intestate succession.
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1 See Erasmus & De Waal 1989, p 2. De Waal & Schoeman-Malan 2008, p 3. We only refer to an
author’s name and the year of the publication in the footnotes. Full details appear in the biblio-
graphy.
2 S 1(c) and 1(d) of the Administration of Estates Laws Interim Rationalisation Act 20 of 2001 defines
“Court” and “Master” as of the High Court.
1
2 Deceased estates
The person who is usually responsible for the administration of the deceased estate is known
as the executor.3 He is appointed by the Master of the High Court,4 who keeps a watchful eye
over the executor during the performance of his duties. The office of the Master and his most
important functions are discussed in Chapter 5 of this book.
The person who actually performs the administration of an estate is known as the adminis-
trator. The executor can act as the administrator himself, or he may appoint an agent to act as
administrator. The office of the executor and the entire administration process is discussed
fully in Chapter 6.
1.2 Applicable law

The administrator must have a thorough knowledge of all the different aspects of the applica-
ble law. It was stated above that a beneficiary will receive his benefits either in terms of the
provisions of a will, or in terms of the law of intestate succession. Both the law of testate
succession and the law of intestate succession are therefore of major importance to the admin-
istrator of an estate in determining how estate assets should be distributed. The law of intes-
tate and testate succession are discussed in Chapters 3 and 4 respectively. The most important
aspects of these branches of the law are regulated by legislation. There are, however, aspects
of the law that are based on common law and that are not governed by legislation. These
matters, such as the interpretation of wills, aspects regarding the capacity to inherit, accrual
and massing, are also discussed in Chapter 4.
The administration process remains essentially the same, irrespective of whether estate as-
sets are distributed according to a will or according to the rules of intestate succession. This
process does not depend on the preferences of the administrator, but is prescribed by law,
principally the Administration of Estates Act 66 of 1965.
1.3 Uniform system of administration of estates

At present all testate and intestate estates of members of all population groups are adminis-
tered under the supervision of the Master of the High Court in terms of the provisions of the
Administration of Estates Act 66 of 1965. All intestate estates are now also distributed in terms
of the Intestate Succession Act 81 of 1987. The latter Act is supplemented by the decision in
Bhe and Others v Magistrate Khayelitsha and Others5 in cases where the deceased was married
in terms of customary law.6 The system by which the intestate estates of black persons were
administered by a magistrate in terms of section 23 of the Black Administration Act 38 of 1927
and its associated regulations has therefore been abolished.7
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3 S 14 and s 18 of the Administration of Estates Act 66 of 1965.
4 S 13 of the Estates Act 66 of 1965.
5 2005 (1) SA 580 (CC).
6 See Bhe and Others v Magistrate Khayelitsha and Others 2005 (1) SA 580 (CC) 630D–G [par 125];
Meyer & Rudolph 2007, 1 and the discussion in 3.1 below.
7 See Bhe and Others v Magistrate Khayelitsha and Others 2005 (1) SA 580 and the Repeal of the
Black Administration Act and Amendment of Certain Laws Act 28 of 2005.
Chapter 1 Introduction 3
The Administration of Estates Act, in terms of section 18(3), makes provision for uncompli-
cated, small intestate estates to be administered under the supervision of an appointed officer,
who does service at a magistrate’s office (“service point”) on the Master’s behalf.8 The ap-
pointed officer does not administer the estate. This task is the duty of the person appointed by
the officer in terms of section 18(3).
1.4 Legislation concerning the administration of estates

From the foregoing it is already clear that a number of statutory provisions are important to
the administration of deceased estates. The principal acts are indicated below:
Administration of Estates Act 66 of 1965
From the point of view of the administrator of an estate, this is by far the most important act. It
provides the juridical framework within which an estate is administered and deals with matters
such as the functions of the Master, how deceased estates are reported, the appointment,
powers and duties of executors, and the liquidation and distribution account. This Act applies
to all estates where the deceased died on or after 2 October 1967. Chapter III, which deals with
administrators (trustees), never came into force and was repealed by the Trust Property Con-
trol Act 57 of 1988 which came into effect on 31 March 1989. The Administration of Estates Act
is contained in full in Schedule 3 to this book.
The regulations issued in terms of the Administration of Estates Act9 are also of great im-
portance. Inter alia, they regulate:
 the form of the death notice;
 the form of the inventory;
 the manner in which the liquidation and distribution account must be framed;
 the manner in which application must be made for an extension of time for submission of
the estate account;
 the executor’s remuneration; and
 the Master’s fees.
The regulations are discussed fully in Chapter 7.
Wills Act 7 of 1953
This Act contains all the formality requirements regarding wills, as well as provisions regarding
the capacity of persons to inherit, and is discussed in Chapter 4. The Act appears as Schedule 2
to this book.
Intestate Succession Act 81 of 1987
The law of intestate succession is largely codified in this Act, and is discussed in Chapter 3. The
effect of the Civil Union Act 17 of 2006, the Reform of Customary Law of Succession and
___________
8 See s 2A and 5.1 below.
9 S 103 of the Administration of Estates Act. Extracts from the most important regulations appear in
Sch 4.
4 Deceased estates
Regulation of Related Matters, Act 11 of 2009, and recent decisions of the Constitutional Court
concerning the estates of black persons, who die intestate, are also explained. The Act appears
as Schedule 1 to this book.
Trust Property Control Act 57 of 1988
This Act provides for effective control, especially by the Master, over the administration of
trusts. In cases where assets of a deceased estate have been bequeathed in trust, the adminis-
trator will have to take full cognisance of the provisions of this Act.
Estate Duty Act 45 of 1955
This Act contains all the provisions regarding estate duty. Estate duty is discussed in Chapter 8.
The Act appears in Schedule 5 to this book. Other tax aspects such as capital gains tax, is
discussed in Chapter 10.
Legislation concerning types of marriages
In terms of the Recognition of Customary Marriages Act 120 of 1998, all customary marriages
between black persons are recognised as marriages for all purposes.
The Civil Union Act 17 of 2006 makes provision for new types of marriages, namely civil
unions in terms of which same-sex partners, and persons of the opposite sex, may marry each
other.
The Matrimonial Property Act 88 of 1984 is of importance to the administrator of an estate
because, inter alia, it makes the accrual system applicable to all marriages out of community of
property entered into on or after 1 November 1984, unless the accrual system is expressly
excluded in the antenuptial contract.
All this legislation and the different types of marriages, including the accrual system, are
discussed fully in Chapter 2.
Maintenance of Surviving Spouses Act 27 of 1990
This act provides for a surviving spouse’s claim for maintenance against the estate of the
deceased spouse under certain conditions. In terms of recent legal developments, a spouse for
the purposes of this Act will include a party to a customary marriage between black persons, a
monogamous and polygamous Muslim marriage and a civil union in terms of the Civil Union
Act.10 Knowledge of the Maintenance of Surviving Spouses Act11 is essential for the administra-
tion of an estate in order to be able to treat such a claim correctly.12 This aspect is discussed in
Chapter 6.
___________
10 17 of 2006.
11 27 of 1990.
12 This need is well illustrated by the judgment in Oshry v Feldman [2011] 1 All SA 124 (SCA) where the
Court granted a cost order de bonis propriis against the executors in favour of a surviving spouse
claiming maintenance.
Children’s Act 38 of 2005
Section 17 of this Act reduced the age at which a child reaches the age of a major from 21 to 18
years. This provision came into effect on 1 July 2007. The effect is that references to minors
and majors in other legislation, such as the Administration of Estates Act, are references to
persons younger than 18, and 18 or older, respectively.
Restrictions of fideicommissa over immovable property
The Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 is applicable

here. At common law, estate assets such as for example farms could be encumbered by fidei-
commissa to a virtually unlimited extent. A testator could, for example, by way of a suitable
fideicommissary stipulation, ensure that his farm would remain in the family for ten or more
generations. Section 6 of the Act now stipulates that a fideicommissum created after the
commencement of the Act, in respect of immovable property in favour of more than two
successive fideicommissarii, is limited to only two fideicommissarii, despite the provisions of
the will concerned. Section 7 limits the duration of the fideicommissa created before the date
of commencement of the Act.
Note that the Act applies only to immovable property. However, because of its more
ephemeral nature, movable property is unlikely to be bequeathed subject to an extended
fideicommissum which stretches over several generations.
Subdivision of Agricultural Land Act 70 of 1970
The Subdivision of Agricultural Land Act 70 of 1970 controls the physical and abstract division
of agricultural land. It is essential that the estate planner and the administrator should be fully
acquainted with this Act. See Chapter 6 for a discussion of the most important provisions of
this Act.13
Deeds Registries Act 47 of 1937
This Act is of importance since ownership and other real rights in immovable estate assets
must be transferred to beneficiaries and other parties in accordance with it.
Income Tax Act 58 of 1962
Section 25 of this Act stipulates the responsibilities of the executor as a representative of the
deceased estate, regarding any income received or accrued that would have been income in
the hands of the deceased person. Section 25 was redrafted and affects deceased persons and
their deceased estates coming into operation on or after 1 March 2016.
Furthermore, changes to the rules in terms of capital gains in paragraphs 40, 41 and 67 of
the Eighth Schedule to the Act was moved to the main body of the Income Tax Act in the form
of a new section 9HA. The changes to this section also came into operation on 1 March 2016
and apply to persons dying on or after that date.
___________
13 The Subdivision of Agricultural Land Repeal Act 64 of 1998 provides for the repeal of this Act, but
has not yet come into operation. At this stage it is uncertain if and when the repealing Act (64 of
1998) will come into effect. See the discussion in par 6.4.12.
6 Deceased estates
See Chapter 10 for a discussion of the income tax (including capital gains tax) relevant to
deceased estates.
The Tax Administration Act 28 of 2011
To simplify administrative provisions, the first draft of the Tax Administration Bill was published
in 2009, which was followed by the promulgation of Tax Administration Act, 28 of 2011 on
4 July 2012. This Act only deals with tax administration, and seeks to (i) incorporate into one
piece of legislation administrative provisions that are generic to all the tax Acts and currently
duplicated in the difference tax Acts; (ii) remove redundant administrative provisions; and (iii)
harmonise the provisions as far as possible. In all tax related matters, the executor of the
deceased estate has to ensure that he or she acts according to the requirements of this Act,
especially regarding the submission of returns, payment of outstanding charges and possible
interest and penalties.
1.5 Assets excluded from the usual administration process
1.5.1 General
The usual administration process in terms of the Administration of Estates Act, as it is discussed
in this book, excludes certain estate assets. These assets include the assets of certain small (low
value) estates and certain foreign assets.
1.5.2 Administration in terms of section 18(3)

If the gross value of an estate is R250 000 or less, the Master may dispense with the appoint-
ment of an executor and give instructions that the estate be administered in a simple and
inexpensive manner in terms of section 18(3) of the Administration of Estates Act.14 This
simplified procedure is discussed briefly in Chapter 6.
1.5.3 Foreign assets

Foreign assets do not fall under the jurisdiction of the Master of the High Court in South Africa.
The Master only keeps an eye on the administration of the South African assets of a person’s
estate. The foreign assets of a South African estate must usually be administered in terms of
the law of the foreign country concerned.
In many other countries the authorities do not exercise the same strict control over the ad-
ministration process as is the case in South Africa. The process often followed overseas re-
minds one of the simpler administration processes which are available in the case of smaller
estates in terms of section 18(3) of the Administration of Estates Act.15
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14 66 of 1965.
15 66 of 1965.
1.6 Summary of the administration process

The administration of an estate entails a large number of activities which differ from case to
case. The sequence in which the various steps are carried out will not be exactly the same for
each estate. The following is a summary of the administration process for the “normal type” of
estate:
(1) A first interview with the relatives to obtain essential information and to have documents
signed.
(2) Reporting the estate by lodging the death notice, inventory, original will and the ac-
ceptance of trust as executor with the Master.
(3) The opening of a main file and sub-files for correspondence, documents, assets, liabilities,
cheque account and the liquidation and distribution account.
(4) Letters to creditors and debtors in order to determine claims for and against the estate.
(5) Obtaining valuations of movable and immovable estate assets.
(6) The completion and submission of an income tax return.
(7) Receipt of the letters of executorship.
(8) Placement of the notice to creditors in the Government Gazette and in a newspaper.
(9) Opening an estate cheque account.
(10) Determining whether the estate is solvent and determining a suitable method of admin-
istration in consultation with the beneficiaries.
(11) The collection of sufficient cash; payment of debts.
(12) The preparation and submission of the liquidation and distribution account (sometimes
also referred to as the “executor’s account” or the “estate account”) and the preparation
of the estate duty return.
(13) The placement of a notice in the Government Gazette and in a newspaper to the effect
that the liquidation and distribution account is lying open for inspection.
(14) The payment of any outstanding debt. The payment and/or transfer of legacies and
inheritances to beneficiaries.
(15) The payment of Master’s fees.
(16) The payment of estate duty, if the estate is dutiable.
(17) Fulfilment of the Master’s final requirements.
(18) Receipt of filing notice from the Master.
An inexperienced administrator may possibly find it useful to prepare a list of duties for each
estate in terms of the above summary. This list is attached to the inside of the main file and the
items are ticked off as the administration process advances. This will ensure that steps are not
omitted and the administrator can easily ascertain which step must be carried out next. These
different steps are discussed in more detail in Chapter 6. Chapter 7 contains an example and
exposition of the liquidation and distribution account, while Chapter 9 contains further exam-
ples of a number of typical accounts. It sometimes happens that an executor discovers that an
estate is insolvent. The subject of insolvent deceased estates is dealt with in another book.16
___________
16 See De Clercq et al 2011.
8 Deceased estates
1.7 Use of computer programs

Computer programs which can greatly simplify an executor’s task are presently available. Once
the basic information has been entered into the computer, documents such as the death
notice, the inventory and the liquidation and distribution account can easily be generated by
means of such a program. The program automatically calculates the Master’s fees, executor’s
remuneration and estate duty. These programs usually also contain check lists to ensure that
the entire administration process is completed systematically.
What these programs cannot do, is to replace the required skill and knowledge of the admin-
istrator. In fact, these programs can only be used by someone who is thoroughly acquainted
with the administration of estates, as well as the applicable Acts and the other legal rules which
have been referred to above.
1.8 Effective administration of estates

Compliance with the following conditions is important in order to ensure effective administra-
tion:
(1) Speed. It is in the interests of the beneficiaries and the executor (who would like his
executor’s remuneration to be paid speedily!) that the estate be finalised as soon as pos-
sible.
(2) Accuracy. Without accuracy, speed may actually cause delays.
(3) Sensitivity for the wishes and needs of beneficiaries. The administrator must never act
dictatorially. He must administer the estate in consultation with the beneficiaries, in or-
der to ensure the greatest measure of convenience for them. Beneficiaries should be pro-
vided with regular progress reports.
(4) Expertise. The administration of estates is a specialised field which sometimes brings
interesting but also complex problems to the fore. The administrator must ensure that he
is properly equipped for these challenges.
2
Types of marriages
2.1 Introduction ............................................................................................................ 9

2.1.1 Choice of type of marriage ........................................................................ 9
2.1.2 The marriage contract ............................................................................... 11
2.1.3 Matrimonial Property Act ......................................................................... 11
2.1.4 Marital power ............................................................................................ 11
2.2 Marriages in community of property...................................................................... 11
2.3 Marriages out of community of property ............................................................... 12
2.3.1 Marriages before 1 November 1984 ......................................................... 12
2.3.2 Marriages after 1 November 1984 ............................................................ 13
2.4 The accrual system ................................................................................................. 13
2.4.1 What is accrual? ....................................................................................... 13
2.4.2 Commencement value of an estate .......................................................... 14
2.4.3 Calculation of accrual ................................................................................ 14
2.4.4 Assets excluded from accrual .................................................................... 15
2.4.5 Indexing ..................................................................................................... 16
2.5 Example of an accrual claim ................................................................................... 16
2.1 Introduction
2.1.1 Choice of type of marriage

The South African Law recognises two marriage systems to wit: a civil marriage1 and a custom-
ary marriage2. When the spouses conclude a civil or a monogamous customary marriage, the
marriage can be within community of property or without community of property. If the
monogamous customary marriage was entered into before 15 November 2000 (the date that
___________
1 The common-law monogamous marriage.
2 Since the Recognition of Customary Marriages Act 120 of 1998 came into operation with retrospec-
tive effect.
9
10 Deceased estates
the Recognition of Customary Marriages Act, 120 of 1998, came into operation), section 7(1) of
the Recognition of Customary Marriages Act 120 of 1998, provided that the patrimonial conse-
quences of the marriage were governed by customary law. This section was found to be uncon-
stitutional by the Constitutional Court in Gumede v President of the Republic of South Africa
and Others3 because of unfair discrimination on the ground of gender and that it could not be
justified in terms of the provisions of section 36 of the Constitution.4 Consequently the patri-
monial consequences of all monogamous customary marriages concluded without an antenup-
tial contract are in community of property, similar to all civil marriages. It is also the view that a
polygamous marriage can be concluded within or without community of property (with or
without the accrual). The choice that is made has legal consequences, particularly as regards
the assets of the married couple. In effect, when a married couple choose the type of matri-
monial property system, they are actually doing estate planning because they are deciding how
the marriage is going to affect their assets.
Superficially speaking, the advantages of getting married out of community of property are
obvious if one of the spouses were to become insolvent. Note that when a marriage is dis-
solved, either because the couple divorce or one of them dies, the type of marriage originally
chosen will have major financial implications at that time. From a purely material perspective,
divorce is far more disruptive than death, precisely because most people do not plan for it. In
the United States, almost half of first marriages end in divorce, and the incidence of divorce is
even higher in marriages where one of the partners has been married previously.5 Clearly then,
divorce is a fact of life that has to be taken into account when planning is done.
With the coming into operation of the Civil Union Act 17 of 2006 on 30 November 2006, our
marriage law now makes provision for civil unions. A civil union is defined as “…the voluntary
union of two persons who are both 18 years of age or older, which is solemnised and regis-
tered by way of either a marriage or a civil partnership, in accordance with the procedures
prescribed in this act, to the exclusion, while it lasts, of all others”.6 When this definition is
analysed, it deserves the following comments:
 A civil union can represent two institutions, either a marriage or a civil partnership. The civil
partnership and the marriage which are provided for in a civil union have the same status
and consequences. The reason for the provision of both these institutions is unclear.
 The definition of a civil union is monogamous and does not provide for polygamous civil
unions.
 The definition refers to two persons and no reference is made to gender. It can therefore be
argued that it does not provide only for homosexual civil unions but encompasses hetero-
sexual civil unions as well.
 The Act does not make it clear, but in my opinion the Act makes provision for two types of
civil unions, namely a civil union based on the Western common law system, as well as for a
civil union based on black customary law.
Section 13(1) of the Act provides that the same legal consequences that follow from a marriage
concluded in terms of the Marriages Act 25 of 1961 also apply to a civil union, with such chang-
es as may be necessary in context. In our opinion it means that the invariable (personal conse-
quences) and variable (matrimonial property consequences) consequences of a civil marriage,
___________
3 2009 (3) SA 152 (CC).
4 See [37]–[49], especially [49].
5 Runde 1994, p 9.
6 S 1 sv “civil union”.
Chapter 2 Types of marriages 11
also apply mutatis mutandis to a civil union. The discussion of the matrimonial property conse-
quences of a marriage which follows below7 therefore applies equally in the case of a civil
union.
2.1.2 The marriage contract

When two people decide to get married, they can enter into an antenuptial contract. This
antenuptial contract comes into effect when the couple get married. Marriage contracts must
be executed by a notary (an attorney who is registered as a notary).
An antenuptial contract is necessary if a couple want to be married out of community of
property. Where there is no antenuptial contract, the marriage is automatically in community
of property, which means that the couple’s assets become part of a joint estate.
2.1.3 Matrimonial Property Act

The Matrimonial Property Act 88 of 1984 came into operation on 1 November 1984. This Act
radically changed the matrimonial property law in South Africa. The Act applies to marriages
entered into on or after 1 November 1984, excluding marriages between black South Africans.
The Act was extended to include marriages between black people on 2 December 1988, and
accordingly it now applies to all marriages.
The Act stipulates that couples who married before 1 November 1984 may change from the
old dispensation that was valid before 1 November 1984, to the new dispensation. The period
in which this could be done by means of a simple notarial agreement has elapsed, and now the
matrimonial property system can only be changed by means of a High Court application.
2.1.4 Marital power

Prior to 1 December 1993, some men held marital power in their marriages, and therefore had
the right to manage the couple’s joint assets. In such marriages, the wife had no choice but to
accept what her husband did in this regard. Marital power had general application in all mar-
riages entered into before 1 November 1984. The Fourth General Law Amendment Act 132 of
1993 abolished marital power, and since 1 December 1993 marital power has had no force in
marriages in which it would have applied. This abolition holds only for transactions entered
into after 1 December 1993. Thus transactions that were sanctioned by marital power and
were concluded before 1 December 1993 are not affected.
2.2 Marriages in community of property

Following the abolition of marital power in 1993, there is little difference in the planning one
would undertake now for marriages in community of property that was solemnised before
and after 1 November 1984. Marriages entered into without an antenuptial contract after
1 November 1984 are automatically in community of property, as was the case in the past. As
already stated, in marriages in community of property, all the assets of the married couple
belong to them jointly. Thus an increase (profit) or decrease (loss) in assets that occurs during
___________
7 2.2, 2.3 and 2.4.
12 Deceased estates
the marriage affects both parties equally. If a sequestration takes place (in the case of insol-
vency) the joint estate is sequestrated.
The spouses have equal authority over the joint estate.8 Because this may cause problems in
certain circumstances, the Matrimonial Property Act includes stipulations as to the practical
application of the Act. Section 15(1) states, for example, that either spouse may enter into legal
proceedings regarding the joint estate without obtaining the permission of the other spouse.
However, sub-sections (2) and (3) of section 15 specifically exclude certain important transac-
tions, such as the alienation of a house. In such instances, the consent of the other spouse is
required.
Donations or bequests to someone who is married in community of property may also bene-
fit his or her spouse, and the following rules should be borne in mind in this regard:
 A donor or testator may stipulate that the assets made over in this way are excluded from
the community of property. In this way, the beneficiary can acquire a separate estate. How-
ever, returns earned on such separate assets go back into the joint estate. (See also Chapter
4, footnote 140.)
 Fideicommissary property and usufructs do not form part of the joint estate. The fruits
(income) which the spouse concerned obtains from such a right do, however, become part
of the joint estate.
 Certain insurance policies, together with their proceeds, are also excluded from the com-
munity of property.9
When a marriage in community of property is dissolved, the estate is divided. If dissolution
takes place because of the death of one of the spouses, the estate is divided after all debts
have been settled. This does not, however, include burial costs or estate duty, since these are
an obligation of the deceased and not of the joint estate. These costs are therefore paid from
the deceased’s half of the joint estate. One of the consequences, from an estate duty point of
view, of marrying in community of property is that if the joint estate is worth R2 million, the
deceased spouse’s estate amounts to only R1 million, because half belongs to the surviving
spouse. The deceased’s estate is therefore not subject to estate duty because R3,5 million
rebate is allowed on all estates.10
2.3 Marriages out of community of property
2.3.1 Marriages before 1 November 1984

Most antenuptial contracts made before 1 November 1984 excluded community of property,
community of profit and loss, and the marital power of the husband, from the marriage. In
such cases each spouse therefore retained and built up his or her own estate. In practice this
meant that in the great majority of cases the wife owned very little when the marriage was
dissolved, because many women stayed at home for several years to care for the children, and
___________
8 For marriages solemnised before 1 November 1984, this holds only from 1 December 1993, when
the marital power of the husband was abolished. Prior to this date, the husband managed the joint
estate in this type of marriage.
9 See the discussion in De Clercq et al, 2011.
10 Estate Duty Act 45 of 1955, s 4A.
during this time they were unable to earn an income. They therefore relied on their husbands,
or their husbands’ estates, to provide for them. Apart from the fact that the husband’s marital
power no longer applies, the principles for marriages out of community of property with
exclusion of profit and loss concluded before 1 November 1984 are currently still valid for such
marriages.
2.3.2 Marriages after 1 November 1984

Since 1 November 1984, couples who want to marry out of community of property can choose
whether or not the accrual system should apply to their marriage.11 Section 2 of the Act states
that if the marriage is subject to a marriage contract, the accrual system automatically applies
unless it is expressly excluded in the antenuptial contract. As was the case before 1 November
1984, the parties may still include any conditions on which they have agreed, provided these
conditions are not illegal or at variance with the accepted moral code.
Prior to 1 November 1984, donations made by one spouse in favour of the other could be
revoked by the spouse making the donation. In practice, this meant that a donation was final-
ised only upon the death of the donor. Section 22 now states that donations between spouses
have effect retrospectively, so that donations made before 1 November 1984 are now also
irrevocable. No estate duty is payable on donations between spouses or prospective spouses.
Couples may stipulate in their antenuptial contracts that certain donations must revert to
the donor if the marriage ends in divorce, but may be retained if the donor dies. Any doubts as
to the validity of such a stipulation have been dispelled by the High Court judgment in Cumings
v Cumings.12
Donations provide an effective means whereby one spouse can provide for the other and, at
the same time, substantially reduce the size of the donor’s estate in order to achieve savings
on estate duty and administration costs.
2.4 The Accrual System
2.4.1 What is accrual?

The accrual system applies automatically to marriages out of community of property unless
expressly excluded. During the course of the marriage each spouse retains his or her own
estate. However, when the marriage is dissolved through divorce or death, the spouse or his
(her) estate has a claim for the amount accrued to the other spouse or his (her) estate. The
accrual in a spouse’s estate is the amount by which the net end value of his or her estate upon
dissolution of the marriage exceeds the commencement value at the start of the marriage. As
we explain later, not all the assets are taken into account in calculating this amount.
What is especially interesting about the Matrimonial Property Act is that it is the first South
African statute which links the calculation of monetary values to the inflation rate. Under this
Act, the commencement value used to calculate accrual in an estate must be adjusted to
___________
11 Black South Africans have only been able to exercise this choice since the law was amended on
2 December 1988.
12 1984 (4) SA 585 (T).
14 Deceased estates
present values using the weighted average of the consumer price index. On dissolution of the
marriage, the accrual in the estate of each spouse is calculated. The spouse whose estate
shows the smallest accrual has a claim against the other’s estate for half of the difference
between the accrual in the respective estates.
2.4.2 Commencement value of an estate

On entering into a marriage, each of the parties should list the value of their respective assets
in the antenuptial contract. However, many couples prefer not to list their assets and the value
of these in an antenuptial contract, because this document is frequently scrutinised by
strangers (for example traders or bankers). In fact, anyone can get a copy of the document
from the deeds office where it is registered. Accordingly, the Act provides that the parties may
give details of their assets in a separate statement in terms of section 6(1), which does not then
become a public document. This statement may be drawn up as soon as the marriage is solem-
nised, or within the following six months. Whoever calculates the accrual can therefore obtain
the commencement value quite readily from either the marriage contract or the separate
statement.
Note that, in terms of section 6(4) of the Act, the net commencement value of a spouse’s
estate is taken as NIL for the purposes of calculating accrual, if no value is stated in the ante-
nuptial contract, or in a separate statement as provided for in section 6(1), or if the debts
exceed the assets of the estate. Thus if, at the date of the marriage, a husband has assets
worth R200 000 that are not declared, and his wife has no assets, she has an accrual claim
against her husband’s estate the moment the marriage is solemnised. In certain circumstances,
this is exactly the outcome that is intended.
2.4.3 Calculation of accrual
Example
Michael dies a month after his marriage with Nancy. They were married out of community of property,
and the accrual system was applicable. The couple failed to declare the commencement values of their
respective estate on solemnising their marriage. After Michael’s death, it is established that his net
estate is worth R8 000 000 before deducting estate duty amounting to R100 000. Nancy has no assets;
she just owes the bank R10 000. Inflation for the month of their marriage is taken as zero percent.
Nancy’s accrual claim against Michael’s estate is calculated as follows:
Michael Nancy
Value of estate on dissolution 8 000 000 –10 000
Value of estate on commencement – –
Accrual in respective estates 8 000 000 –
Comments on the Example
The commencement values of both estates are nil because no values were declared. Accrual in
Nancy’s estate is therefore negative – in other words, it has decreased from nil to minus
R10 000. Negative growth is ignored, because the Act refers to accrual and negative growth is
not an accrual. Thus for the purposes of this calculation, accrual in Nancy’s estate is taken as
nil. Accrual in Michael’s estate was R8 000 000. The R100 000 liability in respect of estate duty
is ignored, because estate duty is an obligation incurred following Michael’s death, for which
Nancy’s estate must not be held liable.13 The difference in accrual is R8 000 000 (R8 000 000
less Rnil). Nancy is now entitled to half of the difference, namely R8 000 000/2 = R4 000 000.
Michael’s estate was presumably worth R8 000 000 when the couple got married. By not
declaring commencement values, his estate decreased by half, in this case as a result of the
accrual claim. On the other hand, his estate duty obligation also decreased dramatically. On
R8 000 000 the estate duty would have been R900 000 (20% of {R8 000 000 less R3 5000 000
rebate}).
2.4.4 Assets excluded from accrual

When an accrual claim is calculated, the whole estate has to be taken into account, as well as
certain assets that do not appear in the balance sheet, such as pension and annuity benefits. In
terms of section 7(7) of the Divorce Act 70 of 1979, these must be taken into account when
calculating accrual.
However, the Matrimonial Property Act excludes certain assets from the calculation of the
amount which has accrued in an estate. These do not, therefore, form part of the final value of
an estate for the purposes of calculating the accrual. The assets that are excluded are as fol-
lows:
Assets excluded in terms of the antenuptial contract
Prospective spouses may state, in their antenuptial contract, that certain assets are to be
excluded from the accrual calculation. Assets that arise from the returns on excluded assets are
also excluded. (We shall refer to such assets as “substitute assets”.) So, if a spouse owns a
house which he excludes from accrual, perhaps because he wants to leave it to a child from a
previous marriage, and he subsequently sells the house, the proceeds and any other assets he
acquires with the proceeds are also excluded from accrual.
Inheritances, legacies and donations
Inheritances, legacies and donations that accrue to a spouse during the course of a marriage,
together with the substitute assets, are excluded from accrual unless the parties in the ante-
nuptial contract have made a different agreement, or the testator or donor has stipulated
otherwise.
Donations between spouses
Donations between spouses are ignored when calculating accrual and do not, therefore, form
part of the end values of the estates.
___________
13 Accrual is calculated when a marriage is dissolved. If Michael and Nancy had divorced, the liability
of R100 000 would not have existed. Whether dissolution is through death or divorce, the total of
the claim stays the same. Half of R8 000 000 is R4 000 000. Estate duty on R500 000, the amount in
excess of R3 500 000, is 20%, or R100 000.
16 Deceased estates
Damages
Section 18 excludes non-patrimonial (or non-pecuniary) damages (satisfaction), such as dam-

ages paid for defamation, from the accrual calculation. The section refers to an amount, not to
assets, presumably because damages are usually compensated by means of money. Amounts
received in respect of patrimonial loss (claim for damages) are subject to accrual. We take
patrimonial loss to refer to the capacity to earn, as when someone loses a hand and can no
longer bring in an income. His earning capacity would have increased his estate and, accordingly,
that of his spouse. Such a loss is therefore subject to accrual. Non-patrimonial damages, on the
other hand, are of a personal nature. When someone is slandered, for example, his character is
injured. However, the character of the other spouse is not affected, and it is only the person
who has suffered injury who is entitled to damages (satisfaction); this is not, therefore, subject
to accrual.
2.4.5 Indexing
Provision is made for indexing in section 4(1)(b)(iii), which stipulates that the net value of an
estate at the commencement of the marriage is calculated with due allowance for any differ-
ence between the value of money at the commencement and the value of money at the
dissolution of the marriage. To this end the weighted average of the consumer price index as
published in the Government Gazette from time to time, serves as prima facie proof of any
change in the value of money. Assets excluded from the accrual are obviously ignored in the
calculations.
The promised publication of index figures in the Government Gazette has not materialised,
and what is used in practice is the inflation rate reflected in the consumer price index published
by the Central Statistical Service. It is not yet clear which of the indices published by the Central
Statistical Service should be used. The logical choice would be the consumer price index for
metropolitan areas in the entire country, since this is reasonably available and, in our opinion,
corresponds most closely with the index the legislator seems to have had in mind. This index
appears in Schedule 7 to this book.
2.5 Example of an accrual claim

Daniel and Frieda Smith were married on 3 December 2002, out of community of property.
Daniel died on 12 May 2017. The executor presents you with the following information, and
requests you to calculate a possible accrual claim.
Information
1. Commencement values in the marriage contract:

Daniel Smith R200 000 (Rand value in 2002)
Frieda Smith R20 000 (Rand value in 2002).
2. End values of the estates on 12 May 2017:
Daniel Smith R2 400 000 (Rand value in 2017)
Frieda Smith R1 000 000 (Rand value in 2017).
3. Bequest to Frieda on 13 March 2008: R300 000.
4. Donation to Daniel by Frieda on 20 March 2008: R200 000.

5. The consumer price indices are as follows (See Schedule 7 for these indices):
December 2002 47,9
March 2008 61,2
May 2017 102,7.
Proposed solution
Daniel Frieda
Net end value of estate 2 400 000 1 000 000
Less: amounts excluded 503 431 335 621
Bequest 13/03/2008 R300 000 335 621
–2008 Rand converted to 2017 Rand
(R300 000 × 102,7/61,2) 503 431
Donation 20/03/2008 R200 000
–2008 Rand converted to 2017 Rand
(R200 000 × 102,7/61,2)
End values after exclusions 1 896 569 664 379

Less commencement value
R200 000 × 102,7/47,9 = R428 810; 428 810
R20 000 × 102,7/47,9 = R42 881 42 881
Accrual 1 467 759 621 498
Difference in accrual (R1 467 759 less R621 498) 846 261
Frieda’s accrual claim (50 % of R846 261) 423 130
Comments on the Example
It is important to remember that under the accrual system, there is no division of assets when
a marriage is dissolved. The claim of the spouse with the smallest accrual is a value that is paid
with a monetary amount. Section 10 gives the court the power to permit extension of payment
of the accrual claim if this seems advisable. Section 9 states further that in the case of a divorce
the court may decree that a spouse must forfeit his or her right to share in the accrual.
Amounts excluded from the final balance also have to be adjusted for inflation because it is
their present value that is excluded. If the exclusion referred to a particular asset, such as a
farm, it would be the current value of the farm that would be excluded and a calculation of
inflation would not be necessary. The index figure for the month in which the relevant event
takes place is used, since daily figures are not available.
3
Intestate succession
3.1 General ................................................................................................................... 20

3.1.1 Legislation.................................................................................................. 20
3.1.2 Applicability of the Act .............................................................................. 20
3.1.3 Heirs .......................................................................................................... 21
3.1.4 Distributable estate ................................................................................... 22
3.1.5 Relationships and diagrams....................................................................... 22
3.2 Definitions ............................................................................................................... 23
3.2.1 Competent heirs ........................................................................................ 23
3.2.2 Blood relations .......................................................................................... 24
3.2.3 Parental ..................................................................................................... 24
3.2.4 Stirpes ........................................................................................................ 25
3.2.5 Representation .......................................................................................... 25
3.2.6 Degree of relationship ............................................................................... 26
3.2.7 Succession per capita ................................................................................ 26
3.2.8 Child’s share .............................................................................................. 26
3.3 Intestate succession ................................................................................................ 28
3.3.1 Introduction............................................................................................... 28
3.3.2 The spouse as sole heir ............................................................................. 29
3.3.3 Descendants as sole heirs ......................................................................... 30
3.3.4 Spouse and descendants ........................................................................... 32
3.3.5 Parents and their descendants .................................................................. 35
3.3.6 Descendants of parents............................................................................. 38
3.3.7 Other competent heirs .............................................................................. 41
3.3.8 The adopted child ...................................................................................... 43
3.3.9 No intestate heirs ...................................................................................... 45
3.4 Collation .................................................................................................................. 45
19
20 Deceased estates
3.1 General
3.1.1 Legislation
If a person dies and leaves an estate (constituting assets and liabilities) which cannot be dis-
tributed in terms of a will, the Intestate Succession Act 81 of 19871 comes into operation, and
the distribution of the estate is made according to the provisions of this Act. The Act came into
effect on 18 March 1988 and has since been amended by the Law of Succession Amendment
Act 43 of 1992. This Amendment Act came into effect on 1 October 1992. The law of intestate
succession has largely been codified, which means that this single act covers almost every
aspect of this field of study.
The Black Administration Act 38 of 1927 applies where persons live according to the custom-
ary law, but this act was revoked on the 12th of April 2006 by the Repeal of the Black Admin-
istration and Amendment of Certain Laws Act, 28 of 2005.2 The repeal of this Act was a direct
result of the decision of the Constitutional Court in Bhe v Magistrate, Khayelitsha3 where it was
found that section 23 of the Black Administration Act and regulation 2 thereof, as well as
section 1(4)(b) of the Intestate Succession Act, were unconstitutional because the customary
law discriminated against women and children of black persons. The effect of the repeal of this
Act is that there is no longer any difference between persons of different race who die intes-
tate.
The position is now regulated by legislation. The Reform of Customary Law of Succession and
Regulation of Related Matters Act,4 11 of 2009 modifies the Customary Law of Succession by
making provision for the devolution of certain property in terms of the law of intestate succes-
sion, and clarifies matters relating to intestate succession in relation to persons subject to
customary law.5 The Act confirms the position as set out in the Bhe-case and the Repeal of the
Black Administration Act by the Repeal of the Black Administration Act and Amendment of
Certain Laws Act 28 of 2005.
3.1.2 Applicability of the Act

The perception is that the law of intestate succession applies only in the case of estates where
there is not a valid will. However, the Act provides that it shall also apply when a person dies
partially intestate.6 This means that the Act applies to assets which are not dealt with in a will,
that is in cases where there is a valid will, but in which certain assets have not been dealt with.
An example would be where a will contains provisions regarding specific assets, but is silent
about the residue of the estate. Sometimes the provisions of a will are unclear or impossible to
carry out, in which case the assets concerned will also devolve in terms of the law of intestate
succession. A person’s estate may, therefore, devolve wholly or partially intestate.
___________
1 See De Waal & Schoeman-Malan 2015, pp 14 and 17.
2 In terms of s 1(4)(b) of the Intestate Succession Act, this Act also applied in instances where s 23 of
the Black Administration Act did not apply. In terms of the Black Administration Act, rules of cus-
tomary law of succession, as set out in Regulations under the Act, depending on the type of asset
involved, applied. See De Waal & Schoeman-Malan 2015, pp 19–20.
3 2005 (1) SA 580 (CC).
4 See GG 32147 of 21 April 2009.
5 Customary law is defined in s 1 of the Act to mean “the customs and practices observed among the
indigenous African people of South Africa which form part of the culture of those people”.
6 S 1(1) of the Act. Also see s 2(1) of the Reform Act.
Chapter 3 Intestate succession 21
3.1.3 Heirs
Under the law of intestate succession, beneficiaries will always be referred to as heirs.7 In
terms of common law, only a person’s blood relations were entitled to inherit intestate.8
(i) The Intestate Succession Act, however, now provides that spouses,9 adopted children and
children born out of wedlock are entitled to inherit intestate.10
(ii) The Reform Act clarifies how the Intestate Succession Act would be applied to matters
relating to intestate succession in relation to persons subject to customary law11 (regarding
children born out of wedlock, adopted children and the concepts spouse and descendant).12
(iii) The Children’s Act, 38 of 2005, confirms the position of adopted children (articles 231
and 242), the position of children born as a result of artificial insemination and surrogacy
(sections 40 and 297).
(iv) The Civil Union Act 17 of 2006 provides that a person who enters into a civil union in
terms of the Act will be deemed to be a spouse for all purposes and will, therefore, also be
competent as an intestate heir.13 In terms of the Act, spouses can include people of the same
sex.
(v) In terms of the Recognition of Customary Marriages Act 120 of 1998 a man with more
than one wife concluded an indigenous customary marriage. All the wives can inherit intes-
tate.14
(vi) The Court declared that a spouse or spouses of Muslim/Hindu marriages, were also able
to inherit intestate in terms of the Act,15 even though there is no statutory recognition of such
marriages.
Normally, the intestate heirs are determined at the date of death of the deceased.16 A person
who predeceased the deceased thus cannot be an intestate heir.17 An unborn descendant (who
was conceived before the death of the deceased) can inherit if he/she is later born alive. Such a
person’s rights are upheld until his/her birth.18 It may sometimes happen that an estate only
becomes intestate subsequent to the date of death of the deceased, in which case the intes-
tate heirs will be determined at such later date.19 An example of the latter is where the provi-
sions of a will become impossible to carry out some time after the date of death, in which case
the intestate heirs will then be determined when the estate must be distributed intestate.
___________
7 In the testate succession, a distinction is made between heirs and legatees. See par 4.8.2.
8 The common law was repeatedly amended and repealed by various acts.
9 S 1(1) of the Reform Act defines descendants for purposes of customary law.
10 The Succession Act 13 of 1934 and s 20 of the Child Care Act 74 of 1983. Also see the Intestate
Succession Act 81 of 1987 that regulates the position. The Children’s Act (since 1 April 2010) now
has similar provisions.
11 The Reform Act defines customary law as explained above.
12 See ss 1, 2(2)(b) and 2(2)(c) of the Reform Act.
13 See par 2.1.1.
14 See the discussion below in pars 3.2.2 and 3.3.4.
15 Daniels v Campbell 2004 (5) SA 331 (CC); Hassam v Jacobs 2009 (5) SA 572 (CC) and Govender v
Ragavayah 2009 (3) SA 178 (D).
16 Union Government (Minister of Finance) v Olivier 1916 AD 74.
17 If the predeceased person is a descendant or collateral his descendants can inherit in his place. For
the concepts descendant and collateral see the paragraphs that follow.
18 See De Waal & Schoeman-Malan 2015, pp 11–12, Boezaart 2016, pp 14–15.
19 Harris v Assumed Administrator Estate McGregor 1987 (3) SA 563 (A).
22 Deceased estates
3.1.4 Distributable estate

A deceased estate normally consists of assets and liabilities. The estate liabilities must be paid
before the remaining assets can be distributed. However, before benefits can be apportioned
in terms of the Intestate Succession Act, any amounts which may have accrue to, or be payable
by the estate in terms of the matrimonial property law, as well as claims for maintenance, must
first be added to, or subtracted from, the estate, as the case may be.20 In the case of a marriage
in community of property, the spouse will receive half of the estate in terms of the matrimonial
property law and in addition will also receive the full amounts as determined by the Intestate
Succession Act.
3.1.5 Relationships and diagrams

Diagrams are used to graphically illustrate the relationship between the intestate deceased and
his intestate heirs.21 The diagram below is an example of such graphic representation:
Figure 1
(A1) (A2)
Eben is the deceased.

Veronica is the spouse (wife) of the deceased. Adel, Becky and Cane are the children of the
deceased and his spouse Veronica. Andre, April and Ferdie are the deceased’s grandchildren.
Paul and Malie are the parents of the deceased. Andrew is the deceased’s brother and Step is
his half-brother (the son of his father Paul). Patrick and Patty are Eben’s grandparents on his
father’s side, and Marius and Mary his grandparents on his mother’s side.
___________
20 De Waal & Schoeman-Malan 2015, pp 18–19 and par 2.4 above.
21 Without a diagram, it will be difficult to show that the estate is divided correctly.
3.2 Definitions
3.2.1 Competent heirs
A competent heir is a person who is not disqualified for one reason or another from being an
heir, either as a result of the provisions of the law of intestate succession or by other stipula-
tions. An example of an incompetent heir is a person who is not related to the deceased or
who murdered the deceased.22 The murderer is not competent to inherit from his victim.23
(i) In terms of the Act, an adopted child can inherit from his adoptive parents and their
blood relations, but not from his natural parents and their blood relations,24 except if one of his
natural parents also adopted him or was married to the adoptive parent at the time of the
adoption. In terms of section 1(5) of the Act, adoptive parents and their blood relatives are
competent heirs, but the adopted child’s natural parents and their blood relatives cannot
inherit from the child. This position is confirmed by the Children’s Act25 and the Reform Act.26
(ii) In terms of section 1(2) of the Intestate Succession Act, a child born out of wedlock27 is
declared capable of inheriting from his biological father as well as from the father’s blood
relations, and they in turn, are also capable of inheriting from the child born out of wedlock.28
Before the Act came into operation a child born out of wedlock could only inherit from his
mother and her blood relations, but not from his biological father. An adopted child born out of
wedlock is regarded as an adopted child and the rules relating to adopted children will apply.
This means that such a child will not inherit from his biological parents.
(iii) The Civil Union Act came into effect on 31 November 2006. This Act authorises persons
to enter into a civil partnership or a marriage. Persons of the same sex can also be married in
terms of the Act. The legal consequences of such a union are the same as that of a marriage in
terms of the Marriage Act 25 of 1961 and the Matrimonial Property Act 88 of 1984. For pur-
poses of the law of intestate succession a person of the same sex will, therefore, be deemed to
be a spouse and will be an intestate heir if his/her partner dies intestate.29
(iv) The Reform Act confirms that the Act is extended to persons subject to customary law.
(a) For purposes of the intestate division of an estate of a person subjected to the customary
law, a descendant includes a person who during the lifetime of the deceased person, was taken
into his house and accepted and raised by the deceased as his own child. If a deceased person
is not subject to customary law the position will differ. A child “taken in” will not be regarded
as a descendant.30 (b) For purposes of the Reform Act, the term “spouse” is interpreted to
___________
22 See the discussion in De Waal & Schoeman-Malan 2015, p 116ff.
23 A person is also disqualified to inherit if he/she commits a crime which would result in his/her own
enrichment. See the discussion in De Waal & Schoeman-Malan 2015, pp 119–120.
24 S 1(4)(e)(i) and (ii) of the Act.
25 The Children’s Act replaced the Child Care Act. In Chapter 15 of the Children’s Act s 242 will have to
be read with the Intestate Succession Act. The situation regarding intestate succession of adopted
children and their adoptive parents remains unchanged.
26 Regarding people subject to customary law.
27 Although the Intestate Succession Act still refers to an illegitimate child the Children’s Act and
Reform Act refers to “child born out of wedlock”. Compare Minyuku v Minyuku [2012] ZALMPHC 4.
28 Before the commencement of the Act a child born out of wedlock could only inherit from her
mother and her relatives, but not from her biological father.
29 See the discussion in Chapter 2 on “Types of Marriages”.
30 In Flynn v Farr NO 2009 (1) SA 584 (C) it was held that s 1(4)(e) of the Intestate Succession Act does
not include a child who was taken in, looked after and raised and treated as an own child. S 228 of
continued
24 Deceased estates
include a partner in a customary marriage (union) as well as multiple spouses if the marriages
are recognised in terms of the Recognition of Customary Marriages Act.31
3.2.2 Blood relations

In principle, a person’s blood relations can be divided into three groups: ascendants, descend-
ants and collaterals. Ascendants include the deceased’s parents, grandparents, great-grand-
parents and further ancestors. In Figure 1 Paul, Malie, Patrick, Patty, Marius and Mary are
ascendants. Descendants of a deceased include his children, grandchildren, great-grand-
children, and further descendants. In this example Adel, Becky, Cane, Andre, April and Ferdie
are descendants. In relation to the deceased the concept “direct line” means relations in the
ascending line (ascendants) as well as relations in the descending line (descendants). An adopt-
ed child and a child born out of wedlock or the adoptive parents and the parents of a child born
out of wedlock would also be regarded as descendants or ascendants.
Collaterals are those persons who are related to the deceased through a common parent or
grandparent, such as brothers, sisters, uncles, aunts, nephews, nieces and cousins. In the
example in Figure 1, Step and Andrew are collaterals of Eben. A further distinction is made
between collaterals of the full blood, like brothers and sisters (in the example, Andrew) who
are related to the deceased through two common ancestors, and collaterals of the half-blood
who are related to the deceased only through one common ancestor – such as the deceased’s
stepbrothers and stepsisters. In the example, Step is such a person. Adopted children and a
child born out of wedlock or the adoptive parents and the parents of a child born out of wed-
lock would also be regarded as collaterals.
If any of the above relatives are or were children adopted or born out of wedlock, they will
be regarded as blood relations for the purposes of the law of intestate succession.
3.2.3 Parental
Reference to the term “parental” means a particular parent or parent group and his or her
descendants. The deceased and his descendants are referred to as the first parental, for exam-
ple, in Figure 1, Eben, Adel, Becky, Cane, Andre, April and Ferdie. The parents of the deceased
and their descendants are referred to as the second parental, for example in Figure 1 Paul and
Malie and their descendants Step and Andrew.32 The deceased’s grandparents and their de-
scendants are referred to as the third parental, for example Patty and Patrick and their de-
scendants, or Mary and Marius and their descendants. The parental can obviously go further
than the third parental, for example the fourth parental, and so on. In the discussion of the
rules of intestate succession it will become clear that the persons in the first parental will
always inherit first. If nobody in the first parental is alive or competent, the process moves to
the second parental, and so forth.
___________
the Children’s Act declares that a child is adopted if the child has been placed in the permanent
care of a person in terms of a court order that has the effect as contemplated in s 242. Adoption
carries a formalistic legal meaning as it differentiates between ‘de lege adoptions’ and ‘de facto
adoptions’.
31 From 20 September 2010 s 3(1) of the Reform Act determines, “For purposes of this Act, any
reference in s 1 of the Intestate Succession Act to a spouse who survived the deceased must be
construed as including every spouse and every woman referred to in paragraphs (a), (b) and (c) of
s 2(2)”.
32 Eben is the deceased.
3.2.4 Stirpes
A stirpes is a child (descendant, including illegitimate and adopted children) of the deceased,
and/or a predeceased child33 who is survived by living descendants34 and includes adopted
children or children born out of wedlock. A person has as many stirpes as he has surviving
children or predeceased children who are survived by descendants. The stirpes are determined
in the first degree of relationship to the deceased. For example, in Figure 1 Eben has three
stirpes, namely his three children Becky, Cane and predeceased Adel (who was survived by
children). If Adel had no children there would have been only two stirpes. Predeceased children
only represent a stirpes if such a predeceased child had children which are still alive after the
death of the testator. Adel only forms one stirpes although she had two children. In terms of
the Act, distribution of the estate per stirpes only takes place in the first and second parental. If
there are no competent heirs in the first or second parental, distribution of the estate takes
place per capita in the third or further parental.35
Figure 2
In Figure 2 E has three stirpes, A, B and D. B also has three stirpes; D has two stirpes. C is not a
stirpes as he is predeceased and has no descendants.
3.2.5 Representation
Representation occurs in the case of per stirpes distribution when one of the stirpes (child or
predeceased child with descendants) cannot inherit. A person can be unable to inherit because
he or she is already dead, or has repudiated his/her right to inherit, or is not competent
to inherit.36 Section 1(4)(a) and 1(7) of the Act provide for representation where a person
has repudiated his/her right to inherit, or is not competent to inherit. This is subject to
___________
33 “Predeceased” refers to a person who is already dead on the deceased’s date of death.
34 See Van der Merwe & Rowland 1990, p 30. It includes adopted children and children born out of
wedlock.
35 See par 3.2.7.
36 See ss 1(4)(a) and 1(7) of the Intestate Succession Act that makes provision that an incompetent
person and a person who repudiates can also be represented. The stipulation only applies if s 1(6) is
not applicable. See par 3.3.4.
26 Deceased estates
section 1(6).37 For example, in Figure 1, Eben has three children. However, Adel has prede-
ceased Eben and she cannot inherit from the estate. Her two children, Andre and April, will
inherit instead, and they represent Adel. Note that Andre and April are only entitled to her
(one-third) share. Becky and Cane are each entitled to their own one-third of the deceased’s
total intestate estate. Representation will only occur in the first and second parental. Repre-
sentation is not present in the case of inheritance per capita, since these persons (in the third
or further parental) each inherits in his/her own right according to his/her degree of relation-
ship. A child born out of wedlock or an adopted child can also represent or be represented.
3.2.6 Degree of relationship

In the case of per capita distribution, it is sometimes necessary to determine the degree of
relationship, since only the person or persons in the closest degree of relationship will qualify
to inherit. The degree of relationship between two blood relations, for example a deceased and
a beneficiary, is calculated by adding the number of generations between them. If an ascend-
ant’s or descendant’s degree of relationship must be calculated, one counts from the deceased
to the ascendant or descendant. In the case where the collateral’s degree of relationship must
be calculated, it is counted from the deceased through the common ancestor(s) to the relation
concerned, without counting the deceased himself.38 For example, in Figure 1, Mary and Step
are both related to Eben in the second degree. Getting to Mary, we count as follows: from
Eben (0) since the deceased is not counted, then Malie (1) and thereafter Mary (2). To get to
Step we count as follows: Eben (0), Paul (1) and Step (2).
An adopted child and a child born out of wedlock or the adoptive parents and the parents of
a child born out of wedlock would also be regarded as descendants, ascendants or collaterals.
3.2.7 Succession per capita

Succession per capita39 means that a person inherits in terms of the degree of relationship in
which he stands to the deceased. No representation takes place and persons who stand in the
same degree of relationship to the deceased inherit at the exclusion of further relations. Per
capita succession takes place if there are no competent heirs in the first or second parental.
For example, assume in Figure 1 that Veronica and the children and grandchildren, as well as
Paul, Malie and Step had predeceased Eben. This will mean that nobody within the first two
parentals has survived Eben. Therefore, succession per capita must take place. According to
Figure 1, Patrick also predeceased Eben, which means that Patty, Marius and Mary (all related
in the second degree) will inherit an equal share, i.e. each will inherit one third of Eben’s
intestate estate.
3.2.8 Child’s share

When there are spouses (or multiple spouses in terms of customary law) or a same-sex partner
and children of the deceased who can inherit, a child’s share must be calculated.40 This is done
by dividing the monetary value of the estate by a number equal to the number of stirpes of the
___________
37 S 1(6) deals with accrual to the surviving spouse.
38 S 1(4)(d)(i) and (ii).
39 The term is explained in par 3.3.7 with some examples.
40 S 1(1)(c). The spouse receives either a child’s share or R250 000, whichever is the greater.
deceased, plus one for the surviving spouse or one for every surviving spouse.41 If Eben in the
example in Figure 3 died intestate, the divisor would be four, that is the number of stirpes plus
one, which equals four. The stirpes are Adel (predeceased), Becky and Cane, to which must be
added the surviving spouse, Veronica, which adds up to four. If Eben’s estate amounted to
R800 000, a child’s share would amount to R200 000, that is R800 000 divided by four (4). A,
forms only one stirpes, and is represented by A1 and A2.
Figure 3
If the deceased and his same-sex partner that are married in terms of the Civil Union Act adopt
three children, a child’s share will be calculated as three children plus one for the spouse, thus
a quarter.
If the deceased in terms of the Recognition of Customary Marriages Act has more than one
wife, the wives will be counted to determine the child’s share. In the Bhe case42 it was held that
section 1(1)(c)(i) and 1(4)(f) must be qualified: “Because the deceased was party to a polyga-
mous union. This could be done by ensuring that s 1(1)(c)(i) and s 1(4)(f) of the Intestate Succes-
sion Act, which were concerned with providing for a child’s share of the single surviving spouse
and its calculation, should apply with three qualifications if the deceased is survived by more
than one spouse. First, a child’s share would be determined by having regard to the fact that
there was more than one surviving spouse. Secondly, provision should be made for each surviv-
ing spouse to inherit the minimum if there was not enough in the estate. Thirdly, the order had
to take into account the possibility that the estate may not be enough to provide the prescribed
minimum to each of the surviving spouses.”43
___________
41 S 1(4)(f). For calculation of a child’s share, where there are multiple spouses qualifying as a spouse,
s 3(3) of the Reform Act provides: “In the determination of a child’s portion for the purposes of di-
viding the estate of a deceased in terms of the Intestate Succession Act, paragraph (f) of s 1(4) of
that Act must be regarded to read as follows: (f) a child’s portion, in relation to the intestate estate
of the deceased, shall be calculated by dividing the monetary value of the estate by a number equal
to the number of children of the deceased who have either survived the deceased or have died be-
fore the deceased but are survived by their descendants, plus the number of spouses and women re-
ferred to in paragraphs (a), (b) and (c) of section 2 (2) of the Reform of Customary Law of Succession
and Regulation of Related Matters Act, 2008”.
42 2005 (1) SA 580 (CC).
43 Par [125] 630D–G. See also Hassam v Jacobs 2009 (5) SA 572 (CC).
28 Deceased estates
Section 2(2) of the Reform Act contains interpretation rules in respect of the Act. A spouse
includes spouses in terms of the Recognition of Customary Marriages Act and she or they must
each inherit a child’s share.44
Furthermore, a woman who survives the deceased, other than the spouse, meaning a wom-
an with whom the deceased had entered into a union in accordance with customary law for the
purpose of providing children for his spouse’s house, must be regarded as a descendant of the
deceased. Furthermore, if the deceased was a woman who was married to another woman
under customary law for the purpose of providing children for the deceased, the other woman,
would be regarded as a descendant of the deceased woman.45
3.3 Intestate succession

3.3.1 Introduction
When a person dies and distribution must take place in terms of the Act, the Act must be
studied to determine who the intestate heirs are. The broad principles which must be followed
are the following:
 If the deceased is survived only by a spouse, such spouse inherits the entire intestate es-
tate.46 The term spouse includes a same-sex civil union partner as well as an opposite sex
partner in terms of the Civil Union Act47 and multiple spouses if they are customary marriag-
es and also monogamous and polygamous Hindu or Muslim marriages.48
 If the deceased is survived only by descendants, they inherit the intestate estate per stir-
pes.49
 If there is a combination of a spouse and descendants (children or grandchildren), they
inherit the estate in a specified ratio.50
Up to this point heirs have been sought in the first parental.
 If there is no spouse or descendants, the deceased’s parents and/or their descendants
(collaterals of the deceased) inherit the estate (second parental).51
 If there are no parents or descendants of parents, then grandparents and other collaterals
inherit the estate per capita (third or further parental).52
___________
44 S 3 of the Reform Act. The status of the marriage is polygamous.
45 S 3(1) and 3(2).
46 S 1(1)(a).
47 Before the commencement of the Civil Union Act, the Constitutional Court found in Gory v Kolver
2007 (4) SA 97 (CC) that legislation that governs the intestate succession is invalid, specifically in
s 1(1) of the Act. Because people of the same sex could at that stage not get married, a permanent
same-sex partner, where they undertook reciprocal duties of support, should be allowed to inherit
intestate. The Court thus found that the wording of s 1(1) must be read as if a same-sex partner can
inherit. See also Hassam v Jacobs 2009 (5) SA 572 (CC).
48 See Daniels v Campbell 2004 (5) SA 331 (CC); in Hassam v Jacobs 2009 (5) SA 572 (CC) the Court
found that in s 1(1) the wording must be read to the effect that a Muslim wife or wives can inherit.
Compare further Govender v Ragavayah 2009 3 SA 178 (D) and Faro v Bingham [2013] ZAWCHC
159.
49 S 1(1)(b).
50 S 1(1)(c). See also s 3 of the Reform Act.
51 S 1(1)(d) and (e).
3.3.2 The spouse as sole heir

If the deceased is survived by a spouse but has no descendants, the spouse inherits the entire
intestate estate.53 The effect is that parents, brothers and sisters do not inherit anything.54 If
the deceased had entered into a civil union55 with a same-sex partner, that partner will inherit
the entire intestate estate if the deceased had no children. If the deceased was married to
more than one wife, all of them will inherit the intestate estate in equal shares.56
Note that a benefit devolved to a spouse in terms of a will57 or the matrimonial property law
will be paid first and only that which remains can be distributed in terms of the law of intestate
succession. A benefit bequeathed to a spouse in terms of the will or accruing according to the
matrimonial property law, however, does not influence the extent of a benefit in terms of the
law of intestate succession. The matrimonial property dispensation is, for example, taken into
account when the deceased and his/her spouse were married in community of property, in
which case the spouse is entitled to one half of the joint estate in terms of the matrimonial
property law (the marriage in community of property). If the deceased and his/her spouse
were married out of community of property, but the accrual system applied, the spouse is
firstly entitled to the amount which accrues to him/her in terms of the accrual system. Con-
versely, the deceased estate is also entitled to any accrual in the estate of the survivor.
Example
The deceased E/ is survived by his spouse V and his mother M. His son S/ predeceased him. He
was married to V in community of property. The joint estate58 amounts to R400 000.
Figure 4
Half of the estate (R200 000) goes to the surviving spouse in terms of the matrimonial property
law (marriage in community of property). She also inherits the deceased’s half of R200 000 to
the exclusion of M. V, therefore, receives the full R400 000.
___________
52 S 1(1)(f).
53 S 1(1)(a). See s 3 of the Reform Act for multiple spouses.
54 Any competent heir in the first parental will exclude heirs in the second parental.
55 In terms of the Civil Union Act.
56 See the Reform Act.
57 In re MacGillvray’s Will 1943 WLD 29.
58 When we refer to the value of an estate in the examples, it means the net estate, that is after the
liabilities and costs were paid.
30 Deceased estates
Example
The deceased E/ is survived by his spouse F, a same-sex partner with whom he entered into a
civil union, his brother S and grandparents, G and H. E/ and F were married out of community of
property and the accrual system was applicable. E/’s estate amounts to R300 000 and F is
entitled to R100 000 accrual. After the R100 000 has been deducted, R200 000 remains for
distribution.
Figure 5
F is firstly entitled to R100 000 and then inherits R200 000. He inherits at the exclusion of the
brother and grandparents. As E/ was married out of community of property we only deal with
his estate. F has his own estate.
3.3.3 Descendants as sole heirs

If the deceased is not survived by a spouse but by descendants, those descendants inherit the
estate per stirpes to the exclusion of ascendants.59 The distribution of the estate will thus take
place per stirpes and predeceased children will be represented by their descendants. If the
deceased died after 1 October 1992, an incompetent heir or an heir who has repudiated
his/her benefit will also be considered a stirpes for purposes of the distribution of the estate. It
must be borne in mind that adopted children and children born out of wedlock60 are deemed
to be the legal descendants of the deceased and such children also form stirpes.61 Therefore,
the number of stirpes must first be determined before the estate can be distributed. If the heir
is incompetent or repudiates the benefit, his/her descendants will inherit his/her portion in
his/her stead.
___________
59 S 1(1)(b) read together with s 1(4)(a).
60 Descendant includes descendants as stipulated in the Reform Act. Compare Minyuku v Minyuku
[2012] ZALMPHC 4 and Jansen van Rensburg v Master of the High Court, Grahamstown 2012
ZAECGHC 38.
61 Who have not been adopted by anyone.
Example
The deceased E/ is survived by his three children A, B and C, his mother M and his father P. His
estate amounts to R900 000.
Figure 6
The estate is divided into three equal shares because the deceased has three stirpes. A, B and C
thus each inherits R300 000 to the exclusion of M and P.
Example
The deceased’s spouse V and sons R/ and S/ have predeceased him. The deceased E/ is survived
by a son T and two grandsons, W and U, children of the predeceased son S/. His estate amounts
to R800 000.
Figure 7
The deceased’s estate is divided in two because he has two stirpes: T and the sons of prede-
ceased S/. The grandsons do not each form a stirpes but the predeceased S/ forms a stirpes
because he left living descendants. W and U each inherit R200 000 by way of representation,
which is to say, in the stead of predeceased S/. They do not, therefore, each inherit an equal
share of the deceased’s estate but an equal share of the amount that goes to the person whom
they represent, that is to say S/. T inherits R400 000. If S/ had survived the deceased, he would
32 Deceased estates
have inherited at the exclusion of W and U. If S/ were alive but repudiated his benefits he would
still be represented by W and U. R/ died without leaving descendants and does not represent a
stirpes.
3.3.4 Spouse and descendants

If the deceased is survived by a spouse (or spouses) as well as descendants, the assets available
for distribution are divided among them in a particular ratio.62 The spouse or spouses and
descendants inherit at the exclusion of, for example, the parents and their descendants (the
collaterals of the deceased). The spouse’s inheritance is calculated first and will be a child’s
share63 or an amount of R250 000, whichever is greater.64 The descendants then inherit the
balance of the assets, if any.65 They inherit per stirpes and by representation.66
Before the spouse’s inheritance is calculated, the extent of the deceased’s estate must first
be determined. In the case of a marriage in community of property, the spouse first receives
her half of the joint estate by virtue of the marriage in community of property. In the case of a
marriage out of community of property where the accrual system applies, the accrual must first
be calculated. The value of the deceased’s estate can then be determined and distributed. If
the accrual system did not apply, the deceased’s estate is divided without any adjustments.
Example
The deceased E/ was married to V in community of property. V survives E/. The joint estate
amounts to R1 200 000. The deceased is also survived by a son born out of wedlock, S, and two
grandsons, W and U, children of his predeceased son T/.
Figure 8
___________
61 S 1(1)(c)(i) and (ii).
62 S 1(4)(f) par 3.2.8.
64 The amount is presently fixed at R250 000 but in terms of s 1(1)(c)(i) the Minister of Justice is
empowered to adjust the amount from time to time by way of notices in the GG. The amount was
recently increased from R125 000 to R250 000: See GN 921 in GG No. 38238 of 24 November 2014.
65 S 1(1)(c)(ii).
66 S 1(4)(a).
Because E/ and V were married in community of property, the spouse is entitled to her share of
the joint estate in terms of the matrimonial property law (marriage in community of property),
which is R600 000. The deceased’s intestate estate therefore amounts to R600 000. The spouse
inherits a child’s share or R250 000, whichever amount is the greater. A child’s share must first
be calculated to determine whether it is more or less than R250 000. A child’s share is calculat-
ed by dividing the amount available for distribution (R600 000) by the number of stirpes plus
one. S, the child born out of wedlock forms a stirpes, as does T/, the predeceased son who left
descendants. There are therefore two stirpes plus one (the spouse) and a child’s share amounts
to a third of the amount available for distribution, therefore R200 000. It is less than R250 000
and the spouse therefore inherits R250 000. The children inherit the residue, namely R350 000,
per stirpes. S inherits half of the residue (R175 000) and predeceased T/’s children, W and U,
represent him (inherit in his stead) and inherit R87 500 each.
Summary
V, by virtue of the marriage in community, gets 600 000
V inherits in terms of the law of intestate succession 250 000
Total received by V 850 000
S inherits 175 500
W inherits per stirpes 87 500
U inherits per stirpes 87 500
1 200 000
Example
The deceased E/ is married out of community of property to V. The accrual system was applica-
ble to their marriage and V is entitled to accrual in the amount of R50 000 from the deceased’s
estate. The deceased’s estate amounts to R500 000. The deceased is also survived by his two
adopted daughters K and L.
Figure 9
The surviving spouse is firstly entitled to accrual in the amount of R50 000 from the deceased’s
estate. An amount of R450 000 therefore remains for distribution according to the law of
34 Deceased estates
intestate succession. V is entitled to a child’s share or R250 000, whichever amount is greater.
The two adopted children are deemed to be legal descendants and form stirpes. A child’s share
amounts to R150 000 (450 000 divided by three). The spouse, therefore, inherits R250 000
because she is entitled to the greater amount. The daughters, K and L each inherit R100 000
per stirpes.
Example
The deceased E/ was married out of community of property to V. The accrual system did not
apply. The deceased’s estate amounts to R250 000. He is survived by his spouse V and three
grandchildren A, B and C, children of his predeceased daughter S/ .
Figure 10
The spouse is entitled to R250 000 or a child’s share, whichever amount is the greater. A child’s
share amounts to R125 000 (R250 000 divided by two) since the deceased has only one stirpes,
namely his predeceased daughter, S/ . The spouse inherits the whole amount of R250 000. The
intention is, therefore, that the spouse should inherit at least R250 000; if the estate amounts
to less than that she inherits the entire intestate estate.
Section 1(6)67 of the Act must also be taken into account as it provides that if a descendant,
excluding a minor or mentally ill descendant, repudiates a benefit from an intestate estate,
such a benefit will accrue to the surviving spouse.68 Section 1(6) only operates if the spouse and
descendant would together have been entitled to benefits,69 had there not been a repudiation.
If an heir repudiates a benefit, the executor will normally require him to do so in writing. In
order to ascertain the portion which accrues to the parent the distribution must first take place
in terms of the general principles of section 1(1)(c). The Children’s Act 38 of 2005 amended the
age of majority to 18 years. The reference to repudiation by a minor refers to a minor under
the age of 18.
___________
67 As inserted by s 14 of the Law of Succession Amendment Act.
68 Spouse includes any spouse, as previously explained.
69 As in this case where s 1(1)(c) applies.
Example
The deceased E/ dies intestate. He is survived by his spouse V and three major children A, B and
C. A has two sons, D and F, while C has two daughters, H and J. C has repudiated his inher-
itance. The deceased’s estate amounts to R1 600 000.
Figure 11
The spouse inherits R250 000 or a child’s share, whichever amount is greater. A child’s share is
equal to the number of stirpes plus one. There are three stirpes plus the spouse. A child’s share
therefore amounts to R400 000. V, A, B and C should therefore each inherit R400 000, but
because C has repudiated his inheritance V also inherits C’s R400 000. C is not represented by H
and J in this case. C’s share accrues to V who inherits R800 000 in total. If C was predeceased or
unworthy, representation would have taken place70 and H and J would each have inherited
R200 000.
3.3.5 Parents and their descendants

The parents and descendants of parents (collaterals of the deceased) can inherit from the
deceased intestate but only if there is not a spouse or descendant in the first parental. One
now moves to the second parental. The Act provides for several possibilities.71
(a) Both parents alive

Section 1(1)(d)(i) of the Act stipulates that if the deceased is survived by both his parents
(including adoptive parents), each parent inherits one half of the intestate estate. They there-
fore inherit at the exclusion of collaterals, because parents can only be represented in three
situations: if they predeceased the deceased, if they repudiated their benefits, or if they are
incompetent heirs.72
___________
70 The provisions of s 1(7) would have been applicable.
71 Ss 1(1)(d) if there is a parent and 1(1)(e) if there is not a parent but collaterals.
72 Previously the parent could only be represented if he/she predeceased the deceased. In terms of
s 1(7) of the Act an incompetent person or someone who repudiates his benefit can now also be
represented.
36 Deceased estates
Example
The deceased E/ dies intestate and is survived by his parents M and P and his two brothers S
and T. The distributable estate amounts to R500 000. M and P each inherit R250 000.
Figure 12
If M should repudiate her half of the inheritance, her descendants, S and T will inherit it in her
place.73
(b) A predeceased parent with descendants

Section 1(1)(d)(ii) stipulates that if the deceased is survived by only one of his parents and by
descendants of the predeceased parent, the surviving parent will inherit half of the intestate
estate and the other half will devolve upon the descendants of the predeceased parent. The
succession to the predeceased parent’s descendants takes place per stirpes by way of repre-
sentation.74
Example
The deceased E/ dies intestate and is survived by his mother M, his brother S (of full blood) and
his predeceased father P/’s daughter G from a previous marriage. He is also survived by W and
U, children of his predeceased brother H/ (of full blood). The value of his estate is R600 000.
___________
73 S 1(7).
74 S 1(4)(a).
Figure 13
His mother M inherits R300 000. The other half (R300 000) devolves upon the descendants of
his predeceased father. His father P/ has three stirpes, S, G and predeceased H
/ . S and G inherit
R100 000 each and W and U each inherit R50 000 because they represent predeceased H /.
(c) A predeceased parent with no descendants

Section 1(1)(d)(ii) also makes provision for a third possibility, namely the case in which one
parent survives and the predeceased parent leaves no descendants. In this case the surviving
parent inherits the entire intestate estate to the exclusion of, for example, the grandparents
and uncles and aunts of the deceased.
Example
The deceased E/ dies intestate and is survived by his father P and a half-brother H, his father’s
son. His mother M
/ is predeceased and left no descendants. His estate amounts to R500 000.
Figure 14
His father P inherits the entire estate of R500 000. H is not on the predeceased M
/ ’s side and
can thus not represent her.
38 Deceased estates
3.3.6 Descendants of parents

If the deceased has been predeceased by both his parents and he leaves neither a spouse nor
descendants, the descendants of the predeceased parents (collaterals of the deceased) inherit
the intestate estate in a particular ratio as stipulated in section 1(1)(e). The effect is that the
estate is divided in two. Competent heirs in the second parental inherit to the exclusion of
persons in the third parental.
(a) Collaterals of the half blood

Section 1(1)(e)(i)(aa) stipulates that if the deceased is survived by descendants of his prede-
ceased mother who are related to him through his mother only, as well as by descendants of
the predeceased father, who are related to the deceased through the father only, the intestate
estate is split into two parts and the descendants of the respective predeceased parents each
inherit one half of the estate. The distribution will take place per stirpes and by way of repre-
sentation of each predeceased parent.
Example
The deceased E/ dies intestate. His parents P/ and M / have predeceased him. He is survived by
two half-brothers W and T on his father’s side. On his mother’s side he is survived by A, B and
C, the children of his predeceased half-brother, H
/ . His intestate estate amounts to R600 000.
Figure 15
The estate is split into two. One half (R300 000) is divided between the half-blood relations on
the father’s side and the other half (R300 000) between the half-blood relations on the moth-
er’s side. P/ has two stirpes and W and T each inherit R150 000 per stirpes. M / has only one
stirpes, H
/ , and A, B and C each inherit R100 000 because they represent predeceased H/.
(b) Collaterals of the full blood

Section 1(1)(e)(i)(bb) provides for the situation where the deceased is survived only by collat-
erals of the full blood. They will be the deceased’s own brothers and sisters, or their descend-
ants. The intestate estate is once again divided into two and the descendants who are related
to the deceased through the parents inherit both halves of the intestate estate. In this case, the
distribution will also occur per stirpes and by representation.
Example
The deceased E/ dies intestate. His estate amounts to R480 000. He is survived by his adopted
brothers, A and C as well as by F, G and H, the children of his predeceased sister, B/ . He is also
survived by I and J, the grandchildren of his predeceased brother, D
/.
Figure 16
The intestate estate is divided into two and devolves from P/ and M
/ respectively between the
four stirpes A, B/, C and D/. Predeceased B/ is represented on both sides by F, G and H, and
predeceased D/ is represented by I and J. A and C inherit R120 000 each.75 F, G and H each
inherit R40 00076 and I and J inherit R60 000 each.77
(c) Collaterals of the full and of the half blood

When there is a combination of collaterals of the full blood and of the half blood, the estate
devolves upon the relations via the predeceased parents. Relations who are related through
one parent only inherit via that parent per stirpes, and relations who are related through both
parents can represent both parents. The effect of section 1(1)(e)(i)(cc) of the Act, which applies
in this case, is that a collateral of the deceased who is related to him through both parents can
___________
75 The parents have 4 stirpes. A and C inherit ¼ from each parent’s half, that is ¼ of the total each.
76 In the place of B/, that is ⅓ of B/’s ¼.
77 In the place of D/ , that is ½ of B/’s ¼.
40 Deceased estates
inherit with the full hand, via the father and the mother, while collaterals of the half-blood
inherit with the half hand, via only the one common parent.
Example
The deceased E/ dies intestate and is survived by A and B, his brothers of the full blood, as well
as a half-sister C on his mother’s side. On his father’s side, he is survived by a half-sister D and
by G and H, the sons of a predeceased half-brother F/. The deceased’s intestate estate amounts
to R480 000.
Figure 17
The deceased’s estate is apportioned equally towards the respective predeceased parents.
From M / R240 000 succeeds as follows: M / has three stirpes, namely relations of the full blood A
and B, and C, who is a relation of the half blood. Each inherits R80 000 via the mother. From P/
R240 000 succeeds as follows: P/ has four stirpes, namely full blood relations A and B and a half-
blood relation D, as well as G and H, the sons of predeceased F/. A, B and D each inherit R60 000
via the predeceased father. G and H represent predeceased F/ and each inherits R30 000. The
half-blood relations C, D, G and H inherit with the half hand because they are only related to
the deceased through one parent, while full blood relations are considered twice because they
are related to the deceased through both parents. In total, C therefore inherits R80 000, A and
B R140 000 each, D R60 000 and G and H R30 000 each.
(d) Half-blood collaterals take the whole estate

Section 1(1)(e)(ii) makes provision for the case in which only one of the predeceased parents of
the deceased leaves descendants (collaterals of the deceased). In such a case those relations
inherit the entire intestate estate. This means that the share of the predeceased parent who
left no descendants accrues to the share of the parent who did leave descendants, and from
there it is distributed to the heirs per stirpes. Any competent heir in the second parental
therefore inherits at the exclusion of persons in the third parental (grandparents, uncles or
aunts).
Example
The deceased E/ dies intestate and is survived by S, the son of his predeceased father P/ and by
the sons W and U of a predeceased daughter, T/. P/’s descendants come from a previous mar-
riage with one Z. The estate amounts to R400 000.
Figure 18
E/’s estate of R400 000 is divided between P/’s stirpes S and T/. S inherits R200 000 and W and U
each inherit R100 000 per stirpes by representation.
3.3.7 Other competent heirs

In section 1(1)(f) of the Act, provision is made for the case in which a deceased is not survived
by a spouse, descendants, parents or descendants of parents. The blood relations in the third
and further parental then inherit the estate per capita.78 The persons who are related to the
deceased in the nearest degree inherit the estate to the exclusion of any other relations. All
persons in the second degree of relationship inherit equally (per capita) to the exclusion of
anyone related in the third degree. Only if there are no blood relations in the second degree
can relations in the third degree inherit per capita. The effect is that grandparents of the
deceased inherit to the exclusion of uncles and aunts. Grandparents are related to the de-
ceased in the second degree while uncles and aunts are related to the deceased in the third
degree. The degree of relationship is calculated according to the methods set out in sec-
tion 1(4)(d).79
Example
The deceased dies intestate and is survived by his grandparents, O and R, on his father’s side as
well as by his grandmother K on his mother’s side. He is also survived by an uncle, L, on his
mother’s side. His estate amounts to R600 000.
___________
78 See discussion in par 3.2.7.
79 The way it is to be calculated is explained in par 3.2.7.
42 Deceased estates
Figure 19
K, O and R inherit R200 000 each, since all of them are related to the deceased in the second
degree.80 They inherit per capita and to the exclusion of L, who is related to the deceased in
the third degree.
Example
The deceased E/ dies intestate and is survived by his uncle H on his father’s side, by his aunt J,
and his great-grandparents D and F on his mother’s side. On his father’s side the deceased is
also survived by C and L, the two sons of his predeceased uncle I. His estate amounts to
R800 000.
Figure 20
___________
80 Degrees for K and L are calculated as follows: E/ = 0; from E/ to M
/ is one degree (1); from E/ to K is two
degrees (2) and from E/ to L (through K) is three degrees (3).
D, F, J and H are all related to the deceased in the third degree and each inherits R200 000 at
the exclusion of C and L who are related to the deceased in the fourth degree. From E/ one
counts through M (1st degree) through Y or Z (second degree) to D and F (third degree). From E/
one counts through P, through A or B to H (third degree). J is also in the third degree but C and
L are in the fourth degree.
3.3.8 The adopted child

As stated above, an adopted child is deemed to be the lawful child of his adoptive parents. The
adopted child can inherit from his adoptive parents and their blood relatives.81 The adoptive
parents and their blood relatives can also inherit from the adopted child.82 The adopted child,
however, cannot inherit from his natural parents or their blood relatives,83 nor can they inherit
from him.84 The only instance where the adopted child can inherit from his natural parent is
where the natural parent is also the adoptive parent of that child, or was married to the child’s
adoptive parent during the adoption.
Example
E/ dies intestate. His adoptive parents, M

/ and P are a childless couple who adopted E and B. M /
predeceased E/. K and L/ are the natural parents of E/ and B respectively. E/’s estate amounts to
R400 000.
Figure 21
K, the natural parent of E/, is an incompetent heir. M / and P can inherit, but because M
/ prede-
ceased E/, she is represented by B (who is deemed to be a descendant of his adoptive parents).
B inherits R200 000 in M/ ’s place and P inherits the remainder of R200 000.
___________
81 S 1(4)(e)(i).
82 S 1(5).
83 S 1(4)(e)(ii). See ss 228 and 242 of the Children’s Act.
84 S 1(5).
44 Deceased estates
Example
E/ dies intestate. He is survived by V, his spouse to whom he was married out of community of
property, and an adopted son A. His own son B/ predeceased him but is survived by B/’s adopted
son B1. E/’s estate amounts to R600 000.
Figure 22
V inherits a child’s share or R250 000, whichever is greater. A child’s share is R200 000 and V
therefore inherits R250 000. A inherits R175 000 and B1 (by representing predeceased B/) also
R175 000.
Example
E/ and V, who were married out of community of property, have two children X and Y. X was
adopted by A and B. E/ dies intestate and is survived by V, X and Y. E’s estate amounts to
R800 000.
Figure 23
V inherits R400 000 and Y inherits R400 000. X is deemed to be the descendant of his adoptive
parents and is not competent to inherit from E/.
3.3.9 No intestate heirs

If someone dies intestate and leaves no competent heirs, the executor is bound by the stipula-
tions of section 35(13) of the Administration of Estates Act. The amount which cannot be paid
to heirs must be paid into the Master’s guardian fund. If no competent heirs are found, the
money is forfeited in favour of the state after 30 years.85
3.4 Collation
It often happens that a deceased substantially benefits a specific child to a greater degree than
his other children during his lifetime. For example, he may have given a farm to his son when
he turned 21, while his other children received nothing. In terms of the law of succession there
is a presumption that the deceased wishes to benefit his descendants equally, unless the
contrary can be proven. If one child has benefited in excess of the others, the executor in the
estate must take it into account in the distribution of the estate. “Collation” means that the
value of such benefits bestowed on a child or children during the deceased’s lifetime must be
taken into account in determining the amounts to be awarded to each descendant. In the case
of intestate succession, we always deal with blood relations. Collation is therefore most likely
under these circumstances. However, collation also applies in the case of testate succession,
where heirs are concerned, but it does not normally apply in the case of legacies.
Note that collation only applies where an estate or part thereof must be distributed amongst
descendant heirs. Descendants include children who may inherit in their own right, as well as
grandchildren who represent a predeceased child. Ascendants and collaterals are not subject
to collation. Where collation is concerned, descendants (but not legatees) do not have an
option whether to collate or not. If he or she is not prepared to collate he/she will not be
entitled to inherit any benefits in terms of the will.
As already stated, collation also applies when descendants inherit benefits in terms of a will.
The deceased is, however, free to provide (in the will or otherwise) that no benefits will be
subject to collation. On the other hand, he may also specifically provide that inheritances, and
even legacies, will be subject to collation.
In practice, if applicable, the beneficiary is not required to collate in the actual sense. The
prior benefits are merely taken into account when determining the amounts to be distributed.
The amounts concerned do not increase the size of the estate, and creditors, legatees and a
spouse who are entitled to a child’s share in terms of the law of intestate succession, cannot
benefit from the amount collated.
Example
Eben (E/) dies intestate and his estate, amounting to R900 000, must be distributed equally
amongst his three children A, B and C. During his lifetime E/ gave R120 000 to A as an advance
on his inheritance and R180 000 to B to start a business. C received nothing. Normally A, B and
C would each inherit R300 000, but in this case A and B will first have to collate the amounts
which they respectively received.
___________
85 S 92 of the Administration of Estates Act 66 of 1965.
46 Deceased estates
Amounts to be collated R
A collates 120 000
B collates 180 000
Total collated 300 000
Estate available for distribution 900 000
Total – if no advances were given 1 200 000
Each would then have inherited (⅓ of R1 200 000) 400 000
A therefore inherits
⅓ of R1 200 000 400 000
Less amount collated 120 000 280 000
B therefore inherits
⅓ of R1 200 000 400 000
Less amount collated 180 000 220 000
C therefore inherits
⅓ of R1 200 000 400 000
Less amount collated Nil 400 000
Total distributed to heirs 900 000
A and B receive R280 000 and R220 000 respectively, while C benefits from the amounts
collated by A and B, and inherits R400 000.
4
Testate succession
4.1 General ................................................................................................................... 48

4.1.1 Sources of law of succession ..................................................................... 49
4.2 Definitions ............................................................................................................... 49
4.2.1 Will and codicil .......................................................................................... 49
4.2.2 Execution of wills ....................................................................................... 50
4.2.3 Condonation of wills.................................................................................. 50
4.2.4 Estate ......................................................................................................... 50
4.3 Parties involved....................................................................................................... 50
4.3.1 Testator ..................................................................................................... 50
4.3.2 Draftsman .................................................................................................. 51
4.3.3 Executor..................................................................................................... 52
4.3.4 Witnesses and attestation......................................................................... 52
4.3.5 Beneficiaries .............................................................................................. 53
4.4 Commencement of the estate ................................................................................ 53
4.5 Types of wills........................................................................................................... 54
4.6 Formalities during the execution of wills ................................................................ 54
4.6.1 Formality requirements............................................................................. 54
4.6.2 Condonation by the court ......................................................................... 56
4.6.3 Formalities for the amendment of the wills .............................................. 60
4.7 Revocation of wills .................................................................................................. 61
4.7.1 General ...................................................................................................... 61
4.7.2 Explicit revocation ..................................................................................... 61
4.7.3 Condonation by the court ......................................................................... 62
4.7.4 Implicit revocation..................................................................................... 63
4.7.5 Automatic lapsing due to divorce.............................................................. 64
4.7.6 Conditional and presumed revocation ...................................................... 64
4.8 Types of bequests ................................................................................................... 65
4.8.1 Introduction............................................................................................... 65
4.8.2 Legacy and inheritance.............................................................................. 65
4.8.3 Conditional and dies provisions................................................................. 66
4.8.4 Modal clauses ............................................................................................ 67
4.8.5 Direct substitution ..................................................................................... 67
4.8.6 Fideicommissary substitution .................................................................... 68
47
48 Deceased estates
4.8.7 Usufruct ..................................................................................................... 69

4.8.8 Bequests in trust........................................................................................ 69
4.9 The right of beneficiaries to inherit ........................................................................ 70
4.9.1 General ...................................................................................................... 70
4.9.2 Adiation and repudiation .......................................................................... 70
4.9.3 Competent beneficiaries ........................................................................... 71
4.9.4 Unworthy persons ..................................................................................... 71
4.9.5 Persons participating in the execution process......................................... 72
4.9.6 Illegitimate and adopted children ............................................................. 73
4.10 Massing ................................................................................................................... 73
4.11 Accrual (ius accrescendi) ......................................................................................... 74
4.12 Interpretation of wills ............................................................................................. 75
4.13 The will .................................................................................................................... 75
4.13.1 General ...................................................................................................... 75
4.13.2 Example – simple will ................................................................................ 77
4.13.3 Example – will with testamentary trust .................................................... 78
4.1 General
During his lifetime, a person can execute a will in which he determines how his estate must
devolve and be distributed when he dies. The law of testate succession1 refers to the legal rules
that apply to wills and related matters. If no will has been made, an estate is distributed in
accordance with the provisions of the law of intestate succession.2 If not, it is distributed in
terms of the will and the principles of the law of testate succession. A person can die partially
testate and partially intestate. For example, a will may contain only one provision, namely that
the testator bequeaths R500 000 to his spouse. Since the will contains no provisions regarding
the remainder of the estate, the balance must be distributed in terms of the law of intestate
succession. Although testate and intestate successions have many aspects which overlap, the
administration process is the same in all cases. It is only the way in which heirs are determined
that there are differences between testate and intestate succession.
___________
1 Sometimes this is also referred to as testamentary succession.
2 See Chapter 3.
Chapter 4 Testate succession 49
4.1.1 Sources of law of succession
Legislation
Aspects of testate succession are arranged by the Wills Act 7 of 1953. Since January 1954,3 a
will is only valid if it has been made in terms of the formality requirements4 as set out in sec-
tion 2(1)(a) of the Wills Act.5 The Law of Succession Amendment Act 43 of 1992,6 which came
into effect on 1 October 1992, changed the law of succession in many ways. The Wills Act
regulates matters such as the competency of persons to make a will, who may sign a will as
witnesses (attest the will), the formality requirements for making a valid will, the amendment
of wills, as well as related matters such as representation, and rules for the interpretation of
wills. In the discussion below it will be assumed that the testator died on or after 1 October
1992.7
Common Law
Other aspects of testate succession, such as content provisions, revocation of wills, adiation
and repudiation, collation, interpretation of wills and rectification, which are not regulated by
the Act, can be found in sources dealing with the common law.8
4.2 Definitions
4.2.1 Will and codicil
A will can be defined as a written document in which someone, by means of a voluntary unilat-
eral legal act and in accordance with ruling legal requirements, stipulates what should happen
to his estate after his death. A codicil is an addition or addendum to an existing will which
usually contains further details, amendments, changes or additions.9 As far as execution is
concerned, no distinction is made between a will, codicil or addendum to a will. Any testamen-
tary writing must comply with the requirements of the Act.10 It is not possible to make a will by
way of a video or a sound cassette. A will draw up electronically must be printed and signed on
the hard copy since it is unclear whether a will signed by scanning your signature electronically
___________
3 Regarding the legal position prior to 1 January 1954, see Van der Merwe & Rowland 1990,
pp 120–149.
4 An exception was the making of the so-called soldier will. See s 3 of the Wills Act, which was
repealed by The Law of Succession Amendment Act 43 of 1992.
5 In this chapter, any reference to the Act is a reference to the Wills Act.
6 Hereinafter the “Amendment Act”.
7 See De Waal & Schoeman-Malan 2015, pp 53–54 for relevant aspects of the position prior to
1 October 1992.
8 De Waal & Schoeman-Malan 2008.
9 See Ex parte Porter 2010 (5) SA 546 (WCC) and Ferrington v Key 2011 JDR 1332 (GNP) for an exam-
ple of a codicil.
10 See s 1 of the Wills Act. A testamentary writing is any document identifying property which is
bequeathed, which sets out the extent of the bequest and indicates the beneficiaries: Ex Parte Es-
tate Davies 1957 (3) SA 471 (N); Oosthuizen v Die Weesheer 1974 (2) SA 434 (O). See also De Waal &
Schoeman-Malan 2015, pp 55–56.
50 Deceased estates
will be valid.11 A will can be drafted by the testator personally or it can be done for him by
someone else.
4.2.2 Execution of wills

The execution of a will refers to the process through which a valid will, which has been properly
drafted and signed, comes into existence. A document which has been created with the inten-
tion of drafting a will, but which does not comply with the necessary formalities, means that
there is not a properly executed will.12
4.2.3 Condonation of wills

Section 2(3) of the Wills Act provides that a will which does not comply with the formality
requirements of the Act may be accepted as a valid will by the court. This is referred to as
condonation.13
4.2.4 Estate
The testator’s estate consists of all his/her assets and liabilities as at date of his/her death.
Before the estate can be distributed, it may be necessary to apply some of the assets to pay the
liabilities. Only the assets which remain after the liabilities have been paid are distributed
among the beneficiaries.14
4.3 Parties involved

4.3.1 Testator
The testator is the person who makes a will or for whom a will is drawn up. In terms of section
4 of the Wills Act, any person over the age of 16, who is not mentally incapable of appreciating
the nature and effect of his act, is competent to execute a will.15 Only a person with such
testamentary capacity can execute, amend or revoke a will. A person under the age of 16 is not
competent to execute a will, while a minor over the age of 16 is competent to execute a will
without the assistance of his parent or guardian.16 The person executing the will must under-
stand the nature of his/her act, namely that he is executing a will, including its effects and the
implications of any bequests.17
___________
11 The Electronic Communication and Transactions Act 25 of 2002 does not make provision for
electronic testaments.
12 For improperly executed wills see Molefi v Nhlapo [2013] JOL 30227 (GSJ).
13 See par 4.6.2.
14 Known as distribution.
15 This means that the person has the legal capacity to execute a will. Vermeulen v Vermeulen [2012]
NAHC 23; Vermeulen v Vermeulen 2014 (2) NR 528 (SC); Scott v Master of the High Court Bloemfon-
tein [2012] ZAFSHC 190; Malan v Strauss (FSHC) unreported case number 1462/2012 (2013-11-28).
16 See De Waal & Schoeman-Malan 2015, pp 38–49.
17 Harlow v Becker 1998 (4) SA 639 (D); Katz v Katz [2004] (4) All SA 545 (WC); Levin v Levin [2011]
ZASCA 114; Vermeulen v Vermeulen [2012] NAHC 23; Vermeulen v Vermeulen 2014 (2) NR 528 (SC);
continued
Factors which may influence a testator’s mental capacity and which may bring about a fail-
ure on his/her part to understand the nature and effect of his/her act, are drunkenness, the
effects of drugs, and mental incapacity.18 Section 4 also provides that a person who alleges that
a testator was mentally incapable of executing a will, shall bear the burden of proof.19
A will supposes a voluntary expression of the testator’s intent. If fear is induced, if there is
undue influence, or if there is a false notion present, the will no longer reflects the true inten-
tions of the testator, but rather the intentions of the person who exerted influence over the
testator.20
The testator must exercise his/her testamentary capacity personally. Someone else cannot
do so on his behalf. There are, however, certain acknowledged instances where a testator may
leave it to someone else to nominate certain persons on his behalf. This is known as delegation
of testamentary power (power of appointment). The beneficiaries still inherit from the estate
of the testator and in terms of his will.21 Acknowledged cases are where the testator leaves it
to the discretion of the trustees of a charitable trust to identify beneficiaries within the objec-
tives of the trust. The testator may also grant to the holder of an interim right, such as a fiduci-
ary, usufructuary or income beneficiary of a trust, the capacity to nominate the fidei-
commissary, bare dominium holder or capital beneficiary of a trust, after the testator has
died.22 In the case of Braun v Blann and Botha23 the Appeal Court ruled that the trustees of a
trust can also have the capacity to nominate beneficiaries (income and capital beneficiaries)
from a specified group of persons.24 However, the testator cannot delegate the capacity for
founding a new trust to the trustees.
The principle is that the testator has freedom of testation and that he/she can nominate the
beneficiaries and their inheritances.25
4.3.2 Draftsman
A person may draft his/her own will, or may instruct someone else to do it on his behalf. It is
strongly recommended that the assistance of a knowledgeable person be obtained in this
regard since a will must comply with statutory requirements, which an untrained person may
be unaware of. Confusion about the intentions of the testator can easily arise if ambiguous
words are used. Institutions and persons who normally prepare wills include lawyers,
___________
Scott v Master of the High Court Bloemfontein [2012] ZAFSHC 190; Malan v Strauss (FSHC) unre-
ported case number 1462/2012 (2013-11-28).
18 See De Waal & Schoeman-Malan 2015, pp 39-43. Thirion v The Master 2001 (4) SA 1078 (T). See
Naidoo NO v Crowhurst NO [2009] ZAWCHC 186 for invalidity for want of testamentary capacity
where the classic test in Tregea v Goddart was followed and Netshituka v Netshituka) [2011] ZASCA
where no mental incapacity was proven.
19 Essop v Mustapha 1988 (4) SA 213 (D); Geldenhuys v Borman 1990 (1) SA 161 (EC); Gildenhuys v
Gildenhuys [2010] ZAWCHC 21.
20 Spies v Smith 1957 (1) SA 539 (A); Kirsten v Bailey 1976 (4) SA 108 (C). See also Thirion v The Master
2001 (4) SA 1078 (T).
21 See De Waal & Schoeman-Malan 2015, pp 47–50. Troger v Hunt [2013] ZANCHC 24.
22 See De Waal & Schoeman-Malan 2015, pp 48–51. Troger v Hunt [2013] ZANCHC 24.
23 1984 (2) SA 850 (A).
24 The so-called “specific power of appointment”. A general power of appointment is invalid. See also
Troger v Hunt [2013] ZANCHC 24.
25 See Ex parte BoE Trust Ltd 2009 (6) SA 470 (WCC) and BoE Trust Limited NO & Others [2012] ZASCA
147 for freedom of testation versus the power of a court to amend a will on the ground of unconsti-
tutional discrimination.
52 Deceased estates
accountants, board of executors, insurers and banks. Although there is no obligation to safe-
keep the will, the draftsman should make sure that the testator or someone else (executor of
family member) takes custody of the will.26
4.3.3 Executor
The executor is the person who is responsible for the administration of the testator’s estate.
The executor has no function during the life of the testator. The executor administers the
estate by taking control of estate assets, settling the liabilities and paying out or transferring
the legacies and inheritances once the liquidation and distribution account has been approved
by the Master of the High Court. A detailed discussion of all his tasks is provided at a later
stage.
4.3.4 Witnesses and attestation

The testator signs the will in the presence of witnesses who are the persons who must confirm
that it was the testator who signed the will. “Attestation” means that witnesses, by signing the
will, confirm the testator’s signature by signing in his presence.27
Section 1 defines a competent witness as anyone aged 14 or over who is competent to give
evidence in a court of law.28 The witness does not attest the contents of the will but acknowl-
edges the signature of the testator. If a witness was incompetent to attest the will, the will is
invalid. However, in terms of section 2(3) the court does have the capacity to declare the will
valid, which is known as condonation, even though the witness was incompetent. The court
cannot declare the witness to be competent, but it can condone the non-compliance with the
formality requirement, namely that the last page must be signed by the witnesses.29 A blind
person, or one who is asleep, will thus not qualify as a witness.30
In terms of section 4A of the Act, any person involved with the execution process is disquali-
fied from inheriting in terms of that will. This means that a witness to the will, the person who
signs on behalf of the testator or the person who drafts a will in his own handwriting, cannot
receive benefits in terms of the will which they sign or write.31 If these witnesses are also
beneficiaries, it would not cause the will to be invalid. The beneficiaries will merely be incapa-
ble of accepting the benefits. There are, however, exceptions to this rule where such a person
can be competent or can be declared to be competent.32
___________
26 See Ex parte Porter 2010 (5) SA 546 (WCC) for problems with a lost will and to prove the contents of
a lost will.
27 Gildenhuys v Gildenhuys [2010] ZAWCHC 21, 19 Feb 2010. Raubenheimer v Raubenheimer 2012 (5)
SA 290 (SCA).
28 Diehl v The Master of the High Court (Pretoria) [2008] 4 All SA 430 (T).
29 See s 2(3) as discussed in par 4.6.2.
30 See Cronjé & Roos 2002, pp 52–53 for a discussion of Sterban v Dixon 1968 (1) SA 322 (C).
31 In terms of s 4A(3) a person’s nomination as executor, trustee or guardian is regarded as a benefit,
and the witness, a person who signs on behalf of the testator, or the writer of a will, cannot (also)
accept nomination as executor, trustee or guardian, unless he qualifies for one of the exceptions.
Further see Henriques v Giles [2009] 4 All SA 166 (SCA).
32 See s 4A(2)(a–c). De Waal & Schoeman-Malan 2015, pp 121–124; Blom v Brown (345/10) [2011]
ZASCA 54 (31 March 2011) and Beukes v Master of the High Court, Pretoria 2014 JDR 0708 (GNP).
4.3.5 Beneficiaries
Beneficiaries are persons who are entitled to benefits in terms of the provisions of a will. In
terms of intestate succession, all beneficiaries are referred to as heirs. In the law of testate
succession, a distinction is made between heirs and legatees.33 Not all beneficiaries are capable
of inheriting. A potential beneficiary can be disqualified, for example, because he caused the
death of the testator by murdering him and would be enriched by his own crime.34 A person
who signs a will as a witness, or one who writes or signs the will on the testator’s behalf, is an
incompetent heir and cannot inherit.35 The will, however, remains valid. A descendant who is
incompetent to inherit but who was entitled to a bequest in the will can be represented.36
A person who attempted to make a will on behalf of the deceased after his/her death, will
be incompetent to inherit intestate from the deceased.37 A person who negligently caused
his/her spouse’s death is incompetent to inherit in terms of the deceased’s will.38
4.4 Commencement of the estate

In terms of the law of testate succession, beneficiaries are usually entitled to inherit once the
testator has died. This means that the testator’s rights in respect of his estate cease and that
the heirs and legatees obtain claims against the estate. This is referred to as an estate falling
open.39 In legal language the term delatio refers to the moment when the estate “commenc-
es”, which means that a beneficiary’s rights can become vested. The moment at which the
rights become vested is known as dies cedit. However, the rights only become enforceable and
claimable, that is to say, dies venit takes place, once the liquidation and distribution account
has been approved by the Master. Prior to the death of the testator a beneficiary has no rights,
but only a prospect or spes to inherit, since the testator may revoke or amend his will at any
time before his death. It is not clear to whom these rights of the testator pass upon his death,40
but the rights do not pass to the beneficiaries immediately.41 It appears from judicial literature
that the rights probably pass to the executor.42 The beneficiaries do, however, obtain a claim
against the executor of the estate for compliance with the terms of the will. An act of delivery
or transmission, such as registration of a title deed, is, however, required before ownership can
be obtained.43
In Absa Bank Ltd v Magiet NO44 Le Grange J acknowledged that the juristic nature of a de-
ceased estate and the legal position of the executor has been the subject of much debate. He
___________
33 See the discussion in par 4.8.2.
34 Danielz NO v De Wet 2009 (6) SA 42 (C).
35 Blom v Brown [2011] ZASCA 54 and Beukes v Master of the High Court, Pretoria 2014 JDR 0708
(GNP).
36 See s 2C(1) of the Act.
37 Pillay v Nagan 2001 (1) SA 410 (D).
38 Casey v The Master 1992 (4) SA 505 (N). For a full discussion of incapacity, refer to De Waal &
Schoeman-Malan 2015, 116–125.
39 See Van der Merwe & Rowland 1990, p 12; De Waal & Schoeman-Malan 2015, pp 7–10.
40 See Van der Merwe & Rowland 1990, pp 6–11 and De Waal & Schoeman-Malan 2015, pp 10–11 for
a full discussion of the matter.
41 Greenberg v Estate Greenberg 1955 (3) SA 361 (A). See also Van den Bergh v Coetzee 2001 (4) SA 93 (T).
42 See De Waal & Schoeman-Malan 2015, pp 10–11.
43 Greenberg v Estate Greenberg 1955 (3) SA 361 (A).
44 [2009] ZAWCHC 144.
54 Deceased estates
found, however, that the rights are ultimately vested in the executor in an official capacity, and
the executor acquires dominium and other rights and obligations of the estate.45
The vesting of rights depends on the intentions of the testator. It does not always take place
upon his death. He/she can postpone the vesting of rights (dies cedit) and their ability to be
claimed (dies venit). He/she may, for example, make a bequest subject to a condition. The
rights will then become vested and claimable only at a later stage when the condition has been
complied with. Dies venit can never occur before dies cedit. The rights will, therefore, never be
enforceable until they have become vested.
The court may express a presumption of death in certain cases if it is presumed that some-
one died in an accident at sea or in the air and the body cannot be found. In such a case, if a
distribution of the estate is ordered, the estate of the missing person will be administered and
the beneficiaries will have to provide security for the return of their benefits, or the value
thereof, in case the missing person makes his/her reappearance.46
4.5 Types of wills

Only a will47 made in accordance with the formalities laid down in section 2(1)(a) of the Act is
valid. Prior to 1 October 1992, a person could also make a soldier’s will, which did not have to
meet all of these formality requirements. Previously, in terms of section 3, a soldier’s will had
to be in writing and could be made by anybody in the land, sea, or air forces of the Republic, or
any country affiliated or associated with it in war. A soldier’s will, need not be signed. However,
this privileged type of will can no longer be made.48
All wills must now comply with the provisions of section 2(1)(a). This includes a single will, a
joint will and a mutual will. A single will is a will in which one person makes his wishes known.
In a joint will, two or more persons express their intentions in a single document. The joint will
is used mainly by spouses.49 In practice, a joint will is, however, regarded as multiple wills in the
sense that any of the co-testators may at any time revoke or amend his/her will without the
knowledge of the other testators. After the death of one of the testators of a joint will, the wills
are still regarded as separate wills, unless massing and the accompanying adiation has oc-
curred.50 When a joint will is executed, the formality requirements need only be complied with
once. A mutual will is one in which the testators bestow benefits on one another.
4.6 Formalities during the execution of wills

4.6.1 Formality requirements
Section 2(1)(a) of the Wills Act provides that a will is valid only if it has been signed at the end
thereof by the testator or by somebody on his behalf.51 The testator or the person who signs
___________
45 See further Mills v Hoosen 2010 (2) SA 316 (W).
46 See Cronjé & Roos 2002, p 4.
47 Also known as the ordinary or underhand will.
48 S 3, which dealt with soldiers’ wills, was repealed by s 5 of the Amendment Act.
49 Theart v Scheibert [2012] 4 All SA 278 (SCA).
50 See the discussion in par 4.9.2 and par 4.10. Wessels v Die Meester [2007] 17 SCA (RSA).
51 S 2(1)(a)(i). The end of a will is interpreted very strictly and means the place at which the written
part ends. In Kidwell v The Master 1983 (1) SA 509 (EC) a will was declared invalid because the
continued
on his behalf must sign the will in the presence of at least two competent witnesses.52 The will
can also, if the testator did not make his signature in the presence of witnesses, be acknowl-
edged by him or by the person who signed on his behalf in the presence of the witnesses.53
Acknowledgment in this regard means that the testator acknowledges that the signature
already made is his signature. After the signing by the testator, the witnesses must attest the
will in the presence of the testator, or if a person signed on his behalf, in the presence of that
person and the testator.54 The witnesses must sign after the testator has signed. The witnesses
do not confirm the contents of the will by their signature but only the signature of the testator
or person who signed on his behalf.55 The witnesses must sign the last page but need not sign it
at the end.56 A specific attestation clause is not a requirement. If the will consists of more than
one page, the testator, or the person who signs on his behalf, must also sign every other page
at any place on that page.57 Such signing must take place in the presence of the two witnesses.
The previous requirement that the witnesses must also sign every page has been done away
with.58 The witnesses need now sign only the last page. Section 1 provides that the term “sign”
also includes making an initial. If the testator, or person signing on his behalf, or a witness,
makes an initial rather than a full signature, this will be sufficient. Section 1 further provides
that the term “sign” in the case of the testator also includes the making of a mark.59
Section 2(1)(a)(v) contains certain provisions which must be complied with if:
(i) someone signs on behalf of the testator; and also
(ii) a testator signs his will at the end by making a mark.60
From a juristic point of view, the word “mark” is interpreted narrowly while “signature” is
interpreted broadly.61 Initials, for instance, will be regarded as a signature and not as a mark.62
A mark is usually a thumb print, cross, rubber stamp, or the imprint of a ring.63
___________
testator had signed it at the bottom of the page, 13cm below the signature of the last witness. Lev-
in v Levin [2011] ZASCA 114.
52 S 2(1)(a)(ii). Danielz NO v De Wet 2009 (6) SA 42 (C); Gildenhuys v Gildenhuys [2010] ZAWCHC 21;
Raubenheimer v Raubenheimer 2012 (5) SA 290 (SCA).
53 In Bosch v Nel 1992 (3) SA 600 (T) the testator signed the will in the presence of his brother-in-law,
but since the brother-in-law was nominated as executor, he was not competent to sign as a wit-
ness. The testator therefore took the will to two other persons (after he had signed it) and
acknowledged to them that it was his signature on the will. They signed the will as witnesses and
the court found that the will was valid. See also Raubenheimer v Raubenheimer 2012 (5) SA 290
(SCA).
54 S 2(1)(a)(iii).
55 Sterban v Dixon 1968 (1) SA 322 (C); Liebenberg v The Master 1992 (3) SA 57 (D).
56 In Liebenberg v The Master 1992 (3) SA 57 (D) the witnesses signed the will, which consisted of one
page only, at the top of the page. The court found that the will was valid.
57 S 2(1)(a)(iv).
58 This requirement is still sometimes incorrectly stated. Smith v Parsons 2009 (3) SA 519 (D); Ferring-
ton v Key 2011 JDR 1332 (GNP).
59 Smith v Parsons 2009 (3) SA 519 (D). See also Smith v Parsons 2010 (4) SA 378 (SCA).
60 Mankelegane v Simon 2013 JDR 1851 (GSJ).
61 Ex parte Goldman and Kalmer 1956 (1) SA 464 (W); Ex parte Jackson: In re Estate Miller 1991 (2) SA
586 (W). See Ricketts v Byrne 2004 (6) SA 474 (C).
62 Ex parte Jackson: In re Estate Miller 1991 (2) SA 586 (W) 587 I.
63 See Cronjé & Roos 2002, p 42.
56 Deceased estates
If the testator makes a mark or someone else signs on his behalf, a commissioner of oaths
must certify that he has satisfied himself as to the identity of the testator and that he is con-
vinced that the will is that of the testator. Any words may be used to certify, but the certifying
officer may (if he so wishes) use a certificate of which an example appears in schedule 1 to the
Act.64 The certificate can be attached to any page of the will, but if the will consists of more
than one page, the commissioner of oaths must also sign the other pages in his capacity as
commissioner of oaths. It must appear from the wording of the certificate that all the content
requirements of section 2(1)(a)(v) have been complied with. The certifying officer must satisfy
himself as to the testator’s identity and the testator’s intention to execute the will. The certifier
must also indicate that he holds the office of a commissioner of oaths.65 The commissioner of
oaths must be present when the testator makes his mark or when somebody else signs on his
behalf, as well as when the witnesses sign. The certificate must, if not done immediately, be
attached to the will as soon as possible by the commissioner of oaths.66 If the testator dies
before the certificate has been attached, the commissioner of oaths may attach the certificate
as soon as possible after the testator’s death.67
4.6.2 Condonation by the court

If the formality requirements, as discussed above, are not complied with, the will is not valid. In
the past, a frequent consequence of this was that a will was declared invalid because, for
example, it was not signed at the end, or because the witnesses did not sign all the pages.68
Some wills were also declared invalid because certain pages were only initialled69 or because
the certificate was lacking in one or other respect.70 However, section 2(3) of the Act now
empowers the court to condone the non-compliance with formality requirements.71 However,
it is still important to comply with formality requirements to ensure legal certainty.72
As already mentioned, the court has the power in terms of section 2(3) to condone non-
compliance with the formality requirements of section 2(1).73 Only if the formality require-
ments for the execution (section 2(1)(a) or for amendments (section 2(1)(b)) have not been
complied with, can section 2(3) be applied.74 If the section does not apply condonation cannot
take place, for example, if the witnesses are incapable of inheriting.75
___________
64 S 2(4) of the Act. See also O’Connor v The Master 1999 (4) SA 614 (NC); Mankelegane v Simon 2013
JDR 1851 (GSJ).
65 Radley v Stopforth 1977 (2) SA 515 (A); Jeffrey v The Master 1990 (4) SA 759 (D); Mankelegane v
Simon 2013 JDR 1851 (GSJ).
66 S 2(1)(a)(v)(aa).
67 S 2(1)(a)(v)(bb).
68 Kidwell v The Master 1983 (1) SA 509 (EC). See also Ricketts v Byrne 2004 (6) SA 474 (C).
69 Dempers v The Master 1977 (4) SA 44 (SWA); Mellvill v The Master 1984 (3) SA 387 (C); Govindamall
v Munsami 1992 (1) SA 676 (D).
70 Radley v Stopforth 1977 (2) SA 516 (A); Tshabalala v Tshabalala 1980 (1) SA 134 (O); Gantsho v
Gantsho 1986 (2) SA 321 (T).
71 Ex Parte Williams: In re Williams’ Estate 2000 (4) SA 168 (T) 172.
72 Logue v The Master 1995 (1) SA 199 (N); Ex parte Maurice 1995 (2) SA 713 (C); Back v Master of the
Supreme Court [1996] 2 All SA 161 (C); Harlow v Becker 1998 (4) SA 639 (D); Kotze v Die Meester
1998 (3) SA 523 (NC) and Van der Merwe v The Master and Another 2010 (6) SA 544 (SCA).
73 Harlow v Becker 1984 (4) SA 639 (D).
74 If a will (which is properly executed) is misplaced s 2(3) will not apply. See also Ex parte Porter 2010
(5) SA 546 (WCC); De Reszke v Maras 2006 (2) SA 277 (SCA); Uys v Uys [2008] ZANCHC 306.
75 See the provisions of s 4A(2) of the Act. See also Harlow v Becker 1998 (4) SA 639 (D) for a discus-
sion of the distinctions between s 2(3) and s 4.
Section 2(3) provides as follows:

If a court is satisfied that a document or the amendment of a document drafted or executed by a
person who has died since the drafting or execution thereof, was intended to be his will or an
amendment of his will, the court shall order the Master to accept that document, or that docu-
ment as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as
a will, although it does not comply with all the formalities for the execution or amendment of wills
referred to in subsection (1).
The person who applies to the court to declare the document valid must convince the court on
a balance of probabilities that the document was meant by the testator to be his will.76 It is
clear from the wording of the section that if there was compliance with the provisions of the
section and if the court is convinced that the testator intended the document to be his will, the
court shall order the Master to accept the document as a will.77 A section 2(3) application
means costs and the use of the section must be the exception. The basic requirements for the
operation of section 2(3) are:
(a) There must be a document (writing is therefore required);
(b) which was drafted or executed (by a person who has died since it was drafted or executed);
(c) with the intention that the document must be his will.78
Before the Supreme Court of Appeal gave a ruling on the interpretation of section 2(3) there
were different points of view in the Provincial Courts.79
In earlier cases, the question was asked whether the deceased must have drafted the “doc-
ument” himself. In Ramlal v Ramdhani’s Estate,80 the Court ruled that the fact that the docu-
ment was not personally drafted or executed by the deceased, does not itself preclude the
making of an order in terms of section 2(3). A potential testator usually consults with his
attorney, bank or accountant about his/her will, who will then prepare a draft for perusal,
approval and signing. Difficulties arise where the attorney (or other adviser) drafted the docu-
ment in accordance with the deceased’s instructions, but the testator never set eyes on it prior
to his death.
In Webster v The Master81 the Court ruled to the contrary and found that the deceased must
have drawn-up the will personally and those instructions to another to draft on behalf of the
deceased is not covered by the section.82 It would mean that only where the deceased was
___________
76 Harlow v Becker 1998 (4) SA 639 (D); Ndebele v The Master 2001 (2) SA 102 (C); Ex parte Williams:
In re Williams’ Estate 2000 (4) SA 168 (T) 172.
77 Stoltz v The Master 1994 (2) PH G2 (E) 7; Logue v The Master 1995 (1) SA 199 (N); Horn v Horn 1995
(1) SA 48 (W); Anderson and Wagner v The Master 1996 (3) SA 779 (C); Harlow v Becker 1998 (4) SA
639 (D&C).
78 De Waal & Schoeman-Malan 2015, p 67 ff.
79 In Back v the Master of the Supreme Court [1996] 2 SA 161 (C), Van Zyl R ruled that where an
attorney drafted a will according to the instructions of the deceased and the deceased approved
the document before his death (emphasis was placed on the fact that he saw and approved the
will) but did not sign it, the court was convinced that he intended the document to be his will. See
also Ex parte Laxton 1998 (3) SA 138 (N); Ndebele v The Master 2001 (2) SA 102 (C).
80 2002 (2) SA 643 (N); Ndebele v The Master 2001 (2) SA 102 (C) 108 and Ex parte Williams: In re
Williams’ Estate 2000 (4) SA 168 (T).
81 1996 (1) SA 34 (D).
82 Ex parte Maurice 1995 (2) SA 713 (C); Anderson and Wagner v The Master 1996 (3) SA 779 (C);
Olivier v Die Meester 1997 (1) SA 836 (T) and the case Bekker v Naude 2002 (1) SA 264 (W).
58 Deceased estates
personally involved with the writing of the document, and not if someone did it on his behalf,
can the court condone in terms of section 2(3). If the deceased was directly involved with the
drafting or execution of a document and signed the document, the courts were, as a rule,
convinced that the deceased intended the document to be his will, and they condoned it.83 In
the cases where the deceased personally wrote the document as a will, and the courts con-
doned it, there was more than just a written document each time.
In the High Court case of Bekker v Naude84 and the Supreme Court case of Bekker v Naude,85
it was held that the document must be a document “which was drafted ... by a person who has
died since the drafting thereof”. The words used are clear and explicit. The deceased must be
the person who drafted the will and there must be a personal connection between the de-
ceased and the document.86 If the deceased wrote a letter or a note to someone else contain-
ing provisions regarding succession, and in which he requested the person to draft or amend a
will, the courts found that such a request was not intended to be the will of the deceased and
section 2(3) could not be applied for various reasons.87
In Van Wetten v Bosch88 the Supreme Court of Appeal had another opportunity to make a
decision involving section 2(3). The deceased personally wrote a letter to his attorney instruct-
ing him how his estate must devolve if something happens to him. The attention focused on
the question of whether the deceased intended the letter he personally wrote, to be his will.
The Court found that the wording of the letter did not indicate an instruction to the attorney
but that the deceased had taken a decision that the contents of the letter should be his will. In
De Reszke v Maras89 the Appeal Court found that before an application to condone in terms of
section 2(3) will be allowed, the court must be convinced that the deceased who drafted the
document intended the document to be his will, and that the intention must have existed at
the time the document was prepared or drafted. The Court found that even though the docu-
ment had been signed by the testator, it was still in the form of an instruction to an attorney
and could, therefore, not be condoned.
In Smith v Parsons90 a handwritten suicide note was strictly interpreted and although the
Court found that the deceased drafted the note himself, the applicant failed to discharge the
onus of proof that the deceased intended it to be an amendment of his will. In the Supreme
Court of Appeal of the same case Smith v Parson91 the opposite ruling was made – that the
intention indicated that the deceased indeed intended the note to be his will.
___________
83 Logue v The Master 1995 (1) SA 199 (N); Horn v Horn 1995 (1) SA 48 (W); Mdlulu v Delarey 1998 (1)
All SA 435 (W); Schnetler v Meester 1999 (4) SA 1250 (C); Thirion v Die Meester 2001 (4) SA 1078 (T).
In MacDonald v The Master 2002 (5) SA (O) a document found on the computer of the deceased,
was printed and even though not signed, was condoned.
84 2002 (1) SA 264 (W) 268.
85 2003 (5) SA 173 (SCA).
86 Here the Court conceded that someone else could write the will on the testator’s behalf, but it
simply means that the testator does not write the words down himself, someone else writes it
down while the testator dictates it word by word.
87 Ex parte Maurice 1995 (2) SA 713 (C) – the testator wrote a proposal for the devolvement of his
estate in a covering letter to his friend; Letsekga v The Master 1995 (4) SA 731 (W) – the testator
made a note in which he referred to a clause in his will which he would possibly amend; Anderson
and Wagner v The Master 1996 (3) SA 779 (C) – the testator wrote a letter to his attorney, request-
ing him to amend his will.
88 2004 (1) SA 348 (SCA).
89 2006 (2) SA 277 (SCA).
90 2009 (3) SA 519 (D).
91 2010 (4) SA 378 (SCA).
The last part of the section states that the court shall instruct the Master to accept the doc-
ument as a will although it does not comply with “all” the formalities for the execution or
amendment of a will referred to in subsection (1).92 This is a reference to the requirements for
the execution or amendment of a will. The question is, was it the intention of the legislature by
using the word “all” that there must be something more than just a written document? This
would mean that the court will only condone a document where there was substantial compli-
ance with some of the formalities.93 In Webster v The Master94 the Court ruled obiter that if
there was non-compliance with any of the formalities (there is only a written document) that
the courts cannot condone the will. In Back v Master of the Supreme Court95 the Court was of
the opinion that the word “all” is unnecessary and superfluous. In Ex parte Williams: In re
Williams’ Estate96, the Court ruled that formal execution is not a necessity, but that the testa-
tor must have regarded it as an expression of the final contents. There are a number of cases
where someone drafted a document on behalf of the testator, which did not comply with any
of the formality requirements. The document (will) was prepared and then the person died
after the document was drafted but before he could sign it.97 No formalities except writing
were complied with and the Court was only prepared to condone if it was convinced that the
testator identified himself with the contents of the will and that he had already decided that it
must be his will.98
The intention of the testator can be seen as the core requirement.99 It must be clear that the
testator reconciled himself with the wording/content of the specific document.100 In Ramlal v
Ramdhani’s Estate101 the Court was of the opinion that if the testator never saw the document
and the contents, it cannot be said that he intended the document to be his will.
After the Appeal Court decisions of Bekker v Naude, Van Wetten v Bosch and De Reske v Ma-
ras there was clarity over the ambit of the application of s 2(3). The courts shifted the focus to
the intention of the testator. Even if the deceased drafted the document himself, the intention
is found in the document that he drafted102 and although someone drafted the document on
his behalf, and it was thereafter executed, the intention is found in the document but also in
the surrounding circumstances.103
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92 O’Connor v The Master 1999 (4) SA 614 (NC). Note that unclear contents do not constitute a
formality deficiency.
93 In Stoltz v The Master 1994 (2) PH G2 (E) it was found that “all” should be interpreted to mean “any”.
94 1996 (1) SA 34 (D) 42. In Horn v Horn 1995 (1) SA 48 (W) the Court found that there must be
substantial compliance.
95 1996 (2) All SA 161 (C) 170.
96 2000 (4) SA 168 (T) 179–180.
97 Webster v The Master 1996 (1) SA 34 (D); Back v Master of the Supreme Court [1996] 2 All SA 161
(C); Olivier v Die Meester 1997 (1) SA 836 (T); Bekker v Naude 2002 (1) SA 264 (W); Ramlal v
Ramdhani’s Estate 2002 (2) SA 643 (N).
98 Back v Master of the Supreme Court [1996] 2 All SA 161 (C); Ndebele v The Master 2001 (2) SA 102
(C); Ex parte Williams: In re Williams’ Estate 2000 (4) SA 168 (T); Smith v Parson NO and Others
2010 (4) SA 378 (SCA).
99 Ex parte Williams: In re Williams’ Estate 2000 (4) SA 168 (T); Ramlal v Ramdhani’s Estate 2002 (2)
SA 643 (N). See Smith v Parson NO and Others 2010 (4) SA 378 (SCA).
100 Webster v The Master 1996 (1) SA 34 (D); Ex parte Maurice 1995 (2) SA 713 (C); Ex parte Laxton
1998 (3) SA 238 (N); Mdlulu v Delarey [1998] 1 All SA 435 (W); Ex parte Williams: In re Williams’ Es-
tate 2000 (4) SA 168 (T).
101 2002 (2) SA 643 (N); Van der Merwe v The Master and Another 2010 (6) SA 544 (SCA).
102 See further Taylor v Taylor [2011] ZAECPEHC 48; Van der Merwe v The Master 2010 (6) SA 544 (SCA).
103 Longfellow v BOE Trust Ltd [2010] ZAWCHC 117; Mabika v Mabika [2011] ZAGPJHC 109; Taylor v
Taylor [2011] ZAECPEHC 48; Mankelengane v Simon 2013 JDR 1851 (GSJ).
60 Deceased estates
In Schnetler v The Master104 the Court gave an indication of factors (such as the document
itself and the surrounding circumstances) which the court may consider in determining wheth-
er it was the testator’s intention that the document should be his will.105
4.6.3 Formalities for the amendment of wills

A testator may amend his will any time. Even where testators have made a joint will, one of the
testators may amend his will without the knowledge of the other. However, someone else
cannot amend the will without the permission of the testator.
Changes made during execution
When a will is being drafted, it often happens that the testator decides to make changes before
the will is signed. There are no formal requirements in such a case.106 The testator may, for
example, decide to delete an existing condition that R300 000 be bequeathed to the surviving
spouse, and change it to R200 000. The R300 000 is deleted and replaced with R200 000. If it
was his intention that the amendment be part of the will, the amendment will be valid. In
practice it often happens that such changes are initialled.
Amendments made after execution
An existing will can also be amended. Section 2(1)(b) provides that if a will is amended after
execution, the testator, or someone else on his behalf, must confirm the amendment with his
signature. The confirmation must take place in the presence of two competent witnesses who
in turn must confirm the signature of the testator or the person who signs on his behalf. The
witnesses need not be the same witnesses who signed the original will. The testator may also
sign an amendment by making a mark and the requirements set out above will have to be
complied with regarding the certificate.107 An example of a certificate that can be used appears
in schedule 2 of the Act. The signature or mark must be made as close as possible to the
amendment, and if more than one change or amendment is made, each must be signed.
Amendments are defined as “any deletion, addition, alteration or interlineation” made to an
existing will.108 Deletion is defined in the Act as “a deletion, cancellation or obliteration, in
whatever manner effected, excluding a deletion, cancellation or obliteration that contemplates
the revocation of the entire will”. Therefore, if the testator deletes, rubs out, scratches out,
paints over, inserts words or corrects errors, the testator and witnesses must sign thereby.109
Should a testator wish to retain an existing will but wish to change it, this means the formality
requirements must be complied with. If, however, he intends that the whole will must lose its
legal validity, this is a revocation of the will and section 2(1)(b) does not apply. The legal rules
for the revocation for wills will apply instead.110
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104 1999 (4) SA 1250 (C).
105 The format, structure, contents, unambiguous wording, and his relationship with beneficiaries can
be indicative of his intention.
106 Moskowitz v The Master 1976 (1) SA 22 (C).
107 The official certifying the document must certify that he convinced himself regarding the identity of
the testator and that the amendment was done by the testator or at his request. See s 2(1)(b)(iv).
108 S 1 of the Act.
109 In Ferrington v Key 2011 JDR 2011 1332 (GNP) the Court incorrectly found that a pro forma will that
has been filled in should be seen as amendments according to s 2(1)(b).
110 Senekal v Meyer 1975 (3) SA 372 (T) and Marais v The Master 1984 (4) SA 288 (D).
In terms of section 2(2) it is presumed that amendments to a will were made after its execu-
tion. Therefore, if an amendment exists; it is presumed that it was made after the execution.
This means that formality requirements must have been complied with. The presumption can
be rebutted by proof that the amendment was made before signing.111
If the formality requirements have not been complied with, the amendments are not valid
and effect will be given to the original words. This has created many problems in practice. In
terms of section 2(3) of the Act, however, the court may condone the non-compliance with
formality requirements in the case of amendments, as in the case of non-compliance with
formality requirements at execution, provided that the court is convinced that it was the
testator’s intention to amend his will.112 In Smith v Parson113 the Court found that the deceased
had the intention to amend his will.
4.7 Revocation of wills

4.7.1 General
Because a will only come into operation upon the death of the testator, it may be revoked by
the testator at any time before his death. There are only two instances where the testator is
bound by earlier testamentary conditions, namely:
 If two or more persons arranged massing by way of a joint will and the survivor accepted the
conditions after the death of the first dying, the survivor cannot revoke the provisions of the
joint will;114 and
 If an antenuptial contract contained testamentary provisions, then one party cannot unilat-
erally revoke the provisions of the antenuptial contract in his will. The parties may, however,
make a joint will in which the provisions of the antenuptial contract are revoked, but then
the survivor has a choice between accepting the provisions of the will and the provisions of
the antenuptial contract.
Any clause in which the testator undertakes not to revoke or amend his will is invalid.
4.7.2 Explicit revocation

A will can be revoked explicitly by the execution of a later will, codicil, revocation document or
antenuptial contract. In all these cases there must be a properly executed document with an
explicit revocation clause in which the testator states his intention to revoke. The revocation of
the first or earlier will comes into effect at the time of signing of the later document.115
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111 In Moskowitz v The Master 1976 (1) SA 22 (C) where there was evidence that the alteration of the
date from 1965 to 1968 was made before the will was signed, the Court found that the alteration
was valid although the formality requirements had not been complied with.
112 See s 2(3) above and Letsekga v The Master 1995 (4) SA 73 (W); Olivier v Die Meester 1997 (1) SA
836 (T); Anderson and Wagner v The Master 1996 (3) SA 779 (C); Webster v The Master 1996 (1) SA
34 (D). In all these cases, the Court found that the amendments (s 2(1)(b)) were not intended to be
amendments and the applications were refused. See now Smith v Parson NO and Others 2010 (4)
SA 378 (SCA).
113 2010 (4) SA 378 (SCA).
114 Joubert v Ruddock 1968 (1) SA 95 (EC); Theart v Scheibert [2012] 4 All SA 278 (SCA).
115 Wood v Estate Fawcus 1935 CPD 350. The will itself only comes into operation at the death of the
testator. See also De Reszke v Maras 2006 (2) SA 277 (SCA).
62 Deceased estates
A will can also be revoked explicitly if the testator, or someone on his behalf and acting on
his instructions, destroys the will. The testator may destroy his will by tearing it up, burning it,
cutting it to pieces, throwing it away or cancelling it by drawing lines across it. A will which is
destroyed accidentally remains operative and its contents may be proven by a copy of it or by
evidence from a person who has knowledge of the contents. If, for example, the office of the
attorney where the testator’s original will was kept is destroyed by fire, the attorney may give
evidence about the contents of the will.
A number of common law presumptions become relevant when a will is revoked through
destruction.116 For instance, if the testator was in possession of his will before his death, but it
cannot be found after his death, it is presumed that he destroyed the will with the intention of
revoking it. If the will was in his possession but it is found after his death to have been dam-
aged, it is also presumed that the testator damaged it with the intention of revoking it.117 If
doubt exists as to whether a will has been revoked, a court may apply these presumptions.
Section 8(4A) of the Administration of Estates Act, however, provides as follows in regard to
the common law:
In taking a decision concerning the acceptance of a will for the purposes of this Act, the Master
shall take into account the revocation of a will by a later will, but not the common law presump-
tions concerning the revocation of a will.
The Master cannot, therefore, on the grounds of these presumptions, decide whether or not a
will which has been handed in to him has been revoked. If the Master needs to apply these
presumptions in order to find that a will has been revoked, he must obtain a court order to the
effect that the presumption is applicable and that the will concerned is, therefore, deemed to
have been revoked on the grounds of the presumption. If the Master is unable to accept, on
the grounds of the presumptions, that the will has been revoked, he may accept a duplicate of
the original will for purposes of the Act.118
4.7.3 Condonation by the court

If a testator explicitly revokes his will (by the execution of a later document or by destruction),
there is no problem in practice. These are methods of revocation acknowledged by common
law. If it appears, however, that a testator wanted to revoke his will but the manner in which
he did so does not fall within the ambit of the cases discussed, the court may determine
whether the will has been revoked.119 Section 2(A) of the Act provides as follows:
If a court is satisfied that a testator has –
(a) made a written indication on his will or before his death caused such indication to be
made;120
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116 See De Waal & Schoeman-Malan 2015, pp 92–95 for a full discussion thereof and Ex Parte Warren
1955 (4) SA 326 (W).
117 Uys v Uys [2008] ZANCHC 306; Ex parte Porter 2010 (5) SA 546 (WKH); De Swardt v Karsten 2011
JDR 0662 (GNP); Theart v Scheibert [2012] 4 All SA 278 (SCA).
118 See s 8(4B) of the Administration of Estates Act. Ex parte Porter 2010 (5) SA 546 (WCC).
119 In Ex parte De Swardt 1998 (2) SA 204 (C) it was incorrectly indicated that the Master can apply
s 2A.
120 He writes on the cover of the will or at the top of the first page “The will is invalid”. Note that it
must be a valid will that he writes on. Someone else can also attach such a written indication to the
will on his behalf. See Webster v The Master 1996 (1) SA 34 (D).
(b) performed any other act with regard to his will or before his death caused such act to be per-
formed which is apparent from the face of the will;121 or
(c) drafted another document or before his death caused such document to be drafted;122
by which he intended to revoke his will or a part of his will, the court shall declare the will or the
part concerned, as the case may be, to be revoked.
The court can accept one of these three actions as a valid revocation. The testator is, therefore,
able to revoke his will, for example by giving a written indication on the front or the back of the
will that he wishes to revoke it without having complied with the formalities.123 However,
unless the testator and two competent witnesses sign therewith, the Master will not be able to
regard the will as having been revoked. The court will be able to make such an order in terms
of section 2A. If the testator destroyed his will in such a way that it is uncertain whether he did
so in a manner acknowledged by the common law, the court will be able to declare whether
the will or a part of it must be regarded as having been revoked.124 The testator can even write
on a clean sheet of paper (or even another document), without signing thereby, that he is
revoking an earlier will, and the court will then, if it is convinced that the testator intended
revoking his will, declare his will as having been revoked. The will cannot be revoked by a
verbal declaration.125 If the will is therefore revoked in a so-called informal manner, this will
only be effective if condoned by the court.126
In Webster v The Master127 the Court condoned alterations to a copy of an existing will in
terms of section 2A(b).
4.7.4 Implicit revocation

It may happen that a testator makes a later will containing provisions which are in conflict with
the provisions of an earlier will. If the testator leaves more than one will and there is no ex-
press revocation in the later will or wills, the wills are read together as far as possible, and
conflicting provisions are reconciled as far as possible. If the wills cannot be reconciled, the
later will is regarded as the valid will. For example, if a testator bequeaths his farm, Red Hills, to
his son Andre in his first will, and in a later will bequeaths the same farm to his sons Andre and
Ben, the wills will be read together and both Andre and Ben will inherit. If he bequeaths the
farm, Black Mountain, to Andre in a first will and in a later will bequeaths the same farm to
Ben, the later will is deemed to be the valid will and only Ben will inherit. The second will
revokes the first will by implication.128
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121 The act must be performed in respect of the will itself. The testator or someone on his behalf can
perform such an act – for example, by tearing up the will or by deleting the will with tippex.
122 The testator can write on a sheet of paper that he is revoking his will. See Bekker v Naude 2002 (1)
SA 264 (W) 269 where there was not an s 2A application, but the Court found obiter that this may
possibly be an s 2A(c) case.
123 The difference between a s 2(3) and a s 2A application is important. See Back v The Master of the
Supreme Court [1996] 2 ALL SA 161 (C); Olivier v Die Meester 1997 (1) SA 836 (T) and De Reszke v
Maras 2006 (2) SA 277 (SCA).
124 Webster v The Master 1996 (1) SA 34 (D).
125 Louw v Engelbrecht 1979 (4) SA 841 (O); Mdlulu v De la Rey [1998] 1 All SA 434 (W).
126 See Letsekga v The Master 1995 (4) SA 731 (W); Webster v The Master 1996 (1) SA 34 (D); Olivier v
The Master 1997 (1) SA 863 (T); Ex parte De Swardt 1998 (2) SA 203 (C); Mdlulu v Delarey [1998] All SA
434 (W).
127 1996 (1) SA 34 (D). See De Waal & Schoeman-Malan 2015, pp 95–100.
128 Pienaar v Master of the Free State High Court, Bloemfontein 2011 (6) SA 338 (SCA); De Swardt v
Karsten 2011 JDR 0662 (GNP).
64 Deceased estates
If a testator bequeaths a legacy to a person and then alienates (sells) the object of the legacy, it
is accepted that he has revoked this provision of his will. If, therefore, the testator bequeaths
the farm Fairylands to Trudy and the residue of his estate to Andre in his 1988 will, and he sells
the farm to David in 1992, it is deemed that the provision in his will relating to the legacy has
been revoked implicitly.129 Trudy will inherit nothing. Only assets found in the estate at date of
death can be bequeathed.
4.7.5 Automatic lapsing due to divorce

A will does not expire automatically if the testator marries or if children are born after it has
been executed. Section 2B of the Wills Act, however, makes provision for the revocation of
certain testamentary provisions should the testator’s existing marriage be dissolved by divorce
or annulment. The will automatically loses its legal validity in respect of the former spouse
should the testator die within three months of the dissolution of his marriage, unless he makes
a provision to the contrary in the will. Section 2B reads as follows:
If any person dies within three months after his marriage was dissolved by a divorce or annulment
by a competent court and that person executed a will before the date of such dissolution, that will
shall be implemented as it would have been implemented if his previous spouse had died before
the date of the dissolution concerned, unless it appears from the will that the testator intended to
benefit his previous spouse notwithstanding the dissolution of his marriage.
The effect of section 2B is that (i) the will does not become invalid in its entirety, but that (ii)
any bequests to the spouse of the testator expire because he/she is deemed to have prede-
ceased the testator for the purposes of execution of the will. If the testator dies more than
three months after the divorce, the will remains valid in its entirety, since it is then accepted
that the testator wished to benefit his former spouse.130
4.7.6 Conditional and presumed revocation

A testator may link the revocation of his will to a condition. He may, for example, provide: “The
provisions in this will revoke the joint will of my spouse and I, executed on 09-06-2005, should
my daughter Andrea give birth to a son”. The 2005 will is revoked only if the condition is com-
plied with and the daughter does give birth to a son.
If the testator bases the revocation of his will on a presumption, but the presumption which
he makes is wrong, the revocation will not be effective because the presumption is wrong.
Assume that the testator revokes a first will by executing a later (second) will and then destroys
the second will because he supposes (assumes) that the first one will be valid again. In terms of
cases such as Le Roux v Le Roux131 the first will is not revived automatically.132 The presumption
that the first will becomes valid once the second will is destroyed is incorrect.
The first will can be revived, but then the testator must:
(i) re-execute it again (sign it again in the presence of at least two competent witnesses); or
___________
129 This is known as ademption (“adempsie”). See De Waal & Schoeman-Malan 2015, pp 101–102.
130 See De Waal & Schoeman-Malan 2015, p 103.
131 1963 (4) SA 273 (C).
132 See the Appeal Court decision in Moses v Abinader 1951 (4) SA 537 (A) for the requirements for the
revival of a will which has been revoked and Wessels v Die Meester [2007] SCA 17 (RSA).
(ii) prepare a new document (complying with the formality requirements) in which it is
stated that the first will must be reinstated.133
The original will must still be in existence and it must be clear from the new document that the
testator had the intention of reinstating it. A later document which reinstates an earlier will is
known as a reinstatement document.134
4.8 Types of bequests

4.8.1 Introduction
The general rule is that a testator may dispose of his estate, or part of it, as he deems fit, which
means that he has freedom of testation. Due to the principle of freedom of testation, any
contracts and other undertakings regarding the way the estate must be inherited cannot be
enforced.135 There are limits to freedom of testation. The provisions in a will must not be
impossible to execute, vague, unclear or against the public interest.136 A testator may not, for
example, appoint his son as his sole heir on condition that the son should divorce his wife,
since a provision which supports divorce is against the public interest.137 There is also legisla-
tion which may limit a testator’s freedom of testation.138 On the other hand a testator is under
no obligation to benefit his wife, children, adopted children or parents.
Certain provisions which often appear in wills have a vested meaning and are discussed in
the paragraphs below.
4.8.2 Legacy and inheritance

A specific asset bequeathed to a beneficiary is referred to as a legacy, for example the farm
“Redhills”. The beneficiary is referred to as a legatee.139 Beneficiaries who inherit the residue,
or what remains, are the heirs. A testator may for instance provide that his farm, “Redhills” be
bequeathed to his son Andre, R900 000 to his wife, and to his other children, Carl and Danie,
the residue of his estate. Andre and the wife are legatees because they receive specified
bequests (legacies) and Carl and Danie are heirs because they share the residue. The reason for
the distinction is that after all creditors have been paid, the legatees must first receive their
share and only if something remains will it be divided or distributed among the heirs. If the
legacies are paid and the residue of the estate is exhausted, the heirs will receive nothing.140 A
___________
133 Moses v Abinader 1951 (4) SA 537 (A).
134 Loureiro v The Master 1981 (4) SA 248 (N).
135 See Jubelius v Griesel 1988 (2) SA 610 (C); Van Aardt v Van Aardt 2007 (1) SA 53 (EC).
136 Ex parte Dessels 1976 (1) SA 851 (D).
137 Levy v Schwartz 1948 (4) SA 930 (W).
138 See, for example, the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965,
Mineral and Petroleum Resources Development Act 28 of 2002, Trust Property Control Act 57 of
1988 and the Maintenance of Surviving Spouses Act 27 of 1990.
139 Reuben v Master of the High Court [2011] SAWCHC 456.
140 If the distributable estate, which includes the farm, of say R300 000, amounted to R1 000 000, the
heirs won’t receive anything. The legatees must inherit R1 200 000 (R300 000 + R900 000), but the
amount available is only R1 000 000. Nothing remains for the heirs. Even the legacies must be
reduced pro-rata, in order not to exceed the R1 000 000 of the distributable estate.
66 Deceased estates
legacy can take any form provided that it is a specified or ascertainable asset or sum of money,
for example company shares, an annuity or royalties.
A pre-legacy is a preferred bequest in terms of testamentary instruction. It must be distrib-
uted before any other legacy. For example, a testator may stipulate that his wife must inherit
R900 000 before any other bequests are made.141 If a testator nominates only one heir and no
legatee, that person is known as the universal heir.
4.8.3 Conditional and dies provisions

A testator is free to subject a bequest to a dies or condition. A condition is an uncertain future
event while dies is a certain future event.
A condition (or term) can be suspensive or it can be subject to cancellation. If a bequest is
connected to a suspensive condition (“my son Gerrie inherits my farm on condition that he
obtains a degree in agriculture”) the condition must first be complied with before the benefi-
ciary’s rights will be vested in him. If the condition is subject to cancellation (“my son Gerrie
inherits my farm but if he decides to emigrate, my wife Hannie will inherit my farm”) the bene-
ficiary’s rights will lapse if the condition is not fulfilled. If the testator has subjected the bequest
to a suspensive term (“Gerrie inherits my farm when he is 21 years old”), Gerrie’s rights will
vest in him upon the testator’s death (dies cedit), but will only be claimable (dies venit) when
he turns 21 years of age. In the case of a specified term (“Gerrie inherits my farm and when he
is 40 his son Harold inherits my farm”), the rights of the beneficiary are rescinded at the end of
the term. However, he becomes the owner until the rights are rescinded.
Conditions may not be vague, unclear, or in conflict with the public interest. A condition
which is impossible to execute is ignored. A condition which forbids a beneficiary from marry-
ing is regarded as against the public interest.142 However, a condition which comes into effect
should the surviving spouse remarry, is valid.143 This is probably so because, in the first case,
the spouse is actually prohibited from remarrying, while in the latter case there is no longer a
duty on the deceased to provide for the material needs of the surviving spouse, since the new
spouse has taken them over.
Other conditions can also be included in a will. For example, a business can be left to a son
on condition that he pays R2 000 per annum to his minor sister for 10 years. This makes it
possible to create measures whereby the minor sister will be financially cared for. Such condi-
tions are, however, only practical if they can be enforced. In this example, the testator will
have to include a condition such as: “Should my son neglect to pay the annuity, his sister will
become the owner of the business.”
The Constitution of the Republic of South Africa, 1996 can also have an influence over provi-
sions in a will. In terms of section 9 (equality clause) no person may, directly or indirectly,
discriminate against another person on grounds related to race, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, physical disability, religion, conscience,
conviction, culture, language or birth. The testator must, therefore, guard against making any
conditional bequests linked to any of these matters since it may lead to such a condition being
invalid.144
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141 In the example in the previous footnote she will then receive R900 000 and Andre only R100 000.
142 De Wayer v SPCA Johannesburg 1963 (1) SA 71 (T).
143 Ex Parte Gitelson 1949 (2) SA 881 (O); Rubin v Altschul 1961 (4) SA 251 (W).
144 De Waal & Schoeman-Malan 2015, pp 5–6 and pp 136–139; for discriminatory provisions in a trust
document see Minister of Education and Another v Syfrets Trust Ltd 2006 (4) SA 205 (C). See Ex
continued
4.8.4 Modal clauses

A testator is free to encumber a bequest with a liability. The beneficiary is then expected to do
something or to deliver something. A modal clause must be distinguished from a conditional
bequest. In the case of a conditional bequest, the vesting of rights is postponed until the
condition has been complied with. In the case of a modal clause, the beneficiary receives his
vested right immediately but subject to the accompanying condition.145 An example of a modal
clause is where a testator provides that Albert inherits his farm subject to a usufruct in favour
of his wife Betty. Albert, therefore, inherits the farm, but must allow Betty to enjoy the fruits of
the farm. Another example is where the testator leaves R500 000 to Connie and stipulates that
Connie must sell his (own) farm, “Bluehills”, to Harold. It is a requirement that there must be
somebody to enforce the liability,146 namely the person in whose favour the condition has been
imposed. He acquires a claim against the heir or legatee for compliance with the conditions of
the will.147
4.8.5 Direct substitution

If the testator foresees that any one of the beneficiaries cannot or will not accept certain
benefits, because the beneficiary may predecease him or may repudiate the bequest, he can
make provision for alternative beneficiaries. For example, the testator may provide as follows:
“I bequeath my assets to my son Gerrie, but if he cannot or will not inherit, my daughter Hanlie
will be my heir.” The purpose of this substitution is to prevent intestate succession, or to
prevent certain legacies from falling back into the residue of the estate. The heir or legatee is
referred to as the institutus, and the person who will inherit if the institutus cannot or will not
inherit is the substitutus. These beneficiaries never inherit together; either the one or the other
inherits. If the institutus inherits, he will exclude the substitutus totally. For example, the
testator may provide that his son Andre will be his heir and if Andre should predecease him, his
grandsons Ben and Carl will inherit.
Other forms of substitution are also possible. The testator may inter alia provide that Andre
and Ben are his heirs, but that if Andre cannot inherit, Ben must also inherit Andre’s portion, or
if Ben cannot inherit, Andre must also inherit Ben’s portion. Andre and Ben are substitutes for
one another. The testator can also provide that Andre is his heir and that if he cannot or will
not inherit, Ben is his heir, and if he cannot or will not inherit, Carl is his heir. The reason for the
incapacity of the original heir is of no relevance.
If the testator does not expressly make provision for substitution, as discussed above, and
doubts arise during the interpretation of a will as to whether substitution must take place or
not, it may be that section 2C(1) of the Wills Act, which provides for statutory accrual148 or
section 2C(2) of the Act, which provides for statutory representation, will automatically
apply.149
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parte BEO Trust Ltd 2009 (6) SA 470 (WCC) and BoE Trust Limited NO & Others [2012] ZASCA 147 for
freedom of testation versus the power of the court to amend a will on the ground of unconstitu-
tional discrimination.
145 Wessels v DA Wessels en Seuns 1987 (3) SA 530 (T). See also Brink v Van Niekerk [2011] ZAWCHC 78.
146 Ex parte Strümpfer 1945 OPD 268; Webb v Davies 1998 (2) SA 975 (A).
147 Wessels v DA Wessels en Seuns 1987 (3) SA 530 (T); Webb v Davis 1998 (2) SA 975 (SCA).
148 See discussion below.
149 S 2C replaces s 24 of the General Law Amendment Act 32 of 1952.
68 Deceased estates
This section reads as follows:

2C(1) If any descendant of a testator, excluding a minor or mentally ill descendant, who, together
with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his
right to receive such a benefit, such benefit shall vest in the surviving spouse.
(2) If a descendant of the testator, whether as a member of a class or otherwise, would have been
entitled to a benefit in terms of the provisions of the will if he had been alive at the time of death
of the testator, or had not been disqualified from inheriting, or had not after the testator’s death
renounced his right to receive such a benefit, the descendants of that descendant shall, subject to
the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will
otherwise indicates.
These provisions apply automatically if the testator did not make provision for substitution. If a
descendant of the testator (who was nominated by will) is incompetent, predeceased, or has
renounced his benefit (repudiated it) he will, therefore, be represented by his descendants.
This is a phenomenon of direct substitution in that the Act provides that should the testator
not have made provision for substitutes, and a beneficiary (descendant – child, grandchild or
great-grandchild) cannot or will not inherit, the beneficiary’s descendants will automatically
inherit in his place. This rule is subject to section 2C(1) (as appears from the section above).
Section 2C(1) provides firstly, that if the spouse of the testator together with the descend-
ants are entitled to a benefit and the descendant repudiates his benefit,150 then the descend-
ant’s share will go to the surviving spouse (will accrue to her). If, therefore, the testator
provides in his will that: “My wife and three children are my heirs,” and a child renounced his
benefit, the wife will inherit her own share and the share that would have gone to the child
who repudiated his benefit. If the child does not renounce his right but, for argument’s sake, is
incapable of inheriting, he will be represented since section 2C(2) will come into operation.
4.8.6 Fideicommissary substitution

Although the fideicommissum151 is a well-known legal entity, it is not effective from an estate
planning point of view and is not recommended. There are better ways of achieving the objec-
tives that are normally sought by means of a fideicommissum. It has been shown in practice
that circumstances must be truly exceptional for the advantages of a fideicommissum to
outweigh its disadvantages.152 However, this legal entity is often encountered in the admin-
istration of estates, and knowledge about it is, therefore, important. In short it comes down to
the fact that one person inherits an asset, on the condition that it must pass to someone else
at a certain future date or at the occurrence of a specified event. He may, therefore, use the
fruits of the asset, for example the rental proceeds of a farm, but he may not alienate or
dispose of the property.153 The advantage of this legal entity is that it enables an estate owner
to retain assets (such as a family farm) within the family circle for successive generations. For
example, the testator bequeaths his farm to Gerrie (the fiduciary) and provides that the farm
should pass to his grandson Harry (the fideicommissary) on Gerrie’s death. Gerrie inherits the
farm when the estate commences, but his ownership is limited in extent and duration. When
Gerrie dies his (fiduciary) ownership ends and it passes to Harry (fideicommissary).
___________
150 Except in instances where the descendant is a minor or mentally ill person.
151 For a full discussion of this figure of law see De Waal & Schoeman-Malan 2015, p 147 ff.
152 Olivier 1986, p 85.
153 Raubenheimer v Raubenheimer 2012 (5) SA 290 (SCA); Booysen v Erasmus [2013] ZAGPPHC 41 was
set aside in E v Estate Late B [2014] ZASCA 27.
A fideicommissum can be created in a will without explicitly using words such as fideicom-
missum. There are statutory limitations on the length of time for which a fideicommissum may
continue.154 Before 1965 a fideicommissum could be created for an unlimited number of
generations.155 However, in terms of the provisions of Act 94 of 1965 this is now limited to two
successive generations in the case of immovable property.156 Upon the death of the testator,
the first beneficiary (fiduciary heir or legatee) becomes owner of the estate asset and the
subsequent beneficiary (fideicommissary) obtains a claim against the fiduciary for compliance
with the provisions of the will.157 If the fideicommissary dies before the fiduciary, the fidei-
commissum expires and the fiduciary becomes the owner.
Although the fiduciary may not alienate the fideicommissary property, the court is empow-
ered in certain cases to order its alienation.158 The court also has the capacity to remove or
modify the limitation if the court is convinced that circumstances, which the testator could not
have foreseen, arose.159
4.8.7 Usufruct
The application of a usufruct is a very old and established custom in our country, especially in
the farming community. It is a well-known and commonly accepted method of providing for a
surviving spouse. A usufruct is created when a testator gives a right to the income of a specific
asset to a person (for example the surviving spouse), and the right of ownership (bare domini-
um) to someone else, such as the children. It grants the usufructuary a limited interest over the
movable or immovable assets belonging to someone else, including the capacity to occupy, use
and enjoy the property and to take its fruits. The usufructuary may not alter the nature of the
property and must use it in such a way that when the usufruct expires, it is in the same condi-
tion as it was when the usufruct originated, normal wear and tear excluded. The usufructuary
only has a limited real right and for this reason is obliged to provide security regarding the
maintenance of the asset. However, the testator may relieve the usufructuary from this obliga-
tion in his will.
The holder of the bare dominium is the “ultimate” or eventual owner of the property, but his
rights are limited by the usufruct. After the usufruct has ended, he acquires full title. During the
existence of the usufruct he owns only the bare dominium, which is limited. The usufructuary,
on the other hand, never becomes the owner of the property.
4.8.8 Bequests in trust

The formation of trusts plays an increasingly important role in our society. One of the methods
by which a trust can be formed is by bequeathing assets in trust in one’s will. An example of
___________
154 Ss 6 and 7 of the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965.
155 Ex parte Barnard 1929 TPD 276; Ex parte Botha 1956 (4) SA 471 (C); Schoeman v O’Neil 1965 (3) SA
359 (A).
156 S 7 arranges the position if a fideicommissum was created before the commencement of the Act.
157 Barnhoorn v Duvenhage 1964 (2) SA 486 (A); Van der Merwe v Die Registrateur van Aktes 1975 (4)
SA 636 (T).
158 For a discussion of the common law and statutory capacity of the court, see De Waal & Schoeman-
Malan 2015, pp 155–158 and ss 2 and 3 of Act 94 of 1965.
159 Also see Administrators of the Estate of the late Samuel Marks, Ex Parte [2005] ZAGPHC 110.
70 Deceased estates
such a provision in a will is as follows: “My farm, Harmony, is bequeathed in trust to my grand-
child Helga. My son, Albert, is nominated as trustee. The trust must be dissolved when Helga
turns 21 years old. Helga will be the trust’s income and capital beneficiary.” This provision will
cause the farm to belong to the trust after the death of the testator and that control over the
property will be exercised by the trustees until Helga is 21 years old. The income from the farm
will be applied for Helga’s benefit and the farm will be transferred to her when she turns 21.160
4.9 The right of beneficiaries to inherit
4.9.1 General
As explained above, an estate commences upon the testator’s death. The beneficiaries will
then be determined according to the provisions of the will or in accordance with the law of
intestate succession.
4.9.2 Adiation and repudiation

No heir or legatee can be forced to accept a benefit.161 At the death of the testator a benefi-
ciary must decide whether to accept the benefit or not. If the beneficiary decides to accept the
benefit, he acquires a legal claim against the executor of the estate for performance of the
stipulations of the will, or to carry out the rules of the law of intestate succession. If a benefi-
ciary adiates it means that he accepts the benefit. If a beneficiary does not accept the bequest,
it means that he renounces (repudiates).162 Once the choice has been exercised, it is final.163 It
is possible, however, that a beneficiary who repudiates a benefit in terms of a will can still
inherit, if there are assets which devolve on the basis of intestate succession. However, be-
cause of his repudiation, he cannot inherit any benefit in terms of the will.
In Wessels v De Jager164 the Court found that the repudiation of an inherited benefit by an
insolvent does not constitute a disposition without value in terms of section 26 of the Insolvency
Act 24 of 1936.165
It is usually presumed that beneficiaries will accept their benefits. Normally, however, the
executor will require a written acknowledgement of adiation or repudiation in the following
cases:
 When a bequest is subject to a modal clause. When the testator links a liability to a bequest,
the beneficiary cannot accept (adiate) the benefit without accepting the concomitant liabil-
ity. If the bequest is accepted, the liability must of necessity also be accepted. The benefi-
ciary must, therefore, acknowledge in writing that he accepts the liability together with the
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160 See par 4.13.3 for an example of a testamentary trust.
161 Cronjé & Roos 2002, p 470. See also Theart v Wolfgang [2011] ZAWCHC 138.
162 For repudiation in the case of insolvency see Kellerman v Van Vuren 1994 (4) SA 336 (T); Wessel v
de Jager 2000 (4) SA 924 (SCA).
163 See Bielovich v The Master 1992 (4) SA 736 (N) and Le Roux v Die Ontvanger van Inkomste and
Another [2009] ZAFSHC 27 where the Court ruled that “Fairness is the overriding consideration (as
to excusable ignorance of rights) to change your adiation”.
164 2000 (4) SA 924 (SCA).
165 De Waal & Schoeman-Malan 2015, p 190 ff.
benefit. The decision which the beneficiary must take in this regard is known as election. The
choice must be exercised within a reasonable period after the death of the testator, but be-
fore the executor can prepare the liquidation and distribution accounts.
 If the beneficiary repudiates a bequest, which has no modal clause attached to it. This is
seen as unusual behaviour and the executor will, therefore, have to obtain it in writing.
Note that a beneficiary cannot relinquish his capacity to adiate prior to the death of the testa-
tor.166
4.9.3 Competent beneficiaries

A person does not have to attain a certain age before he can inherit. Unborn persons can also
be nominated as potential heirs. A person must, however, be indicated as a beneficiary in
terms of the rules of intestate succession or by the testator.
It may happen that it is not certain precisely who the testator means must inherit. For in-
stance, he may bequeath his estate to his grandchildren in equal shares. The following question
must now be answered: does the bequest include only the grandchildren who have already
been born, or does it also include the children who have already been conceived but have not
yet been born, or still further, does it also include grandchildren still to be born but not yet
conceived? For the purposes of interpreting a will, unless it appears otherwise from the con-
text, the presumption created by section 2D(1)(c) of the Wills Act will apply. A benefit which
has been awarded to the children of a person, or the members of a class of persons (for exam-
ple, grandchildren or nephews) named in the will, vests in the children or class of persons who
are alive at the time of the passing of the benefit or who have already been conceived at that
stage and are later born alive. This means that everyone who is alive or already conceived and
is born alive later will inherit, but not persons who have not yet been conceived, unless the
testator expressly provides that everyone in that class who is born, whenever, will be his heirs.
Certain persons may, although they have been nominated as beneficiaries by will or in terms
of the rules of the intestate succession, be incompetent to inherit, by common law or by
statutory rules. We have already seen that certain incompetent heirs can be represented by
their descendants.
4.9.4 Unworthy persons

The mere fact that a person has a poor or dubious character does not make him incompetent
to inherit. There are, however, certain actions on the part of a nominated heir towards the
testator which may have the effect that he does not inherit. A person who, for example, causes
the death of the testator either deliberately167 or negligently,168 is not capable of inheriting
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166 An agreement not to inherit is known as a pactum de non succedendo and is not valid. See also
Narshi v Ranchod 1984 (3) SA 926 (C).
167 De Waal & Schoeman-Malan 2015 pp 116–120; Ex parte Steenkamp and Steenkamp 1952 (1) SA
744 (T). If a potential heir murders the testator in order to hasten his inheritance, the effect will be
the opposite – he will not inherit at all. In Danielz NO v De Wet and Another 2009 (6) SA 42 (C) a
person who was involved in assault on the testator was regarded as an unworthy person to benefit
from a deceased estate.
168 In Casey v The Master 1992 (4) SA 505 (N) it was decided that a man who negligently shot his wife
while he was under the influence of liquor, was incompetent to inherit. If a person negligently
causes the testator’s death in a car accident, he will probably be competent to inherit. He is entitled
continued
72 Deceased estates
from the testator.169 If someone causes the death of a person who is a close relative of the
testator (the spouse, child or parent of the testator), he will be unworthy to inherit from the
testator.170 Others who have been found unworthy to inherit include persons who persuaded
the testator to live an immoral life or encouraged him to become an alcoholic.171 A person who,
by inheriting, would be enriched by his own crime, is unworthy to inherit.172 In Pillay v Nagan173
it was held that a person who drafted a will on behalf of the deceased after the latter’s death,
was not competent to inherit intestate from that person’s estate.
4.9.5 Persons participating in the execution process

A number of persons are involved in the execution of a will. The purpose of the formality
requirements during the execution of wills is to prevent fraud. Persons such as witnesses, the
person who signs on behalf of the testator, the person who writes the will in his own handwrit-
ing, and their spouses, cannot inherit in terms of the conditions of that will. A will which nomi-
nates any such person as a beneficiary is valid, but the persons are not capable of inheriting
unless one of the exceptions mentioned below applies. The applicable rule and its exceptions
appear clearly from section 4A of the Act, which reads as follows:
4A(1) Any person who attests and signs a will as a witness, or who signs a will in the presence and
by direction of the testator, or who writes out the will or any part thereof in his own handwriting,
and the person who is the spouse of such person at the time of the execution of the will, shall be
disqualified from receiving any benefit from that will.
(2) Notwithstanding the provisions of subsection (1) –
(a) a court may declare a person or his spouse referred to in subsection (1) to be competent to
receive a benefit from a will if the court is satisfied that person or his spouse did not defraud or
unduly influence the testator in the execution of the will;
(b) a person or his spouse who in terms of the law relating to intestate succession would have
been entitled to inherit from the testator if that testator has died intestate shall not be thus dis-
qualified to receive a benefit from that will: Provided that the value of the benefit which the per-
son concerned or his spouse receives, shall not exceed the value of the share to which that person
or his spouse would have been entitled in terms of the law relating to intestate succession;
(c) a person or his spouse who attested and signed a will as a witness shall not be thus disquali-
fied from receiving a benefit from that will if the will concerned has been attested and signed by at
least two other competent witnesses who will not receive any benefit from the will concerned.
(3) For the purposes of subsection (1), and (2)(a) and (c), the nomination in a will of a person as
executor, trustee or guardian shall be regarded as a benefit to be received by such person from
that will.
The court may declare a person or his/her spouse competent to inherit if the court is convinced
that the person or his spouse did not improperly influence the testator. A person may also
___________
to half of the estate if he was married in community of property.
169 The impediment is applicable in the testate and intestate succession.
170 Such persons are known as conjunctissimi of the testator.
171 L Taylor v AE Pim 1903 NLR 484.
172 Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T).
173 2001 (1) SA 410 (D). In Makhanya v Minister of Finance [1997] 2 All SA 227 (D) the murderer also
forfeited benefits in terms of the pension fund.
inherit as much as he would have inherited intestate should the testator have died intestate.
Witnesses will be competent to inherit if there were other witnesses who signed and if such
other witnesses do not receive benefits.
4.9.6 Illegitimate and adopted children

As indicated in Chapter 3, children born out of wedlock and adopted children are capable
intestate heirs. Similarly, there is nothing which prevents a testator from nominating his child
born out of wedlock or adopted children as testamentary beneficiaries. There is also nothing to
prevent the testator from disinheriting them. There is, however, a rule of interpretation which
provides that should doubt exist as to whether the testator intended to include adopted
or/and children born out of wedlock, they should be regarded as children of the testator.174
4.10 Massing
Massing175 occurs when two or more persons execute a joint will in which each person adds a
part or the whole of his estate to that of the other and they jointly dispose of it. Before massing
occurs, it must first be established that the testators intended their estates to be massed. In
the legal rules for the interpretation of wills, there is a presumption against massing and,
therefore, the wording of the will must leave no room for doubt.176 Secondly, massing occurs
only once the survivor has adiated the joint will. If he/she repudiates it massing cannot take
place, irrespective of the conditions of the will. Two types of massing can occur, namely statu-
tory massing or common law massing.
Statutory massing occurs when:
 a joint will nominates ultimate beneficiaries in respect of the joint property;
 the surviving testator(s) receives a limited right over the massed property; and
 the surviving testator(s) adiates the benefit.
Therefore, statutory massing only occurs when (i) the surviving testator(s) has adiated, (ii) has
received some form of limited interest such as a usufruct, fideicommissum or annuity and (iii)
in return relinquishes his/her/their share in the joint estate.177 Massing is a phenomenon of
election, in the sense that the survivor(s) must choose to relinquish something in return for a
limited interest.178 The consequence of massing is that the survivor(s) is/are bound by the
provisions of the joint estate after adiation and that he/she/they cannot make another will
which disposes of the massed assets in a different manner than that provided for in the joint
will.179 In practice massing usually takes place when spouses combine or join their assets,
nominate their children as ultimate beneficiaries and give a usufruct over the joint assets to the
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174 See s 2D(1)(a) and (b) of the Wills Act.
175 See Lourens Boedelsamesmelting as instrument by boedelbeplanning 2000 THRHR 417 ff.
176 Wiechers 1992, p 56.
177 A limited interest will include a right to trust income in exchange for assets transferred to the trust.
178 See ITC 1387 1984 207 46 SATC 121 and ITC 1448 1988 51 SATC 58. The survivor must not obtain
more benefits in relation to his or her contribution to the massing, since any excess may be viewed
as a donation.
179 Joubert v Ruddock 1968 (1) SA 95 (EC); Rhode v Stubbs 2005 (5) SA 104 (SCA); Theart v Scheibert
[2012] 4 All SA 278 (SCA).
74 Deceased estates
survivor. If, therefore, it has been provided that the ultimate beneficiaries inherit a farm
subject to a usufruct (a limited interest) in favour of the survivor, they obtain a vested interest
to the right. In terms of section 37 of the Administration of Estates Act, the rights which were
held by both the first dying and the survivor, and which were bequeathed in terms of the joint
will, pass to the ultimate beneficiaries.
In the case of common law massing, the surviving party/parties need not necessarily obtain a
limited interest, and full ownership of estate assets can be made over to survivors. The follow-
ing serves as an example: A couple married in community of property, mass their joint estates
worth R900 000 in a joint will. In terms of the will a farm worth R600 000 and R200 000 cash
are bequeathed to the surviving spouse and the residue of the joint estate to the couple’s
child. If the surviving spouse adiates, he/she acquires full ownership of the farm and cash and
not just a limited interest. The child, on the other hand, will inherit the R100 000 residue of the
estate, free from any limited interest.
After massing has occurred, the survivor loses his rights in the assets which he contributed to
the massed estate. He cannot reclaim these assets in the future and cannot dispose of them. In
the event of his insolvency these assets will not be available for attachment by his creditors.
The limited interest which he receives as a consequence of the massing (a usufruct, for exam-
ple) does, however, form part of his estate.
4.11 Accrual (ius accrescendi)

When a person drafts his will, he must make provision for the possibility that certain benefi-
ciaries cannot or will not accept their benefits. In such cases the testator can make provision
for substitution. We have already seen that section 1(6) of the Intestate Succession Act and
section 2C(1) of the Wills Act180 make provision for the statutory accrual of a benefit from a
descendant to the surviving spouse in certain cases. It can, nevertheless, happen that the
award of a legacy or inheritance cannot be executed. The following questions then arise: in the
case of a legacy, should it fall back into the residue of the estate or should it be added to the
benefits of a specific beneficiary (accrual); and, in the case of an inheritance, should it succeed
intestate or should it accrue with the benefits of co-heirs? Co-heirs or co-legatees can, there-
fore, in certain cases have the right to share proportionally in the unclaimed benefits of a co-
beneficiary who cannot or will not inherit. The testator can make his wishes in this regard
clearly known, but if the intention is not clear, an assumed intention must be ascertained from
the words which the testator used to nominate the beneficiaries.181 If, for example, the testa-
tor provided that his farm “Bultfontein” should go to his nephews Gert and Hans, it can be
deduced that the testator’s intention was to benefit both Gert and Hans. If Hans cannot or will
not inherit, his share will accrue to Gert’s share and Gert will inherit the farm. The testator’s
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180 S 2C(1) firstly provides that if the spouse of the deceased and a descendant are jointly entitled to a
benefit, and the descendant repudiates his benefit, the descendant’s benefit will pass to the surviv-
ing spouse (accrue to her). If, for example, the testator stated in his will “my spouse and my three
children are my heirs”, and a child repudiates his share, the surviving spouse will inherit her share
of the deceased’s estate plus the share which the child repudiated. If the child did not repudiate his
share, but for argument’s sake was deemed incompetent to inherit, he would be represented, since
s 2C(2) would then come into effect.
181 Van der Merwe & Rowland 1990, pp 400–407; De Waal & Schoeman-Malan 2015, p 195 ff; Lello v
Dales 1971 (2) SA 330 (A).
intention can also be ascertained from the scheme of the will in its entirety, the circumstances
which applied during the execution of the will, the presumption against partially intestate
succession, the presumption that the testator wanted to benefit his children equally, as well as
other circumstances.
4.12 Interpretation of wills

A testator’s will, comes into operation at his death. The executor must award benefits to the
legatees and heirs in terms of the provisions of the will. The will must, therefore, be interpreted
in order to establish the intentions of the testator.182 It may happen that doubts arise and there
may be differences of opinion as to the precise intentions of the testator. The true intentions of
the testator are determined in the first place by looking at the meaning of the words in the will.
As far as is possible, words are interpreted as having their normal everyday meaning. The
scheme of the will in its entirety is of importance here. In certain cases when something is
vague or ambiguous in the will, leading to uncertainty about the intentions of the testator, the
court may use witnesses and certain presumptions in order to interpret the will. The interpre-
tation of wills is a comprehensive subject which cannot be covered in detail in a practical book
such as this.183
In cases where there is a mistake in the will, with the result that it does not reflect the true
intention of the testator, and where it is clear what the mistake is and how it can be corrected,
it is possible for the court to delete words and sentences which have been included accidentally,
or to insert words which have been omitted accidentally.184 This is known as the rectification of
the will.185 Rectification was allowed in Henriques v Giles NO186 where a testator inadvertently
signed the will prepared for the other spouse.
4.13 The will
4.13.1 General
After the death of the testator, when his wishes must be complied with, he is no longer there
to say exactly what should happen with his assets; if he made a will he is also no longer there
to explain what he really meant certain words to convey. The importance of preparing a will
properly cannot be over-emphasised. A draftsman of a will who has insufficient knowledge
about the true meaning and consequences of legal concepts, can cause unending problems
once the estate has to be administered. The testator’s intentions are then determined by
interpreting the words in the will according to their ordinary meaning.
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182 See also Brink v Van Niekerk [2011] ZAWCHC 78; Reuben v Master of the High Court (WC) [2011]
ZAWCHC 456; Lipchick v The Master of the High Court 2011 JDR 0693.
183 See Wiechers 1988; De Waal & Schoeman-Malan 2015, p 220 ff for a full discussion of the subject.
See Van Deventer v Van Deventer [2006] SCA 144 RSA.
184 Van Zyl v Esterhuyse 1985 (4) SA 726 (C); Will v The Master 1991 (1) SA 206 (C).
185 See De Waal & Schoeman-Malan 2015, p 231 ff and Giles v Henriques [2007] 4 All SA 1409 (C).
186 2009 JDR 0519 (SCA). For rectification, in general, see De Waal & Schoeman-Malan 2015, p 242 and
Kelly v Kelly [2011] JOL 2716 (KZP).
76 Deceased estates
No two wills should be identical, since a will is a document in which a specific testator makes
his specific wishes known. There are, nevertheless, certain general guidelines that can be laid
down for drafting a will. The outline which is followed below must be read together with the
formality requirements which have been discussed above. The following provisions are norm-
ally found in a will.
Preamble
A will normally starts by stating whose will it is. In the preamble the name of the testator(s),
residential address, identity number and marital status are indicated. It also states whether it is
the joint will of several persons if more than one testator is involved. These particulars are not
required by statute, but they are nevertheless desirable in order that the testator(s) can be
properly identified.
Revocation clause
If previous wills have not been explicitly revoked, they are read together, as far as possible,
with the current will. If it was the testator’s purpose to revoke his previous will with the draft-
ing of a new will, he must explicitly state this fact in the new will. The draftsman should enquire
about previous wills and their contents.
Executor
When someone goes to the trouble of preparing a will, he may just as well nominate an execu-
tor. The executor is charged with the administration of the estate and the finalisation of the
estate can be delayed substantially if the Master has to appoint an executor. The testator can
describe the executor’s powers in his will and provide that he must be exempted from provid-
ing security, to avoid unnecessary expense. The testator will only exempt the executor from
providing security if he trusts him unconditionally. In terms of section 23 of the Administration
of Estates Act, parents, spouses, or children are automatically exempted from the provision of
security.
Trustees/guardians
A guardian and/or trustee over minors and/or their property are often nominated in a will. It is
of the utmost importance that parents should make provision for guardians in the event of
their simultaneous deaths, if they have minor children. If a testator creates a testamentary
trust in his will, he must also remember to nominate a trustee, to consider exempting the
trustee from the provision of security and also to describe the rights and duties of the trustee
properly. The creation of a trust to protect the interest of minors is very popular in practice.
Heirs and legatees

The testator is free to bequeath his property to whomever he wishes. He can make a specific
bequest to a specific beneficiary (legacy) or he may indicate in what proportion his estate must
succeed (heirs). It is important, however, when the testator nominates beneficiaries, that he
should use simple words to make his wishes known. The draftsman must ensure that the words
used do in fact convey the testator’s wishes. The testator must bear in mind that he must make
provision for substitution (alternative or successive succession) if there is a possibility that any
of the beneficiaries may not or cannot inherit.
Simultaneous deaths
Spouses can make provision for an alternative method of distribution if they foresee the
possibility that they might die simultaneously as a result of the same accident or event. If the
surviving spouse is the sole heir, for example, provision can be made for distribution of the
estate among the children if the spouses should die simultaneously, in order to prevent intes-
tate succession from taking place.
Amendment clause
A person may amend or revoke his will at any time before his death. It is, therefore, unneces-
sary to include such a clause in a will.
Attestation clause
An attestation clause is not specifically required. The testator is free, however, to include such
a clause in a will. In this clause it can be stated that the witnesses were present when the
testator signed the will and that they also signed the will in each other’s presence and in the
presence of the testator.
Signature
The will is signed at the end by the testator and competent witnesses. It is also desirable that it
should be dated in order to avoid confusion regarding which will was the testator’s last will.
4.13.2 Example – simple will
The will of Jan Roos

I, JAN ROOS (ID 440208 0010 222) a widower of 2 Church Street, Pretoria, hereby declare that my
estate must be distributed as set out below.
1. I hereby revoke all previous wills which I have made.
2. I nominate my son Johannes Roos as executor of my estate and I confer on him all powers allowed
by law, specifically the power of assumption.187 The nominated executor is also exempted from the
provision of security to the Master of the Supreme Court.
3. A legacy of R60 000 must be paid to my minor daughter Sandra Roos. The residue of my estate
must be awarded to my son Johannes Roos.
continued
___________
187 Right to appoint additional executors to act with him.
78 Deceased estates
4. No benefit which is due to my beneficiaries in terms of the conditions of this will shall form part of
community of property in any existing or future marriage, nor form part of the accrual system.188
Signed at Pretoria in the presence of two witnesses on this ...12th...... day of July 2017 .......
WITNESSES TESTATOR
Papa Roos Jan Roos

Carel Roos
4.13.3 Example – will with testamentary trust
Will of WJ and S Jackson

We, the undersigned
WILLY JOHN JACKSON (Identity number 480208 0050 360)
and
SHEILA JACKSON (born JONES, identity number 500206 0070 370)
married in community of property and presently residing in Pretoria, Gauteng, declare that our will is
as follows:
1. We revoke all previous wills made by us whether jointly or separately.
2. We nominate the survivor of us as the executor of our joint estate. Should we die simultaneously
or should the survivor not be able or willing to accept the nomination, we nominate as the execu-
tor of our joint estate a partner of the firm VISSER AND VISSER, practising attorneys in PRETORIA.
3. We nominate as the trustees of the trust hereinafter mentioned the brother of the testator,
WILFRED JACKSON, and the sister of the testatrix MARY JONES, as well as a partner of the firm
VISSER AND VISSER, to act jointly.
4. In case of our simultaneous deaths, we nominate as the guardians of our minor children the
brother of the testator, WILFRED JACKSON, and the sister of the testatrix, MARY JONES, jointly.
5. We confer on the executors and trustees all powers as set out below, including the power of as-
sumption.
6. We instruct the Master of the High Court to waive the requirement that our executor, guardian
and trustees must provide security.
continued
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188 In Badenhorst v Bekker 1994 (2) SA 155 (N) it was held that a person who has received benefits
under a will and is married in community of property, cannot exclude such benefits from his/her
spouse’s creditors in the case of the latter’s insolvency. However, such a stipulation is nevertheless
effective inter partes (between the parties). In Du Plessis v Pienaar and Others 2003 (1) SA 671
(SCA) the Appeal Court also maintained this position. Consequently, such a testamentary provision
provides no protection for a spouse as against his/her spouse’s creditors.
7. Our executor and trustees may in their own and absolute discretion liquidate any asset in our
estate at such price, time, and in such manner and under such conditions as they may decide in
their own discretion. They are also authorised to give transfer of estate and trust assets by regis-
tration of a deed of transfer or in any other manner.
8. The testator and the testatrix mutually appoint one another as sole heir of the first dying. If, how-
ever, we should die simultaneously or within 60 days after one another, we mass our joint estate
and bequeath it to our trustees to be held in trust and administered in terms of clause 9.189
9. The following conditions will apply to the trust mentioned in clause 8 above:
9.1 The name of the trust is the JACKSON FAMILY TRUST.
9.2 The capital beneficiaries of the trust are the children born out of our marriage with one
another. The income beneficiaries of the trust will be nominated or appointed by our trus-
tees according to their free discretion, from our capital beneficiaries, their descendants and
collaterals.
9.3 If a capital beneficiary should die before the dissolution of the trust, such beneficiary's
descendants will represent that descendent as capital beneficiaries. If the predeceased capi-
tal beneficiary leaves no descendants, he or she will be replaced as a beneficiary by the other
capital beneficiaries.
9.4 The trust will be dissolved as soon as our youngest surviving child reaches the age of 21
(twenty-one years). Our trustees may however, notwithstanding the above condition –
(a) dissolve the trust partially or wholly at any time;
(b) allow the trust to continue partially or wholly.
9.5 During the existence of the trust our trustees will in their discretion be entitled to make
awards of trust capital to the capital beneficiaries and to transfer the relevant trust assets
to them or apply it for their benefit.
9.6 Our trustees will be entitled in their own discretion to invest any funds or assets of the trust
during the existence of the trust as they may deem fit. They will be entitled to liquidate such
assets from time to time, to reinvest, and amend investments, as they may deem necessary,
for the benefit of our beneficiaries. Any income in the trust which is not applied for the bene-
fit of the income beneficiaries as hereinafter set out, will be reinvested and capitalised by
the trustees.
9.7 Our trustees will be entitled to encumber any assets of the trust as they may deem fit. They
will be entitled to make loans on behalf of the trust and to encumber any of the assets of the
trust by way of pledge, mortgage or otherwise to secure the loans. Such transactions will be
done on whatever terms and conditions the trustees may deem fit.
9.8 Our trustees may apply the trust income according to their free discretion, subject to the
condition that our children must receive the best education and general care which is possi-
ble with the available income.
continued
___________
189 A short description as set out in par 4.8.8 is sufficient to create a trust on date of death. However,
we recommend a detailed description of the provisions of the trust in order that all parties may
know what their duties and benefits are.
80 Deceased estates
9.9 Apart from the above capacities our trustees will:

(a) Open a current bank account with a registered bank for purposes of the trust, into
which any cash funds which are not required for investment purposes will be deposited.
(b) Be entitled to enter into any lease agreements which they may deem necessary in
respect of any fixed property which forms part of the assets of the trust.
(c) Be entitled to buy and sell moveable and immoveable property on behalf of the trust
and to execute any registration required in connection with this.
(d) Be entitled to institute any litigation on behalf of the trust and to defend any actions
brought against the estate.
(e) Be entitled to make loans to a beneficiary of the trust on such terms and conditions as
they may deem fit in their sole discretion. However, they will not be obliged to make
such loans and no beneficiary will acquire a right to any loan in terms of this clause.
(f) Be entitled to engage the services of professional persons and, in this regard, specifi-
cally the services of attorneys, accountants and medical practitioners and other con-
sultants which the trustees may consider to be necessary. If a trustee is also a
practising professional person, he will be entitled to utilise the services of his partners
for the purposes of this clause. Our trustees will be entitled to pay amounts due for the
services of the aforementioned professionals out of trust funds.
(g) Be entitled to a reasonable remuneration for their services.
9.10 Our trustees shall at all times:
(a) Ensure that proper books of account are kept which correctly reflect the assets and
liabilities of the trust as well as their administration of the trust.
(b) Ensure that annual financial statements are prepared by a registered accountant.
9.11 As long as the trust continues a capital beneficiary will not have a vested right to trust
property.
9.12 Upon the dissolution of the trust the trust property will be transferred to the capital benefi-
ciaries in equal shares.
10. We provide that no benefit in terms of this will shall form part of any joint estate which exists, at
present or in future. The right of accrual referred to in the Matrimonial Property Act 88 of 1984 is
specifically excluded in terms of the provisions of that Act, in respect of any benefit received in
terms of this will.
SIGNED at Pretoria on.....12 July 2017.... in the presence of the undersigned witnesses who were all
present and signed this document in each other’s presence.
WITNESSES TESTATORS
Y Signhouse W J Jackson
S Neighbor S Jackson
5
The Master
5.1 Introduction ............................................................................................................ 81

5.2 The Master’s functions ........................................................................................... 82
5.2.1 General ...................................................................................................... 82
5.2.2 Supervision of the administration process ................................................ 82
5.2.3 Quasi-judicial functions ............................................................................. 83
5.2.4 Advice ........................................................................................................ 84
5.2.5 Administrative tasks .................................................................................. 85
5.2.6 Exercising discretion .................................................................................. 85
5.1 Introduction
A deceased estate is administered by an executor or his agent, for example an attorney or an
accountant. The whole administration process, however, takes place under the watchful eye of
a public officer, namely the Master of the High Court.
A Master is appointed for the area of jurisdiction of each provincial division of the High
Court.1 The same person can be appointed as Master in the area of jurisdiction of more than
one High Court.2 The fourteen Master’s offices in the Republic are located at Pretoria, Johan-
nesburg, Bloemfontein, Cape Town, Pietermaritzburg, Durban, Grahamstown, Port Elizabeth,
Kimberley, Umthatha, Mahikeng (Mmabatho), Bisho (King William’s Town), Thohoyandou,
Mbombela (previously Nelspruit) and Polokwane. Normally the Master within whose area of
jurisdiction a deceased resided at the time of his death has jurisdiction over the administration
of that estate.3 A Chief Master of the High Courts is appointed by the Minister of Justice as
executive officer of the Masters’ offices, and he gives guidance to and exercises control over
the Masters.4
A Master is appointed by the Minister of Justice, who may also appoint Deputy Masters and
Assistant Masters.5 Each Master’s office has a well trained personnel corps to assist the Master
___________
1 S 2(1) of the Administration of Estates Act 66 of 1965.
2 S 2(1A).
3 S 4(1)(a).
4 S 2(1).
5 S 2.
81
82 Deceased estates
with the execution of his multiple tasks, laid down by the Administration of Estates Act and
other statutory enactments. Although the Master is referred to below, it is usually examiners
who actually carry out the function concerned; the Master, however, remains the responsible
official.
The Minister of Justice may identify service points within the area of a Master’s jurisdiction,
where delegated functions of that Master may be carried out.6 All magistrate’s offices have
been identified as such service points where designated officials perform limited functions
regarding the administration of small and simple intestate estates in terms of section 18(3) of
the Administration of Estates Act.7 The process at service points is not discussed in this book.8
5.2 The Master’s functions

5.2.1 General
The Master’s functions are many and varied. Among others, he supervises the finalisation of
insolvent estates, the liquidation of companies, guardianship over children, the administration
of the guardian’s fund and the administration of trusts. His functions in connection with the
administration of deceased estates are discussed below.
5.2.2 Supervision of the administration process

The Master continually supervises the administration process from the moment an estate is
reported to him until it has been completely finalised.9 He is, for example, responsible for the
appointment of the executor;10 in appropriate cases he ensures that the executor provides
security for the proper performance of his duties;11 he is entitled to inspect the estate cheque
account and can even take effective control over it.12
The executor is obliged to submit a liquidation and distribution account to the Master within
a prescribed period (normally within six months after the issue of the letters of executorship),
in which all estate assets and liabilities and the manner in which the surplus will be distributed,
must be fully reported.13 Should the executor fail to carry out this and other duties, the Master
can take suitable steps. He can, for example, dismiss an executor from his office14 or apply to
the High Court to compel the executor for specific performance15 or for removal from his
___________
6 S 2A(3).
7 A service point only has jurisdiction to make an appointment in terms of s 18(3) if it is a solvent
intestate estate with a gross value not exceeding R125 000. All the beneficiaries must be majors, or
if a beneficiary is a minor, he must be assisted by his legal guardian and the cash assets of the es-
tate may not exceed R20 000.
8 See Meyer & Rudolph Policy and Procedure Manual: Administration of Intestate Deceased Estates
at Service Points (2007) for a comprehensive exposition.
9 See Wessels v The Master 9 SC 18 about the role of the Master in the administration process.
10 Ss 13 to 22.
11 S 23.
12 S 28.
13 S 35.
14 S 54(1)(b).
15 S 36.
Chapter 5 The Master 83
office.16 Another effective weapon which the Master can use against an obstinate executor is
that he can declare the executor’s remuneration, in whole or in part, forfeited.17
The most important aspect of the Master’s supervisory task is the examination of the liqui-
dation and distribution account which the executor or his agent must submit to him. The
account is thoroughly checked by an examiner in order to ensure that it is a complete and
correct account of the administration and that the distribution of the assets is in accordance
with the will or the law of intestate succession. If he is not satisfied with the account, he re-
quests the administrator to amend the account in accordance with specific requirements which
he sets out in a query sheet. The Master can also instruct the executor to submit supporting
vouchers in support of any item in the account.18
Only if the Master is satisfied with the account will he give permission for it to lie for inspec-
tion and for notice to be given thereof.19 The Master will only give the executor his discharge
once all his final requirements in connection with the finalisation of the estate have been
complied with, and in particular only after proof has been provided that all creditors have been
paid and that the beneficiaries have received their benefits.20 Although it is the executor’s duty
to administer an estate accurately and correctly, it is reassuring for the conscientious adminis-
trator to know that his work and judgement are subjected to scrutiny by the Master.
5.2.3 Quasi-judicial functions

The Master performs many “judicial” functions, although he is the incumbent of an administra-
tive office. The most important of these are discussed below.
The acceptance of a will
Upon receipt of a will the Master records it in the register of estates.21 Although only the court
can give a ruling on the validity of a will, the Master can, if the will is not valid in his opinion,
refuse to accept the will for purposes of appointing an executor and administering the estate.22
In taking such a decision, the Master will take into account the revocation of a will by the
execution of another will at a later stage. He will consequently refuse to accept such a revoked
will.23 An interested party who contests the Master’s acceptance or rejection of a will, shall
have no alternative but to approach the Court for a declaratory order.
___________
16 S 54(1)(a).
17 S 51.
18 S 35(2A).
19 S 35(4).
20 S 56(1) read with s 35(12).
21 S 8(3).
22 S 8(4).
23 S 8(4A). In terms of this sub-section the Master may not take notice of any common law presump-
tions regarding the revocation of a will. In South African law, for example, there exists a rebuttable
presumption that a will of which a duplicate-original was in the testator’s possession shortly before
his death, but which cannot be traced afterwards, has been revoked by destruction. The Master
may not refuse to accept another duplicate-original on the basis of this presumption.
84 Deceased estates
Interpretation
In order to determine whether an executor’s account is correct, the Master must necessarily
interpret the will and/or the relevant legal rules and apply them to the facts of the particular
estate. This requires a thorough knowledge of legal aspects such as the rules of interpretation,
massing, accrual, collation, the Intestate Succession Act and other relevant statutes.
Ruling on objections
After a liquidation and distribution account has been approved by the Master, it must, after
notice, lie open for inspection at the Master’s office (and often also at the local magistrate’s
office)24 in order that any interested party may inspect it and lodge an objection against it with
the Master within the allowed period (usually 21 days). After the executor has had the oppor-
tunity to comment on written objections that have been received, the Master gives his ruling,
and he may, inter alia, direct the executor to amend the account.25
Steps against the executor
As already mentioned, the Master may, under certain conditions, remove the executor from his
office, withhold, reduce or increase his executor’s remuneration26 and apply to the High Court
for an order directing the executor to carry out his duties27 or to remove him from his office.28
5.2.4 Advice
In practice it is an important function of the Master’s office to advise beneficiaries, administra-
tors and the general public in connection with estate matters. The Master’s website at
www.justice.gov.za/master/index.html contains useful information, e.g. the Chief Master’s
directives and the prescribed forms.
According to Bouwer29 many potential law suits over estate matters are prevented by the
fact that the Master resolves differences between interested parties. Although it is the execu-
tor’s legal duty to administer an estate properly, the ordinary man relies on the Master as a
kind of “supreme guardian” to ensure honest and fair administration of estates, and to act as
arbitrator, advisor and comforter.
In applications by way of motion in connection with estate matters, the court usually re-
quires a written report from the Master.30 In an application for the removal or amendment of a
testamentary fideicommissum in terms of the Immovable Property (Removal or Modification
___________
24 It must also lie open at the local magistrate’s office, unless the Master’s office is located in the
same district where the deceased resided, in which case it lies open at the Master’s office only.
25 S 35(9).
26 S 51(3).
27 S 36.
28 S 54(1)(a). In Gory v Kolver NO 2007 (3) BCLR 249 (CC) it was held that the interests of the estate
and of the beneficiaries are the principal consideration in the exercising of the court’s discretion to
remove an executor from his office in terms of s 54(1)(a)(v). See also Van Niekerk v Van Niekerk
2011 (2) SA 145 (KZP) and Reichman v Reichman 2012 (4) SA 432 (GSJ).
29 Bouwer 1978, p 9.
30 See rule 6(9) of the Uniform High Court rules, Practice Note no 5 2000 (4) SA 135 (C) and Manton v
Croucamp NO 2001 (4) SA 374 (W).
Chapter 5 The Master 85
of Restrictions) Act,31 the Master’s report is, for example, always obtained for consideration by
the court, together with the other evidence. Although a court is not bound by the Master’s
opinion, it always carries substantial weight in the light of the Master’s specialised estate
knowledge and his impartiality.
The administrator sometimes has to deal with complicated problems concerning the admin-
istration of estates. In such cases it is always advisable for the administrator to consult with the
Master and obtain his opinion and instructions before preparing his account or taking any
other important step. For the Master the problem will probably not be new, and much effort,
time and expense can be saved in this manner.
5.2.5 Administrative tasks

The Master and his staff handle several purely administrative matters. Section 5 of the Admin-
istration of Estates Act provides that the Master must preserve all the most important estate
documents (such as wills, death notices, inventories and estate accounts) in his office, where
they lie open for inspection by the public. For example, Cape estate documents have been kept
in safe custody since 1720 and the Master’s archive is an important source for genealogical
research.
Another important function of the Master is the administration of the guardian’s fund. Un-
less the will stipulates otherwise, cash bequests to minors, for example, must be paid into the
guardian’s fund to be administered by the Master until the beneficiaries attain majority.32
5.2.6 Exercising discretion

In carrying out his many functions, including the above, the Master usually has a discretion
which he must exercise. Sometimes he has a wide discretionary power, sometimes it is limited.
He must, however, exercise it properly and with the necessary attention at all times. The
following are only a few examples of the Master’s discretionary powers in terms of the Admin-
istration of Estates Act:
 If the value of an estate does not exceed a certain prescribed amount (R250 000 at present),
the Master may in terms of section 18(3) dispense with the appointment of an executor and
he may authorise a shortened administration process.
 Ordinarily, the administrator need not submit vouchers in support of his liquidation and
distribution account. In terms of section 35(2A), however, the Master may request such
vouchers.33
 In terms of section 38 the Master may authorise the executor in certain circumstances to
award a part of, or the whole estate, to the surviving spouse, even if the survivor is not an
heir at all.34
It is important to note that all the Master’s decisions, taken in terms of the Administration of
Estates Act, are subject to appeal to or review by the High Court.35
___________
31 Act 94 of 1965.
32 S 43(6) read together with s 86 of the Administration of Estates Act 66 of 1965. Since 1 July 2007
the age of majority is 18 years: see s 17 of the Children’s Act 38 of 2005.
33 The Master usually requires supporting vouchers if estate duty is payable or if the interests of a
minor heir are involved.
34 See par 6.4.14 of Chapter 6 where section 38-takeovers are discussed.
35 S 95.
6
The executor
6.1 Introduction ............................................................................................................ 88

6.2 The executor’s appointment................................................................................... 88
6.2.1 The executor testamentary and the executor dative ................................ 88
6.2.2 Appointment in terms of section 18(3) .................................................... 91
6.2.3 Persons disqualified from appointment ................................................... 91
6.2.4 Appointment of an agent .......................................................................... 93
6.2.5 Security ...................................................................................................... 93
6.3 The executor’s preliminary tasks ............................................................................ 94
6.3.1 Interview with relatives ............................................................................. 94
6.3.2 Reporting the estate.................................................................................. 95
6.3.3 Opening files.............................................................................................. 99
6.3.4 Valuation of estate assets and liabilities ................................................... 100
6.4 Functions after receipt of letters of executorship .................................................. 101
6.4.1 Introduction............................................................................................... 101
6.4.2 Power of attorney ..................................................................................... 101
6.4.3 Custody of estate assets ............................................................................ 101
6.4.4 Notices....................................................................................................... 103
6.4.5 Opening estate cheque account................................................................ 103
6.4.6 Submission of section 27 inventory .......................................................... 104
6.4.7 Income tax return ...................................................................................... 104
6.4.8 Finalisation of valuations........................................................................... 105
6.4.9 Determining whether estate is solvent ..................................................... 105
6.4.10 Planning the liquidation ............................................................................ 105
6.4.11 Award of assets in specie .......................................................................... 106
6.4.12 Partial disposal .......................................................................................... 107
6.4.13 Total disposal............................................................................................. 110
6.4.14 Section 38 takeover ................................................................................... 111
6.4.15 Redistribution agreement ......................................................................... 112
6.4.16 Claim for maintenance .............................................................................. 114
6.4.17 Interim maintenance payments ................................................................ 115
6.4.18 Advances to beneficiaries.......................................................................... 116
6.4.19 Payment of estate liabilities ...................................................................... 116
6.4.20 Extension for submission of the account .................................................. 118
6.4.21 Preparation and submission of the account.............................................. 118
6.4.22 Submission of estate duty return .............................................................. 119
87
88 Deceased estates
6.4.23 Notice that account is lying open for inspection ....................................... 119
6.4.24 Objections against account ....................................................................... 120
6.4.25 Compliance with final requirements ......................................................... 121
6.5 The executor’s remuneration ................................................................................. 122
6.1 Introduction
The entire administration process centres around the office of the executor. Apart from certain
exceptional cases, an executor, who has full responsibility for the proper administration of the
estate, must be appointed by the Master for each deceased estate. He is, so to speak, the man
at the helm of the administration boat who must ensure that the administration voyage is
undertaken along the prescribed route, speedily yet safely.
Often it is not the executor himself who actually administers the estate, but an expert, such
as an attorney, whom he appoints as his agent for this purpose. The executor, however, re-
mains legally liable to the Master and all interested parties for the proper execution of his
extensive task. If, for example, the agent fails to submit the liquidation and distribution account
on time, the Master takes suitable steps against the executor, not against his agent. When the
word “administrator” is used in this chapter, it refers to the person who actually administers
the estate. This may be the executor himself or his agent.
6.2 The executor’s appointment
6.2.1 The executor testamentary and the executor dative

As far as appointment is concerned, a distinction is usually made between an executor testa-
mentary and an executor dative.
The executor testamentary
An executor testamentary is the person who is nominated as executor in the deceased’s will, or
for whose nomination testamentary provision is made, and who is thereafter appointed by the
Master in terms of letters of executorship.1
Most wills contain a clause in which an executor is nominated. Usually the testator also
grants the power of assumption to his nominated executor, which means that he has the
capacity to nominate another person or persons as co-executor(s).
___________
1 S 14 of the Administration of Estates Act 66 of 1965.
Chapter 6 The executor 89
The nominated person does not automatically become the executor upon the testator’s
death; he must be formally appointed in terms of letters of executorship,2 which are only
issued by the Master after the following have been submitted to him:
 death notice;
 original will;
 inventory;
 acceptance of trust in duplicate; and
 provision of security, if applicable.
If these requirements have been met, the Master issues letters of executorship to the nomi-
nated person, provided the Master accepts the will as valid and that the nominated person is
capable of acting as executor.3 Please note that a person without previous experience in the
administration of estates is not precluded from being appointed as executor. In such a case the
Master will, however, require the nominated executor to provide security or to appoint an
experienced person as his agent or to be assisted by such an experienced person.
An executor can only assume another person as co-executor if this power is conferred on
him in the will. From this it follows that only an executor testamentary can assume. The execu-
tor must exercise this power of assumption in writing and the following must be submitted to
the Master:4
 the acceptance of trust in duplicate, signed by the assumed;
 the written deed of assumption signed by the executor and the assumed; and
 the original letters of executorship.
If the nominated person is competent to act as executor, the Master appoints him as assumed
executor by issuing a certificate which is attached to the letters of executorship already issued
to the executor testamentary. An assumed executor can also be regarded as an executor
testamentary in the broad sense of the word because the will provides for his possible nomina-
tion, without however, nominating him by name.
If a juristic person, such as a bank, has been nominated as executor in the will, the juristic
person as such is not appointed as executor but it must nominate a natural person who is an
officer of the juristic person (for example a bank manager) to whom the letters of executorship
are issued. The juristic person is, however, responsible for the proper performance of the
officer’s duties as executor.5
___________
2 S 13.
3 See par 6.2.3 regarding disqualified persons.
4 S 15.
5 S 16. In our opinion, however, the juristic person is the executor by law and the nominated officer
or director only acts on behalf of the juristic person. This is confirmed by the fact that the juristic
person retains vicarious liability. Compare the position when a juristic person has been appointed
as a trustee. In Metequity Ltd v NWN Properties Ltd 1998 (2) SA 554 (T) it was decided that the juris-
tic person is the trustee, notwithstanding the fact that the letters of authority are issued in the
name of a nominee of the legal person.
90 Deceased estates
If it appears to the Master that the nomination of a person as testamentary or an assumed

executor is invalid, or if someone with an interest in the estate submits a written objection to
the Master, the Master can refuse the appointment until:
 the court has decided about the validity of the nomination;6 or
 the objection has been withdrawn.7
The executor dative
An executor dative is a person appointed by the Master as executor in a deceased estate. He

was therefore not nominated or assumed in terms of a will. In this case, therefore, the Master
makes the nomination as well as the appointment of the executor.
According to the Administration of Estates Act,8 an executor dative can be appointed by the
Master in the following cases:
 The deceased did not nominate an executor testamentary. Here are three possibilities: the
deceased may have died without a will, his will may prove to be invalid or his valid will does
not make provision for the nomination of an executor.
 If the nominated executor cannot be traced, has died, or refused or is disqualified from
accepting the office of executor.
 If several executors have been nominated as executors by will and some of them cannot or
will not accept the nomination and the Master is of the opinion that it is in the interest of
the estate to add one or more executors to the remaining executor(s).
 If it is necessary to supplement a testamentary prescribed quorum of executors.
 The only appointed executor ceases to be an executor for any reason (for example death).
 Several persons are executors and one or more of them ceases or cease to be an executor(s)
for any reason, and the Master is of the opinion that it is in the interest of the estate to fill
the vacancies.
The Master has a wide discretion with the appointment of an executor dative. In terms of
section 18(1) he may appoint the person or persons whom he may deem fit and proper. The
only real limitation is that he may not appoint anyone who is under a legal disqualification (for
example an insane person) to act as an executor.
The Master usually consults with the interested parties regarding the appointment of an
executor dative. If the interested parties are unanimous as to who should be the executor, the
administrator should take the necessary steps to get him appointed and see to it that this
person completes the required acceptance documents. The Master will usually accept this
recommendation. If, however, there is a difference of opinion about a suitable person, it is
advisable to suggest to the Master to convene a meeting of interested parties with the view of
recommending an executor. The Master is not obliged to convene such a meeting but normally
he will do so if it appears that the interested parties have not reached consensus. If several
___________
6 According to Hoofar Investments (Pty) Ltd v Loonat 1991 (2) SA 222 (N), the court does not have a
general common law power to prevent the appointment of an executor nominated in a will. The
specific circumstances in which the appointment of a person nominated by will can be prevented,
are laid down by statute in ss 13, 14 and 22 (read together with s 54(1)) of the Administration of Es-
tates Act 66 of 1965.
7 S 22.
8 S 18(1).
persons are recommended for appointment as executor during the meeting, the Master gives
preference to the persons below, in order of preference:
 the surviving spouse or his/her nominee;
 an heir or his/her nominee; and
 a creditor or his/her nominee.9
The Master is, however, not absolutely bound to this order of preference. If a good reason
exists, he may pass over any or all of the said persons and appoint a total outsider.10
6.2.2 Appointment in terms of section 18(3)

If the gross value of an estate is R250 000 or less, the Master has a choice. He can either ap-
point an executor to administer the estate in accordance with the provisions of the Administra-
tion of Estates Act, or give directions to a person or persons of his choice to finalise the estate
in a fast and simple manner.11 Such directions are known as a section 18(3)-appointment and
may be given even if an executor has been nominated in the will.
If the Master decides on a section 18(3)-appointment, he issues written directions in which
the person charged with the duties is ordered to take control of the estate assets, pay the
estate liabilities and transfer ownership of the residue to the beneficiaries. The Master then
regards the matter as finalised and closes his file. The onus to execute the directions rests
entirely with the person(s) charged therewith. The provisions of the Administration of Estates
Act regarding the administration of an estate are not applicable in such a case. Consequently it
is not necessary to publish a notice to creditors or to prepare an estate account. The Master
exercises no control over the administration and no Master’s fees are payable.
A section 18(3)-appointment is especially suitable if there are only one or two heirs. The
heir(s) is often charged with the administration although the Master has a free discretion in
this regard. The Master will consider each case according to its merits but he will probably
prefer appointing an executor if:
 minor beneficiaries are involved; or
 more than two beneficiaries are involved; or
 the Master is aware of discord among the beneficiaries.
Section 18(3) therefore provides a shortcut for the fast and inexpensive finalisation of small
estates. Consult paragraph 6.3.2 about the appointment procedure.
6.2.3 Persons disqualified from appointment

The following persons are totally disqualified from acting as executor or disqualified from so
acting in a particular estate:
(1) A minor has limited contractual capacity and is therefore disqualified from being appointed
as executor. If a minor has been nominated as executor by will, he will be entitled to
___________
9 S 19.
10 S 19(ii).
11 S 18(3). S 2 of the Administration of Estates Amendment Act 63 of 1990 amends s 18(3) to the
effect that the Minister of Justice can fix the amount (presently R250 000 in terms of regulation
R10320 GG 38238 of 24 November 2014) by way of notice in the GG. The administrator should as-
certain the ruling amount from time to time.
92 Deceased estates
appointment as co-executor when he attains majority. With effect from 1 July 2007 the
age at which majority is reached was lowered from 21 years to 18 years.12
(2) Insane persons and prodigals are also, due to their limited contractual capacity, disquali-
fied.
(3) An unrehabilitated insolvent is not disqualified from acting as an executor. In most cases
the Master can and probably will, refuse to appoint an insolvent, unless he provides
proper security.13 If an executor’s estate is sequestrated during his appointment, the
Master may require (additional) security at that point in time.14
(4) Letters of executorship are not issued to legal entities, only to a natural person.15
(5) A partnership as such, for example, Jarvis and Masson, cannot be appointed as executor.
If a partnership has been nominated as executor in a will, the letters of executorship are
issued in the names of all the persons who were partners at the time of the testator’s
death.
(6) The Master in his official capacity cannot be appointed as executor.16
(7) A person who is incompetent to inherit from the testator in terms of the common law, is
also incompetent to be appointed as executor in the estate.17 The murderer of the testa-
tor, for example, is disqualified from appointment as executor in the victim’s estate.
(8) A person who:
 has signed a will as a witness; or
 has signed the will on behalf of the testator; or
 wrote out the testator’s will in his own handwriting,
is incompetent of appointment as executor in terms of such will. The spouse of such a
person is also incompetent of being nominated as an executor in such a will.18
The person concerned in point (8) above is not, however, absolutely incompetent of acting as
executor in the testator’s estate. Firstly, the Wills Act provides for the following exceptions:19
 If the High Court is convinced that such person or his spouse did not defraud or unduly
influence the testator in the execution of the will, the court may declare such person or
his/her spouse competent.
 If the will concerned has also been signed by at least two other competent witnesses who
will not receive any benefit from the will concerned, a person who signs as a witness, or
his/her spouse, is competent of nomination as executor in the will. In this instance a court
order declaring such person or his/her spouse competent is not required. The Master may
make the appointment without further ado.
Secondly, the Master may appoint a person whose nomination as executor is not valid (see
point (8) above) in terms of the Wills Act, as an executor dative.20 The reason is that he is only
incompetent to be appointed in terms of the will. He is, however, competent to be appointed
___________
12 S 17 of the Children’s Act 38 of 2005.
13 S 23(2).
14 S 23(3).
15 S 16 of the Administration of Estates Act 66 of 1965. See, however, par 6.2.1 above.
16 S 99.
17 Thomas v Clover NO 2002 (3) SA 85 (N).
18 S 4A(1) read with s 4A(3) of the Wills Act 7 of 1953. “Spouse” includes a civil union partner. See
s 13(2) of the Civil Union Act 17 of 2006.
19 S 4A(2).
20 S 18(1).
as an executor dative since such an appointment is not based on testamentary nomination, but
on the Master’s discretion in terms of section 18 of the Administration of Estates Act.
A married woman, irrespective of whether she is married in or out of community of prop-
erty, is capable of acting as an executor. Since the abolition of the marital power of husbands,21
a female executor may be appointed without the consent or assistance of her husband in all
cases.
6.2.4 Appointment of an agent

Although the executor is responsible for the proper administration of an estate, it is not neces-
sary that he should personally carry out all the functions and he may authorise an agent such
as an attorney, to administer the estate on his behalf. In terms of the regulations issued under
the Attorneys, Notaries and Conveyancers Admission Act 23 of 1934, certain persons may not
administer an estate.
If the administrator is not also the executor, it is usually advisable for the administrator to
obtain a written power of attorney22 from the executor. This saves valuable time by enabling
the administrator to personally sign virtually all estate documents, such as the liquidation and
distribution account and cheques. Should the executor sell land and the deed of sale is signed
on his behalf by his agent, the existence of a proper power of attorney is indispensable. Sec-
tion 2(1) of the Alienation of Land Act23 provides: “No alienation of land . . . shall . . . be of any
force or effect unless it is contained in a deed of alienation signed by the parties thereto or by
their agents acting on their written authority.”24 Please note, however, that certain documents,
for example the estate duty return, must be signed by the executor himself in all cases. The
written power of attorney contains a reference to the number and date of the letters of execu-
torship and is therefore only granted after the issue of letters of executorship.
6.2.5 Security
The general rule is that before someone is appointed as executor (whether testamentary,
dative or assumed) he must provide security to the Master of the High Court for the proper
performance of his duties.25 If, however, the person is:
 the parent, surviving spouse or child of the testator; or
 has been exempted in the will from the obligation to provide security,
the general rule does not apply and the person concerned need not provide security unless the
Master specifically instructs that it should be done. In the case of testamentary as well as
assumed executors, the Master can only require the provision of security from the persons
mentioned above in certain prescribed circumstances.26
The amount of the security is fixed by the Master at his discretion, but is normally calculated
according to the value of the estate assets. It is usually given in the form of a written bond of
security which can be obtained from certain financial institutions and most insurance
___________
21 See s 11 of the Matrimonial Property Act 88 of 1984.
22 See Sch 13.
23 68 of 1981.
24 See also Mills NO v Hoosen 2010 (2) SA 316 (W).
25 S 23.
26 S 23(2).
94 Deceased estates
companies against payment of a premium. A special deed of security which must be completed
by the nominated executor and the surety, as well as a list of the institutions whose suretyship
is acceptable to the Master, are available from the Master’s office. The costs connected with
the provision of security are regarded as a cost of administration and are paid from the estate.
The premiums in respect of such a bond of security are usually payable annually and a cost
saving can therefore be effected if the administration of the estate is finalised as quickly as
possible. In terms of section 23(3) any executor who has already been appointed can also be
instructed to provide security or additional security in certain circumstances, for example, if his
estate is sequestrated.
If losses are suffered on account of an executor’s neglect in the performance of his duties,
such losses can be recovered from the executor or his surety in terms of the security provided.27
Natural persons may experience difficulty in obtaining security from financial institutions. It
also means that additional expenses are incurred by the estate. In our opinion exemption from
the provision of security should be a standard clause in any will. If the testator does not trust
the person sufficiently to exempt him from the provision of security, he should rather nomi-
nate another whom he does so trust!
6.3 The executor’s preliminary tasks
6.3.1 Interview with relatives

Normally the administrator’s first task is to conduct an interview with the relatives of the
deceased, who are usually also beneficiaries of the estate. Often such a relative is also the
executor nominated in the will. The objectives of this interview are as follows:
(1) Essential information for reporting and administering the estate must be obtained. It is
strongly recommended that the information should be obtained by means of a compre-
hensive questionnaire in order to ensure that no details are omitted.
(2) Signatures must be obtained on certain documents that are essential in order to report
the estate to the Master, namely the death notice, the inventory and the acceptance of
trust as executor.
(3) Important documents must be obtained, such as the original will, the identity document,
title deeds, death certificate, policies, investment certificates, share certificates and so
forth. If the relatives do not bring along all these documents, arrangements must be
made to obtain them. If the documents are in possession of a third party, for example a
bank, it is advisable for the administrator to request these directly.
(4) This interview is often the relatives’ first acquaintance with the administrator. A good
foundation for cooperation can be laid at this early stage if the administrator can succeed
in winning the confidence of those involved. Genuine compassion, integrity and expertise
are the keys to success.
The executor is not responsible for the deceased’s funeral arrangements, unless the deceased
provided for this in his will, or in some other way. In the absence of directions from the de-
ceased, his heirs have the right and the obligation to make the funeral arrangements.28
___________
27 S 23(5).
28 Gabavana v Mbete [2000] 3 All SA 561 (Tk).
6.3.2 Reporting the estate

After the administrator’s interview with the relative(s) of the deceased, he is normally in a
position to report the estate to the Master. In practice this means that the following docu-
ments will be handed in at the Master’s office:29
• the death notice;
• the inventory;
• the original will;
• the acceptance of trust as executor;
• original or certified copy of the death certificate;
• original or certified copy of the marriage certificate of the deceased, if applicable;
• completed next-of-kin affidavit (form J 192) if the deceased died without a valid will;
• a declaration of marriage by the surviving spouse indicating how the deceased was married;
• nominations by the heirs for the appointment of an executor in the case of an intestate
estate, or where no executor has been nominated in the will or the nominated executor de-
clines the nomination;
• undertaking and bond of security (form J 262), unless the nominated executor has been
exempted from furnishing security in the will or otherwise;30 and
• certified copy of the identity document of the person to be appointed as executor.
It is important that the estate should be reported as soon as possible since it is a prerequisite
for the issue of the letters of executorship, without which the administration process cannot
really get off the ground. The prescribed forms are available at the nearest master’s office and
on the website www.justice.gov.za/master/forms.html. If the executor uses one of the special-
ly designed computer programs to assist with the administration of the estate, the program will
generate these documents (except for the original will) automatically. The executor will find
that the Master will issue the letters of executorship quickly if the documents which he submits
to the Master are correct, and he submits them personally. However, these documents cannot
be lodged electronically.
Death notice
The death notice31 contains the most important information about the deceased and his
estate. A death notice must be signed by (all) the surviving spouse(s) of the deceased, or if
there is no such spouse, by his nearest blood relative or connection residing in the district in
which the death occurred.32
The death notice must be handed in within 14 days after the date of death.33 If the person
who signed the death notice was not present at the death, or did not identify the deceased
___________
29 See Chief Master’s Directive 2 of 2015 (www.justice.gov/master/directives.html) for a detailed
exposition of these reporting documents.
30 See 6.2.5 above.
31 See Sch 8.
32 S 7(1)(a). If a relative is not available in the district in which the death occurred, the Master may
instruct someone else to complete the death notice in terms of s 7(3)(a).
33 S 7(1)(a).
96 Deceased estates
after death, proof of the death must be furnished to the Master.34 This is done by submitting a
death certificate issued by the Registrar of deaths. The death certificate is normally available
from the funeral undertaker a day or two after the date of death. It is preferable to submit an
original death certificate to the Master, although he is usually prepared to accept a certified
copy. The death notice and death certificate must not be confused with one another.
The inventory
The inventory35 is a listing of all the deceased’s known assets together with an indication of
their estimated value. In terms of section 9 the inventory (the so-called section 9 inventory)
must be signed by (all) the surviving spouse(s).36 If there is no surviving spouse, it must be
signed by the deceased’s nearest blood relative or connection residing in the district in which
the deceased ordinarily resided at the time of his death. The Master can also instruct any other
person to compile the inventory and to deliver it to him.37 If the inventory is completed in the
presence of any beneficiaries38 of the estate, their names and addresses must also be provided
at the bottom of the first page.39
The inventory must contain details regarding all the assets which belonged to:
 the deceased;
 the joint estate of the deceased and his surviving spouse, in the case of a marriage in com-
munity of property; and
 the massed estate, in the case of the death of a party to a massing of estates in terms of
section 37.
The prescribed inventory form (J 243, obtainable from the Master’s office) makes provision for
three sections:
 Immovable property.
 Movable property.
 Claims in favour of the estate.
Only assets, and no liabilities, are listed in the inventory. Note that the inventory is a prelimi-
nary list of assets which, to the best knowledge of the signatory, form part of the estate. The
inventory does not purport to be absolutely complete and accurate. It must simply be com-
pleted as fully and correctly as possible with the information available at the time of signing. If
there is any doubt whether assets form part of the deceased’s estate, they can, for the time
being, be omitted. If necessary, such assets can always be disclosed at a later stage. Take note
that in the case of a marriage in community of property, the entire joint estate of the deceased
and the surviving spouse must be administered. All the assets of the joint estate should there-
fore be reflected in the inventory and ultimately in the liquidation and distribution account.
If the title deeds are available, it is desirable to describe immovable property as it appears in
the title deed, although it is not a requirement. Movable property need not be described
___________
34 S 7(4).
35 See Sch 9.
36 “Spouse” includes a civil union partner. See s 13(2) of the Civil Union Act 17 of 2006.
37 S 9(2).
38 S 9(1)(a) in this regard refers to “heirs”. We suggest that this requirement should also be complied
with in the case of other estate beneficiaries, such as legatees.
39 S 9(1)(b).
individually but can be grouped in suitable categories, for example furniture, livestock, tools,
and so on. Claims in favour of the estate include items such as cheque accounts, savings ac-
counts, fixed deposits and policies. Intellectual property such as copyright, patents and trade-
marks also qualify as estate assets.
At this stage assets are reflected at estimated values and the administrator must assist the
signatory in establishing realistic values. The main objective of this inventory is to assist the
administrator and the Master, for the purposes of section 18(3), in determining whether the
value of the estate exceeds R250 000. It can therefore be of decisive importance that the
values should not be inflated.
The original will
Section 8(1) stipulates that any person who has in his possession any document being or
purporting to be a will, must transmit or deliver such document to the Master as soon as he is
informed of the death of the testator. Normally the will is handed in together with the other
reporting documents. Upon receipt the Master registers the will by recording it in the register
of estates.40
The Master is also authorised to accept a duplicate original will.41 A duplicate original will is
an identical copy (for example a photostat copy) of the original will. This duplicate must also be
signed in the original, in other words a photostat copy of a signed will is not acceptable.42
If the Master is of the opinion that the particular document is invalid, he can, in spite of reg-
istration, refuse to accept it as a valid will until such time as a court order to that effect has
been obtained.43
If the impression is created ex facie44 the will, that bequests and appointments may possibly
be void, it is advisable to provide the necessary explanation when the will is handed in. If a
witness to a will, for example, has the same surname as a beneficiary or nominated executor, it
is advisable to set out the relationship if any, between the witness and the beneficiary in a
covering letter. In the case of a handwritten will the identity of the writer and his relationship,
if any, with the testator and beneficiaries must be disclosed.45 This will avoid queries by the
Master and prevent delays with the issue of the letters of executorship.
Lastly, it must be pointed out that it is an offence to wilfully conceal or destroy a document
purporting to be a will.46 Even when an administrator is convinced that a particular document is
not the valid will of the deceased (for example because it has been revoked by a later will), he
may not ignore or destroy it, but must submit it to the Master. For this reason it is advisable for
a testator to destroy a revoked will after he has executed a new will.
___________
40 S 9(1)(b).
41 S 8(4B) as amended by s 10 of the Judicial Matters Amendment Act 104 of 1996 which came into
effect on 14 February 1997.
42 Prior to amendment s 8(4B) provided that the Master may “also accept a duplicate of the original
will”. In Ex parte Erasmus: in re Erasmus’ Estate 1994 (2) SA 751 (C) the Court accepted a certified
photocopy of the original will as “a duplicate of the original will”. The photocopy had not been
signed in the original. This decision was probably the reason for the amendment of s 8(4B) which
now, in our opinion, clearly states that such a photocopy as in the Erasmus case may not be accepted
by the Master.
43 See par 5.2.3 regarding the Master’s power in terms of s 8(4A) to recognise the revocation of a will.
44 In other words, from the appearance of the will.
45 Compare par 6.2.3 in this regard.
46 S 102(1)(a).
98 Deceased estates
Acceptance of trust as executor
As already mentioned, a clear distinction must be made between the nomination and the
appointment of an executor. Someone is usually nominated as executor in the will. However,
before he legally becomes the executor in the particular estate, he must first be appointed by
the Master. The Master will only appoint him if, in addition to the three documents that have
already been discussed, the Master is also provided with a signed acceptance of trust as execu-
tor.47 By signing this document the person concerned indicates his acceptance of the nomina-
tion and at the same time he applies for formal appointment as executor.
The prescribed form (J 190) for acceptance of trust as executor48 must be completed in du-
plicate49 and signed by the applicant and two witnesses. The Master immediately sends one
copy to the South African Revenue Services in order to ensure that the interest of the fiscus is
not neglected. It is therefore essential to fill in the deceased’s income tax reference number on
the form.
The form provides for a signature in the presence of a magistrate or other responsible per-
son such as an attorney or accountant, who must certify that it was signed in his presence. This
requirement is not contained in the act or the regulations, and compliance is not enforced.
According to our information, an acceptance of trust as executor, signed only by the applicant
and two witnesses, is accepted by the Master.
If application is made for appointment of an executor dative, the applicant(s) must similarly
hand in an acceptance of trust as executor.
Section 18(3) appointments
As already mentioned, the Master may dispose with the appointment of an executor if the
gross value of the estate is R250 000 or less, and give directions regarding the manner in which
the estate must be administered. Upon application the Master then authorises the applicant(s)
to finalise the estate in accordance with his directions.
The following documents must be submitted to the Master in order to obtain a section 18(3)
appointment:
• completed death notice, and original or certified copy of death certificate;
• original or certified copy of marriage certificate of deceased, if applicable;
• inventory;
• original will, if any;
• a full list of estate creditors, if any;
• the undertaking and acceptance of Master’s directions (form J 155, obtainable at the Mas-
ter’s office), properly completed and signed by the applicant and the surviving spouse, if the
latter is not the applicant;50
• a next-of-kin affidavit (form J 192, obtainable at the Master’s office) in the case of an intes-
tate estate;51
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47 S 14(1).
48 See Sch 10.
49 The Master also accepts a photocopy of the completed and signed form J 190 as a duplicate.
50 See Sch 19.
51 See Sch 20.
• a declaration of marriage by the surviving spouse indicating how the deceased was married;
• nomination by the heirs for the appointment of a master’s representative in terms of section
18(3) in the case of an intestate estate or where there is no testamentary nomination of an
executor or where the nominee declines the nomination;
• declaration confirming that the estate has not already been reported to another Master’s
office or service point of the Master; and
• certified copy of the identity document of the person to be appointed as master’s repre-
sentative in terms of section 18(3).
Submission of reporting documents
Although this is not a fixed requirement, the reporting documents dealt with above must be
handed in to the Master together, since the Master will not appoint an executor or a function-
ary in terms of section 18(3) until all the documents have been received. If the provision of
security is required in terms of section 23, the relevant bond of security must also be handed in.
It is advisable to send the documents with an appropriate covering letter, by certified mail. If
they are delivered personally, an endorsement of receipt should be obtained on the file copy of
the covering letter. It is very important that the administrator should keep file copies of all the
documents handed in to the Master. The particulars which they contain are required on an
ongoing basis during the administration process. Several copies of the will and the death
certificate are usually required, and it is advisable to make a number of certified copies before
the originals are handed in to the Master. It can be very embarrassing for the administrator if
at a later stage he must obtain, from the Master, a copy of the will for example, and pay for it!
6.3.3 Opening files

Planning and an orderly approach are very important for effective administration of estates. To
this end the use of certain sub-files for each estate is quite indispensable. Sub-files with the
following titles are usually opened, and kept together in the main file:
(1) Documents. Important documents such as the letters of executorship, identity document,
death certificate, executor’s power of attorney and copies of the death notice, inventory
and acceptance of trust as executor are kept in this file.
(2) Assets. This file is used to keep together documents and vouchers in connection with
estate assets. A voucher such as a valuation certificate or certificate of balance must be
obtained in respect of each asset. If these vouchers are kept together, much time is saved
with the eventual preparation of the liquidation and distribution account. A useful hint is
to make a summary of all the assets on the inside of the sub-file cover. Upon receipt of a
voucher the relevant asset is ticked off in the summary. In this manner the administrator
can easily ascertain which vouchers are still outstanding. Some administrators prefer
compiling a draft estate account at the commencement of the administration process,
based on the information which is available at that stage. Thereafter the account is up-
dated as vouchers become available. This method is recommended where word proces-
sors are used to prepare the account.
(3) Liabilities. Vouchers must also be obtained in respect of claims against the estate and
these vouchers are filed in one sub-file. What has been said about the asset sub-file
above, applies mutatis mutandis to the liabilities sub-file.
100 Deceased estates
(4) Cheque account. The estate’s cheque book, deposit slips, bank statements and paid
cheques are kept in this sub-file. If a temporary savings account is opened, the savings
book is also kept here.
(5) Correspondence. All letters written and received are chronologically filed in this file.
(6) Liquidation and distribution account. After the account has been prepared, it is kept in
this file, together with the relevant vouchers and settlement accounts.
If the administrator utilises a computer program, the administration of the estate is made a lot
easier. For instance, details are entered only once and the program is able to compile the
liquidation and distribution account automatically. Physical files, in which hard copies of elec-
tronic documents, vouchers, and the other documents referred to above are retained, must
nevertheless be kept.
6.3.4 Valuation of estate assets and liabilities

It is the administrator’s objective to prepare the liquidation and distribution account (some-
times also referred to as the executor’s account or estate account) as soon as possible. In order
to do so, he requires a voucher (certificate) for each asset and liability which indicates the
value of the asset or the amount of the liability as at the date of death. Please note that, should
an asset be sold during the liquidation process, the certificate of valuation is not necessary,
since the relevant asset must then be shown in the estate account at its selling price. The
written agreement of sale then serves as a voucher. It sometimes also happens that the execu-
tor sells an asset after a valuation certificate has already been obtained. In this case too, the
asset must be reflected in the accounts at the selling price. The type of proof (voucher) that
must be obtained depends on several factors. The most important factors are the nature of the
asset (for example movable or immovable) and whether estate duty is involved or not.52
The administrator need not and should not wait for the issue of the letters of executorship
before he commences with this task. Although estate assets cannot be sold or disposed of until
such time as letters of executorship have been issued, there is nothing to prevent the adminis-
trator from acquiring the applicable certificates in the meantime. It is often essential that
movable assets should be valued as soon as possible after death. This applies particularly to
assets such as trading stock or livestock, which fluctuate in value and extent. If one waits too
long, it can become very difficult to establish the value as at date of death.
Letters should immediately be addressed to insurance companies and other financial institu-
tions requesting the necessary certificates as at date of death in respect of life insurance
policies, investments, and so on. The certificates that are required for completion of the in-
come tax return can be requested in the same letter.53
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52 See Chapter 7, par 7.4 where the appropriate vouchers are discussed.
53 See Sch 11 for an example of such a letter.
6.4 Functions after receipt of letters of executorship
6.4.1 Introduction
The letters of executorship54 represent the executor’s official appointment and nobody may
administer or distribute an estate, except in terms of such letters of executorship.55 A variety of
duties await the administrator as soon as he receives his letters of executorship. The sequence
in which these tasks are performed depends to some extent on the circumstances in each
estate. The administration of a “normal” estate usually takes place as set out below.
6.4.2 Power of attorney

As already mentioned, the executor is not necessarily the person who actually administers the
estate. If he does not have the necessary expertise or does not wish to perform the administra-
tion himself for some other reason, he may appoint an expert such as an attorney or account-
ant as his agent and administrator of the estate. In such a case it is advisable that the
administrator should obtain a written power of attorney56 from the executor. This can be done
as soon as the letters of executorship are available.
A number of certified copies of the letters of executorship and the power of attorney must
be made, since the administrator will require these from time to time, as when he opens an
estate cheque account or wishes to collect investments and other claims in favour of the
estate. The original letters of executorship57 must be placed in the document file for safe-
keeping.
6.4.3 Custody of estate assets

In terms of section 26 it is the executor’s duty to take control of the estate assets. However,
the executor may not claim property in terms of section 26 from any person who is lawfully in
possession thereof under any contract, lien or attachment.58 This does not mean, however,
that he must personally exercise control over all the estate assets; in practice he normally
leaves the majority of estate assets in the care of responsible interested parties such as the
relevant beneficiaries.
The administrator must especially ensure that a firearm and ammunition are placed in safe-
keeping until it is transferred to the beneficiary concerned, after the latter has obtained the
necessary firearm licence. The Firearms Control Act59 and the regulations60 issued in terms of
the Act are of great importance to the executor.
___________
54 See Sch 12 for an example of the letter of executorship.
55 S 13(1).
56 See Sch 13.
57 See Sch 12 for an example of the letter of executorship. See also Strydom NO v Absa Bank Bpk 2001
(3) SA 185 (T) regarding the risk of fraud should the letters of executorship fall into the wrong
hands.
58 See the complete provisions of s 26 and Manton v Croucamp NO 2001 (4) SA 374 (W). See also
Botha v Deetlefs 2008 (3) SA 419 (N) regarding an “unlawful occupier” in terms of the Prevention of
Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998.
59 60 of 2000.
60 R345 in GG 26156 of 26 March 2004 as amended by R696 in GG 27781 of 16 September 2005.
In terms of regulation 103(1) issued in terms of the Firearms Control Act, an executor nomi-
nated in the will may take control of the deceased’s firearms if a permit has been issued to him
in terms of section 21 of the Act, even before letters of executorship have been issued to him.
After the letters of executorship have been issued, the executor must take steps to ensure
that the deceased’s firearms and ammunition are kept securely in a safe or strongroom as
prescribed. If the executor does not have such facilities, a beneficiary of the estate may take
the firearms and ammunition into safekeeping under prescribed circumstances. The beneficiary
concerned must have a firearm licence of his own; the executor must issue him with a pre-
scribed letter of permission and provide a copy thereof to the designated firearms officer (a
police official) in the area where the beneficiary resides. A practising attorney,61 who is admin-
istering an estate on behalf of the executor, may also store the firearms and ammunition of
that estate, provided he has the prescribed permit and storing facilities and complies with all
the relevant provisions of the Act and regulations.
The executor also has the following duties in terms of regulation 103(3):
 The preparation of an inventory of all the firearms, firearm spare parts and ammunition,
indicating the make, calibre and manufacturer’s serial number of each firearm, and the
quantity, calibre and make of the ammunition.
 The provision of certain written information and documents to the Registrar of Firearms:62
the name and address of the deceased firearm owner, the address where the firearms and
ammunition are being kept, copies of the abovementioned inventory, letters of executorship
and death certificate and the names and addresses of all beneficiaries to whom the firearms
and ammunition will be transferred.
 The provision of written reports at least every three months regarding the progress made in
transferring the firearms and ammunition, and particulars of the person to whom the fire-
arms and ammunition have been transferred.
A person who inherits a firearm does not qualify for a firearm licence simply on those grounds.
He/she must apply and qualify in the usual manner.63 The executor may only hand the firearm
to the beneficiary once he/she has obtained a licence, authorisation or permit to possess the
firearm.
If the beneficiary does not want the firearm, it can in accordance with the strict provisions of
the Act and regulations be de-activated,64 destroyed,65 handed over to the police66 or be sold
and transferred to a person who has obtained the necessary firearm licence. The executor or
beneficiary may under no circumstances personally destroy or de-activate a firearm and the
provisions of the Act and the regulations must be strictly adhered to. The Registrar of Firearms
may also issue a temporary section 21-authorisation to possess a firearm, to allow someone
who inherits a firearm a reasonable time to lawfully dispose thereof.67
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61 Or person contemplated in reg 2 and 3 of the regulations issued under the Attorneys, Notaries and
Conveyancers Admission Act 23 of 1934.
62 I.e. the National Commissioner of the South African Police Service.
63 S 148 of Act 60 of 2000.
64 Ss 148(1)(b) and 150 and reg 105.
65 S 149 and reg 104.
66 Reg 94.
67 S 148(2).
6.4.4 Notices
After receipt of the letters of executorship, the administrator must, without delay, place
notices, in terms of section 29, in the Government Gazette and in a local newspaper circulating
in the district in which the deceased resided at the time of his death. If he also resided in
another district during the twelve months preceding his death, the notice must also appear in a
newspaper circulating in that district.
In the notice all estate creditors are requested to submit their claims to the administrator’s
given address within 30 days after the last publication of the notice. It is customary in the same
notice to request debtors to pay their debts to the estate, although this is not prescribed in
terms of the Administration of Estates Act.
A surviving spouse’s claim for accrual against the estate of the deceased spouse must, like
any other claim, be lodged with the executor and proved by the creditor, i.e. by the surviving
spouse, her-/himself.68 A claim for accrual in favour of a deceased spouse’s estate against the
surviving spouse should of course be taken care of by the executor.
A printed form (J 193), which is available from the Master’s office, is used for the Govern-
ment Gazette notice. It must be accompanied by proof of payment of the prescribed amount69
and must reach the Government Printer at least seven days before the desired date of publica-
tion. The Government Gazette appears on Fridays.70 If possible the notices must appear in both
publications on the same date, and if not, as shortly after one another as possible.
As soon as the notice has appeared in the ordinary newspaper, the relevant page must be
forwarded to the Master as proof of publication. The Master’s office verifies whether the
notice has appeared in the Government Gazette, but to be quite safe the administrator should
also do so. In the case of uncomplicated estates the notice to creditors and the notice that the
account is open for inspection can be placed concurrently.
6.4.5 Opening estate cheque account

As soon as more than R1 000 in estate moneys are in hand, the administrator must, unless
otherwise directed by the Master, open a cheque account in the name of the estate with a
bank in the Republic71 and deposit therein all moneys in hand as well as all further moneys
received for the estate. The bank will require a certified copy of the letters of executorship and,
if the administrator will be signing cheques as agent of the executor, also a certified copy of the
power of attorney.72 A temporary savings account with a bank can also be opened in the name
of the estate.73 Money that is not immediately required for the payment of estate liabilities and
which cannot be paid to beneficiaries can be invested in this account or on interest-bearing
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68 See Barnard NO v Van der Merwe 2012 (3) SA 304 (GNP).
69 Presently R37,50. The ruling amount appears in the GG from time to time or can be ascertained
from the Government Printer (www.gpwonline.co.za). The Government Printer’s website should
also be consulted regarding the method of payment.
70 See Sch 14 for an example of a GG notice. An example of a notice intended for the ordinary news-
paper appears in Sch 15.
71 S 28(1)(a).
72 See Strydom NO v Absa Bank Bpk 2001 (3) SA 185 (T) where an estate cheque account was fraudu-
lently opened by means of a forged power of attorney.
73 S 28(1)(b).
deposit.74 All estate moneys which the administrator receives must, however, first be deposit-
ed in the estate cheque account.75 Thereafter it may be withdrawn and invested. An executor
who fails to deposit any money into a bank account in terms of section 28, can be forced in
terms of section 46 to pay an amount to the estate which is twice as much as the amount
which he failed to deposit as required. In Feldman v Mignon NO76 the Supreme Court of Appeal
ruled that “money” in section 46 does not include cheques. The court did not indicate whether
“moneys” in section 28 has the same meaning as “money” in section 46.
All payments made by cheque by the executor should clearly indicate the purpose of the
payment on the cheque.77 The paid cheque can serve as proof of payment. Although not
explicitly provided for in the Administration of Estates Act, the Master also allows payments
other than by cheque, namely an electronic fund transfer (EFT) and similar payments.78
6.4.6 Submission of section 27 inventory

Normally only the section 9 inventory is required. An executor who must provide security or
who is specifically instructed to do so by the Master must, however, within 30 days after issue
of the letters of executorship, submit an additional inventory (a section 27 inventory) to the
Master.79 This inventory must indicate the estimated value of all estate assets and in practice it
is often merely a repetition of the information contained in the section 9 inventory. Note that it
must be signed by the executor personally.
6.4.7 Income tax return

If the deceased was a taxpayer, the deceased estate is liable for the payment of income tax up
to the date of death.80 It is therefore the administrator’s duty to complete the return (or have it
completed) and to submit it in order that the estate’s (or the South African Revenue Services
(“SARS”)) liability can be determined as soon as possible. If the executor or his agent completes
the return, no additional remuneration can be recovered from the estate. If an outsider, for
example an accountant, performs this function, his fee can be recovered from the estate as an
administration cost.
The amount payable in terms of the SARS assessment is reflected as a liability in the estate
account. If the assessment reflects a credit balance, it is reflected in the account as an asset.
Failure by the SARS to issue an assessment within the advertised period does not necessarily
have to delay the preparation and submission of the estate account. The Master will normally
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74 S 28(1)(c).
75 S 28(1). Apart from the fact that this procedure is prescribed by law, it also ensures a single and
complete record of all moneys received by the estate. This simplifies the preparation of the estate
account. In terms of s 102(1)(h) it is an offence not to comply with the provisions of s 28(1), (2)
or (3).
76 2006 (6) SA 12 (SCA).
77 S 28(4).
78 See the Chief Master’s directive 5 of 2012 which is available at www.justice.gov.za/master/
directives.html. This directive also sets out the requirements with which alternative payments, such
as an EFT, have to comply with.
79 S 27(1).
80 Income which accrues to the estate after date of death is taxable in the hands of the beneficiary
entitled to it. Only in exceptional cases, where after-death income cannot be apportioned to bene-
ficiaries, will the executor be taxed in his official capacity. See Meyerowitz 2010, par 15.73.
examine and approve the account regardless of the fact that the outstanding assessment is not
reflected in the account. The administrator must, however, retain sufficient funds for the
eventual payment of the assessment. This payment should also be reflected in the final state-
ment provided to the beneficiaries.
Capital gains tax must also be taken into account at a person’s death and in the completion
of his final tax return. Capital gains tax in relation to deceased estates is discussed in more
detail in Chapter 10.
6.4.8 Finalisation of valuations

Normally the liquidation and distribution account must be submitted to the Master within six
months after the issue of the letters of executorship.81 The administrator’s main objective is
therefore to prepare the account as soon as possible. He can only do so if he is in possession of
a written voucher in respect of each asset and liability of the estate. As already stated, a dili-
gent administrator commences this task even before he has received letters of executorship.
He must continually consult the assets and liabilities control lists in his sub-files to ascertain
which vouchers are outstanding and do the necessary follow-up. Computer programs usually
have a built-in control mechanism to assist the administrator in this regard.
Once again, please note that if an estate asset such as a motor vehicle is sold by the executor
during the liquidation process, the relevant asset must be shown in the account at the actual
selling price and not at a valuation amount.
6.4.9 Determining whether estate is solvent

At this stage the administrator can determine whether the estate is solvent or not. If it appears
that the estate is insolvent, which is to say that the liabilities exceed the assets, the Master
must be informed immediately and the estate will then be dealt with in terms of section 34.82
The administration of insolvent deceased estates is, however, not dealt with in this book.83
6.4.10 Planning the liquidation

An estate can be “liquidated” in several ways. One possibility is to sell all the estate assets and
to divide the cash proceeds between the beneficiaries. Another possibility is to transfer all the
estate assets directly to the beneficiaries. Between these two extremes there are other possi-
bilities and combinations which the administrator should consider. As soon as the extent of the
estate assets and liabilities has been determined and the executor has an overview of the
estate, he must determine a suitable method of liquidation. According to Bouwer,84 the most
important factors which the executor must consider in his decision are the following:
 The estate debt and how it must be paid.
 The assets and how they should be dealt with.
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81 S 35(1)(a).
82 See Fairleigh NO v Whitehead 2001 (2) SA 1197 (SCA) regarding the effect of the s 34 procedure. If
the insolvent estate is administered by the executor in terms of s 34, the effect is similar to a se-
questration order, even if there is no order of court.
83 For a full discussion of insolvent deceased estates see chap 9 in De Clercq et al 2011.
84 Bouwer 1978, p 98.
 Who the heirs are.

 Possible testamentary directions.
 The practical implementation of a proposed plan of liquidation.
 The interests and wishes of the legatees and/or heirs.85
As already mentioned, an administrator must never act dictatorially during the administration
of an estate. The method of liquidation must consequently be determined in consultation with
all the beneficiaries who are affected. Any method of liquidation must, clearly, comply with the
applicable legal rules and must also be capable of being executed in practice. Within that
framework the wishes of legatees and heirs must, as far as possible, be taken into account,
even if the administrator may personally have desired a different course of action. The admin-
istrator must, however, advise the beneficiaries fully about the legal and practical implications
of their wishes. The ideal situation is where the administrator and beneficiaries decide on a
liquidation strategy as a team.
As far as solvent estates are concerned, it is customary86 to distinguish between the follow-
ing five methods of liquidation, which can be applied separately or jointly:
(1) Awards of assets in specie.
(2) Partial disposal of assets.
(3) Total disposal of assets.
(4) Takeover of assets by the surviving spouse in terms of section 38 of the Administration of
Estates Act.
(5) Redistribution of assets in terms of an agreement between the beneficiaries.
6.4.11 Award of assets in specie

Often the most beneficial and most practical methods of liquidation is to transfer the estate
assets to the beneficiaries in specie. This avoids any possible loss in value resulting from the
liquidation of the assets. If it is legally and practically possible and also the wish of the benefi-
ciaries it is therefore the obvious procedure.
This method can, however, only be followed if:
 sufficient cash is available to pay all estate liabilities including administration costs; or
 a cash deficiency is experienced but the beneficiaries are prepared to pay in the deficit in
order to avoid the sale of assets.
In certain cases it will be totally impossible to award estate assets in specie, for example if:
 it is in conflict with express testamentary directions which prescribe the total sale of assets;
or
 if it is legally impossible, for example where legislation prohibits the transfer of immovable
property to more than one beneficiary and the beneficiaries cannot reach agreement that
the immovable property is transferred to only one of them.
In certain other cases this method of liquidation, although possible, is highly undesirable –
especially where the award of assets in specie is impractical and in conflict with the wishes of
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85 This last important factor has been added by us to the factors identified by Bouwer above.
86 Bouwer 1978, p 98.
the beneficiaries. If a beneficiary does not wish to receive his estate assets in specie, it can,
where estate duty is concerned, nevertheless be to his advantage first to take transfer thereof
and then to sell them himself afterwards. If estate assets are sold by the executor in the course
of the liquidation process, estate duty is calculated on the selling prices, but in the case of an
award in specie, estate duty is payable on the amount at which the assets are valued. Valua-
tions are often substantially lower than selling prices, especially in the case of farms where
bona fide farming operations are carried on.87
6.4.12 Partial disposal

Estate beneficiaries can only inherit that portion of the estate which remains after all estate
liabilities, costs of administration and estate duty, if any, have been paid. The method of
liquidation must therefore make provision for sufficient cash to pay all the liabilities. It is
therefore often necessary to liquidate certain estate assets for this purpose. In other cases the
partial sale or disposal of estate assets may be necessitated by mandatory stipulations in the
will, the indivisibility of an estate asset or because of legal prescriptions.
Circumstances
The following circumstances could make it necessary that at least some of the estate assets
must be realised –
 In the case of a cash deficit which the beneficiaries will not rectify:
When a cash deficit arises, the executor should not realise the assets forthwith. He must
first enquire from the beneficiaries concerned whether they would prefer to pay in the cash
deficit in order that they may receive the assets in specie. If the beneficiaries are not pre-
pared to do this, the executor will, in consultation with the beneficiaries, sell only enough
assets in order to cover the liabilities.
 A testamentary instruction that certain estate assets must be realised:
An example would be where a will provides that the executor must sell the deceased’s
sectional title flat by public auction and distribute the proceeds among his heirs as part of
the residue of the estate. The executor will be compelled to abide by this mandatory instruc-
tion even if the sale is unnecessary and contrary to the wishes of the heirs. The principle of
freedom of testation requires that effect must be given to the testator’s wishes as contained
in the will.
 The indivisibility of an estate asset:
Where an indivisible asset such as a motor car is bequeathed to more than one heir, liquida-
tion is often the only solution. To award the car to, for example, four heirs in equal shares
are impractical. Unless the heirs agree, by means of a redistribution agreement, who should
acquire the motor car, it must be sold and the proceeds divided among them.
The bequest of a piece of agricultural land to more than one person can, in terms of the
Subdivision of Agricultural Land Act 70 of 1970, also result in the sale of the land because of
its legal indivisibility. The repeal of this act initially formed part of the present government’s
land reform programme. In fact, the Subdivision of Agricultural Land Act Repeal Act 64 of
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87 S 5(1)(g), read with s 1 of the Estate Duty Act 45 of 1955. In the case of such land the “fair market
value” will be 30% lower than otherwise.
1998 has been promulgated, but has never come into operation. The legal position is there-
fore that the Subdivision of Agricultural Land Act still applies and its most important provi-
sions will therefore be discussed. The administrator of an estate must, however, ascertain
from time to time whether the act still applies, and whether any new legislation is passed in
this connection.88
Section 3 of the Subdivision of Agricultural Land Act prohibits, among other things, the follow-
ing:
 the subdivision of agricultural land; and
 the transfer of ownership of agricultural land in (new) undivided shares,
unless the Minister of Agriculture gives his written permission. The purpose of the legislation is
to prevent the subdivision of agricultural land into uneconomical units; consequently permis-
sion is not easily granted. Section 5(1) of the said Act reads as follows:
If the Minister does not in terms of section 4 consent to the subdivision of any particular agricul-
tural land in accordance with any testamentary disposition or intestate succession or to the vest-
ing of any undivided share in such land in accordance therewith, and no agreement is reached as
to a subdivision or vesting in respect of which the Minister grants his consent in terms of the said
section 4, the executor of the estate concerned shall realise the land or undivided share concerned,
as the case may be, and dispose of the net proceeds thereof in accordance with the said testamen-
tary disposition or intestate succession, as the case may be.
If agricultural land accrues to more than one person in terms of a will or the law of intestate
succession, one of the following methods of liquidation can be followed:
 The land can be subdivided or be transferred to the beneficiaries in undivided shares,
provided the Minister gives his consent.89
 The beneficiaries can enter into a redistribution agreement in terms of which the land is
transferred to only one of them.
 The beneficiaries can, if the will authorises it, form a private company or trust inter vivos;
the property is then transferred to the juristic person or trustees, as the case may be.
 If none of the above alternatives provides a solution, the only way out is to sell the land in
terms of section 5(1) of the said act and to distribute the proceeds among the beneficiaries.
There are also statutory limitations in respect of the transferability and divisibility of prospect-
ing and mining rights conferred in terms of the Mineral and Petroleum Resources Development
Act.90 Section 11(1) of this Act provides that a prospecting right and a mining right, or any
interest in such a right, may not be transferred to another (an heir, for example) without the
written permission of the Minister of Minerals and Energy.
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88 Presently it is still uncertain if or when the repealing Act (64 of 1998) will come into operation. Even
if Act 70 of 1970 were to be repealed, the subdivision of agricultural land will most properly still be
regulated by other legislation. In the meantime a draft Preservation and Development of Agricul-
tural Land Framework Bill (Notice 210 of 2015 in GG 38545 of 13 March 2015) was published. This
draft bill envisages the repeal of Act 70 of 1970 and the introduction of a new dispensation for the
subdivision of agricultural land.
89 S 4 of Act 70 of 1970.
90 28 of 2002.
Note that Act 70 of 1970 applies only to agricultural land.91 Immovable property situated in a
city or town can therefore be bequeathed and transferred to multiple beneficiaries. There is no
general legal rule, for example, that prohibits the transfer of ownership of a residential erf
(stand) or sectional title unit to several persons as joint owners. Erven may also be subdivided,
although minimum erf sizes, which may differ from area to area, are usually prescribed.
 Partial disposal at request of beneficiaries.
As already mentioned, the wishes of beneficiaries, also in connection with the sale of estate
assets, must be respected as far as possible.
Choice of assets
When some of the assets must be sold to supplement a cash deficit, the question arises as to
which assets must be sold. The administrator should consider the following factors:
 The cash amount that is required.
 The wishes of the beneficiaries.
 Ruling market prices of the various assets.
 The nature of the assets. Normally it is easiest to liquidate claims in favour of the estate,
such as fixed deposits. Generally speaking it is also easier and faster to realise movable as-
sets (such as livestock) than immovable assets.
 The nature of the bequest. Legacies enjoy preference over inheritances; as a consequence,
assets which form part of the residue of the estate are sold first. Only if that is not sufficient
to wipe out the cash deficit, may an asset, which has been bequeathed as a legacy, be sold.
Method of liquidation
An executor may not, acting on his own, sell assets unless this is specifically authorised by the
will. Section 47 of the Administration of Estates Act contains important provisions in this
regard. This section stipulates that an executor must sell assets in the manner and in accord-
ance with the terms and conditions which have been approved in writing by the beneficiaries
who have an interest in the relevant assets. This permission must be obtained before the
executor enters into a contract of sale.92 Selling must take place by public auction or out of
hand and the beneficiaries must specifically approve the proposed method of sale.93
Section 47 is a mandatory provision of the Act. A provision in a will that section 47 will not
apply to the testator’s will, shall be regarded as pro non scripto.94 However, the section does
provide that the consent requirement will not apply if it is contrary to the will of the deceased.
The permission of the beneficiaries is, however, not required in respect of assets which are
usually sold by a stockbroker (for example, listed shares, stocks and bonds), as well as bills of
exchange and assets which are disposed of in the normal course of a business which is carried
on by the executor.95 Shares listed on the Johannesburg Securities Exchange may therefore be
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91 See s 1 of Act 70 of 1970 and the important judgment in Wary Holdings (Pty) Ltd v Stalvo (Pty) Ltd
2009 (1) SA 337 (CC) regarding the meaning of “agricultural land”.
92 Cf, however, Jicima 194 (Pty) Ltd v Lotter NO, Allan NO v Lotter NO [2011] ZAKZDHH 81
(6 December 2011), where the court apparently accepted that the consent may also be obtained
afterwards.
93 See also s 35 of the Close Corporations Act 69 of 1984 regarding the sale of the member’s interest
of a deceased person in a close corporation.
94 Schofield v Buitekoning [2011] ZAGP JHC (23 September 2011).
95 S 47.
sold without approval in terms of section 47, but in the case of unlisted shares, the beneficiar-
ies concerned (or the Master, if applicable as explained below), must give their written permis-
sion.
Note that the Master’s permission is not normally required for a sale. Where an absent per-
son, a minor96 or a person under curatorship is involved, or if the beneficiaries involved cannot
agree about the manner and terms of the sale, the Master’s permission must, however, be
obtained. Cash investments, such as cheque deposits, savings accounts and fixed deposits, can
be called up by the executor without the permission of the beneficiaries or the Master. A
certified copy of the letters of executorship is usually required by the financial institution
concerned.
If land is sold in the course of the liquidation process, the mandatory requirements of the
Alienation of Land Act97 must also be complied with.98
After estate assets have been sold, they must be transferred to the buyer. In the case of im-
movable property, a certificate from the Master to the effect that no objections exist to the
proposed transfer must be handed in at the deeds office.99 The administrator must make
application for the said certificate on a prescribed form (JM 33), which certificate the Master
normally provides by way of an endorsement on the power of attorney to give transfer. It is
known as the section 42-endorsement. The application form100 must be accompanied by all the
applicable documents enumerated in form JM 33, namely:
 The signed power of attorney to give transfer.
 The beneficiaries’ written permission to the sale. (The method of sale, description of the
property, the selling price and the buyer’s name must be stated in the document).
 In the case of a sale out of hand, the original contract of sale or a certified copy thereof.
 In the case of a sale by public auction, the properly completed conditions of sale or a certi-
fied copy thereof, a written statement by the auctioneer that the auction was well adver-
tised and attended and that the selling price is in agreement with current market values, as
well as cuttings of the relevant advertisements and the names and dates of the newspapers
in which they appeared.
6.4.13 Total disposal

In practice it seldom happens that all estate assets are liquidated. In the following exceptional
cases this will, however, be done:
A testamentary instruction for the total realisation of assets
As in the case of specific assets, a testator is free to make a testamentary stipulation that all his
assets must be liquidated and the executor is compelled to give effect to his wishes. What has
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96 A person younger than 18 years. See s 17 of the Children’s Act 38 of 2005 which section came into
effect on 1 July 2007.
97 68 of 1981.
98 See 6.2.4 above and Mills NO v Hoosen 2010 (2) SA 316 (W).
99 S 42(2). In Mendelow NO v Master of the High Court Pretoria 2012 JDR 0948 (GNP) the Court set
aside the s 42(2) certificate issued by the Master since it was obtained by fraud. The subsequent
transfer of land was also set aside.
100 See Sch 18 for an example of a completed application form.
been said in this regard about the partial disposal of assets applies mutatis mutandis in respect
of a total liquidation of assets.
Total disposal at the request of beneficiaries
If the beneficiaries desire the total realisation of estate assets and this is not prohibited in the
will, the administrator should comply with the request. As already mentioned,101 the sale of
estate assets during the liquidation process may have estate duty disadvantages for beneficiar-
ies and it is the duty of the administrator to point out these disadvantages to the beneficiaries.
Total disposal for reasons of practical or legal necessity
It is sometimes necessary to sell all estate assets because of practical considerations. If, for
example, an estate consists only of livestock, vehicles and farming implements and the only
heir is a two-year-old girl, it will probably be necessary to liquidate all the assets as soon as
possible. Total disposal can also be necessitated by statutory measures. In this regard mention
has already been made of the limitations contained in the Subdivision of Agricultural Land Act
and the Mineral and Petroleum Resources Development Act.
6.4.14 Section 38 takeover

In terms of section 38 the Master may in certain circumstances allow the surviving spouse of
the testator to take over the whole or a part of the estate at an amount determined by valua-
tion. Instead of the estate assets, the heir or heirs now receive cash which the survivor must
pay in; alternatively the surviving spouse must provide security for the eventual payment of
this amount. Section 38 takeovers also apply to a surviving civil union partner in a civil union in
terms of the Civil Union Act.102
The following serves as an example. Abel and Bets are married in community of property.
Abel dies, leaving his whole estate to his minor twins. After payment of liabilities the only asset
of value in the joint estate is a house. In order to retain the family home, Bets may now apply
to the Master for a takeover of the late Abel’s share in the house. The Master will probably
grant such an application on condition that Bets provides security by way of a mortgage bond
over the property for the eventual payment of half the value of the house to the children when
they reach majority. The value of the house will be determined by a sworn appraiser.
Section 38 stipulates the following conditions for a takeover:
 The applicant must have been married to the testator, or have been in a civil union relation-
ship, irrespective whether in or out of community of property.
 The takeover may not be contrary to a testamentary provision. The asset in question must
therefore not be the subject of a legacy or fideicommissum.
 Major103 heirs and creditors who are affected by the takeover must agree to it.
 The Master must be convinced that no interested party will be detrimentally affected by the
takeover.
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101 Par 6.4.11.
102 S 13 of the Civil Union Act 17 of 2006.
103 I.e. persons 18 years and older. See section 17 of the Children’s Act 38 of 2005.
 The cash payable to minor heirs must be paid to the guardian’s fund. If the surviving spouse
cannot pay the cash at that stage the Master may alternatively agree to the provision of se-
curity by the spouse. It usually takes place in the form of the registration of a mortgage bond
over fixed property as security for the payment of the cash to the minors when they reach
majority.
 The value of the asset(s) concerned must be determined by a sworn appraiser104 or by
another person approved of by the Master.
Note that a takeover in terms of section 38 may take place even if the surviving spouse is not a
beneficiary at all, and that the section also applies in the case of intestate succession. An
application for a takeover in terms of section 38 is made by the surviving spouse personally in
the form of a sworn affidavit which must be confirmed by the executor’s signature. No transfer
duty is payable in respect of the acquisition of immovable property by a surviving spouse in
terms of a section 38 takeover.105
6.4.15 Redistribution agreement

If an asset in a deceased estate has been bequeathed to more than one person or if they are
the intestate heirs thereof, each beneficiary acquires a claim to an undivided share in the
relevant asset. Should the administration be carried out strictly in accordance with the will or
the rules of the law of intestate succession, ownership in the particular asset would be trans-
ferred to the beneficiaries jointly and they would become the joint owners thereof. This is,
however, not always practically or legally possible. For example, Abel bequeaths his entire
estate consisting of a farm, livestock and farming implements to his two sons Carl and Dan,
who do not get on well with one another. The problem which the administrator must now deal
with is that the farm cannot be subdivided or transferred to more than one person106 and that
a joint farming venture between the two heirs will not be a success in any case. The problem
can be solved if the heirs can agree which assets each will inherit individually, and on what
conditions this will take place. Such an agreement is known as a redistribution agreement.107
Carl and Dan can, for example, conclude a redistribution agreement in terms of which the
farming implements are awarded to Carl and the farm and livestock to Dan, who must also pay
a cash amount to Carl.
As a result of the redistribution agreement the heirs therefore acquire individual ownership
over those assets awarded to each one instead of joint ownership over all the assets to which
the redistribution agreement applies. A reshuffle of assets therefore occurs as a result of which
the manner of succession, to some extent, deviates from the provisions of the will or the rules
of the law of intestate succession.108 A distinctive characteristic of a redistribution agreement is
that each beneficiary who is a party to the agreement must contribute something and receive
something. The parties need not necessarily contribute or receive in the same ratio as to their
original inheritances. It is also possible that an heir may bring movables (such as cash) into the
estate from outside to facilitate a more equal distribution.109 The main objective of the agree-
ment must, however, remain a redistribution of estate assets.
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104 As defined in s 1.
105 S 9(1)(f) of the Transfer Duty Act 40 of 1949.
106 In terms of s 3 of Act 70 of 1970.
107 See Sch 21 for an example.
108 See Klerck NO v Registrar of Deeds 1950 (1) SA 626 (T) 631.
109 S 14(1)(b)(iv) of the Deeds Registries Act 47 of 1937.
A redistribution agreement can apply to all or only to certain estate assets. Heirs and/or leg-
atees may be parties to the agreement. The spouse110 of the testator may also be a party to the
redistribution agreement – at least if the marriage was in community of property – and irre-
spective of whether the spouse was a beneficiary of the estate or not.111 The parties to a
redistribution agreement don’t necessarily have to be joint heirs or legatees in respect of the
estate assets which they want to redistribute. Assume that the testator bequeathed his farm
Riverbend to his son Carl, and the residue of his estate (which includes the farm Paradise) to
his son Jack. Carl and Jack can now enter into a redistribution agreement in terms of which Carl
will receive the farm Paradise and Jack the farm Riverbend. It is even possible to enter into a
redistribution agreement in terms of which the beneficiaries receive co-ownership instead of
individual ownership of estate assets.112 For example, the deceased’s will stipulates that Chris
inherits a townhouse in Port Edward, while Pete inherits a holiday home in Knysna. Chris and
Pete may enter into a redistribution agreement in terms of which each of them will receive
one-half undivided share in the townhouse and the holiday home. Instead of Chris becoming
the sole owner of the townhouse and Pete the sole owner of the holiday home, both proper-
ties will now accrue to them jointly and be transferred to them as co-owners.
All redistribution agreements must be approved by the Master as a result of his duty to over-
see the estate accounts.113 If all the parties to the agreement are majors, the Master’s permis-
sion is normally only a formality. Where a minor is involved, the Master will first have to be
convinced that the assets which the minor will receive are equivalent in value to his original
undivided share in the inheritance. If the Master considers it desirable, he may require the High
Court to approve a redistribution agreement in which minor beneficiaries have an interest. This
discretionary power of the Master, in our opinion, can be based on section 35(9) of the Admin-
istration of Estates Act which authorises the Master to give “such other direction” in connec-
tion with an estate account as he thinks fit.114
The redistribution agreement which must be in writing is usually submitted to the Master in
duplicate, together with the estate account, and must lie open for inspection with the ap-
proved estate account.115 The assets concerned should of course be allocated in the distribu-
tion account in accordance with the redistribution agreement.116 The agreement, for which no
form is prescribed, has been exempted from stamp duty with effect from 1 April 1993. No
transfer duty is payable in respect of the transfer of any immovable property, in terms of a
redistribution agreement, from a deceased estate, to any legatee, heir or a surviving spouse.117
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110 Including a civil union partner. See s 13(2) of Act 17 of 2006.
111 See s 14(1)(b)(iii) of the Deeds Registries Act 47 of 1937; Meyerowitz 2010, par 13.17.
112 See Meyerowitz 2010, par 13.17.
113 See s 35(2A).
114 Wiechers & Vorster 1996, p 5–16 are of the opinion that the approval of the High Court must be
obtained in terms of s 80 of the Administration of Estates Act if the interest of a minor in immova-
ble property, which is the object of a redistribution agreement, exceeds R250 000. In our opinion
s 80 is only applicable to the alienation of immovable property in which a minor has a real right
(usually ownership). When the redistribution agreement is entered into the minor only has a per-
sonal right in respect of the immovable property and s 80 therefore does not apply.
115 Reg 5(1)(e)(iii).
116 Cf Van Reenen v Van Reenen (9071) [2011] ZAWCH 22 (22 February 2011).
117 S (9)(1)(e) and (i) of the Transfer Duty Act 40 of 1949.
6.4.16 Claim for maintenance

A dependent child of the testator, and the spouse of the testator, have, in principle, a mainte-
nance claim against the testator’s estate. The dependant child’s claim is based on the South
African common law.118 The extent of the claim will be determined by the facts of each case.
The point of departure is that the child must be enabled to maintain his/her social position and
to continue his/her education normally. The maintenance duty, however, also rests on the
surviving parent, and any assets which the child himself owns, will also be taken into account in
determining the claim against the estate. The maintenance duty falls away when the child
reaches majority, or is able to maintain himself.
The child’s maintenance claim must be submitted to the executor of the estate by the child’s
guardian. In suitable circumstances an executor should bring it to the guardian’s attention that
the child may have a maintenance claim against the estate. According to Bouwer the claim
usually takes the form of an agreement between the guardian and the executor. The agree-
ment will have to be approved by the Master and/or the court. The dependent child’s claim
ranks after the claims of creditors, but has preference to the claims of heirs and legatees. The
claim can be settled in several ways, for example by payment of a single lump sum (which is
usually paid into the guardian’s fund, where it will be kept for the child’s benefit), or by the
formation of a trust.
The claim for maintenance against the estate by a surviving spouse is acknowledged and
regulated by the Maintenance of Surviving Spouses Act 27 of 1990.119 “Spouse” in this Act
includes a civil union partner as defined in the Civil Union Act,120 a party to a monogamous121
and polygamous122 Muslim marriage, as well as a party to a customary marriage as intended by
the Recognition of Customary Marriages Act.123 Furthermore it should also include a party to a
Hindu marriage.124 In Volks NO v Robinson125 it was held that the surviving party to a perma-
nent life relationship, between unmarried cohabitants of the opposite sex, does not qualify for
a claim for maintenance in terms of this Act (27 of 1990).126 After the Civil Union Act came into
effect, this should also be the position in the case of a permanent life partnership127 between
parties of the same sex.128
The surviving spouse has a claim against the estate for the provision of his/her reasonable
maintenance needs until his/her death or remarriage, insofar as he/she is unable to provide for
him-/herself from his/her own means.129 “Own means” includes all assets which the survivor
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118 Carelse v Estate De Vries (1906) 23 SC 532 and see Bouwer 1978, pp 327–335 for a full discussion of
the treatment of a child’s claim for maintenance against a deceased estate.
119 See in general on the provisions of this Act, Sonnekus 1990, p 491.
120 17 of 2006. See s 13(2).
121 Daniels v Campbell NO 2004 (5) SA 331 (CC).
122 Hassam v Jacobs NO [2008] 4 All SA 350 (C). Cf also Hassam v Jacobs NO 2009 (11) BCLR 1148 (CC).
123 120 of 1998. See s 2 of the Act and also Kambule v The Master 2007 (3) SA 403 (EC) and Meyerowitz
2010 par 15.79A.
124 Cf Govender v Ragavayah NO [2009] 1 All SA 371 (D) where the Court held that a surviving party to
a Hindu marriage qualifies as a “spouse” as intended in the Intestate Succession Act 81 of 1987.
125 2005 (5) BCLR 446 (CC).
126 But see the criticism of the Volks decision in the minority judgment in Laubscher v Duplan NO 2017
(2) SA 264 (CC).
127 I.e. there is not a marriage or civil union as defined in the Civil Union Act 17 of 2006 between them.
128 This view is based on an analogous application of the Volks decision (fn 125).
129 S 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990. See Oshry NO v Feldman [2011] 1 All
SA 124 (SCA) for an authoritative interpretation of the provisions of this Act.
inherits from the deceased, or otherwise receives as a consequence of the testator’s death.
The claim for maintenance exists in principle, irrespective of whether the testator died testate
or intestate. In determining the reasonable maintenance needs of the survivor, all relevant
factors, including the following, are taken into account:
 The amount available for distribution to the beneficiaries from the estate.
 The existing and expected abilities, earnings capacity, financial needs and commitments of
the surviving spouse, and the duration of the marriage.
 The standard of living of the surviving spouse during the marriage and his/her age at the
date of death of the deceased spouse.130
The executor or the court must in each case consider the totality of all the relevant circum-
stances to arrive at a just result.131
In principle, the proof and treatment of a surviving spouse’s claim for maintenance proceeds
just like any other claim, in accordance with the provisions of the Administration of Estates
Act.132 It ranks equally with the maintenance claim of a dependent child and therefore also
ranks after the claims of ordinary creditors, but before the claims of heirs and legatees.133 The
executor is capable of entering into an agreement with the surviving spouse and the beneficiar-
ies who have an interest in such agreement, regarding the manner in which the surviving
spouse’s claim for maintenance will be settled. The act allows wide possibilities in this regard.
For example, a trust may be formed for this purpose; ownership or a usufruct or another
limited real right can be transferred to the spouse, or an obligation (modus) may be placed
upon a legatee or an heir to pay maintenance monies or otherwise to provide for the mainte-
nance of the surviving spouse.134 In appropriate cases a lump sum payment, instead of periodi-
cal payments, may be awarded as maintenance and the executor and other affected parties
should follow a common sense approach in this regard.135
6.4.17 Interim maintenance payments

As explained above, a dependent child136 and the surviving spouse137 of the testator have
claims for maintenance against the deceased’s estate under certain circumstances. The surviv-
ing spouse and children, whether as those entitled to maintenance or as beneficiaries, are
normally only entitled to payment (or the transfer of assets) after the estate account has lain
open for inspection. Section 26(1A) of the Administration of Estates Act, however, authorises
the executor before the estate account has lain open for inspection in terms of section 35(4),
to release such amount of money and property from the estate as in his opinion are sufficient
to provide for the subsistence of the deceased’s family or household, with the Master’s per-
mission.
The ambit of section 26(1A) is not quite clear. It is submitted, however, that these measures
can only be applied to the benefit of a family member of the deceased who has a claim for
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130 S 3.
131 Oshry NO v Feldman [2011] 1 All SA 124 (SCA) par 56.
132 Friedrich v Smit NO [2015] 4 All SA 805 (GP).
133 S 2(3)(b).
134 S 2(3)(d).
135 Oshry NO v Feldman [2011] 1 All SA 124 (SCA) pars 50–58.
136 Van der Merwe & Rowland 1990, p 616.
137 S 2 of the Maintenance of Surviving Spouses Act 27 of 1990.
maintenance against the estate in any case, or who is an heir or a legatee. The assets which can
be made available to such a person should in any event not exceed the amount of maintenance
or benefit (inheritance or legacy) to which he is entitled. The executor must also ensure that his
conduct will not be to the detriment of creditors or beneficiaries.
The payment of money or the transfer of property in terms of section 26(1A) may only take
place with the Master’s approval. If a creditor or beneficiary suffers damages as a result of a
grant in terms of section 26(1A), the State can be held liable for damages if the Master gave his
approval negligently.138 The Master should therefore exercise this discretion with great care
and judge each case on its own merits. Consequently his permission will not be granted lightly.
From enquiries at the Master’s office in Pretoria it appears that the Master will normally
require the following from the executor:
 An application by way of a sworn affidavit made by the executor in which he declares that
he has satisfied himself as to the assets and liabilities of the estate and that the estate is
solvent. The assets and liabilities as well as their values must be stated. The application must
give full reasons why the maintenance should be allowed and the amount requested must
be set out and substantiated in full.
 Proof that the notice to creditors in terms of section 29 has been published and that the
period for the submission of claims has expired.
6.4.18 Advances to beneficiaries

An executor is under no legal obligation to make payments to beneficiaries before the account
has been approved by the Master and has lain open for inspection. In the previous paragraph it
was shown that section 26(1A) does, however, authorise prior payments specifically for the
maintenance of the deceased’s family or household. It is, however, important to note that an
executor is not prohibited in general from making interim advances to heirs and legatees. If the
executor is convinced that the estate is solvent and if the liquidity of the estate permits, he
may, at his own risk, make cash advances to beneficiaries at any stage after the letters of
executorship have been issued.139 The executor should apply his sound judgement in this
matter. In most cases he can make advances without any risk and in such cases it is good policy
to make over excess cash to the beneficiaries as soon as possible. In this manner the “frozen
estate” idea is counteracted and the executor gains the confidence of the beneficiaries. Since
the executor acts at his own risk the Master’s permission is not relevant here.
6.4.19 Payment of estate liabilities

In terms of section 35(12) an executor is not obliged to pay estate liabilities before the account
has been approved and has lain open for inspection. Normally, however, it is advisable to pay
liabilities immediately, especially in the case of liabilities subject to interest. The interest
payable may be interest which was explicitly stipulated or it may be mora interest.140 Receipts
should be obtained, although this is not an indispensable requirement.
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138 S 100.
139 In exceptional cases the executor will not be able to make such advance payments to a beneficiary.
For e.g: money which a minor is entitled to must usually be deposited in the guardian’s fund in
terms of ss 43(2) and (6). The executor will therefore be unable to make an advance payment to the
minor or his guardian. In such a case an application in terms of s 26(1A) will probably be the only al-
ternative.
140 See Scoin Trading (Pty) Ltd v Bernstein NO 2011 (2) SA 118 (SCA).
If the executor disputes a claim against the estate, he must follow the procedure laid down
by sections 32 and 33. In terms of section 32 the executor may request a creditor, by notice in
writing, to lodge a sworn affidavit, within a period specified in the notice, in support of his
claim against the estate. Full particulars of the claim must be disclosed in this affidavit. The
executor may also by notice in writing, and with the consent of the Master, require the claim-
ant, or any other person who may in the opinion of the Master be able to give material infor-
mation in connection with the claim, to appear before the Master or any magistrate nominated
by the Master, at a time and place stated in the notice, to be examined under an oath in
connection with the claim. The questioning may be conducted by the magistrate or Master,
and by the executor and any heir or legal counsel acting for the executor or any heir. If any
claimant fails to comply with any such notices or to give satisfactory answers to any lawful
question put to him, the executor may reject his claim against the estate.
If the executor rejects a claim, he must forthwith give such creditor notice in writing by regis-
tered post, stating the reasons for the rejection of the claim (in terms of section 33(1)). The
executor will obviously not reflect any such rejected claims in the liquidation and distribution
account. The executor should of course execute his duties in a bona fide manner. This demands
impartiality and fair treatment in dealing with claims against the estate.141 Further remedies
which are available to a creditor who is dissatisfied with the rejection of his claim, are dis-
cussed below.
Reference must be made, in this connection, to the question whether a creditor may make
use of the common law procedure to enforce his claim, in addition to the statutory proce-
dure.142 In other words, can a creditor, if he prefers, enforce his claim by way of summons,
judgment and execution (subject to the provisions of s 30143), rather than following the proce-
dures prescribed by sections 29, 32, 33 and 35 of the Administration of Estates Act? In some
instances there may be good reasons (which cannot be discussed here) why the creditor would
prefer the first mentioned procedure. Our case law reflects different viewpoints about this
question. In a Natal decision144 the impression was created that the common law procedure is
not possible, while in the majority of provincial decisions145 it was held that it is possible. We
agree with the latter decisions and with Van Zyl’s146 opinion that a creditor may institute court
proceedings against an executor, even if he had not followed the statutory procedure. The
Supreme Court of Appeal finally settled this controversy in Nedbank Limited v Steyn,147 con-
firming that the procedure laid down in the Act does not preclude a creditor from instituting an
action under common law against the executor of an estate. In the normal course of events,
however, a claim will be instituted and finalised in terms of the statutory procedure.
Should a creditor of a deceased estate intend to use the common law procedure to enforce
his claim, two further aspects are important. The first one is the limitation of section 30 of the
Administration of Estates Act, mentioned above. Section 30 prohibits, as a general rule, a
judicial sale by a sheriff of assets of a deceased estate which have been attached before or
after the death of the deceased. In such a case an execution sale may only take place if the
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141 See Van Niekerk v Van Niekerk (6361/10) [2010] ZAKZPHC 85 (17 December 2010).
142 See, in general, Van Zyl 1987, pp 53–67; pp 308–320.
143 See Wright v Westelike Provinsie Kelders Bpk 2001 (4) SA 1165 (C); De Faria v Sheriff, High Court,
Witbank 2005 (3) SA 372 (T) and Nedbank Ltd v Samsodien NO 2012 (5) SA 642 (GSJ) regarding s 30.
144 McNicol v Delport 1980 (4) SA 287 (N).
145 See for e.g. Stanford v Kruger 1942 TPD 243; Davids v Estate Hall 1956 (1) SA 774 (C); Benade v
Estate Alexander 1967 (1) SA 648 (O) and Nedbank Ltd v Samsodien NO 2012 (5) SA 642 (GSJ).
146 Van Zyl 1987 p 60.
147 [2015] 2 All SA 671 (A).
Master (in respect of property not exceeding R5 000 in value) or in the case of any other
property, if the court has specifically authorised such an execution sale.148 In the absence of
such authorisation, the judgment creditor needs to lodge his claim for the judgment debt with
the executor as a claim against the estate. A sale in contravention of section 30 is null and void
even if the executor has consented to the judicial sale.149 Any purported transfer of ownership
(e.g. by registration of transfer) to give effect to such a void sale, will also be null and void.150
Secondly, section 33(2) provides that a court which has granted judgment in favour of a
creditor who has enforced his claim against an estate by court procedure, may decline to grant
the claimant his costs against the estate if the court is satisfied that the claimant provided
insufficient information to the executor or that the executor was entitled in rejecting the claim
in terms of section 32(3).151
6.4.20 Extension for submission of the account

In terms of section 35 the liquidation and distribution account must be submitted to the Mas-
ter within six months after the date on which the letters of executorship were issued. If, for
valid reasons, the administrator is not able to submit the account in time, he must, in terms of
regulation 6,152 apply in writing to the Master before the six-month period has expired for an
extension of time within which to submit the account. The application must state the following:
 The reason why the account cannot be submitted on time.
 The steps which have been taken to expedite the submission of the account and the pro-
gress that has been made.
 The progress that has been made with the administration of the estate.
 The estate monies on hand and the reason why an interim account cannot be submitted.
 Whether the estate is solvent.
If the administrator makes his application in good time, provides well-founded reasons and is
frank, the Master will be very obliging. If the period of extension also proves to be insufficient,
application can even be made for further extension. Regulation 6 will then be applicable
mutatis mutandis.
6.4.21 Preparation and submission of the account

This matter is discussed fully in Chapter 7. Here attention is only drawn to the fact that vouch-
ers, although they must be obtained in respect of all assets and liabilities,153 need only be
submitted if the Master makes a particular request to that effect.154 In the following cases the
Master normally requests all vouchers, which may as well therefore be submitted together
with the estate account:
 If estate duty is payable.
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148 See Nedbank Ltd v Samsodien NO 2012 (6) SA 642 (GSJ) and Nedbank Limited v Steyn [2015] 2 All SA
671 (A). In both cases the Court actually authorised and ordered a judicial execution sale.
149 De Faria v Sheriff, High Court, Witbank 2005 (3) SA 372 (T).
150 Knox v Mofokeng 2013 (4) SA 46 (GSJ).
151 Cf Wessels v Swart NO 2002 (1) SA 680 (T).
152 See Sch 4.
153 Regs 5(1)(c)(iii) and 5(3); see Sch 4.
154 S 35(2A).
 If certain beneficiaries are minors.

 Section 38 takeovers.
6.4.22 Submission of estate duty return

When the Master issues the letters of executorship, he provides the executor with an estate
duty return (revenue form 267e) at the same time. After it has been properly completed it
must be signed by the executor personally who attests the statement under oath before a
commissioner of oaths. The contents of the estate duty return corresponds in principle to the
contents of the estate duty addendum which forms part of the executor’s account. It is com-
pleted as soon as the executor’s account has been prepared and is submitted to the Master
simultaneously. The estate duty return must be completed even if no estate duty is payable.155
6.4.23 Notice that account is lying open for inspection

After the account has been examined and approved by the Master, it must lie open for inspec-
tion by the interested parties at the Master’s office for a period of 21 days, and if the deceased
was resident in another district than the district in which the Master’s office is located, a
duplicate account must also lie open for inspection at the magistrate’s office of such other
district.156 The administrator must give notice in the Government Gazette and in a local news-
paper that the account will lie open for inspection.157
As soon as the account has been examined, the Master provides the administrator with a
query sheet (memorandum) which sets out any further requirements that must be complied
with in order to finalise the estate.158 Sometimes requirements are laid down which must be
complied with before the account can be advertised for inspection. If there are no such re-
quirements the administrator may proceed with the notices (advertisement). The form which
must be used for the Government Gazette notice159 is available from the Master’s offices. It
must be accompanied by a cheque, postal order or cash payment for the prescribed amount.160
The form of the newspaper notice is not prescribed.161
The two notices must preferably appear simultaneously or as soon as possible after one an-
other. The local newspaper must appear in the district where the deceased resided.162 The
notices must state the place(s) where and the period during which the account will lie open for
inspection. Both notices must appear before the commencement of the said period. Immedi-
ately after the appearance of the notice in the local newspaper, the administrator must send
the relevant page to the Master as proof that it was placed. The Master himself verifies wheth-
er the notice appeared in the Government Gazette.
If the account must also lie open for inspection at the magistrate’s office, the administrator
must send a duplicate account to the magistrate’s office concerned. The period during which
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155 An executor who fails to submit the return on time or intentionally omits information from it, is
committing an offence. See s 28 of the Estate Duty Act 45 of 1955.
156 S 35(4).
157 S 35(5).
158 See Sch 16 for an example of such a memorandum.
160 Presently R37.50. The ruling amount appears in the GG from time to time or can be ascertained
from the Government Printer (www.gpwonline.co.za).
162 S 35(5)(a).
the account will lie open for inspection must be stated in the covering letter. The administrator
must ensure that the duplicate reaches the magistrate in good time, in order that it may lie
open for inspection for the full period of 21 days or more, as indicated in the notices. After
expiry of the period the magistrate certifies on the account that it has properly lain open for
inspection and returns the certified copy directly to the Master.163
As stated above,164 in the case of uncomplicated estates, the notice to creditors and the no-
tice that the account is lying open for inspection, can be published simultaneously. Money and
effort can be saved in this way. It will only be possible if the account can be prepared soon
after the letters of executorship have been issued165 and the probability of unknown creditors
is slim.166 In the case of simultaneous placement, the period for the submission of claims and
the period for inspection must run concurrently and both must be at least 30 days.
6.4.24 Objections against account

An interested party (for example a creditor whose claim has been rejected or someone who
claims to be a beneficiary) who wishes to lodge an objection against the account, must do so
with the Master in the prescribed manner before expiry of the inspection period. The objection
will be dealt with in accordance with the provisions of section 35(7)–(12). Once the Master has
provided the executor with a copy of the objection, the executor must provide the Master with
his comments within 14 days, in duplicate. The Master can maintain or reject the objection,
order the executor to amend the account or give any other direction in connection therewith.
According to case law,167 the Master cannot be expected to resolve factual disputes because
there are no suitable procedures or structures therefor. In a recent case168 the Court opined
that the correctness of this statement in the Broodryk169 case was debatable. In terms of the
Broodryk case, the Master may however grant a complainant the opportunity to institute his
claim in a competent court within a fixed period of time whereby the factual dispute can be
adjudicated.
Any person aggrieved by the Master’s decision (for example, someone who claims to be
a creditor),170 may apply by motion to the court within 30 days after such decision, for an
order to set aside the Master’s decision and the court may make such order as it may think
fit.171 In terms of our case law someone who claims to be a beneficiary or a creditor, is not
compelled to use the mechanisms of the Administration of Estates Act. In Jones v Beatty172 the
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163 S 35(6).
164 See par 6.4.4.
165 S 29(1) provides that the notice to creditors shall be published “as soon as may be after letters of
executorship have been granted . . .”. One may therefore not delay the placement of notice to cred-
itors unduly.
166 If new claims are submitted the estate account will probably have to be amended and be advertised
for inspection again.
167 See Broodryk v Die Meester 1991 (4) SA 825 (C). Cf also Ferreira v Die Meester 2001 (3) SA 365 (O).
168 Friedrich v Smit NO [2015] 4 All SA 805 (GP) par 27.
169 Broodryk v Die Meester 1991 (4) SA 825 (C).
170 See Broodryk v Die Meester 1991 (4) SA 825 (C).
171 S 35(10) and Ferreira v Die Meester 2001 (3) SA 365 (O). See also Faro v Bingham NO Case no
4466/2013 (WC) (25 October 2013) on the nature of a s 35(10) application.
172 1998 (3) SA 1097 (T). See also Broodryk v Die Meester 1991 (4) SA 825 (C); contra Estate Smith v
Smith 1940 CPD 625.
court decided that section 35 does not exclude the common law remedy and that a beneficiary
can summon the executor directly, to amend the account.
6.4.25 Compliance with final requirements

In terms of section 35(12) the administrator must, after the account has lain open for inspec-
tion without objection, pay all outstanding liabilities without delay and distribute the remaining
estate assets among the beneficiaries in accordance with the account. In order to ensure that
there can be no doubt in the administrator’s mind as to what he should do, the Master’s query
sheet173 contains the final requirements which must be complied with. These requirements will
naturally differ from case to case. The following requirements are commonly encountered:
Proof that Master’s fees have been paid
The Master sends the assessment with his query sheet. The Master’s fees are payable at
Magistrates’ Courts or by means of a direct deposit into the Department of Justice banking
account. See Chief Master’s Directive 1 of 2012 (www.justice.gov.za/master/directives.html)
for details regarding the different methods of payment. The prescribed proof of payment must
be submitted to the Master.
Proof that creditors and beneficiaries have been paid in accordance with the estate
account
Proof of this can be provided by the submission of one of the following:

 receipts;
 paid estate cheques; or
 a sworn affidavit by the executor that a creditor or a beneficiary has been paid in accord-
ance with the account.174 (The finalisation of the estate need therefore not be delayed by a
difficult creditor or by an heir’s failure to send back a receipt.)
When the administrator makes the final payment to the beneficiaries, each beneficiary should
be provided with a copy of the liquidation and distribution account, a settlement account as
well as a receipt which he must sign and return to the administrator. Section 43 provides for
the circumstances under which the executor has to pay any money to which a minor benefi-
ciary is entitled into the Master’s guardian’s fund to the credit of such a minor. The executor
should take reasonable measures to ensure that the money is deposited directly into the
guardian’s fund and does not fall into wrong hands.175
Proof of transfer of immovable assets
The transfer of immovable assets to the beneficiaries is affected by way of registration in the
deeds office, and in this regard the administrator must give instructions to a conveyancer, who
will prepare the necessary documents. After registration of the transfer the conveyancer
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173 See par 6.4.23 above as well as Sch 16.
174 S 35(12).
175 In this regard, compare the problems which arose in Parker v Maphumulo 2005 (2) SA 212 (C)
provides the administrator with a conveyancer’s certificate confirming the transfer. This certifi-
cate must be submitted to the Master without delay.176 Alternatively, the new title deed can be
submitted to the Master for the transfer to be noted.
Submission of bank statement and paid cheques
The Master presently requires detailed proof in all cases that estate monies have been properly
dealt with. As soon as the estate’s current cheque account reflects a zero balance, the adminis-
trator must close the account and provide the Master with the following:
 A complete set of bank statements, including the final statement reflecting a zero balance.
 All deposit slips.
 All paid cheques.
The final payment of estate monies must take place within two months after the account has
lain for inspection without objections, since section 35(12) provides that all monies not paid
out within such two months must be paid over to the Master to be deposited in the guardian’s
fund on behalf of the beneficiaries.
When the administrator complies with the last of the above requirements he requests the
Master in his covering letter to provide him with a filing notice. When this filing notice is issued
by the Master he confirms that the estate has been finalised to his satisfaction. If the executor
wishes to be discharged from his office after finalising the estate, he must specifically request
the Master to discharge him.177
6.5 The executor’s remuneration

The executor is entitled to payment of the remuneration fixed by the testator in his will, or if
this was not done, to a remuneration calculated according to the prescribed178 tariff.179 In
practice the executor’s remuneration is rarely determined in the will.
The prescribed tariff is:
 On the gross value of assets as at date of death: 3,5%.
 On the gross income accrued and collected after the date of death: 6%.
The minimum executor’s remuneration in respect of an estate is R350. The Master may in-
crease or reduce the remuneration at his discretion if good reasons exist.180
The executor’s remuneration is a cost of administration which is payable out of the estate
assets and must be shown as such in the estate account. The executor is only entitled to pay-
ment of his remuneration after all liabilities have been paid and the remaining estate assets
have been distributed to the beneficiaries in terms of the approved estate account.181 The
Master may, however, authorise earlier payment of the executor’s remuneration, or a part of it.
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176 S 35(12).
177 S 56(1).
178 See reg 8(1). Sch 4.
179 S 51(1).
180 S 51(3)(a).
181 S 51(4) read with s 35(12). In practice the executor’s remuneration is sometimes taken as soon as
the account has lain open for inspection without objections, but before the estate assets have been
continued
The executor is entitled to payment even if an agent performed the administration on his
behalf. The agent and the executor must agree about the agent’s remuneration contractually,
and the executor is personally liable for the payment of the agent’s remuneration. If the execu-
tor is registered for VAT and runs a business which includes the administration of estates, the
executor’s remuneration is subject to the payment of VAT. VAT can be claimed from the estate
in terms of section 67(3) of the Value-Added Tax Act 89 of 1991. It is shown as a liability in the
estate account. If only the agent of the executor is subject to the payment of VAT and not the
executor, no VAT will be allowed as a liability against the estate.
The Administration of Estates Act contains no provisions regarding the remuneration of a
person instructed to administer an estate in terms of section 18(3).182 If such a person requires
remuneration, it must be arranged with the beneficiaries contractually.
___________
distributed among the creditors and beneficiaries. Such a step is contrary to the provisions of
s 51(4). Our interpretation of this section is that the executor is only entitled to his remuneration
after all creditors have been paid, and all movable and immovable assets have been transferred to
the beneficiaries. Among others it implies that the executor’s fee may not be taken before deeds of
transfer have been registered in the names of the beneficiaries concerned. The earlier payment of
the executor’s remuneration may of course be sanctioned by the Master in writing in terms of
s 51(4).
182 S 51 and reg 8(1) deal only with an executor’s remuneration. The definition of “executor” does not
include someone instructed in terms of s 18(3).
7
The executor’s account
7.1 Introduction ............................................................................................................ 126

7.1.1 The executor’s account and reporting ...................................................... 126
7.1.2 Matrimonial property regime.................................................................... 126
7.1.3 Regulations ................................................................................................ 127
7.2 Example of an account ............................................................................................ 129
7.2.1 Particulars.................................................................................................. 129
7.2.2 The heading and liquidation account ........................................................ 130
7.2.3 The recapitulation statement .................................................................... 131
7.2.4 The distribution account ........................................................................... 132
7.2.5 The income and expenditure account ....................................................... 132
7.2.6 The fiduciary asset account ....................................................................... 133
7.2.7 The estate duty addendum ....................................................................... 133
7.2.8 The certificate............................................................................................ 134
7.3 Immovable property and related matters .............................................................. 135
7.3.1 Description of immovable property .......................................................... 135
7.3.2 The value of immovable property ............................................................. 135
7.3.3 Bequest price............................................................................................. 136
7.3.4 Bequests subject to a usufruct .................................................................. 136
7.3.5 Usufruct as an estate asset ....................................................................... 136
7.3.6 Bare dominium as an estate asset ............................................................. 137
7.3.7 A fiduciary interest .................................................................................... 137
7.4 Movable property and other transactions.............................................................. 137
7.4.1 General ...................................................................................................... 137
7.4.2 Motor vehicles........................................................................................... 137
7.4.3 Firearms..................................................................................................... 137
7.4.4 Shares ........................................................................................................ 138
7.4.5 Dividends on shares .................................................................................. 138
7.4.6 Insurance policies of the deceased ........................................................... 138
7.4.7 Insurance policies of the surviving spouse ................................................ 139
7.4.8 Other claims in favour of the estate.......................................................... 139
7.5 Administration costs ............................................................................................... 139
7.5.1 General ...................................................................................................... 139
7.5.2 Cost of providing security .......................................................................... 139
7.5.3 Advertising................................................................................................. 140
7.5.4 Transfer costs of immovable property ...................................................... 140
125
7.5.5 Costs of liquidating assets ......................................................................... 140

7.5.6 Funeral expenses ....................................................................................... 140
7.5.7 Master’s fees ............................................................................................. 141
7.5.8 Executor’s remuneration ........................................................................... 142
7.6 Claims against the estate ........................................................................................ 142
7.6.1 Introduction............................................................................................... 142
7.6.2 Sundry creditors ........................................................................................ 143
7.6.3 The South African Revenue Service ........................................................... 143
7.1 Introduction
7.1.1 The executor’s account and reporting

An important function of the executor in a deceased estate is to report on his administration of
the estate by way of an executor’s account. At the stage when the executor prepares his
account, the estate is still in the process of administration. Parts of the account, such as the
liquidation account, will reflect steps which have already been taken (e.g. property sold in the
course of liquidation), while other parts will reflect future steps to be taken, such as the distri-
bution account, reflecting the proposed distribution of the estate. In other words, the executor
has taken the estate assets under his control (liquidation account) but the assets still remain to
be distributed (distribution account) as soon as he is authorised to do so when the accounts
are approved by the Master.
7.1.2 Matrimonial property regime
Out of community of property and accrual claims
The matrimonial property regime is discussed in Chapter 2. For the purpose of the estate
accounts it must, however, be noted that the deceased could have been married in or out of
community of property. In marriages out of community of property each spouse has his/her
own estate. The deceased’s estate is then administered and the estate of the other spouse is
not affected.
In marriages out of community of property the accrual system may apply. If the accrual sys-
tem was applicable to such a marriage and the deceased estate showed the largest accrual, a
claim for accrual arises against the deceased estate. It is shown in the liquidation account as a
liability. If, however, the estate of the surviving spouse showed the largest accrual, the estate
will have an accrual claim against the surviving spouse. Such a claim against the surviving
spouse is an estate asset and is reflected in the accounts like any other asset. The calculation of
accrual claims are discussed fully in Chapter 2.
Chapter 7 The executor’s account 127
In community of property
In marriages in community of property all the assets of the spouses belong to their joint estate.
When one spouse dies, the entire joint estate must be administered. The surviving spouse has
a 50% interest in the joint estate and may claim his/her half share. If the law of intestate
succession applies, as discussed in Chapter 3, the surviving spouse may be entitled to half, plus
a child’s share (or R250 000). If there is a joint will in terms of which the surviving spouse
receives more than half of the joint estate, such a provision will probably be carried out. If the
surviving spouse repudiates (rejects) the will, which he/she will probably do if he/she is going
to receive less than half of the joint estate, the surviving spouse remains entitled to one half of
the joint estate, but thereby (because of the repudiation) also forfeits his/her right to any
benefits awarded in terms of the will. See discussion of adiation and repudiation in para-
graph 4.9.
The value of the surviving spouse’s half share in a joint estate is only determined once the
executor has deducted the liabilities and administration costs from the joint estate, since these
liabilities and costs are part of the joint estate. The surviving spouse is then entitled to half of
the remainder. Note that funeral expenses and estate duty are payable only from the de-
ceased’s half of the estate (they arise after date of death and cannot be charged against the
joint estate; they relate only to the deceased’s estate for estate duty purposes), and that these
expenses are only deducted once the estate has already been divided. The executor will auto-
matically calculate the value of the surviving spouse’s half share and no formal claim needs to
be lodged.
7.1.3 Regulations
Overview of the regulations
A complete executor’s account consists of eight separate elements which can be identified in
the regulations concerning executor’s accounts. The President issued these regulations in
terms of the authority granted to him by the Administration of Estates Act 66 of 1965, as
amended, to prescribe the form of the executor’s account.
A complete executor’s account therefore consists of the following eight elements which the
regulations prescribe:
(1) the heading;
(2) the liquidation account;
(3) the recapitulation statement;
(4) the distribution account;
(5) the income and expenditure account;
(6) the fiduciary assets account;
(7) the estate duty addendum; and
(8) the executor’s certificate.
Apart from the regulations which deal explicitly with the form of the estate account, it is also
necessary to take notice of the remainder of regulation 5 and of regulation 6, for the sake of
completeness. See Schedule 4 where these regulations are quoted.
The Heading
Consult regulation 5(1)(a) in Schedule 4, as all the detail is not repeated here. The require-
ments which headings must comply with are set out clearly in this regulation and a few exam-
ples of headings, illustrating different circumstances, are given below.
(1) Marriage out of community of property

In this case only the deceased’s personal particulars such as his full name and surname, identity
number, date of death and marital status must be provided for identification purposes. The
heading will appear as follows:
The first and final liquidation and distribution account in the estate of the late (full name and iden-
tity number), who resided at (full address) and who died at (place of death) on (date), married out
of community of property. The accrual system did not apply to the marriage. Master’s reference
number 12345/2017.
In the case of a widower, a widow, a divorced person or an unmarried person, the heading will
follow the same general pattern.
(2) Marriage in community of property

In this case one is dealing with the joint estate of the deceased and his surviving spouse. The
personal particulars of both the spouses must therefore be stated:
First and final liquidation and distribution account in the joint estate of the late (name and identity
number) and his/her surviving spouse (name and identity number, as well as maiden name in the
case of a woman) to whom the deceased was married in community of property. The deceased
died at (place of death) on (date). Master’s reference number 3456/2017.
(3) Massing
When massing (see Chapter 4) occurs in terms of the joint will of two or more testators, the
estate consists of the assets of the deceased as well as the assets of the co-testators who
massed their estates in terms of the joint will. The heading will, for example, appear as follows:
First and final liquidation and distribution account in the massed estates of (full name and identity
number) who died at (place) on (date) and (for example) surviving spouse (full name and identity
number), married in community of property. Master’s reference number 789/2017.
(4) Insolvent deceased estate1

When the executor administers an insolvent deceased estate in terms of section 34 of the
Administration of Estates Act, this fact must be indicated in the heading, for example:
First and final liquidation and distribution account in the insolvent deceased estate of (name and
identity number) of (place), a widower, administered and distributed in terms of section 34 of the
Administration of Estates Act. The deceased died at (place) on (date). Master’s reference number
3456/2017.
Description of the account
All the examples above refer to a first and final liquidation and distribution account. This is
not the only account that can lie open for inspection; the other types of accounts that can be
encountered are set out below.
___________
1 For a full discussion of insolvent deceased estates, see De Clercq et al 2011.
 The first account

This is the first interim account which reports on only a part of the estate assets and their
distribution. It must therefore be followed by a final account.
 The second and final account
This is a complete account which reports on all the estate assets and liabilities as well as their
distribution. The administration process is finalised with this account.
 A first supplementary account
This follows on the final account and must be prepared if, after finalisation of the final account,
further estate assets are found. It is possible that there may be a second, third or fourth sup-
plementary account.
In practice, final numbers practically always differ from the ones in the accounts. This is
normally due to additional banking costs, additional interest received or an expense which has
been omitted. If these differences are small, it will not be necessary to submit an additional or
amended account, even if this has an impact on the amounts the heirs will receive. An explana-
tory letter to the Master will be sufficient.
 An amended account
This serves to amend an account that has already been submitted and approved.
The other seven elements of the executor’s account will be illustrated in the following ex-
ample.
7.2 Example of an account
7.2.1 Particulars
Sarel Pieterse (identity number 281115 5041 007), who resided at House Sunshine, 10th
Avenue, Centurion, died at Pretoria on 10 July 2017. He is survived by his spouse, Martie
Pieterse – born Henning (date of birth 20 September 1938) (identity number 380920 5009
005). They were married in community of property. Sarel did not make a valid will and the
estate was administered in terms of the law of intestate succession. The Master’s reference
number was 2122/2017. In terms of the law of intestate succession the surviving spouse
inherits the entire estate. The executor liquidated all the assets except the furniture and
household effects, which were made over to the surviving spouse.
R
The following assets were found in the estate:
Furniture and household effects 16 500.00
Sanlam policy, number 4567 – life cover (on the life of the deceased) 147 364.68
Standard Bank, savings account number 000-9663 11 089.17
[The savings account includes all interest up to date of death. Interest in the
amount of R603.00, which is not included in the amount of R11 089.17, was
received on the savings account after date of death]
The following liabilities and costs were paid:
Bestmed – medical claims 3 191.55
Advertising to debtors and creditors:
– Die Beeld 120.00
– The Government Gazette 60.00
Advertisement – this account for inspection 210.00
The particulars above were used to prepare the necessary executor’s account for submission
to the Master of the High Court. The particulars are used in the comments in the paragraphs
that follow.
7.2.2 The heading and liquidation account

See regulation 5(1)(c) in Schedule 4.
THE FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE JOINT ESTATE OF THE LATE
SAREL PIETERSE (IDENTITY NUMBER 281115 5041 007) AND HIS SURVIVING SPOUSE, MARTIE PIETERSE
– BORN HENNING (DATE OF BIRTH 20 SEPTEMBER 1938) (IDENTITY NUMBER 350920 5009 005), MAR-
RIED IN COMMUNITY OF PROPERTY, AND WHO RESIDED AT HOUSE SUNSHINE, 10TH AVENUE, CEN-
TURION. THE DECEASED DIED AT PRETORIA ON 10 JULY 2017. DISTRIBUTED IN TERMS OF THE LAW OF
INTESTATE SUCCESSION. MASTER’S REFERENCE NUMBER 2122/2017.
Liquidation account
ASSETS Voucher number R

Immovable Property – none Nil
Movable property – not turned to cash
Furniture and household effects (1) 16 500.00
Claims in favour of the estate – turned to cash
Sanlam policy, number 4567 (2) 147 364.68
Standard Bank, savings account 000-9663 (3) 11 089.17
Asset 1 is awarded to the surviving spouse as set out more
fully in the distribution account.
TOTAL ASSETS 174 953.85
LIABILITIES
Claims against the estate
– Bestmed – medical claim (4) 3 191.55
Administration costs
– Advertising (debtors and creditors):
Die Beeld (5) 120.00
The Government Gazette (6) 60.00
– Advertising – this account for inspection (7) 210.00
– Master’s Fee2 510.00
– On first R17 000 42.00
– On balance (174 953 – 17 000)/2 000 × R6.00 468.00
– Executor’s remuneration @ 3,5% on R174 953.85 6 123.38
Estate Duty (8) nil
TOTAL LIABILITIES 10 214.93
BALANCE AVAILABLE FOR DISTRIBUTION 164 738.92
TOTAL ASSETS AS ABOVE 174 953.85
___________
2 See par 7.5.7.
Comments
Note the following:

 The description “liquidation account” – regulation 5(1)(c). It was not necessary to state
“distributed in terms of the law of intestate succession”. This was only done to provide addi-
tional information.
 Grouping of assets – regulation 5(1)(c)(i) and (ii), read together with the Inventory form
(schedule 9) issued in terms of section 9 of the Administration of Estates Act.
 Description of assets – regulation 5(1)(c)(i) and (ii).
 Voucher numbers – regulation 5(1)(c)(iii).
 The value or proceeds as at date of death in the money column – regulation 5(1)(c)(iv).
 The so-called divestment notes, regulation 5(1)(c)(v), which must indicate how the executor
is going to deal with the assets. Divestment notes are not required in respect of cash, or in
respect of the proceeds of assets which are sold.
 The costs of administration – regulation 5(1)(c)(vi).
 The list of creditors and the amounts of the claims – regulation 5(1)(c)(vii).
 The estate duty payable (if any) – regulation 5(1)(c)(viii). Due to the fact that there is no
estate duty payable on the first R3,5 million of the net estate (see 7.2.7 and Chapter 8), the
estate duty is Rnil in this example.
 The interest received after date of death is not shown in the liquidation account – it is
reflected in the income and expenditure account (see paragraph 7.2.5).
7.2.3 The recapitulation statement

Consult regulation 5(1)(d) in Schedule 4. In accounting terms the recapitulation statement is a
cash flow statement and it will, in a summarised format, agree with the movement of cash in
the estate bank accounts.
The account must show the following:
 The total of all cash found in the estate as well as the proceeds of assets sold, as indicated in
the liquidation account.
 The total of all the liabilities and expenses according to the liquidation account.
 An indication of the cash surplus or cash deficit. In the case of a cash deficit it must be
shown how the deficit will be met.
 The total of cash legacies.3
 The total available to heirs (if any), payable in cash.
___________
3 Note the difference between legacies and inheritances.
Example of a recapitulation statement

R
Cash available (assets 2 and 3) 158 453.85
Less: Total liabilities 10 214.93
Cash balance available for distribution 148 238.92
In larger estates the executor will have to write up a cash book to reflect cash received and
cash banked. The cash book and bank reconciliation can then be submitted together with the
recapitulation statement in order that the Master may follow precisely how the amounts in the
return were calculated. Note that the above example reflects that there is sufficient cash to
pay all the cash liabilities.
7.2.4 The distribution account

Consult regulation 5(1)(e) in Schedule 4.
Example of a distribution account

R
Balance for distribution as per the liquidation account 164 738.92
Awarded to: Martie Pieterse – born Henning
(identity number 380920 5009 005),
the surviving spouse of the deceased
The distribution is made as follows: 82 369.46
(1) A half share by virtue of the marriage in community of property 82 369.46
(2) A half share in terms of the law of intestate succession
164 738.92
The above award consists of:
Movable property 16 500.00
Cash as per the recapitulation statement 148 238.92
164 738.92
Note that the cash balance according to the recapitulation statement must agree with the
amount of cash inheritances as reflected in the distribution account.
7.2.5 The income and expenditure account

Consult regulation 5(1)(f) in Schedule 4.
Comments
Estate income that is received after the date of death but which accrued during the period
before death does not belong in this account and is reflected in the liquidation account.
Any income and expenditure which relate to the period after death – that is, from the date
following on the date of death until the date on which the account is finalised – must be re-
flected in this account. It is therefore essentially a liquidation and distribution account, except
that it is limited to income, and to expenditure paid from such income, after death. Please note
that income and expenditure are assigned their usual accounting meanings, for example assets
that are sold after death represent capital receipts and do not constitute income. Likewise, the
payment of estate debts, even though actually paid after date of death does not constitute
expenses after date of death for purposes of the income and expenditure account.
The principle that is applied in the distribution of this income is that it follows the capital
asset which produced the income. For this reason the income as well as the asset from which it
was derived must be stated in the account. The person who inherits the asset is therefore also
the one who receives the income which it produced. If it were practically possible the heir would
have received his inheritance or legacy on date of death and thus also the income on the bequest.
Example of an income and expenditure account

R
Interest received on savings account 603.00
Executor’s remuneration at 6% 36.18
Balance awarded to Martie Pieterse 566.82
603.00
Note that the executor’s remuneration on income after date of death is 6% and not 3½%.
7.2.6 The fiduciary asset account

Consult regulation 5(1)(g) in Schedule 4.
Comments
If the deceased owned fiduciary assets, the transfer of such assets to the fideicommissary
beneficiary must be reflected in this account. The assets must be shown in this account in the
same way that other assets are shown in the liquidation and distribution account. Further-
more, any applicable costs and liabilities must be debited against this account. This account
also forms an integral part of the executor’s account and if there are no such assets to be
accounted for, that fact must be stated. See paragraph 9.3 in Chapter 9 for an example of a
fiduciary asset account.
7.2.7 The estate duty addendum

Consult regulation 5(1)(h) in Schedule 4.
Comments
The calculation and apportionment of estate duty varies from the very simple to the highly
complicated. In South Africa, estate duty is presently levied at 20 percent of the dutiable value
of an estate. This rate applies from 1 March 2002. Before this date it had been fixed at
25 percent for many years. The rate was reduced to 20 percent to provide a measure of relief
in view of the introduction of capital gains tax on 1 October 2001. For a limited discussion on
the implications of capital gains tax for deceased estates, see Chapter 10.
To calculate the dutiable value of an estate, one can start with the liquidation account. The
assets less the liabilities and costs of administration give the net estate. To this net estate must
be added the value of certain fiduciary assets such as usufructs, as well as certain assets which
were not administered by the executor, such as insurance policies ceded to a beneficiary and
therefore paid directly to the beneficiary, and overseas assets acquired with South African
funds. In order to determine the dutiable value of the estate certain deductions may be
claimed. Examples of these deductions are bequests to certain charitable and educational
institutions and all bequests and accruals to a surviving spouse. All deceased estates are also
entitled to a basic rebate deducted from the net value of the estate. The amount of the rebate is:
 R3,5 million where the deceased died on or after 1 March 2007.
 R2,5 million where the deceased died on or after 1 March 2006 but before 1 March 2007.
 R1,5 million where the deceased died before 1 March 2006.
Consult Chapter 8, where estate duty is discussed in detail.
7.2.8 The certificate

Consult regulation 5(1)(i) in Schedule 4.
Comments
The executor’s account is finalised with the executor’s certificate which must contain the
following information:
 A statement that, to the best of the knowledge of the executor, the account is a fair and true
reflection of the administration of the estate.
 If it is a final account, a declaration that to the best of the knowledge of the executor all the
assets and liabilities which have been collected between the date of death of the deceased
and the date of the account have been reflected therein.
 If the account is not a final account, full particulars must be given of all assets and liabilities,
with estimated values of each asset that has not been liquidated, together with an explana-
tion of why such debts have not been collected and why such assets have not been liquidated.
Example of an executor’s certificate

I, the undersigned, certify that the above is a true and correct account of the liquidation and distribu-
tion of this estate and that to the best of my knowledge and belief there are no further assets and/or
liabilities to be accounted for.
I further certify that all income collected and all expenses paid since date of death of the deceased up
to and including the date of this account have been accounted for herein.
SIGNED at Pretoria this 23 rd day of September 2017.
Flip Neser
.........................
EXECUTOR
7.3 Immovable property and related matters
7.3.1 Description of immovable property

For the purposes of the Administration of Estates Act immovable property means land and
every real right in land or minerals (other than any right in terms of a bond) which is registrable
in any office in the Republic used for the registration of title to land or the right to mine.4
Immovable property must be fully described in the liquidation account, exactly as it is de-
scribed in the title deed. The executor must also indicate (via the divestment notes) how he
intends dealing with the property, for example whether it will be transferred to a beneficiary in
terms of the law of intestate succession, or in terms of a redistribution agreement, or in terms
of the will, as the case may be.
Example
A farm is bequeathed to a minor child.

Value of the farm De Rust 515, registration-division IQ Transvaal, measuring 1 000 hectares, held
by the deceased in terms of Deed of Transfer no. 4679/1980, dated 10 September 1980, awarded
to Paul Pieterse, minor son of the deceased, in terms of clause 3 of the will.
It must be noted that in the case of a marriage in community of property, immovable property
must be registered in the name of the husband and the wife. Section 17(1) of the Deeds Regis-
tries Act 47 of 1937 contains the following directive in this regard:
From the commencement of the Deeds Registries Amendment Act 1987, immovable property, real
rights in immovable property and notarial bonds which would upon transfer, cession or registra-
tion thereof, form part of a joint estate shall be registered in the name of the husband and the
wife, unless that transfer, cession or registration takes place only in the name of a partnership,
and the husband or wife is involved therein only in the capacity of partner in that partnership.
If immovable property is bequeathed to a person married in community of property, subject to
the condition that it will not form part of any joint estate, the award must be made quoting the
testamentary condition which excludes that item from community of property in such estate.
7.3.2 The value of immovable property

When an inventory in a deceased estate is prepared, immovable property may initially be
reflected at its estimated market value. For the purposes of the executor’s account and estate
duty, such values must be proved. A sworn valuation by a sworn appraiser is the best proof of
the value of immovable property and it will probably be accepted by the Master in all cases.
The Master has a considerable discretion in this regard. In the case of immovable property
situated in urban areas, the Master is sometimes prepared to accept the municipal valuation,
provided that estate duty, transfer duty, the interests of minors, section 38 takeovers or
bequest prices are not materially affected thereby.
___________
4 S 1.
7.3.3 Bequest price

A bequest price arises when a testator bequeaths an asset to a beneficiary on condition that
the beneficiary must pay a specified sum of money to the estate or to some other person. The
beneficiary must then make a choice. He can accept the legacy or inheritance and pay the
bequest price, or he can refuse to pay the bequest price, thereby also forfeiting the legacy or
inheritance.
A bequest price does not increase the value of the estate but it reduces the value of the be-
quest to the beneficiary. If, for example, a testator should bequeath his farm Kamdebo to his
son Ferdie on condition that Ferdie pays a bequest price of R1 000 000 to his sister Susan, the
abridged distribution account will appear as follows:
R R
To Ferdie Armstrong, major son of the deceased, in terms of clause 3 of the 2 000 000
will, the farm Kamdebo, valued at 3 000 000
Less: Bequest price 1 000 000
To Susan Armstrong, major daughter of the deceased, in terms of clause 3
of the will, cash. 1 000 000
3 000 000
7.3.4 Bequests subject to a usufruct

A testator can split the ownership in a property by bequeathing the usufruct to one person and
the so-called bare dominium to another. The first person then becomes entitled to the enjoy-
ment or the fruits (income) produced by the property and the other person obtains the right of
ownership but without the use and enjoyment of the property.
A usufruct5 is a personal servitude. If a usufructuary should enter into a marriage in commu-
nity of property, the usufruct will not form part of the joint estate. If a testator should there-
fore decide to bequeath his house to his son Charles, subject to a usufruct in favour of his
surviving spouse Linda, the award will appear as follows in the distribution account:
To Charles Cloete, major son of the deceased, erf 3456, The Willows, Pretoria, subject to a lifelong
right of usufruct in favour of the surviving spouse, Linda Cloete.
A usufruct usually ends when the usufructuary dies, that means it is lifelong. It is also possible
to create a usufruct for only a specified period, for example five years. A usufruct can also be
bequeathed to two or more persons jointly.
7.3.5 Usufruct as an estate asset

Since a usufruct usually ends upon the death of the initial holder there is no asset (the usu-
fruct) which the executor can disclose in the liquidation and distribution account and is thus
not shown there. The value of the deceased’s usufruct must, however, be shown in the estate
duty addendum. Consult Chapter 8 on estate duty in this regard.
___________
5 Use of the asset or its fruits.
7.3.6 Bare dominium as an estate asset

If, in the example above, Charles should die before Linda, the bare dominium constitutes part
of his estate and it must be dealt with in terms of his will but without infringement of his
mother’s rights. In the liquidation and distribution account the property will be reflected at the
full market value but with disclosure of the fact that the property is subject to Linda’s usufruct.
In the estate duty addendum, which means for estate duty purposes only, the value of the
property will be reduced by the value of Linda’s limited interest. Consult Chapter 8 on estate
duty in this regard.
7.3.7 A fiduciary interest

A testamentary fideicommissum is a bequest to a specified person, with the condition that the
asset must pass to someone else at the death of the last mentioned person or upon the occur-
rence of a specified event. The beneficiary who first obtains the asset is called the fiduciary,
while the person who acquires it at a later stage is called the fideicommissary or fideicommis-
sary beneficiary. The testator in the example in paragraph 7.3.4 could, for example, have
bequeathed the property (as opposed to a usufruct) to his wife Linda on condition that it
should pass to his son Charles upon her death, in which case Linda may not sell or encumber
the property. Upon her death it must pass to Charles.
7.4 Movable property and other transactions
7.4.1 General
Movable property must, as in the case of immovable property, also be reflected in the liquida-
tion account at the valuation thereof, or if it has been sold, at the amount of the proceeds.
Only a brief description of the movables is necessary. A few examples follow below.
7.4.2 Motor vehicles

The vehicle must be clearly described, for example: A 2009 BMW 328i, registration number
PKR055GP, valued at R150 000, or a 2011 Volkswagen Jetta, registration number TXK907GP,
sold by public auction for R185 000. A valuation can be obtained from an appointed valuator
but the Master is usually prepared to accept a valuation from an authorised dealer of the
particular make of motor vehicle.
7.4.3 Firearms
Firearms must be licensed in the name of the beneficiary and it is the executor’s duty to ensure
that a firearm does not come into unauthorised possession. When a firearm is bequeathed to
someone, the beneficiary must apply for a licence at his local police station. The firearm can
only be handed to him after the licence has been issued. The description in the executor’s
account will, for example, read as follows: One Musgrave 30-06 hunting rifle, serial number
9876, valued at R3 000. In this case also, a valuation must be obtained from an appointed
valuator or from a registered dealer in firearms.
7.4.4 Shares
If it appears that share certificates have been issued to the deceased the executor must write
to each company in which shares were held, firstly to verify that the testator was the regis-
tered owner of the shares and secondly to establish whether the deceased held any other
shares in the company.
If the shares are listed on a stock exchange, the value is taken as the listed value at date of
death. A written valuation by a stockbroker must be obtained. If the shares are unlisted shares
or it is an investment in a close corporation, a valuation must be obtained from the auditor or
accountant of the company or close corporation. This value of the shares, or its proceeds if the
executor has sold it, will be shown in the accounts.
For estate duty purposes, the accountant or auditor must also issue an additional valuation
certificate for unlisted shares, where he or she states that the effect of any limitation as set out
in section 5(f) of the Estate Duty Act, has been ignored.
7.4.5 Dividends on shares

In any estate in which shares are found the executor must establish whether there are divi-
dends that were declared before the date of death, but only payable thereafter. If the dividend
accrued before the date of death, it is an estate asset even if it only became claimable at a date
after the date of death. If the dividend accrued after the date of death, it is income after death
and is included in the income and expenditure account. If a dividend is declared without a date
of payment being fixed, the date on which the decision was taken is regarded as the date on
which the dividend accrues.
If, for example, a company declares a dividend on 15 July 2017, payable on 15 August 2017
to all shareholders registered on 30 July 2017, the position will be as follows:
 the date on which the dividend accrues to the shareholder is 30 July 2017;
 the dividend of a shareholder who died before 30 July 2017 (up to and including 29 July
2017) accrues to the deceased estate (because the shareholder died before the date of ac-
crual)and must be reflected as income after date of death in the income and expenditure
account; and
 the dividend of a shareholder who died on or after 30 July 2017, forms part of the assets in
the estate (because it accrued before the date of death) and must be included as an asset in
7.4.6 Insurance policies of the deceased

The executor must account for the gross value of policies on the life of the deceased. If a loan
was made against a policy, the gross value of the policy must be shown as an asset and the
loan as a claim against the estate – even though the insurer only paid out the net amount. A
certificate showing the proceeds of the policy must be obtained from the relevant insurance
company to serve as proof.
If a testator ceded a policy to someone else during his lifetime, it means that he relinquished
his right to the proceeds of the policy, which will then be paid directly to that other person in
terms of the cession. When the policy has been paid to someone else, it is not an estate asset
and it does not appear in the executor’s liquidation account. The executor did not collect it.
The exception is the portion of the policy which is paid to a creditor in terms of a cession, and
which must be reflected as an estate asset. The reason is that the creditor (liability) is shown in
the liquidation account and the corresponding estate asset from which the creditor is paid,
must therefore also be shown. The remaining portion of the policy proceeds which has not
been ceded is not shown as an estate asset, only the portion utilised to pay the debt.
Although the proceeds of ceded policies are not shown as estate assets in the liquidation
and distribution account, they may however have estate duty implications. Consult Chapter 8
in this regard.
7.4.7 Insurance policies of the surviving spouse

When spouses were married in community of property and there is a policy in the name of the
surviving spouse, such a policy constitutes part of the joint estate even though it is only paya-
ble on death of the surviving spouse. It must consequently be reflected in the liquidation
account at its surrender value.
7.4.8 Other claims in favour of the estate

The executor must, in respect of funds which the deceased invested at a financial institution,
for example in a cheque account, savings account or fixed deposit account, obtain a certificate
from the institution concerned which indicates the capital amount on the account as well as
the accrued interest up to the date of death. In this case the certificate serves as a source of
information for the executor and as a voucher for the Master.
In practice directors’, shareholders’ and members’ loans to private companies and close cor-
porations are often made without any written agreement between the parties. Amounts owing
to a deceased estate on such a loan account must, for voucher purposes, be certified in writing
by a properly authorised officer (a director or member of the company or close corporation). A
certificate by the company’s auditor (or the accounting officer of a close corporation) is also
acceptable. The same applies to loans from or to trusts.
7.5 Administration costs
7.5.1 General
Administration costs are those expenses which must necessarily be incurred during the process
of administering an estate and must consequently be paid by the estate. They include the
following:
7.5.2 Cost of providing security

An executor who has not been exempted from the provision of security must provide suitable
security to the Master for the proper performance of his duties.6 This can be obtained from
certain financial institutions at an approved tariff, which is a cost of administration and must be
paid by the estate.
___________
6 See par 6.2.5 regarding persons who are exempted.
7.5.3 Advertising
The advertising costs in connection with the notices:
 that creditors must submit their claims; and
 that notify interested parties that the executor’s account is lying open for inspection are
payable by the estate.
7.5.4 Transfer costs of immovable property

An executor is obliged to transfer immovable property which has been bequeathed to a benefi-
ciary into the latter’s name.7 The transfer costs (legal fees) will be borne by the estate. If the
executor sells immovable property to a third party, it is customary for the third party to pay the
transfer costs. If, however, the surviving spouse takes over property in terms of section 38 the
spouse is personally responsible for the transfer costs. In cases where immovable property is
transferred in terms of a redistribution agreement, the Master allows the transfer costs to be
paid by the estate.8
Immovable property which is transferred to a beneficiary in terms of a will is exempt from
transfer duty. If, however, the immovable property is sold to a third party, the transfer duty is
payable by such third party.
7.5.5 Cost of liquidating assets

The gross proceeds of assets must be shown in the executor’s account. The costs to liquidate
an asset, such as advertising costs and auctioneer’s commission, are expenses and are shown
separately in the liquidation account. Note that executor’s remuneration is calculated on the
gross proceeds (or value) of assets.
7.5.6 Funeral expenses

Funeral expenses are a liability and are shown as such in the liquidation account. The name of
the funeral undertaker must be stated and the claim must be supported by a proper voucher.
The cost of a tombstone is not part of funeral expenses and can only be allowed as a claim
against the estate if it is authorised by the will.
Since funeral expenses are only incurred after the date of death of the deceased, it cannot,
strictly speaking, be seen as a liability of the joint estate. The surviving spouse’s half of the
estate can thus not be burdened by this liability. In view of the fact that funeral expenses are
deducted in the liquidation account, the value of the surviving spouse’s half of the estate is
calculated as follows:
___________
7 S 39(1).
8 Transfer costs must not be confused with transfer duty, which is a type of tax.
Example
Net value of the estate – liquidation account R100 000
Add back – funeral expenses R1 000
Distributable estate R101 000
Survivor’s half (50% of R101 000) R 50 500
Deceased’s half R50 500
Less: funeral expenses R1 000 R 49 500
Net value according to the liquidation account R100 000
7.5.7 Master’s fees

For those estates of persons who died before 1 January 2018, master’s fees are payable in all
estates with a gross value of more than R15 000. These regulations have been amended in
20179 to determine that master’s fees are only payable in all estates with a gross value of more
than R250 00010 for those estates of persons who died on or after 1 January 2018. If the de-
ceased was married in community of property, Master’s fees are levied on the joint estate,
since it is the joint estate that must be administered. Master’s fees are payable on the gross
value of the estate but not on income which accrued to the estate after the deceased’s date of
death.
The following tariff is used for the calculation of Master’s fees:
Date of death before 1 January 2018 Date of death on or after 1 January 2018
• if the gross value of the estate is less than • if the gross value of the estate is less than
R15 000: nothing; R250 000: nothing;
• if the gross value is R15 000 or more but less • if the gross value is R250 000 or more but less
than R17 000: R42; than R400 000: R600;
• if the gross value is R17 000 or more, for each • if the gross value is R400 000 or more for each
completed multiple of R2 000 by which it ex- completed multiple of R100 000 with which
ceeds R17 000, a further R6; and the gross value exceeds R400 000, a further
R200; and
continued
___________
9 GG 41224 of 2017
10 Estates up to R250 000 which are dealt with in terms of s 18(3) are not subject to Master’s fees.
 This means that fractions of R2 000 are disre-  This means that fractions of R100 000 are
garded in the calculation. The Master’s fee on disregarded in the calculation. The Master’s
R71 000, for example, is R204 [R42 + (2711 × fee on R650 000, for example is, R1 000 [R600
R6)]. On R72 000 the fee would also be R204, + (212 x R200)]. On R680 000 the fee would al-
as the increase of R1 000 is not a full multiple so be R1 000, as the increase of R30 000 is not
of R2 000. On R73 000 the fee would, howev- a full multiple of R100 000. On R700 000 the
er, be R210. fee would, however, be R1 200.
 The maximum amount of Master’s fees in a  The maximum amount of Master’s fees in a
deceased estate is R600, regardless of the size deceased estate is R7 000, regardless of the
of the estate. This means that the maximum size of the estate. This means that the maxi-
amount is payable in all estates which exceed mum amount is payable in all estates which
R203 000 in value. Fees need not be calculat- exceed R3 600 000 in value. Fees need not be
ed in such cases. calculated in such cases.
7.5.8 Executor’s remuneration

After the executor’s account has lain open for inspection without objections and all creditors
and beneficiaries have been paid, it is the executor’s turn to be remunerated.13 If the de-
ceased’s will contains no stipulations in this regard, the executor’s remuneration is calculated
according to the following tariff:
On the gross value of assets 3,5%
On income received after death 6%
Executor’s remuneration is a comprehensive remuneration which includes the executor’s
expenses, for example, travelling expenses. If more than one executor was involved, the
remuneration must be divided between them. Executor’s remuneration is also shown in the
account as a cost of administration.
A further point that must be borne in mind here is that executor’s remuneration is only cal-
culated on the gross value of assets reflected in his liquidation account. In the case of insurance
policies, for example, the executor receives his remuneration only if the policy was paid to the
estate and reflected in the liquidation account. In practice the proceeds of some policies are
paid directly to the policy beneficiaries and the money is not collected by the executor. In such
cases the executor does not collect the policies and therefore does not receive any remunera-
tion on the proceeds of the policies. These policies are not reflected in the liquidation account.
7.6 Claims against the estate
7.6.1 Introduction
Generally speaking it can be said that an executor is under no obligation to pay a creditor’s
claim until the executor’s account has been approved by the Master. On the other hand, there
___________
11 R71 000 – R17 000 = R54 000. R54 000/R2 000 = 27.
12 R650 000 – R400 000 = R250 000. R250 000/R100 000 = 2.5 rounded to 2 for full multiples of
R100 000.
13 Provision should be made in the executor’s account for the executor’s remuneration.
is nothing that prevents an executor from paying claims sooner, provided he is convinced that
the estate is solvent. The approach with regard to certain claims is discussed below in more
detail.
7.6.2 Sundry creditors

All claims must be submitted to the executor in writing within the period stated in the adver-
tisement to creditors. The executor must verify the claims and, if acceptable, allow them. The
written claim serves as a voucher in support of the claim as shown in the account. If the execu-
tor disputes a claim, he can request the claimant to submit an affidavit in support of it.14 If the
executor rejects a claim against the estate, he must inform the claimant in writing by registered
post. The claimant concerned then has recourse to the court.15
7.6.3 The South African Revenue Service

It is the executor’s duty to ensure that the deceased’s income tax return is completed and
submitted to the South African Revenue Service. The tax assessment serves as the necessary
voucher. If the deceased had a bookkeeper or accountant, it is often in the interest of the
estate that the final return should also be completed by the person or firm concerned. A
reasonable fee in this connection will be allowed by the Master.
Please note that capital gains tax (CGT) is payable in deceased estates. The transfer of assets
from the deceased to the estate and from the estate to beneficiaries could be regarded as
disposals for CGT purposes. The Income Tax Act deals with CGT and the bookkeeper or ac-
countant will have to deal with it when he is compiling the income tax returns of the deceased
and the deceased estate. Please see Chapter 10 for a discussion of CGT in deceased estates.
___________
14 S 32.
15 S 33.
8
Estate duty
8.1 Introduction ............................................................................................................ 146

8.2 Property .................................................................................................................. 148
8.2.1 General ...................................................................................................... 148
8.2.2 Limited interests ........................................................................................ 148
8.2.3 Other rights ............................................................................................... 148
8.2.4 ‘Non-deductible’ contributions to retirement funds ................................ 149
8.2.5 Ordinary place of residence ...................................................................... 149
8.3 Property deemed to be property............................................................................ 150
8.3.1 Introduction............................................................................................... 150
8.3.2 Insurance policies ...................................................................................... 150
8.3.3 Exempt donations ..................................................................................... 152
8.3.4 Accrual claims ............................................................................................ 153
8.3.5 Property which the deceased was competent to dispose of .................... 153
8.4 The valuation of property ....................................................................................... 153
8.4.1 Introduction............................................................................................... 153
8.4.2 Property that is sold .................................................................................. 153
8.4.3 Unlisted shares .......................................................................................... 154
8.4.4 Agricultural land ........................................................................................ 155
8.4.5 Any other property .................................................................................... 155
8.4.6 Limited interests in general ....................................................................... 155
8.4.7 Valuation of a fiduciary right ..................................................................... 156
8.4.8 Valuation of a usufruct .............................................................................. 157
8.4.9 Valuation of bare dominium ...................................................................... 158
8.4.10 Valuation of annuities charged on property ............................................. 159
8.4.11 Valuation of other annuities...................................................................... 160
8.5 Allowable deductions ............................................................................................. 161
8.5.1 Introduction............................................................................................... 161
8.5.2 Funeral, tombstone and deathbed expenses ............................................ 161
8.5.3 Debts owed in the Republic ...................................................................... 161
8.5.4 Costs of administration and liquidation .................................................... 161
8.5.5 Requirements of the Master and the Commissioner ................................ 162
8.5.6 Foreign assets and rights ........................................................................... 162
8.5.7 Foreign debt .............................................................................................. 163
8.5.8 Limited interests received as a gift ............................................................ 163
8.5.9 Bequests to certain institutions ................................................................ 163
145
8.5.10 Improvements made by beneficiaries ....................................................... 164

8.5.11 Improvements to property subject to a limited interest .......................... 164
8.5.12 Accrual claims ............................................................................................ 164
8.5.13 Limited interest created by a predeceased spouse................................... 164
8.5.14 Books and works of art lent to the state ................................................... 165
8.5.15 Policy proceeds taken into account in valuation of shares ....................... 165
8.5.16 Amounts which accrue to the surviving spouse ........................................ 166
8.6 Section 4A rebate.................................................................................................... 167
8.7 Rebates and deductions from estate duty.............................................................. 169
8.7.1 Introduction............................................................................................... 169
8.7.2 Rebate for rapid succession ...................................................................... 169
8.7.3 Transfer duty ............................................................................................. 171
8.7.4 Foreign taxes ............................................................................................. 171
8.7.5 Double taxation agreements ..................................................................... 172
8.8 Persons liable for estate duty ................................................................................. 172
8.8.1 General ...................................................................................................... 172
8.8.2 Apportionment of estate duty .................................................................. 173
8.9 Marriages in community of property...................................................................... 174
8.10 Summary ................................................................................................................. 175
8.11 Administration of the Act ....................................................................................... 176
8.12 The calculation of estate duty – Example ............................................................... 177
8.1 Introduction
In South Africa estate duty is levied in terms of the Estate Duty Act 45 of 1955,1 as amended. In
the case of a person who died while ordinarily resident in South Africa, it is levied on all assets
of whatsoever kind owned by him which constitute property and property deemed to be
property in his estate, as defined in the Act. In the case of a person not ordinarily resident in
South Africa, certain property (mostly foreign property and rights not enforceable in South
Africa) is excluded from his South African estate for estate duty purposes – see paragraph 8.2.5
below.
___________
1 All references in this chapter are to the Estate Duty Act 45 of 1955, unless indicated otherwise.
Chapter 8 Estate duty 147
The duty is levied on the dutiable amount of the estate and it can be represented schemati-
cally as follows:
Example
R
Value of property (section 3(2)) (refer 8.2) XX
Value of property deemed to be property (section 3(3)) (refer 8.3) XX
TOTAL VALUE OF ALL PROPERTY XXX
Less: Allowable deductions (section 4) (refer 8.5) X
NET VALUE OF ESTATE XXX
Less: Section 4A rebate (refer 8.6) X
DUTIABLE AMOUNT OF AN ESTATE XX
ESTATE DUTY
20% of dutiable amount (section 1 of First Schedule) (refer 8.6) X
Less: Rebate for rapid succession (refer 8.7.2) X
Transfer duty (refer 8.7.3) X
Foreign taxes (refer 8.7.4) X
TOTAL ESTATE DUTY PAYABLE XX
The total value of the estate is determined by adding the value of all the property and of
property which is deemed to be property. This total is referred to as the gross value of the
estate. The gross value of the estate is reduced by all the deductions allowed by the Act. The
result is referred to as the net value of the estate. The value of the net estate can then be
reduced by a rebate of at least R3,5 million2 in all estates where a person died on or after
1 March 2010. The remainder is known as the dutiable amount of the estate and estate duty is
levied thereon at a uniform rate of 20%.3
Some of the expressions and concepts above have very clear and specific meanings in terms
of the Act and must be approached with circumspection. For example, as can be seen from the
example above, the Act distinguishes two components for the purpose of valuing an estate,
namely:
 property; and
 property which is deemed to be property.4
Please note that estate duty is levied in terms of the Estate Duty Act which must not be con-
fused with the Administration of Estates Act, in terms of which an estate is administered
(liquidation and distribution account).
___________
2 S 4A was amended with effect from 1 January 2010 to provide for the spousal rebate – refer to 8.5.
3 In terms of an amendment of the Act in 2016, the rate of estate duty will be 20% of the dutiable
amount or a percentage of the dutiable amount as the Minister of Finance may announce in the na-
tional budget. The purpose of the amendment is to allow the Minister of Finance to adjust the rate
without having to change the Act.
4 S 3(1).
8.2 Property
8.2.1 General
In the Act, property is very widely defined as “any right in or to property, movable or immova-
ble, corporeal or incorporeal, ---”. Apart from this very wide definition, the Act also specifically
defines fiduciary rights, usufructs, other similar rights, certain types of annuities and since 2016
certain contributions to retirement funds as property.5
It is clear that property includes a large variety of assets and interests. Items such as fixed
property, motor vehicles, furniture and household effects, shares, fixed deposits and other
cash investments, works of art and jewellery, clearly fall within the definition. There is probably
no tangible asset which is excluded by this definition. The Act’s reference to “any right” also
means that a right such as an option to acquire land or shares is included in the definition. The
definition obviously also includes incorporeal things such as goodwill, copyrights and patents.
8.2.2 Limited interests

Usufructs, fiduciary rights and certain annuities are also part of the property in a deceased
estate. If, for example, a person was a holder of a usufruct during his lifetime, its value must be
established at his death. The Act contains directions as to how such limited interests must be
valued. The valuation of limited interests is discussed in paragraph 8.4.6 and further.6
Certain annuities, including annuities charged upon property, are also regarded as property.
An annuity is a fixed sum of money which is payable annually, but may also be paid at other
intervals, for example, weekly, monthly, quarterly or half-yearly. If an annuity is charged upon
property, it implies that the payment of the annuity is connected with a specific asset or entity.
If a father bequeaths a business concern to one of his children while at the same time stipulat-
ing that a specified sum of money must be paid from its profits to another child from time to
time, then the latter enjoys an annuity charged upon property. Upon the death of the last
mentioned child, its value will have to be determined in accordance with the Act for inclusion
in his estate. The valuation of annuities is discussed in paragraph 8.7.6 and further.
8.2.3 Other rights

The definition of property includes “any right in or to property”. Apart from the ordinary rights
of ownership and the limited interests which have been mentioned above, property would
therefore include an option to acquire fixed property or shares, provided the right does not
lapse on death. Rights, which expire upon a person’s death, are not regarded as property in his
estate, with the exception, of course, of the limited interests (usufruct, fiduciary right) already
referred to above.
___________
5 S 3(2).
6 Consult Chapter 4, par 4.8.6 and 4.8.7, where the legal operation of usufructs and fiduciary inter-
ests is discussed.
8.2.4 ‘Non-deductible’ contributions to retirement funds

In addition to the inclusions as stated in the previous paragraphs, the Act was amended in 2015
to limit the avoiding of estate duty through excess retirement contributions. In terms of section
3(2)(bA) contributions made on or after 1 March 2015 to a retirement fund that did not receive
a deduction in terms of the Income Tax Act, will now be included as property for estate duty
purposes. On the other hand, to avoid potential double counting, contributions that did not
receive a deduction, which have been included as part of any lump sum pay-outs to the retire-
ment fund member or that have been used to offset the tax liability for annuity payments to
the retirement fund member, will not be included as property in the estate.
Section 3(2)(bA) came into operation on 1 January 2016 and applies in respect of the estate
of a person who died on or after 1 January 2016, regarding contributions made on or after 1
March 2015.
8.2.5 Ordinary place of residence

The definition of property includes several references to the rights and assets of a deceased
who was not ordinarily resident in the Republic at the time of his death. A deceased’s ordinary
place of residence7 therefore affects his liability for estate duty.
A person’s ordinary place of residence must be determined in accordance with the underly-
ing circumstances. There can be no question of ordinary place of residence if this is not accom-
panied by a measure of permanence and continuity. To be ordinarily resident in a country
implies at least a fixed address where the person concerned must be regularly resident from
time to time. If a person has residence in more than one country, he is ordinarily resident in the
country where he has his most fixed or regular place of residence. A person is not necessarily
ordinarily resident in his country of origin. If a British citizen, for example, spends most of his
time at a fixed address in Johannesburg, he is ordinarily resident in South Africa.
All property and property deemed to be property of a person who is ordinarily resident in
the Republic, wherever it is situated, form part of his estate and are subject to estate duty in
the Republic. Under certain conditions, certain of his foreign assets can be deducted from the
calculation of the estate for estate duty purposes (see paragraph 8.5.6). There are also a
number of double taxation agreements with certain other countries which may apply. Please
consult paragraph 8.7.5 in this regard. The position of a citizen of another country, for example
a British citizen who is ordinarily resident in the Republic, is identical to the position of a South
African citizen for purposes of estate duty in the Republic.
A person who does not ordinarily reside in the Republic but who owns property in the Re-
public, irrespective of his citizenship or country of origin, is in principle, only liable for South
African estate duty on his South African property. The following classes of property (mainly
foreign rights and assets) of such a person are excluded from the definition of property in
terms of section 3(2):
(1) the right to immovable property situated outside the Republic;
(2) the right to movable property situated outside the Republic;
(3) a debt or right of action not enforceable or recoverable in a court in the Republic;
___________
7 See the definition in Cohen v CIR 1946 AD 174 (13 SATC 362–371).
(4) any goodwill, licence, patent, design, trademark, copyright, or other similar right not
registered or enforceable in the Republic or attaching to any trade, business or profession
in the Republic;
(5) stocks or shares in a body corporate which is not a company;
(6) stocks or shares in a company, the transfer of which is not required to be registered in
the Republic;
(7) the right to income or the proceeds derived from any property in (3) to (6) above; and
(8) all benefits payable by pension and other funds by or as a result of the death of the
deceased.
8.3 Property deemed to be property
8.3.1 Introduction
The expression “property deemed to be property” was evidently created by the legislature to
include rights and assets which are not normally regarded as a person’s property, in the defini-
tion of property for estate duty purposes. Normally property will include all items that existed
at the time of death (e.g. shares, cash, usufructs, annuities, etc.), whereas deemed property
refers to all the items that originated after the time of death (e.g. insurance policies that paid
out). In section 3(3) of the Act,8 certain phenomena are described as property deemed to be
property. These phenomena are discussed in paragraph 8.3.2 to 8.3.5 below and can be classi-
fied under the following four headings:
 domestic policies on the life of the deceased;
 exempt donations;
 an accrual claim against the surviving spouse in terms of section 3 of the Matrimonial Prop-
erty Act; and
 property which the deceased was, immediately prior to his death, competent to dispose of
for his own benefit or for the benefit of his estate.
8.3.2 Insurance policies

The proceeds of a policy is deemed to be property if it was taken out on the life of the de-
ceased. The criterion for inclusion of the proceeds in the deceased’s estate is the fact that it
was taken out on his life, irrespective of who the owner (beneficiary) was. If the deceased was
the owner of a policy on someone else’s life, only its surrender value must be included as
property in his estate in terms of section 3(2).
The inclusion of the proceeds of policies as property deemed to be property is subject to the
following conditions, deductions and exemptions:
(1) The policy must be a “domestic policy” as described in the Estate Duty Act. Basically, the
expression “domestic policy” means a policy which is payable in the Republic in South
___________
8 S 3(3)(a)(bis) was scrapped in 2008 with the effect that all benefits payable by pension and other
funds by or as a result of the death of the deceased are exempt from Estate Duty from 1 January
2009.
African currency. A policy which is not a domestic policy is not property which is deemed
to be property. It could be, however, that the latter must be included in the estate as
property in terms of section 3(2).
(2) For estate duty purposes the proceeds of a policy can be reduced by the amount of the
premiums, plus interest at 6 percent per annum, to the extent to which the premiums
were paid by the person (the beneficiary) entitled to the proceeds of the policy. In prac-
tice compound interest (as opposed to simple interest) is used. The interest is com-
pounded annually and not for example, monthly or quarterly. Premiums paid by the
deceased himself are not deductible from the proceeds for estate duty purposes.
If a policy is taken out by a man who is married in community of property, it is deemed
that the premiums were paid from the joint estate; half the premiums are therefore
deemed to have been paid from the wife’s share of the joint estate. Only the husband’s
half of the premiums, together with 6% interest thereon, is deductible from the proceeds
of the policy. This is also applicable if a woman who is married in community of property
and the premiums were paid out of the joint estate.
If a policy was encumbered in one way or another, for example by a cession in order to
secure a policy loan, the full proceeds of the policy must nevertheless be included in the
estate as property deemed to be property. If the deceased made the policy loan, it is
treated as a liability of the estate and allowed as a deduction in terms of section 4 of the
Act.
(3) If the proceeds of the policy are payable to the surviving spouse or child of the deceased
in terms of a properly registered antenuptial contract, the policy is in total exempt from
estate duty. (The Act does not define what is meant by “properly registered”, but accord-
ing to Meyerowitz9 it means the registration of the antenuptial contract concerned must
be at a deeds office in the Republic in terms of the Deeds Registries Act of 1937).
(4) If the proceeds of the policy are payable to a person who was a partner of the deceased
at date of death, or to a co-shareholder in a company in which the deceased also owned
shares, or to a co-member in a close corporation of which the deceased was also a mem-
ber, the proceeds are exempt from estate duty provided the person took out the policy
with the purpose of acquiring the deceased’s share or shares at his death and the de-
ceased paid no premium on the policy. To qualify for a deduction in this category, three
requirements must therefore be complied with:
 The relationship (partner or co-shareholder or co-member) to the deceased must have
been in existence at the date of death. The deduction is not applicable if the relation-
ship existed at another time but not at date of death.
 It must have been the intention of the parties to enable the partner or co-member or
co-shareholder to acquire the deceased’s interest at his death. If there was a different
intention the deduction will not apply, even if the policy proceeds are actually applied
to obtain the deceased’s interest.
 No premium on the policy must have been paid by the deceased.
If any one of these three conditions has not been complied with, the exemption cannot
be applied to the policy for estate duty purposes.
___________
9 Meyerowitz 2010, par 27.36.
(5) The proceeds of any other policy not covered by the exemptions in (3) and (4) above are
also exempt from estate duty if:
 the policy was not effected by or at the insistence of the deceased; and
 no premium on the policy was paid by the deceased; and
 no part of the proceeds has been or will be paid into the estate of the deceased; and
 no part of the proceeds will be utilised for the benefit of a relative or dependant of the
deceased; and
 no part of the proceeds will be utilised for the benefit of a company which was at any
time a family company in relation to the deceased.
A family company is defined as any company (other than a company whose shares are quoted
on a recognised stock exchange) which at any relevant time was controlled or capable of being
controlled directly or indirectly, whether through a majority of the shares thereof or any other
interest therein or in any other manner whatsoever, by the deceased or by the deceased and
one or more of his relatives.
In order to qualify for exemption in this category all five the conditions must be complied
with. It is clear that so-called key-man policies could be exempt from estate duty in terms of
these provisions.
In summary it can be said that the proceeds of all domestic policies on a person’s life will be
regarded as part of his dutiable estate, irrespective of who the beneficiary is to whom the
payment will be made. The exceptions, which do not form part of the dutiable estate, are:
 policies which are payable to the wife or child of the deceased in terms of a registered
antenuptial contract (for example, a policy which the deceased took out on his own life be-
fore his marriage, and then ceded to his wife or child in the antenuptial contract);
 policies, where the deceased did not take out the policy or pay the premiums and where the
proceeds are not paid to his estate nor utilised for the benefit of a family member or other
dependent or family company; and
 policies taken out on each other’s lives by business partners,10 in order to make cash availa-
ble at the death of a partner to enable the remaining partners to acquire the business inter-
ests of the deceased.
The proceeds of a policy payable to the surviving spouse are not exempt from estate duty.
However, all accruals to a surviving spouse from the deceased estate are deductible from the
value of the estate for estate duty purposes (in terms of section 4(q)). This means that policies
which accrue to a surviving spouse, either in terms of the policy conditions (survivor indicated
as beneficiary under the policy and insurance company pays proceeds directly to him/her) or
by way of a bequest (survivor indicated as beneficiary of policy in the will), are not taxed. See
also paragraph 8.5.16.
8.3.3 Exempt donations

In accordance with section 3(3)(b) any assets donated by the deceased in terms of a donation
which is excluded from donations tax in terms of sections 56(1)(c) or (d) of the Income Tax Act,
are deemed to be property if such assets were not previously included in the estate. In terms of
section 56(1)(c) a donatio mortis causa is exempt from donations tax, while in terms of
___________
10 Includes co-owners of companies and close corporations.
section 56(1)(d) a donation where the benefit only passes to the beneficiary at the death of the
donor is also exempt from donations tax. A donatio mortis causa is a donation that only mate-
rialises if the donor dies. A person that carries out a life-threatening job can perhaps make such
a donation. If the person dies, the donation then realises and the asset is transferred to the
beneficiary. For estate duty purposes the asset is still seen as an asset in the estate. If the
previously mentioned donor does not die as expected, no donation is due and there is no
donatio mortis causa.
8.3.4 Accrual claims

In terms of section 3(3)(cA) an accrual claim which the estate of a deceased has against the
surviving spouse, is property deemed to be property in the deceased’s estate. In the reverse
situation when the surviving spouse has a claim against the estate, it constitutes an estate
liability which, like any other liability, can be deducted from the gross estate. For a discussion
of the Matrimonial Property Act and the calculation of accrual, see Chapter 2.
8.3.5 Property which the deceased was competent to dispose of

This is the last category11 which is property deemed to be property of the deceased and has
been widely defined to include transactions which would otherwise have escaped estate duty.
Due to the wide definition in this section, the legislature deemed it necessary to make a qualifi-
cation which prevents it from giving rise to double taxation. Section 3(3)(d) is therefore only
applicable to property which is not otherwise dutiable in terms of the Estate Duty Act. It is
agreed with Meyerowitz12 that there is virtually no property which will not have to be included
in an estate under one of the other sections of the Act. Section 3(3)(d) will therefore find few
applications, if any. Although it can be ignored for all practical purposes, a poorly worded trust
deed may cause this section to find application, causing trust property to be taxed in the hands
of the deceased’s estate.
8.4 The valuation of property
8.4.1 Introduction
In the preceding parts of this chapter attention was given to property and property deemed to
be property that must be included in an estate. The deductions and rebates which are allowed
were also discussed. Therefore, a critical factor in any estate is the value at which such proper-
ty and deemed property must be included in the estate. Section 5 of the Estate Duty Act is
generally known as the valuation section and is analysed in the paragraphs below.
8.4.2 Property that is sold

If, in the normal course of liquidating a deceased estate, property is disposed of by a purchase
and sale which the Commissioner regarded as bona fide, the value of the property is taken to
___________
11 S 3(3)(d) read together with s 3(5).
12 Meyerowitz 2010, par 27.49.
be the price realised by the sale.13 The total price obtained for property by way of a purchase
and sale must be included in the estate. Expenses and costs in this regard may be claimed as a
deduction under section 4.
Two categories of property are excluded from the ambit of this section, namely unlisted
shares (for example shares in a private company) and property which is subject to conditions
which will result in a reduction of the value of the property at or after the death of the de-
ceased. The valuation of these two categories of property is discussed in paragraphs 8.4.3 and
8.4.5.
If the selling price is to be used to determine the value of property for estate duty purposes,
the sale must have occurred during the liquidation of the estate. If, for example, the deceased
sold property during his lifetime which had not yet been transferred to the buyer at the date of
death, this is not a sale during the liquidation of the estate. In this case the outstanding pur-
chase price (debtor) is included in the estate as property, cancelled out by the obligation
(liability) to transfer or deliver the property to the buyer.
8.4.3 Unlisted shares

For estate duty purposes shares in a company which is not listed on a stock exchange must be
taken at their value as determined by an impartial person (usually the auditor) appointed by
the Commissioner.14 Even if the shares are sold during the liquidation of the estate they must
nevertheless, for estate duty purposes, be taken at valuation and not at the price obtained.
(Please note that this provision does not apply to listed shares). Please also note that the
shares must be disclosed in the liquidation account at the selling value as this differs from the
estate duty value.
The valuation prescriptions in respect of unlisted shares apply to shares in any unlisted com-
pany, wherever incorporated, in South Africa or in a foreign country. In terms of section 5(5)
shares include any member’s interest in a close corporation as well as any class of shares,
stock, debenture stock, debenture or right to subscribe for or purchase shares, stocks or
debentures. The impartial person who must value the unlisted shares must comply with the
following requirements of the Act (subsection (i) to (v) of section 5(1)(f)bis) when making his
valuation:
(1) Any provision in the memorandum and articles of association of rules of the company
restricting the transferability of shares must be ignored.
(2) Any provision in the memorandum and articles of association or rules of the company
whereby the value of the shares of the deceased or any other member is to be deter-
mined must be ignored.
(3) If, upon a winding up of the company, the deceased would have been entitled to share in
the assets of the company to a greater extent pro rata to shareholding than other share-
holders, no lesser value shall be placed on the shares held by the deceased than the
amount to which he would have been entitled in the course of winding up and the said
amount had been determined as at the date of his death.
(4) Any provision or arrangement resulting in any variation in the rights attaching to any
shares through or on account of the death of the deceased must be ignored.
___________
13 S 5(1)(a).
14 S 5(1)(f)bis.
(5) Any power of control exercisable by the deceased and the company, which entitled or
empowered him to vary or cancel any rights attaching to any class of shares, including by
way of redemption of preference shares, shall be taken into account if, by the exercise of
such power, he could have conferred upon himself any benefit or advantage in respect of
the assets or profits of the company.
See paragraph 8.4.4 regarding the valuation of shares in a company which carries on bona fide
farming activities in the Republic.
8.4.4 Agricultural land

The fair market value15 of fixed property on which bona fide farming activities are being
carried on is an amount equal to the price which can be obtained between a willing buyer and
seller in an open market, less 30 percent. Should the fixed property not be used for bona fide
farming activities, the fair market value will be equal to the price which can be obtained
between a willing buyer and seller in an open market.
Please note that, if farming property is sold, the actual proceeds will be included in property
and not the fair market value as determined above.
8.4.5 Any other property

With the exclusion of limited interests, which are valued according to specific formulas, any
other property which is not covered in paragraphs 8.4.1 to 8.4.4 above, must be valued at its
fair market value.16 Also note the proviso to section 5(1)(g) which serves to prevent a person
from laying down any condition whereby the value of the property can be reduced for whatev-
er reason, on or after the death of the deceased.
8.4.6 Limited interests in general

The Estate Duty Act contains specific directions according to which limited interests must be
valued. The limited interests referred to are interests such as a usufruct, fiduciary right, bare
dominium, and certain annuities. A limited interest is basically valued by firstly determining the
fair market value of the underlying asset. Secondly the annual value of the right must be
established; according to the Act it must be taken as an amount equal to 12% of the fair market
value. Thirdly the annual value of the right is capitalised by discounting the annual amount over
a certain period, usually a person’s life expectancy. The discount rate is also 12% per annum.
Special tables (see Schedule 7) which have been issued in terms of the Act are used for the
calculation of the value of a limited interest. Table A is used when the value of a right is based
on a person’s life expectation. Table B is used when the value of the right must be determined
over a specific period, for example if it is to be held for ten years, fifty years and so forth. If it is
not possible to ascertain, until a future date, the life expectancy of the person or persons who
will become entitled to the right (e.g. unborn heirs), a period of 50 years (Table B) must be
used (section 5(1)(b)). Therefore, in the case of calculations which must be made in respect of
a trust, company or close corporation (i.e. bodies which are not natural persons) the period
must be taken as 50 years (section 5(3)) and Table B is used. A few simple examples to
___________
15 As defined in s 1.
16 S 5(1)(g).
illustrate the use of the tables are given at the end of Table B. It is recommended that these
tables and examples be studied before proceeding with the following paragraphs. The valua-
tion of the following limited interests is discussed below and illustrated with examples:
(1) Fiduciary right.
(2) Usufruct.
(3) Bare dominium.
(4) Annuities.
8.4.7 Valuation of a fiduciary right
Details – fiduciary right
Zulu was the fiduciary owner (or fiduciary) of a property which was valued at R600 000 at the
time of his death. At his death the property must be transferred to Adam, the fideicommissary,
a male person who was 45 years and 7 months old at the date of Zulu’s death.
Value of the right – fiduciary right

Fair market value of the property R600 000
Annual value at 12% R 72 000
Adam’s age next birthday (which follows after the date of death of the deceased) 46 years
Factor for male person 46 years (Table A Schedule 6) 7,819 24
Value of Zulu’s right (R72 000 × 7,819 24) R562 985
Comments – fiduciary right
(1) The fair market value of the property is taken as at the date of death of the person in
whose estate the value of the right must be established.
(2) The annual value of the right is equal to 12% of the value of the property (12% of
R600 000 = R72 000).
(3) The value of the right is calculated over Adam’s life expectancy, i.e. the person obtaining
the benefit of the right. For practical reasons Adam’s age is taken as at his first birthday
following on Zulu’s death, that is to say his age next birthday. (See example at Table A.)
(4) The value of the right is determined by multiplying the factor in Table A for a male aged
46 next birthday by the annual value of the right (7,819 24 × R72 000 = R562 985).
(5) The above calculations are based on the stipulations of section 5(1)(b) of the Estate Duty
Act. Note that section 5(1)(b) has three provisos beginning with the words “provided
that”. The second proviso is obviously not applicable to a fiduciary right because a sepa-
rate bare dominium does not exist in the case of a fiduciary right.
8.4.8 Valuation of a usufruct
Details – usufruct
During his lifetime Wickus was the holder of a usufruct over a farm. Wickus inherited the
usufruct from the estate of his late father, Alfred. The bare dominium belongs to Wickus’s
brother, Sonny. When Alfred died Wickus was 49 years and 3 months old, and the farm had a
fair market value of R300 000. Alfred’s will stipulated that Sonny had to pay a bequest price of
R30 000 to his sister Suzy in order to acquire the bare dominium. Sonny accepted this condition
and paid the R30 000 to Suzy. Wickus died exactly 10 years after his father. At that stage the
fair market value (i.e. after deduction of the 30%) of the farm had increased to R900 000 and
his brother Sonny was 35 years and 8 months old.
Value of right – usufruct
Calculation
Fair market value of property at Wickus’s death R900 000
Annual value of right at 12% R108 000
Sonny’s age next birthday 36 years
Factor for male person aged 36 years 8,136 47
Value of Wickus’s usufruct (R108 000 × 8,136 47) R878 739
Application of first proviso
Value of consideration paid by Sonny R 30 000
6% interest on R30 000 for 10 years (interest compounded annually)17 R 23 725
R 53 725
Value of usufruct as calculated R878 739
Less: Value of consideration plus interest R 53 725
R825 014
Application of second proviso
Fair market value of property when Wickus acquired his right R300 000
Annual value of right at 12% R 36 000
Wickus’s age next birthday when he acquired the right 50 years
Value of Wickus’s right at its creation (R36 000 × 7,602 01) R 273 672
(male aged 50) R 26 328
Value of Sonny’s bare dominium at creation (R300 000 – R273 672)
Present fair market value of property R900 000
Less: Bare dominium at creation R 26 328
Maximum value of Wickus’s usufruct (in terms of the second proviso) R873 672
Because R825 014 is less than R873 672, the lesser amount is used, thus R825 014.
___________
17 30 000 × (1,06)10 = R53 725 less R30 000 equals R23 725.
Comments – usufruct
(1) The solution above follows the wording of section 5(1)(b) – the first proviso was applied
first and the second thereafter.
(2) In the first calculation the fair market value of the property (R900 000) is taken as at date
of death of the person who enjoyed the usufruct (Wickus) and it is capitalised over the
life expectancy of the holder of the bare dominium (Sonny).
(3) With the application of the second proviso the fair market value of the property is taken
as at the date when the usufruct was created (R300 000) and the annual value is capitalised
over the life of the person who was entitled to it (Wickus) at its creation. The arithmetic
result (R273 672) is subtracted from the historical fair market value (R300 000). The
remaining amount (R26 328) represents the value of the bare dominium. The present fair
market value (R900 000) less the bare dominium (R26 328), that is to say R873 672, rep-
resents the maximum value of Wickus’s usufruct in terms of the second proviso.
(4) Note that nothing is reflected in the liquidation and distribution account with regard to
Wickus’s usufruct, because it does not consist of property that can be realised by the ex-
ecutor. The value of the usufruct, i.e. R825 014, is still taxed and must be added to the
net assets of the liquidation account when calculating the estate duty.
8.4.9 Valuation of bare dominium

Full ownership has two components, namely usufruct and bare dominium:
Full ownership = usufruct + bare dominium.
To put it another way:
Bare dominium = full ownership – usufruct.
In order to calculate the value of the bare dominium, the value of the usufruct must first be
ascertained.
Details – value of bare dominium
Charl’s estate included a property (Charl owned the bare dominium) with a fair market value of
R600 000. The property was subject to a usufruct in favour of Gerald, a male person who was
30 years and 2 months old at the time of Charl’s death.
Value of right – bare dominium
Calculation
Annual value at 12% R 72 000
Gerald’s age next birhday 31 years
Factor for male person of 31 years (Table A) 8,215 38
Value of Gerald’s usufruct (R72 000 × 8,215 38) R591 507
Value of Charl’s bare dominium (R600 000 – R591 507) R 8 493
Comment – bare dominium
Please note that Charl’s liquidation account will include the full market value of the property of
R600 000, because he is the registered owner of the property. He will only be taxed on the bare
dominium of R8 493 for estate duty purposes.
8.4.10 Valuation of annuities charged on property

The valuation of annuities is similar to the valuation of usufructs and for this purpose Tables A
and B are also used. It follows that the value of an annuity is determined by capitalising it at
12% over a fixed period. If the period is connected to a person’s life expectancy, Table A is
used. If the period is a fixed term, for example, 10 or 20 years, Table B is used.
The following rules apply to the valuation of annuities charged upon property:
(1) If a deceased received an annuity which accrues to another person after his death it is
capitalised over the other person’s life expectancy (section 5(1)(c)(i)).
(2) If the other person will receive the annuity for a shorter period than his life expectancy, it
is capitalised over the shorter period (section 5(1)(c)(i)).
(3) If the annuity does not accrue to someone else at the death of the deceased (if it ceases)
it is capitalised over the life expectancy of the owner of the property which has been
charged with the annuity (section 5(1)(c)(ii)). If the owner of the property is not a natural
person, e.g. a trust or a company, the value of the annuity is capitalised over a period of
50 years (section 5(3)).
Details – valuation of annuities charged on property
Izak received an annuity of R30 000 per annum. The annuity was payable from the profits of a
business (that is to say an annuity charged on property, charged on the business in this case)
belonging to Elsa, a female person aged 50 years and 1 month when Izak died. Calculate the
value of Izak’s annuity at his death if:
(1) the annuity accrues to Zet, a male person who is 32 years, 9 months old; and
(2) the annuity does not accrue to anyone else at Izak’s death.
Value of annuity charged on property
(1) The annuity accrues to Zet:

Value = R30 000 × factor for Zet {R30 000 × 8,188 36 (Table A)} R245 651
(2) The annuity ceases:
Value = R30 000 × factor for the owner (Elsa) of the encumbered asset
{R30 000 × 7,889 67 (Table A)} R236 690
8.4.11 Valuation of other annuities

Other annuities are annuities not charged upon property, for example an annuity which is paid
by Ayanda to Tsepo without any property being encumbered thereby and which Ayanda
undertakes to pay as a personal obligation.
The following rules apply to the valuation of annuities in this category:
(1) If the deceased received an annuity which accrues to another person at his death, it is
capitalised over that other person’s life expectancy (section 5(1)(d)).
(2) If the other person will receive the annuity for a shorter period than his life expectancy, it
is capitalised over the shorter period (section 5(1)(d)).
Details – other annuities
Tsepo was the recipient of an annuity of R15 000 per annum which was paid to him by Ayanda
in terms of a contractual obligation. No property was encumbered by the annuity. Calculate the
value of the annuity in Tsepo’s estate if:
(1) It ceases upon Tsepo’s death.
(2) It becomes payable for life to Zondo, a male person aged 40 years and 2 months, at
Tsepo’s death.
(3) It becomes payable to Dino, Tsepo’s surviving spouse, a female person aged 51 years and
8 months, for a period of 10 years.
Value of annuity
(1) The annuity’s value is Rnil since it ceases R nil
(2) The value = R15 000 × factor for Zondo (Table A)

= R15 000 × 8,010 67 R120 160
(3) Dino’s life expectation is 25,06 years (Table A). However, she enjoys the annuity for
only 10 years; the shorter period is therefore used. R15 000 × factor for 10 years
(Table B) = R15 000 × 5,650 2 R84 753
.
Comments – annuities
(1) Please remember that when an annuity is valued and the amount of the yearly payment
is known, for example R120 000 per year (even if it is paid in monthly instalments of
R10 000 per month), the R120 000 must not be multiplied by 12% before discounting is
done as is the case with other limited rights.
(2) Please note that in respect of annuities, no property is collected or realised by the execu-
tor. Thus no amount is reflected in the liquidation account of the deceased. The calculat-
ed amounts are only used for estate duty purposes because it is specifically included in
“property” as defined for estate duty purposes.
8.5 Allowable deductions
8.5.1 Introduction
When all property and property deemed to be property have been included in an estate, and
their values established, they comprise the total value of the estate. This total value is also
referred to as the gross estate. In order to determine the net estate all the deductions which
are allowed in terms of section 4 are subtracted from the gross estate. These deductions are
discussed below.
8.5.2 Funeral, tombstone and deathbed expenses

As much of the funeral, tombstone and deathbed expenses as the Commissioner considers fair
and reasonable is allowed as a deduction.18 This deduction includes the medical expenses
incurred in the deceased’s last illness as well as the costs of a hearse and other funeral expens-
es. Please note, however, that the Commissioner does not allow the cost of wreaths, flowers
and obituary notices as deductions for estate duty purposes.
8.5.3 Debts owed in the Republic

All properly proven debts which a deceased owes to persons who have their ordinary residence
in the Republic, is deductible from the gross estate to the extent to which those debts are to be
settled from property included in the estate.19 The deceased’s income tax liability (which
includes capital gains tax) for the period up to death is included in this category. Refer to
Chapter 10 for the calculation of the income tax liability. In order to qualify for the deduction,
the debt must meet the following three requirements:
 It must be owing by the deceased; and
 it must be owing to a person who ordinarily resides in the Republic; and
 it must be settled out of property which is included in the estate.
Please note that, since amounts received from funds (such as pension and provident funds)
upon the death of the deceased are no longer included as property in the estate, the income
tax due on any lump sum benefits received from those funds will not be deductible.
Also note that a deduction will not be allowed if the debt is applicable to a claim which has
its origin as a property donated by the deceased and such donation was exempt from dona-
tions tax in terms of section 56(1)(c) or (d) of the Income Tax Act.
8.5.4 Costs of administration and liquidation

All costs in connection with the administration of the estate, which have been incurred by the
executor and allowed by the Master, can be deducted from the estate.20 It normally includes
the following: costs of advertising, executor’s remuneration and Master’s fees, costs incurred
to realise assets (for example, auctioneer’s commission), and costs incurred to transfer assets
___________
18 S 4(a).
19 S 4(b).
20 S 4(c).
to heirs, etc. Costs incurred in connection with the management and control of income accru-
ing to the estate after the date of death, are expressly excluded as deductions in terms of the
relevant section.21 Income after death is not property which must be included in the estate and
the costs in connection therewith are not deductible. The executor will pay these expenses out
of the income produced by the property in the normal course of events and the residue will be
paid over to beneficiaries. However, in practice if the expenses exceed the income, the deficit
is allowed as a deduction.
8.5.5 Requirements of the Master and the Commissioner

Expenses incurred during the administration of an estate in order to comply with the require-
ments of the Master and/or Commissioner, qualify as a deduction in terms of section 4(d).
Items such as the cost of valuing estate property, legal costs in disputes with the Commission-
er, the cost of providing security, and fees paid to professional persons such as accountants
and attorneys, are covered by this section.
If the expenses are made in connection with a usufruct, annuity or fiduciary interest, or in
connection with the proceeds of an insurance policy payable to a third party or an exempt
donation, the executor can recover these expenses from the person who is liable for the estate
duty applicable to the item concerned.22 To the extent to which such expenses are recovered,
they will therefore not be deductible in the deceased’s estate.
8.5.6 Foreign assets and rights

If a person who had his ordinary place of residence in the Republic dies, the estate of that
person consists of all his property, irrespective of where it is situated. Foreign property of such
a deceased must therefore also be included with his estate. The value of certain foreign assets
and rights which have been included in the estate can, however, be deducted from the gross
estate.23 This deduction depends on the time, and the manner in which, the deceased had
acquired the asset or right. The Act makes provision for the deduction of all property situated
outside the Republic and:
 which the deceased had acquired before he became ordinarily resident in the Republic for
the first time; or
 which the deceased had acquired by way of a donation or inheritance after he became
ordinarily resident in the Republic for the first time, provided that the donor or testator was
not ordinarily resident in the Republic at the time of donation or death.
Furthermore, foreign property acquired with the proceeds or profits of such property can also
be deducted from the gross estate. For example, if the rent received from a (deductible)
foreign fixed property, e.g. a flat, is used to buy shares in a foreign company, these foreign
shares will also be deductible for estate duty purposes.
___________
21 S 4(c).
22 S 20.
23 S 4(e).
8.5.7 Foreign debt

Amounts owing to persons who ordinarily reside outside the Republic, are only deductible to
the extent that the value of the estate’s non-dutiable foreign assets are insufficient to settle
such debts.24 If for example, the estate includes property in the Republic valued at R2 million,
deductible foreign property (see paragraph 8.5.6) of R40 000 and foreign debts of R20 000, no
part of the foreign debt will be deductible since the foreign property (which is not included in
the estate as it will be deducted) is worth more than R20 000. If, on the other hand, foreign
debts amounted to R50 000, R10 000 thereof would be deductible because only R40 000 of the
R50 000 is paid out of the proceeds of the non-dutiable foreign assets.25
8.5.8 Limited interests received as a gift

The value of certain limited interests can be deducted from the gross estate, provided the
deceased had received those interests by way of a donation and the interests revert to the
donor at the death of the donee.26 The value of an annuity charged upon property is also
deductible if, at the death of the deceased, the right accrues to the person who is also the
owner of the property concerned.27 The limited interests referred to are the interests as de-
fined in section 3(2)(a), therefore fiduciary rights, usufructs or other similar rights, as well as
annuities charged upon property. To summarise, if a deceased had received a usufruct by way
of donation, on condition that it will revert to the donor at the donee’s death, the usufruct is
included in the estate in terms of section 3(2)(a) and thereafter deducted again in terms of
section 4(g). Note that an annuity charged upon property is deductible if the right accrues to
the owner of the property, irrespective of whether or not the owner was also the donor. Note
also that the above deductions only apply if the deceased had obtained his right by way of a
donation. It does not apply if the right was obtained in any other manner, for example by way
of inheritance.
8.5.9 Bequests to certain institutions

A deduction is allowed28 in respect of property included in the estate and which accrues to any
public benefit organisation which is exempt from income tax in terms of the Income Tax Act.29
This deduction is also applicable to accruals to any organisation, board or body which has as
its main purpose the practice of public welfare activities as set out in section 30 of the Income
Tax Act, and thus exempt from income tax in terms of section 10(1)(cA)(i) of the Income Tax
Act.
Apart from these institutions, any amount, property or benefit which accrues to the State or
any local authority within the Republic as a result of the death of the deceased, is deductible
from the estate for estate duty purposes.30
___________
24 S 4(f).
25 R40 000 in foreign assets and R50 000 in foreign debt. Debt exceeds assets by R10 000.
26 S 4(g).
27 S 4(g).
28 S 4(h).
29 S 10(1)(cN) of the Income Tax Act 58 of 1962.
30 S 4(h)(iii).
8.5.10 Improvements made by beneficiaries

If the value of any property included in the estate has been enhanced by improvements made
at the expense of the person to whom the property accrues upon the death of the deceased,
the amount by which such property’s value has been increased by the improvements, is de-
ductible from the deceased’s estate, provided that the improvements were made during the
deceased’s lifetime and with his permission.31 Note that the deduction is based on the amount
by which the improvements have increased the property’s value and not on the true cost of the
improvements. If improvements costing R30 000 have increased the value of the property by
R20 000, the deduction will amount to R20 000.
8.5.11 Improvements to property subject to a limited interest

If a deceased’s estate includes a fiduciary interest, usufruct or other similar right, and the value
of such right was increased as a result of improvements made to the property concerned, the
amount by which the value of the right has been increased as a result thereof, is deductible
from the deceased’s estate. The person to whom the right accrues upon the death of the
deceased must have been responsible for the cost of the improvements and the improvements
made must have been during the deceased’s lifetime and with his permission.32 It is not the
cost or value of the improvements which is deductible, but the amount by which the value of
the right has been increased as a result of the expenditure, which is deductible.
8.5.12 Accrual claims

If the surviving spouse has an accrual claim33 against the deceased estate in terms of the
Matrimonial Property Act, the amount thereof is deductible from the deceased estate for
estate duty purposes.s34
8.5.13 Limited interest created by a predeceased spouse

If a deceased estate includes a usufruct, other similar right, or an annuity charged on property,
and if such a right was created by a predeceased spouse, the value thereof can be deducted
from the deceased’s estate.35
The deduction can only be claimed if:
 the property over which the deceased enjoyed the right or interest formed part of the
estate of the predeceased spouse; and
 no deduction in respect of the value of the right or interest was allowed in the estate of the
predeceased spouse in terms of section 4(q).36
Note that this deduction is not applicable to fiduciary rights held by the deceased. The distinc-
tion between a usufruct and a fiduciary right must be kept in mind.
___________
31 S 4(i).
32 S 4(j).
33 The Matrimonial Property Act 88 of 1984, s 3(1).
34 S 4(lA)
35 S 4(m).
36 See par 6.4.16.
8.5.14 Books and works of art lent to the state

If an estate includes books, paintings, sculptures or other works of art, their value can be
deducted from the estate if the deceased had lent the articles mentioned to the government of
the Republic in the national, provincial or local sphere for a period of at least 30 years in terms
of a notarial deed, and the deceased died within that period.37 Note that the lending period
must commence before the deceased’s date of death; the deceased must therefore die during
the lending period for the deduction to be allowed.
In terms of section 4(o)(ii) the same deduction applies on the same conditions in respect of
the value of shares which form part of the estate insofar as the value of such shares can be
ascribed to the ownership of works of art as defined. If, for example, a person builds up an art
collection via a private company rather than in his personal capacity, the deduction will apply
to his shares in the company.
8.5.15 Policy proceeds taken into account in valuation of shares

To prevent double taxation, the value of property which was included as property deemed to
be property in terms of section 3(3), can be deducted for estate duty purposes, provided it was
taken into account in determining the value of any company shares or a member’s interest in a
close corporation in terms of section 5(1)(f)bis (e.g. the proceeds of policies). However, it must
not have been claimed as a deduction in terms of any other subsection of section 4.38
Assume for example that the deceased had owned all the shares in XYZ (Pty) Ltd and that the
company was the owner of a policy of R300 000 on the life of the deceased. Upon his death,
the policy of R300 000 must be included in the estate as property deemed to be property
(assuming that it is not an exempt policy). The value of the deceased’s shares in the company
is, however, also increased by the proceeds of the policy, less any income tax.
Example
R
Proceeds of policy paid to company 300 000
Less: Income tax (say 28%) 84 000
Net proceeds of policy 216 000
The proceeds of the policy increases the company’s net assets by R216 000. The value of the
deceased’s shares will therefore also increase by R216 000 (he owns all the shares).
According to the example R300 000 of the policy, being property deemed to be property, is
taxed. R216 000 of the same policy is, however, also taxed by way of the increased valuation of
the shares. Without section 4(p) it would mean that the policy is effectively taxed twice. In
terms of section 4(p) a deduction of R216 000 can be claimed, which means that the element
of double taxation in respect of the policy is neutralised and that ultimately only R300 000 will
be included in the taxable estate. If section 4(p) is applied to reduce the value of a policy for
___________
37 S 4(o).
38 S 4(p).
estate duty purposes, it can only be applied if the policy is dutiable. An exempt policy (e.g. a
key-man policy) does not qualify for a deduction under section 4(p).
8.5.16 Amounts which accrue to the surviving spouse

The value of any property included in an estate for estate duty purposes and which accrues to
the surviving spouse, is deductible.39 It is a comprehensive deduction and not limited only to
property which the deceased had bequeathed to his spouse in his will. It includes, for example,
usufructs, fiduciary rights and annuities which accrued to the surviving spouse. The deduction
also applies to the proceeds of a policy on the deceased’s life which accrues to the surviving
spouse, whether in terms of the will or as a result of a cession of the policy.
Note the condition that a deduction cannot be allowed under section 4(q) if it has already
been allowed as a deduction under another section. A claim for accrual, for example, which has
already been deducted under section 4(IA) cannot again be deducted under section 4(q). If, for
example, the deceased had bequeathed shares in a company to his spouse and a deduction is
claimed in terms of section 4(p), a second deduction cannot be claimed in terms of sec-
tion 4(q). However, if the deduction under section 4(p) is less than the amount which is deduct-
ible in respect of the shares under section 4(q), the difference can be deducted in terms of
section 4(q).
If the particulars in paragraph 8.5.15 are taken as an example and if the deceased had be-
queathed the shares in XYZ (Pty) Ltd to his spouse, the deduction would be calculated as
follows:
Example
R
Proceeds of policy paid to XYZ (Pty) Ltd 300 000
Value of share in XYZ (Pty) Ltd 600 000
Value of rest of estate (say) 1 500 000
Gross estate 2 400 000
Less: Deduction section 4(p) (see par 8.4.15) (216 000)
Deduction section 4(q) (684 000)
– Value of shares 600 000
– Value of policy not deducted 84 000
Net estate 1 500 000
The shares valued at R600 000 accrue to the spouse and the amount is therefore deductible.
The proceeds of the policy, R300 000, also accrues to the survivor via XYZ (Pty) Ltd. This
R300 000 can therefore also be deducted in terms of section 4(q), but since a R216 000 deduc-
tion has already been allowed in this regard in terms of section 4(p), only the balance of
R84 000 is deductible.
___________
39 S 4(q).
8.6 Section 4A rebate

In terms of section 4A a rebate of at least R3,5 million40 can be deducted from the net estate.
This rebate applies to all deceased estates and means that all estates under R3,5 million are
exempt from estate duty. Section 4A was amended in 2009 to provide for the portable spousal
rebate in the estate of a surviving spouse. The amendment allows for an automatic transfer of
the unused portion of the R3,5 million rebate in the estate of the first dying spouse to the
estate of the surviving spouse. This amendment applies from 1 January 2010 and is applicable
to the estate of the surviving spouse. The executor of the second dying spouse would have to
take into account any portion of the R3,5 million originally claimed by the first dying spouse.
Example 1
First dying Second dying
spouse spouse
Date of death 1.10.2012 23.02.2017
Gross value of the estate at time of death R2 900 000 R6 500 000
In terms of the will, the surviving spouse will inherit R2 000 000 and the children the rest of the estate.
Assume the estate has no other deductions or liabilities.
Calculation of the section 4A rebate R R
GROSS VALUE OF ESTATE 2 900 000 6 500 000
Less: Section 4(q) – spouse 2 000 000 –
NET VALUE OF ESTATE 900 000 6 500 000
Less: Section 4A rebate* 900 000 6 100 000
TAXABLE AMOUNT – 400 000
* S 4A rebate = (First dying spouse: R3 500 000 – R900 000) + (Second dying spouse R3 500 000) =
R6 100 000.
If the first dying spouse had more than one spouse at the date of death of that first dying
spouse, the additional R3 500 000 rebate will be split equally among the number of spouses.
This additional rebate will once again be reduced by the amount of the rebate utilised by the
first dying spouse (this reduction will also be divided equally among the number of spouses).
___________
40 Before the 2009 amendment, the s 4A rebate in all estates where the date of death occurred on or
after 1 March 2007 amounted to R3,5 million. For the period 1 March 2002 to 28 February 2006,
the rebate amounted to R1 million, and for the period on or after 1 March 2006 to 28 February
2007, the rebate was R2,5 million.
The portable spousal rebate will only apply if the executor of the second dying spouse submits
a copy of the estate duty return or other relevant material of the first dying spouse as support
of the amount previously utilised in terms of the section 4A rebate.41
Example 2
Mr X is the spouse of Mrs A, Mrs B, Mrs C and Mrs D in a customary marriage. Mr X dies. The net value
of Mr X’s estate (after s 4(q) deductions) is R500 000. Mrs A subsequently dies (she never remarried).
The net value of her estate is R8 000 000. Her executor provided the necessary documents in terms of
Mr X’s s 4A rebate previously claimed.
Mr X’s net estate is entitled to R500 000 of the R3 500 000 s 4A abatement. This means that R750 000
of the abatement could be transferred to each of Mrs A, Mrs B, Mrs C and Mrs D (R3 000 000/4).
Mrs A’s estate is entitled to an s 4A abatement of R4 250 000 (R3 500 000 plus R750 000 transferred
from Mr X’s estate).
It is also possible that the second dying spouse has been the survivor of more than one previ-
ous marriage or union. In such a case, the second dying spouse will only be entitled to a maxi-
mum rebate of R7 million. In other words, only one pre-deceased spouse’s rebate may be
rolled forward. The additional rebate must also be reduced by the amount utilised by the pre-
deceased spouse. This means that the executor of the second dying spouse must choose to
utilise the additional rebate of the pre-deceased spouse with the highest unused section 4A
rebate.
Example 3
Mr X is married to Mrs X. Mr X passes away. The net value of Mr X’s estate is R500 000 (after deduc-
tion of s 4(q)). The entire net estate of R500 000 is transferred to Mr X’s children. Mrs X then remar-
ried to Mr Z (for ease of reference, we still refer to Mrs X). Mr Z later dies and transfers all of his assets
to Mrs X. Mrs X passes away shortly thereafter. The net value of her estate is R12 000 000. All the
necessary previous estate duty returns in terms of section 7 were provided by her executor.
Mr X’s net estate is entitled to R500 000 of the R3 500 000 s 4A abatement. This means that
R3 000 000 of the abatement could be transferred to Mrs X’s estate.
Mr Z did not utilise any portion of the abatement, as the s 4(q) deduction reduces the dutiable estate
to nil.
If the executor submits the estate duty return of Mr X, Mrs X will be entitled to an abatement of only
R6 500 000 (R7 000 000 less the R500 000 utilised by Mr X). If the executor submits the estate duty
return of Mr Z, Mrs X will be entitled to the full R7 000 000 abatement.
If two spouses die simultaneously, the spouse with the smallest net estate is deemed to have
died before the other spouse for the purposes of the calculation of the additional rebate.
___________
41 S 4A(5).
Example 4
Mr X is married to Mrs X. Mr X passes away. The net value of Mr X’s estate is R500 000 (after deduc-
tion of s 4(q)). The entire net estate of R500 000 is transferred to Mr X’s children. Mrs X subsequently
marries Mr Z (for ease of reference, we still refer to Mrs X). Mr Z was not married previously. Mrs X
and Mr Z then die simultaneously in a car accident. The net value of Mrs X’s estate is R10 000 000
(after deduction of s 4(q)), while Mr Z’s estate is valued at R15 000 000.
Mr X’s net estate is entitled to R500 000 of the R3 500 000 s 4A abatement. This means that
R3 000 000 of the abatement could be transferred to Mrs X’s estate.
Since Mrs X and Mr Z died simultaneously and Mrs X’s estate is smaller than that of Mr Z, Mrs X is
deemed to have died immediately before Mr Z. Mrs X’s estate is entitled to a total s 4A abatement of
R6 500 000 (R7 000 000 less the R500 000 amount used by Mr X’s estate).
Mr Z is entitled to a total abatement of R7 000 000 less the amount utilised by Mrs X. However, since
Mrs X utilised an s 4A abatement of R6 500 000 (more than R3 500 000), the reduction of Mr Z’s
abatement of R7 000 000 is limited to R3 500 000. Therefore, Mr Z is entitled to a total rebate of
R3 500 000 (R7 000 000 less R3 500 000).
8.7 Rebates and deductions from estate duty

8.7.1 Introduction
Apart from the deductions which can be made from the gross value of an estate in terms of
section 4, there are a number of other rebates and deductions by which estate duty can be
reduced. These rebates and deductions are not deducted from the gross estate but directly
from the amount of estate duty payable.
8.7.2 Rebate for rapid succession

It is a broad principle of the Estate Duty Act that property in an estate is not subjected to
double taxation. This principle is extended by the fact that a measure of relief is available in
cases where property, which was previously subjected to estate duty, is subsequently included
in the estate of another person who dies within a few years after the first dying person. If the
second dying person bore the estate duty allocated to property in the estate of the first dying
person, and that property now forms part of the estate of a second dying person, a rebate is
allowed on the estate duty payable in the second estate. The rebate is only available if the
second dying person dies within ten years of the first dying person. It is applied in accordance
with the following sliding scale contained in the First Schedule to the Estate Duty Act:
– If the deceased dies within two years of the death of the first 100%
dying person
– if the deceased dies more than two years, but not more than 80%
four years after the death of the first dying person
– if the deceased dies more than four years, but not more than 60%
six years after the death of the first dying person
– if the deceased dies more than six years, but not more than 40%
eight years after the death of the first dying person
– if the deceased dies more than eight years, but not more 20%
than ten years after the death of the first dying person
The rebate is limited to an amount not exceeding the amount of the estate duty on the rele-
vant property which was payable in the estate of the first dying person. The rebate is also
subject to a requirement that the estate duty on that property in the first dying person’s estate
must have been borne by the deceased (second dying person).
An heir or legatee does not necessarily bear the estate duty on property which accrued to
them directly. Estate duty which the executor paid and which cannot be recovered from a
legatee is in effect borne by the residuary heirs, since their inheritance is reduced by the
amount of the estate duty. SARS shares this view and in practice the rebate is also allowed in
respect of property on which the duty has been indirectly borne by an heir.
Apart from the limitation in respect of the maximum amount of the rebate (see above),
there is a further condition which must be taken into account in calculating the rebate, namely
that the value of the property in the estate of the second dying person may not exceed its
value in the estate of the first dying. If the value of the property has increased in the period
after the date of death of the first dying person, the increase in value must be ignored when
calculating this rebate. If there has been a decline in value, the lower value is used in the
calculation.
The rebate also applies to substitution property. If the second person replaces the original
property with other property, the rebate is nevertheless available.
Example
Malie Xhosa died 5 years after her father, Jan Xhosa. At Jan Xhosa’s death, Malie Xhosa was the
only heir. The estate duty in Jan’s estate was R246 000. The dutiable value in Jan Xhosa’s estate
was R1 500 000. The estate consisted entirely of fixed property and in Malie Xhosa’s estate the
value of this property had increased to R3 000 000. Other assets in Malie Xhosa’s estate
amounted to R4 380 000. Liabilities and costs in her estate amounted to R180 000, of which
R60 000 could be ascribed to the fixed property.
Calculation of the rebate

R
(1) Value of property in Jan Xhosa’s estate 1 500 000
(2) Value of the same property in Malie Xhosa’s estate 3 000 000
Less: Liabilities and direct costs 60 000
Dutiable value of the property in Malie’s estate 2 940 000
(3) The dutiable value in Malie’s estate may however, not exceed the value of the
relevant property in Jan’s estate (for the purpose of calculating the rapid succession
rebate) that is a maximum of 1 500 000
continued
(4) Estate duty in Malie’s estate:

– Fixed property 3 000 000
– Other assets 4 380 000
GROSS VALUE OF ESTATE 7 380 000
Less: Liabilities and costs 180 000
NET VALUE OF ESTATE 7 200 000
Less: Rebate section 4A 3 500 000
DUTIABLE AMOUNT OF ESTATE 3 700 000
ESTATE DUTY (at 20%) 740 000
(5) Estate duty which can be ascribed to the fixed property in Malie’s estate
(see 3 above) (1 500 000/7 200 000 × 740 000) 154 167
(6) Calculation of rebate:
Malie died 5 years after her father. The applicable percentage is 60% (Table). 60% of
R154 167 = R92 500 (with a maximum of R246 000, the applicable tax in Jan’s estate) 92 500
(7) Net tax payable in Malie’s estate
Total estate duty payable (4 above) 740 000
Less: Rebate 92 500
Net duty payable 647 500
8.7.3 Transfer duty

In terms of section 16(a) transfer duty can be deducted from the estate duty payable, if the
transfer duty was paid on property obtained from the deceased or from his estate. The condi-
tion, however, is that the person who is liable for the transfer duty must also be liable for the
estate duty which can be ascribed to the property concerned. It is unlikely that this deduction
will ever be claimed because the Transfer Duty Act 40 of 1949 provides that no transfer duty is
payable in respect of property obtained by way of an inheritance.
8.7.4 Foreign taxes

It is a broad principle of the Estate Duty Act not to subject property in an estate to double
taxation. This principle is also applied to foreign property and foreign taxation. If the estate of a
person who ordinarily resided in the Republic therefore includes foreign property on which
death duties have been paid to another state, the amount of those death duties is deductible
from the estate duty which is attributable to that property in the Republic.42 The deduction is
limited to the lesser of the foreign death duties and the estate duty payable in the Republic in
respect of the relevant property. If, for example, foreign death duties on such property amount
to R10 000 while the estate duty amounts to R6 000, the deduction is limited to R6 000. If,
however, the death duties amount to R20 000 and the estate duty to R30 000, the deduction
will be R20 000.
___________
42 S 16(c).
8.7.5 Double taxation agreements

The Republic has double taxation agreements with a few countries around the world. In gen-
eral these agreements mean that where both contracting states could levy estate duty on the
same asset in terms of their own legislation, the contracting states now split the taxation claim
between them.
Generally these double taxation agreements make provision for a contracting country to levy
estate duty (or other death duties) on the following:
 In the case of a person who is ordinarily resident or domiciled in such a country, on all the
assets which form “property” according to that country’s legislation.
 In the case of other persons, only on assets which are physically located in that country.
If an asset is taxed in both contracting countries as a consequence of these rules, one of them
will make a refund in terms of the agreement. In some cases the asset concerned may even be
totally excluded from estate duty in one of the countries involved. In many countries estate
duty has also been discontinued. In practice the relevant agreements must obviously be con-
sulted directly in order to be able to apply the provisions thereof.
8.8 Persons liable for estate duty
8.8.1 General
The executor of an estate, in his capacity as executor, is responsible for the payment of all the
estate duty in connection with the estate concerned. This includes the payment of estate duty
on certain categories of assets which are recoverable from other persons.43 The executor has
the right to recover the estate duty payable by other persons from such persons.44 Persons
become liable for estate duty if certain property or deemed property accrues to them. It is
logical that there can only be a liability for estate duty if an estate is valued at more than
R3,5 million. If it is less than R3,5 million there is no tax liability, even if the estate includes
property falling in the above-mentioned categories.
The person who is liable for the tax on the categories of property mentioned is the person to
whom any benefit from the mentioned categories accrues at the death of the deceased.45 Any
estate duty which can be ascribed to any other property is payable by the estate and cannot be
recovered from the heir or other beneficiary. Estate duty on fixed property, cash, motor vehi-
cles, etc. is therefore payable by the estate and not by the specific beneficiaries.
The South African Revenue Service issues an estate duty assessment to the executor of an
estate, who must pay the full amount over to the South African Revenue Service. It is the
executor’s duty to make arrangements with any other persons who are liable for the duty in
order to collect from them any amounts due by them. If the available assets in an estate are,
however, insufficient to pay the estate duty in full, the executor is not liable for the deficit and
the Commissioner must collect the balance from the persons who are liable therefore. For
example, a ceded policy of R5 million is added to the estate otherwise worth only R100 000, for
estate duty purposes. The estate duty in this case is far greater than the R100 000 available in
___________
43 S 11.
44 S 13.
45 S 11(a)(i).
the estate, and the Commissioner will have to recover the shortfall directly from the person to
whom the policy was ceded.
The types of property and deemed property which may have the result that the beneficiaries
can be liable for the duty thereon, are discussed below, namely:
 usufructs, fiduciary interests and annuities; and
 insurance policies and exempt donations.
Usufructs and fiduciary interests

If an estate includes a usufruct or fiduciary right, the person to whom the benefit accrues at
the death of the deceased is liable for the duty. In the case of a usufruct which ceases, the
benefit accrues to the holder of the bare dominium, who will have to pay the duty. In the case
of usufructs which accrue to different persons successively, each successor will be liable for the
duty at the time when the right accrues to him. In the case of a fiduciary interest which ends
upon the death of the holder, the fideicommissary (the successive holder of the right) is liable
for the duty.
Annuities
In the case of an annuity charged upon property, the beneficiary who is liable for the estate
duty payable on the annuity is usually the owner of the property from which the annuity was
paid. If the annuity ends at the death of the deceased, the owner of the property (the person
paying the annuity) benefits because his obligation to pay ends. If he must continue paying the
annuity to someone else upon the death of the deceased, the new beneficiary is liable for the
duty. In the case of an annuity (not charged upon property) the beneficiary is usually the
person who paid the annuity (and who now no longer needs to pay it). This latter person
(beneficiary) will then be liable for the estate duty. If the person paying the annuity must
continue paying it to another person after the death of the deceased such other person will be
liable for the payment of the duty.
Insurance policies and exempt donations

The person who is liable for the estate duty attributable to a policy which is included in a
deceased estate is the person who is entitled to the proceeds of the policy, for example, a
brother to whom the proceeds are paid in terms of the insurance contract. If a policy is paid to
the estate and the proceeds are collected by the executor, the estate is liable for the duty.46 If
the proceeds of a policy are exempt from estate duty, it stands to reason that no person can be
liable for duty in respect of such a policy.
In the case of exempt donations which form part of the deemed property of an estate, the
donee is liable for the estate duty on the donation.47
8.8.2 Apportionment of estate duty

The above-mentioned types of property and deemed property (usufructs, fiduciary assets,
annuities, policies and exempt donations) are the only types where the estate duty is appor-
tioned to and payable by the beneficiaries. The estate duty on all other types of property is
payable by the estate and no beneficiary is liable for it.
___________
46 S 11(b)(i).
47 S 11(b)(ii).
If an estate includes property, the duty on which is recoverable from other persons, the duty
must be apportioned in order to ascertain each one’s liability. The apportionment of the duty
can best be illustrated by the following example in Adam’s estate.
Calculation of total estate duty

Property in the estate R
(1) Private home at valuation 2 100 000
(2) Unlisted shares at valuation 1 050 000
(3) Value of a usufruct over a farm (the benefit accrues to Ydel, the holder of the bare
dominium) 1 500 000
(4) Lump sum benefit payable by a fund to Zulu, Adam’s only son (not a deemed asset
of the estate) –
(5) Proceeds of policy A, payable to the estate 1 200 000
(6) Proceeds of policy B payable directly to Zulu, in terms of the policy conditions 360 000
GROSS VALUE OF THE ESTATE 6 210 000
Less: Liabilities 210 000
Less: rebate section 4(A) 3 500 000
DUTIABLE AMOUNT 2 500 000
ESTATE DUTY (at 20%) 500 000
Apportionment of the duty R

Ydel (1 500 000/6 000 000 × 500 000) 125 000
Zulu (360 000/6 000 000 × 500 000) 30 000
Estate (4 140 000*/6 000 000 × 500 000) 345 000
500 000
* (2 100 000 + 1 050 000 + 1 200 000 – 210 000 = 4 140 000)
The only items for which the duty can be apportioned to the beneficiaries are:
 usufruct (Ydel), and
 proceeds of policy B (Zulu).
8.9 Marriages in community of property

When one of two spouses who were married in community of property dies, the whole joint
estate is administered by the executor and executor’s remuneration is levied on the value of
the joint estate. However, estate duty is only levied on the deceased person’s half of the joint
estate. The other half of the joint estate will only become liable for estate duty when the
surviving spouse dies. Consequently the value of the net joint estate must be halved upon the
death of the first dying since only half of the estate is taxed. There are certain exceptions to
this general rule. These exceptions are discussed below.
Costs that apply only to the estate of the first dying
Strictly speaking the joint estate ceases to exist as soon as the first spouse dies. Certain costs,
such as funeral and tombstone expenses, are only incurred thereafter, and are a liability of the
deceased’s estate which cannot be deducted from the survivor’s share. The full amount is
deductible from the deceased’s half of the joint estate for estate duty purposes. See paragraph
7.5.6 for an example of the adjustment.
Insurance policies
The proceeds of certain insurance policies on the life of the deceased are property deemed to
be property and subject to estate duty. If the deceased was married in community of property
the full amount of the policy (less any deductions) is taxed in his estate; it is not reduced by half
due to the marriage in community of property.
Limited interests
Limited interests such as usufructs and fiduciary rights are regarded as personal rights which
accrue to the holder thereof in person and do not form part of the joint estate. The full value of
such interests is therefore subject to estate duty and it cannot be halved because of a marriage
in community of property. Annuities (whether charged upon property or not) are not personal
rights and constitute part of a joint estate. Only half their value is taxable in the first dying’s
estate.
8.10 Summary
The above-mentioned provisions of the estate duty act can be summarised as follows:
Section Property Valuation Responsible person

3(2) Movable/ 5(1)(a), assets sold Executor
Non-movable 5(1)(g), assets not sold
5(1)(f)bis, unlisted shares
3(2)(a) Usufruct, fiduciary right 5(1)(b) Beneficiary
Annuity charged on property 5(1)(c)
3(2)(b) Bare dominium 5(1)(f) Beneficiary
Annuity not charged on proper- 5(1)(d)
ty
3(2)(c)–(h) Exemptions – Non- residents –
3(3) Deemed property 5(1)(d)bis for annuities Executor
3(3)(a) Insurance policies 5(1)(d)bis for annuities The person to whom
the amount is payable
3(3)(b) Donatio mortis causa 5(1)(e) Receiver of donation
3(3)(d) & Property with the right to dis- 5(1)(f)ter Executor
3(5) pose of
All other property Executor
8.11 Administration of the Act

In terms of section 6(1) of the Act the Commissioner for Inland Revenue is charged with the
execution of the Estate Duty Act. Furthermore, all administrative requirements and procedures
for purposes of the performance of any duty, power or the exercise of any right in terms of this
Act are, to the extent not regulated in this Act, regulated by the Tax Administration Act.48 The
executor in an estate must complete an estate duty return form (Rev 267) and submit it to the
Commissioner for assessment.49 Estate duty is assessed by the Commissioner.50 If the Commis-
sioner, prior to the issue of such a notice of assessment, is dissatisfied with any value at which
property or the dutiable amount of the estate is reflected, the Commissioner should adjust that
value and raise the assessment accordingly.51
If additional property is found in an estate within five years of the date on which an assess-
ment was issued and a supplementary liquidation and distribution account is required in terms
of section 35 of the Administration of Estates Act, a notice of assessment shall be deemed to
have been issued on the date on which the supplementary liquidation and distribution account
has become distributable.52 This means that the estate will be re-assessed at that date as if it
were the first assessment, including the subsequently discovered property. If additional prop-
erty is found in an estate more than five years after the date on which the assessment was
issued and a liquidation and distribution account is required in terms of section 35 of the
Administration of Estates Act, the additional property shall be subject to estate duty as if that
property were the sole property of the estate of the deceased and as if the death of the de-
ceased occurred on the date on which the additional property was reflected in the supplemen-
tary liquidation and distribution account.53
Interest on unpaid estate duty will be levied in terms of Chapter 12 of the Tax Administration
Act, 28 of 2011. This means that interest will be levied at the prescribed rate from the earlier of
the date of the assessment or 12 months after the date of death.54
In terms of section 10(2) the Commissioner allows an extension of time for the payment of
estate duty without any interest, if he is convinced that a delay in connection with the payment
of the duty is not caused by the executor or some other person liable for the duty. The exten-
sion of time can be granted provided a reasonable deposit is paid to the Commissioner and
provided written application is made for the extension. In fixing the amount of the deposit, the
executor’s estimate is accepted in practice. If any duty remains unpaid for more than 30 days
after the date stated in the notice of assessment and without an extension of time having been
granted, interest is levied thereon.
The executor is liable for the estate duty payable to the extent contemplated in Chapters 10
and 11 of the Tax Administration Act.55 Under certain circumstances the executor may recover
estate duty paid from beneficiaries (see 8.8). With the consent of the Master of the High Court
___________
48 S6(3)
49 S 7 read with para 14 of Schedule 1 of Act No 28 of 2011.
50 S 9.
51 S 9(1A).
52 S 9(4)(b).
53 S 9(4)(c).
54 S 187(3)(c) of the Tax Administration Act.
55 S 12.
the person who is liable for estate duty may mortgage property in respect of which the liability
for the duty arises.56
In terms of section 17 the Master of the High Court may only file an estate’s liquidation and
distribution account and discharge the executor from his duties once the estate duty has been
paid or secured to the satisfaction of the Commissioner.
No property of the deceased may be delivered or transferred to any heir or legatee until the
executor has satisfied the Commissioner that provision has been made for the payment of
estate duty (section 18).
To assist the Commissioner in the administration of the Act, the Minister of Finance may
make regulations for the better carrying out of the objects and purposes of the Act.57 Section 6
also provides that any administrative requirements and procedures not provided for in the Act
will be regulated by the Tax Administration Act.
The South African government may enter into agreements with the governments of other
countries to prevent double taxation of the same property in a deceased’s estate.58 Any person
who fails to comply with any reasonable requirement of the Master or Commissioner or hin-
ders the Commissioner or Master in carrying out any provision of the Act, shall be guilty of an
offence and liable on conviction to a fine or to imprisonment for a period not exceeding two
years.59
8.12 The calculation of estate duty – Example

The executor in an estate will calculate the estate duty payable by taking the total assets less
liabilities and adjusting it for estate duty purposes, as and if necessary. In this regard the
executor will be led by the liquidation and distribution account he must complete and submit
to the Master of the High Court. However, when an estate planner calculates the estate duty
liability during estate planning, he will usually take a short cut, adding the values of all assets
and assets deemed to be assets, showing the estate duty values and not the values that would
appear in a liquidation account (where different), and subtracting liabilities, other deductions
and rebates.
It is virtually impossible to prepare a single example on the calculation of estate duty which
makes provision for all possibilities. The example which follows below only serves to illustrate
the basic principles and does not make provision for all possible situations.
Details
Name: Jan Hendriks

Date of death: 23 August 2017
Place of ordinary residence: Roodepoort, RSA
Marital status: Married out of community of property to San Hendriks.
This was Jan’s first and only marriage.
___________
56 S 14.
57 S 29.
58 S 26.
59 S 28.
Assets, rights and liabilities

R
1. Residence in Roodepoort – valuation 900 000
2. The farm “Witklip” district Brits on which bona fide farming activities are con-
ducted – market value 3 000 000
3. Furniture and personal effects – valuation 450 000
4. Motor vehicles – valuation 105 000
5. During 1994 the deceased lent a collection of Pierneef paintings to the state in
terms of a notarial deed for a period of 30 years. At date of death the paintings
were valued for 750 000
6. Fixed deposit collected
– capital 300 000
– accrued interest to date of death 15 000
– accrued interest after date of death 9 000
7. Proceeds of policy A, paid to the estate 375 000
Premiums and 6% interest on policy A (paid by the deceased) amounted to
R75 000
8. Auditor’s valuation of the shares in JD (Pty) Ltd 450 000
The value of the shares was determined as follows:
– Net asset value60 of company 18 000
– Plus: Proceeds of policy 600 000
– Less: Company income tax on policy (28%) (168 000)
The executor sold these shares for R375 000, the best price he could obtain.
9. Limited interest – usufruct 1 822 500
The usufruct ceases at the deceased’s death. The bare dominium belongs to the
deceased’s son. (The value of the usufruct is given in this example.)
10. Gross proceeds of shares in foreign companies listed on a stock exchange in New 750 000
York
Brokerage of R6 000 was charged to sell the shares
The deceased inherited the shares from the estate of his late father in August
2007. His father was an RSA citizen, ordinarily resident in the RSA
11. Net proceeds of a fixed property in London 1 515 000
The property was donated to the deceased in 1984 by his grandmother, a British
citizen who ordinarily resided in London
12. Proceeds of policy B, paid to the survivor 750 000
Premiums and 6% interest on policy B (paid by the deceased) 90 000
13. Proceeds of policy C, paid to D, business partner of the deceased 525 000
Premiums and 6% interest paid by D 225 000
D took out the policy on the deceased’s life in order to make cash available to
acquire the deceased’s shares in JD (Pty) Ltd at his death (see also 8 and 14)
14. Proceeds of policy D on the deceased’s life 600 000
Paid to JD (Pty) Ltd, who took out the policy. (Assume that the policy is dutiable in
this estate – also see 8 above.) Premiums and 6% interest amounted to R240 000
and were paid by JD (Pty) Ltd (see also 8)
15. Lump sum benefit paid to the surviving spouse by ABC Pension fund 270 000
continued
___________
60 The shares in the company could also have been valued on another basis than net asset value, for
example on the basis of super profits. The basis of valuation is, however, not important.
16. A monthly pension of R4 500 is also payable to the surviving

spouse by ABC pension fund for the rest of her life. The survivor was
59 years old (60 next birthday) at the time of the deceased’s death.
17. Mortgage bond over the property in London (see 11 above), in favour of a British 30 000
Building society – paid out of the proceeds
18. British death duties (estate duty) in respect of the property in London – paid out 15 000
of the proceeds. (See 11 above)
19. USA death duties (estate duty) in respect of the shares in foreign companies – paid 30 000
out of the proceeds.
USA brokerage on these shares was also paid out of the proceeds and amounted
to R6 000. (Also see 10 above and 3 below)
20. Bank overdraft 135 000
21. Accrual claim in favour of the surviving spouse 1 305 750
22. Funeral expenses 10 500
23. Master’s fees and executor’s remuneration according to tariff
Additional information
(1) The deceased made the following bequests in his will:

 R60 000 cash to the CSIR (recognised local scientific institution)
 R15 000 cash to the SPCA (recognised charitable organisation)
 R750 000 cash to the surviving spouse
 The residue of the estate to his only son, Jannie Hendriks.
(2) In 1998 Jannie Hendriks made improvements at a cost of R30 000 to the Roodepoort
residence with his father’s written permission. The improvements increased the value of
the residence at the time of the deceased’s death by R75 000.
(3) In the deceased’s father’s estate, the estate duty on the shares mentioned in 10 above
amounted to R90 000. The shares were valued at R300 000 in his father’s estate. Jan
Hendriks’s father died on 10 August 2011.
Calculation of estate duty

The information above was used to calculate the estate duty as indicated below. Three col-
umns appear in the calculation. The first column reflects the values as they would appear in the
liquidation account. The total of this column is required to determine the executor’s remunera-
tion. The second column reflects the estate duty values as required by the Estate Duty Act, for
calculating estate duty. The last column shows the paragraph numbers of this book where the
relevant item is discussed, if more information is required.
Calculation of dutiable amount
Assets in liquidation account Liquidation Estate duty Par.

Residence at valuation 900 000 900 000
Farm “Witklip” at fair market value* 3 000 000 2 100 000 8.4.4
Furniture and personal effects 450 000 450 000
Motor vehicle at valuation 105 000 105 000
Collection of Pierneef paintings 750 000 750 000
Fixed deposit and accrued interest 315 000 315 000
Proceeds policy A 375 000 375 000
JD (Pty) Ltd – shares
– sold 375 000
– valuation 450 000 8.4.3
Total 6 270 000 5 445 000
Less: Liabilities and administration costs 1 671 300 1 671 300
Bank overdraft 135 000 135 000
Accrual claim 1 305 750 1 305 750
Funeral expenses 10 500 10 500
Master’s fee61 600 600
Executor’s remuneration (3½% × R6 270 000) 219 450 219 450
Net estate 4 598 700 3 773 700

* Fair market value = R3 000 000 – 30% = R2 100 000
Adjustments
(Property not in liquidation account)
Usufruct 1 822 500 8.2.2
Shares in foreign companies 750 000 8.2.4
Proceeds of property in London (to be deducted) 1 515 000 8.2.4
continued
___________
61 As date of death occurred before 1 January 2018, the old scale regarding the Master’s fees is still
applicable. Refer to Chapter 7 section 7.5.7 for more detail in this regard.
Adjustments
(Property deemed to be property, not in the liquidation account)
Policy B (to be deducted) 750 000 8.3.2
Policy C (exempt) – 8.3.2
Policy D (limited to) 360 000 8.3.2
Proceeds 600 000
Less: Premiums and interest paid by beneficiary 240 000
Benefits paid by ABC pension fund
– Lump sum benefit (not property) – 8.3.1
– Pension (not taxable) – 8.3.1
Subtotal 8 971 200
Deduct 4 281 000
Property in London62 1 515 000 8.5.6
Bequest to research institution 60 000 8.5.9
Bequest to charitable institution 15 000 8.5.9
To surviving spouse63 1 500 000 8.5.16
Improvements made to property 75 000 8.5.10
Brokerage – foreign shares sold 6 000 8.5.5
Paintings 750 000 8.5.14
Section 4(p) deduction – shares in JD (Pty) Ltd
(R600 000 – R168 000), limited to R360 000 360 000 8.5.15

Less: rebate – section 4A 3 500 000
DUTIABLE AMOUNT 1 190 200
continued
___________
62 The total value of the property is deductible and therefore the mortgage bond of R30 000 cannot
be deducted as well. The death duties on the London property are ignored as well, because the
property itself was not taxed in South Africa.
63 R750 000 cash legacy + R750 000 policy B = R1 500 000.
Assets in liquidation account Liquidation Estate duty Par.
Estate duty calculation

ESTATE DUTY @ 20% of R1 190 200 238 040 8.1
Less: Rebate due to rapid succession
shares in foreign companies:
(60% × 300 000/4 690 200 × 238 040) 9 135 8.7.2
Less: Deduction – foreign death duties (USA)
750 000/4 690 200 × 238 040 = R38 064
(but limited to R30 000) 30 000 8.7.4

Total duty payable 198 905
Appointment of duty
The following persons are liable for duty
R
1. Jannie Hendriks, son of the deceased, in respect of the 77 290
usufruct which ceases
1 822 500/4 690 200 × 198 905
2. JD (Pty) Ltd in respect of policy D 15 267

360 000/4 690 200 × 198 905
3. The estate in respect of the balance 106 348

2 507 700/4 690 200 × 198 905
198 905
9
Examples of executor’s
accounts
9.1 Introduction ............................................................................................................ 183

9.2 Example 1 – Estate of a single person..................................................................... 184
9.3 Example 2 – Adiation .............................................................................................. 194
9.4 Example 3 – Repudiation ........................................................................................ 203
9.5 Example 4 – Redistribution agreement .................................................................. 209
9.6 Example 5 – Section 38 takeover ............................................................................ 216
9.1 Introduction
An executor’s administration of a deceased estate finds final expression in the executor’s
account, which must be compiled in order to reflect how the estate was dealt with. It provides
a comprehensive review of the administration of the estate and indicates exactly how each
asset and liability was dealt with. It is an important document for everyone with an interest in
the estate.
A person’s marital status, the provisions of his or her will, the law of intestate succession, the
nature and composition of assets, redistribution agreements between beneficiaries, and many
other factors influence the administration process and therefore also the executor’s account,
which reflects this process. Every estate is unique and differs from all other estates. These
differences are reflected in the various executors’ accounts. In the examples which follow it is
shown how some of these factors may influence the executor’s accounts in practice. In the first
four examples a single basic set of particulars was used, but slightly modified in each case to
show how differences in marital status, testamentary conditions, assets, redistribution
agreements, etc., are reflected in the various executor’s accounts. By comparing the examples
the effects of the changes on the accounts can be seen. At the end of each example comments
are provided to highlight the effects of the changed variables on the executor’s accounts. For
variation, a different set of particulars was applied in Example 5.
183
Together, the examples constitute a comprehensive whole and should preferably not be
studied in isolation. Insight into these examples, with understanding of the underlying
differences and their reasons, should lead to a good understanding of the subject.
The form and content of an executor’s account is governed by the Administration of Estates
Act, in terms of which the Master issues regulations to arrange these matters. Please consult
Schedule 4 to this book, in which these regulations are quoted. Attention is drawn to the fact
that an executor’s account consists of a number of separate elements or sub-accounts, and
that the term “executor’s account” encompasses all these elements. The five examples which
follow respectively illustrate the following aspects:
Example 1 (Estate of a single person)
 Marriage out of community of property (the accrual system did not apply). The example
would also be applicable to the estate of an unmarried person, widow or widower.
Example 2 (Adiation)
 Marriage in community of property

 Joint will
 Adiation
 Fiduciary asset
Example 3 (Repudiation)

 Repudiation
 Total liquidation of estate
Example 4 (Redistribution agreement)

 Redistribution agreement
Example 5 (Section 38 takeover)
 Takeover of assets in terms of section 38 of the Act
9.2 Example 1 – Estate of a single person

This is an example of an estate in a marriage out of community of property. That means it is the
estate of just the one spouse in contrast to the joint estate of both spouses in the case of a
marriage in community of property. Executor’s accounts in the estate of a widow, widower, or
an unmarried person would not differ much from the accounts in this example.
Chapter 9 Examples of executor’s accounts 185
(1) Particulars – Example 1 (estate of a single person)

Deceased: Peter Smith
Residential address: 18 Willow Avenue, Rocky Ridge, Florida, Gauteng Province
ID number: 520228 5050 082
Date of birth: 28 February 1952
Date of death: 10 September 2017
Master’s reference: 1875/2017
Marital status: Married out of community of property. The accrual system did
not apply. This was Peter Smith’s first marriage.
Immovable property
1. 18 Willow Ave, Rocky Ridge, situated in the township of Florida, registration division XY,
Gauteng Province, 1580 square meters in extent, held by the deceased under deed of
transfer F456/1993, dated 8 June 1993. Valuation R1 875 000.
2. Certain portion 2 of the farm Greenfields, registration division XZ, Gauteng Province, 1205
hectares in extent, held by the deceased under deed of transfer F98/1992, dated 1 April
1992. This property is used for bona fide farming operations. The fair market value of the
property is R2 625 000.
3. Certain portion 6, a portion of portion 2, of the farm Rocklands, registration division JK,
Gauteng Province, 210 hectares in extent, held by the deceased under deed of transfer
T2389/1972, dated 10 April 1972. Sold by the executor out of hand for R750 000 in order
to meet the estate’s liquidity (cash) requirements and to be able to comply with the
conditions of the will.
Movable property
1. Furniture and household effects – valuation R360 000

2. Agricultural implements – valuation R180 000
3. Livestock – valuation R900 000
4. Musgrave 30-06 hunting rifle – valuation R10 500
5. 2012 Toyota Verso, registration number JCJ 666 GP – valued at R270 000
Claims in favour of the estate
1. 32 Day notice deposit number B1233 in the amount of R47 562 at ABSA Bank, collected by
the executor on 31 October 2017. The amount consists of capital R45 150, accrued interest
of R1 425 for the period 1 July 2017 to 10 September 2017, and interest of R987 for the
period 11 September to 31 October 2017.
2. R2 400 000, being the proceeds of Old Mutual policy number BB85856, on the life of the
deceased, payable to the estate and collected by the executor.
3. R65 583 being the balance on current account number 690-187-001 at ABSA Bank,
collected by the executor on 15 October 2017. The balance on date of death was R66 165,
while bank charges after date of death amounted to R690; interest amounting to R108 was
earned and credited to the account after date of death.
4. 65 246 units in Investec Emerging Companies Unit Trust fund. Listed value on date of death
was R674 870. The units were sold by the executor on 8 October 2017 for R687 360. The
executor also collected interest amounting to R44 064 and dividends amounting to R3 858
on these units. The interest and dividends were declared and awarded on 7 October 2017.
Liabilities – claims and costs of administration
1. ABSA Bank – First mortgage bond over 18 Willow Ave, Rocky Ridge, Florida: R101 625
2. Gauteng Funerals – funeral expenses R22 500
3. Dr G J J Morkel – medical account R10 560
4. Universitas Hospital – account R73 965
5. South African Revenue Service – final assessment R271 565
6. Bank charges i.r.o. estate bank account – R219
7. Advertisements
 The Local News> – debtors and creditors – R120
– account for inspection – R120
 Government Gazette – debtors and creditors – R30
– account for inspection – R30
8. Transfer costs in respect of immovable properties (1 and 2 under immovable property
above) R20 565
9. The sworn appraiser charged a fee of R2 250 for valuing the assets
10. Executor’s remuneration and Master’s fees according to the tariffs
Testamentary conditions
The deceased made a valid will, which provided for the following bequests:
1. To the surviving spouse, Joan Smith:
 The residence, situated at 18 Willow Ave, Rocky Ridge, free from any encumbrances
 All furniture and household effects
 a cash legacy of R2 250 000.
2. To William Smith, major son of the deceased:
 The farm Greenfields
 The agricultural implements
 All livestock
 The Musgrave 30-06 hunting rifle.
3. To Andrew Smith, only brother of the deceased, the residue of the estate.
1. The surviving spouse adiated and the other beneficiaries all accepted their benefits.
2. The will stipulated that the farm Rocklands should be sold if the estate experienced a cash
deficit.
3. The cost of Eskom power consumed on the farms during the period 10 September to the
date on which the executor’s account was approved, amounted to R5 625 and was paid by
the executor. The executor also purchased fodder to the value of R7 500 and paid wages
amounting to R13 500 to farm workers for the period after 10 September 2017.
The information above was applied to prepare a complete executor’s account in the estate of
the late Peter Smith, as set out in the suggested solution below.
(2) Suggested solution – Example 1 (estate of a single person)
FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF PETER SMITH
(IDENTITY NUMBER 520228 5050 082) WHO RESIDED AT 18 WILLOW AVENUE, ROCKY RIDGE,
FLORIDA, AND WHO DIED THERE ON 10 SEPTEMBER 2017. MARRIED OUT OF COMMUNITY OF
PROPERTY. THE ACCRUAL SYSTEM DID NOT APPLY TO THE MARRIAGE. MASTER’S REFERENCE
NUMBER 1875/2017.
Liquidation account
Voucher
ASSETS number R
Immovable property – not reduced to cash 4 500 000
– 18 Willow Ave, Rocky Ridge, situated in the township of Florida, (1) 1 875 000
registration division XY, Gauteng Province, 1580 square meters in
extent, held by the deceased under deed of transfer number
F456/1993 dated 8 June 1993. At valuation
– Certain portion 2 of the farm Greenfields, registration division XZ, (2) 2 625 000
Gauteng, 1205 hectares in extent, held by deed of transfer F98/1992,
dated 1 April 1992. At fair market value
In terms of the provisions of the deceased’s will:
1. Asset 1 is transferred to the surviving spouse, Joan Smith.1
2. Asset 2 is transferred to the deceased’s major son, William Smith.
Immovable property – turned to cash 750 000
Certain portion 6, a portion of portion 2, of the farm Rocklands, (3) 750 000
registration division JK Gauteng Province, 210 hectares in extent, held
by the deceased in terms of deed of transfer T2389/1972, dated 10 April
1972. Sold by the executor
Movable property – not turned to cash 1 720 500
– Furniture and effects – at valuation (4) 360 000
– Agricultural implements – at valuation (5) 180 000
– Livestock – at valuation (6) 900 000
– Musgrave 30-06 hunting rifle – at valuation (7) 10 500
– 2012 Toyota Verso, registration number JCJ666GP – at valuation (8) 270 000
In terms of the deceased’s will:
1. Asset 4 is transferred to the surviving spouse, Joan Smith.
2. Assets 5, 6 and 7 are transferred to William Smith, major son of the deceased.
3. The motor vehicle, asset 8, forms part of the residue of the estate, and is transferred to Andrew
Smith, brother of the deceased, a major.
continued
___________
1 Asset numbers refer to the voucher numbers in the account.
Voucher
ASSETS number R
Claims in favour of the estate – turned to cash 3 200 100
– Proceeds of ABSA Bank fixed deposit number B1233 (capital R45 150 (9) 46 575
plus interest accrued to date of death R1 475) (10) 2 400 000
– Proceeds of Old Mutual policy number BB85856 on the life of the (11) 66 165
deceased
– Proceeds of ABSA Bank current account number 690-187-001 (12) 687 360
65 246 units in Investec Emerging Companies Unit Trusts sold by the
executor
TOTAL ASSETS 10 170 600
LIABILITIES
Claims against the estate 480 215
– ABSA Bank – mortgage bond over 18 Willow Ave Rocky Ridge (asset 1 (13) 101 625
above) (14) 22 500
– Gauteng Funeral Services – funeral expenses (15) 10 560
– Dr G J J Morkel – medical account (16) 73 965
– Universitas Hospital – account (17) 271 565
– South African Revenue Service – final assessment (income tax)
Administration costs 379 905
– Bank charges – estate bank account (18) 219
– The Local News – cost of advertisements
debtors and creditors (19) 120
this account for inspection (20) 120
– Government Gazette advertisements
– Transfer costs i.r.o. fixed properties (assets 1 and 2 above) (23) 20 565
– Valuation costs
– Master’s fee – maximum amount (24) 2 250
– Executor’s remuneration @ 3,5% of R10 170 600 (25) 600
355 971
Subtotal 860 120

Estate duty 107 596
TOTAL LIABILITIES 967 716
BALANCE AVAILABLE FOR DISTRIBUTION 9 202 884
TOTAL ASSETS AS ABOVE 10 170 600
continued
Recapitulation statement
R
Cash assets and assets sold (assets 3 and 9 to 12 above) 3 950 100
Less: Total liabilities 967 716
2 982 384
Less: Cash legacy to Joan Smith, surviving spouse 2 250 000
Cash available for distribution 732 384
Distribution account
R
Amount available for distribution (as per liquidation account) 9 202 884
Distribution as follows:
1. To Joan Smith, surviving spouse of the deceased, in terms of clause 1 of the will
4 485 000
This award consists of:
– 18 Willow Ave, Rocky Ridge (asset 1) 1 875 000
– Furniture and household effects (asset 4) 360 000
– A cash legacy 2 250 000
2. To William Smith, major son of the deceased, in terms of clause 2 of the will 3 715 500
– Portion 2 of the farm Greenfields (asset 2) 2 625 000
– Agricultural implements (asset 5) 180 000
– Livestock (asset 6) 900 000
– Musgrave hunting rifle (asset 7) 10 500
3. To Andrew Smith, major brother of the deceased, being the only residuary heir, in
terms of clause 3 of the will 1 002 384
– Toyota Verso JCJ 666 GP (asset 8) 270 000
– Cash 732 384
9 202 884
continued
Income and Expenditure account

Voucher R
INCOME Number 49 017
– Interest (accrued after date of death) on ABSA fixed deposit (9) 987
– Interest (accrued after date of death) on ABSA current account (11) 108
– Interest (accrued after date of death) on 65 246 units in Investec (12) 44 064
Unit Trusts
– Dividend (accrued after date of death) on 65 246 units in Investec (12) 3 858
Unit Trusts
EXPENSES 30 256
– Bank charges (after date of death)2 (11) 690
– Eskom power (after date of death) (26) 5 625
– Fodder purchased (after date of death) (27) 7 500
– Wages paid to farm workers (after date of death) (28) 13 500
– Executor’s remuneration (6% of R49 017) 2 941
BALANCE AVAILABLE FOR DISTRIBUTION 18 761

(Awarded to Andrew Smith, sole residuary heir in terms of the will)
Fiduciary assets account
There are no fiduciary assets to account for.
Estate duty addendum
(Calculation of tax payable)
R
Total assets per liquidation account 10 170 600
Less: Greenfields farm – adjustment for ‘fair market value’ (R2 625 000 x 30%) 787 500
Less: Liabilities before estate duty 860 120
Gross value of estate 8 522 980
Less: Deduction of bequests to surviving spouse – Section 4(q) of the Estate Duty Act 4 485 000
Net value of estate 4 037 980
Less: Rebate of R3,5 million – Section 4A of the Estate Duty Act 3 500 000
Dutiable amount 537 980
Estate duty at 20% 107 596
Apportionment of duty
In this case the estate is liable for the full amount of the duty and no amount of the duty can be
apportioned to other persons in terms of section 11 of the Estate Duty Act.
continued
___________
2 Usually bank charges are shown in the liquidation account since in most cases there is no income
after death to recover it from. In this example there was income (interest) against which it could be
deducted, even though the expense exceeds the income.
Certificate
I, the undersigned, certify that the above is a true and correct account of the liquidation and
distribution of this estate and that to the best of my knowledge and belief there are no further assets
and/or liabilities to be accounted for.
I further certify that all income collected and all expenses paid since date of death of the deceased up
to and including the date of this account have been accounted for herein.
SIGNED at PRETORIA this............. day of.............. 20 ......
....................................
EXECUTOR
(3) Comments – Example 1 (estate of a single person)
General
Note again the elements which constitute the account, as discussed in paragraph 7.1.3 of
Chapter 7.
In this example all amounts have been rounded off to the nearest rand. In practice, however,
amounts are not rounded off – the balance of a savings account, interest received etc. cannot
be rounded off.
See Schedule 4 to this book for the Master’s regulations 5(1)(a) to 5(1)(i) regarding the
requirements which an executor’s account have to comply with and the information that must
be provided therein.
The fair market value of immovable property used in bona fide farming activities is
determined in terms of the Estate Duty Act as the market value (as per sworn valuator) less
30%. The value is therefore R2 625 000 x 70% = R1 837 500.
Heading
The deceased’s address and the place of death are not required by the regulations but have
nevertheless been stated above for the sake of completeness. Note the particulars regarding
the accrual system. See regulation 5(1)(a).
Liquidation account
See regulation 5(1)(b) and (c). Please note the following:

(1) Grouping of assets under headings
 Immovable property;
 Movable property;
 Claims in favour of the estate.
Within these main groupings, assets can be subdivided further into sub-groups of assets
 not reduced to cash; and
 reduced to cash.
In our opinion this classification can be fully reconciled with the regulations. Many
deviations and variations occur in practice concerning the layout and presentation, and
many such accounts are also approved by the Master, since he has discretion in terms of
regulation 5(5). This regulation authorises the Master to approve an account in spite of
the fact that it does not fully comply with the requirements of sub-regulation (1), if he is
of the opinion that the non-compliance is not material. Note once again that only those
assets handled by the executor, at the appropriate values, are reflected in the account.
For example, the executor can only distribute the cash actually received on the units sold
in the Investec Unit Trusts, and not the value of the units as at date of death. If the units
had not been sold, the distribution would have occurred at the value of the units as at
date of death.
A further point that must be borne in mind here is that the executor’s remuneration is
calculated on the gross value of assets reflected in the liquidation account. In the case of
the unit trusts as above, the remuneration will be based on the proceeds of the sale and
not on the valuation. In the case of the insurance policy above, the executor receives his
remuneration because the policy was paid to the estate and is therefore reflected in the
liquidation account. In practice the proceeds of many policies are paid directly to the
policy beneficiaries and the money is not collected by the executor. In such cases the
executor receives no remuneration as these policies are not reflected in the liquidation
account. Such policies are nevertheless taken into account for estate duty purposes.
(2) Description of assets
 Immovable property must be described in accordance with the description contained
in the title deeds;
 Movable property and claims in favour of the estate must be described briefly yet
accurately.
(3) Liabilities
 The name of each creditor must be stated, together with the amount of his claim;
 Note the distinction between claims against the estate and costs of administration;
and
 Estate duty must be shown separately.
(4) Voucher numbers
Vouchers supporting the entries must have the same numbers as the numbers of the
specific items indicated in the liquidation account.
(5) Money column
See regulation 5(1)(b).
(6) Divestment notes
The descriptive and narrative remarks which appear in the liquidation and distribution
account are known as divestment notes, and must indicate the manner in which the
executor intends dealing with any asset or group of assets, except cash and assets
reduced to cash. These divestment notes are similar to the divestment notes in the
distribution account, except that full particulars must be provided in the latter. The same
level of detail as to how, and on which authority, assets are awarded, is not required in
Note that only totals must be given. The cash balance available for distribution must agree with
the total of the cash distributed, as reflected in the distribution account. See regulation 5(1)(d).
Note that there must be a full description of each beneficiary as well as the basis for every
award, for example, in terms of clause (x) of the will, in terms of a redistribution agreement,
etc., as the case may be. An accurate and concise description of the items of which an award
consists must also be provided. See regulation 5(1)(e).
Income and expenditure account
See regulation 5(1)(f). Only income which accrued to, and was collected by the estate after
date of death, is shown here. The same principle applies in respect of expenses. Executor’s
remuneration on income after death amounts to 6%, in contrast to 3,5% on the assets in the
liquidation account.
In this example the amount available for distribution is awarded to the residuary heir in view
of the fact that the assets which produced the income (the shares and fixed deposit) were
reduced to cash and as such formed part of the residue of the estate. The broad principle is
that income after death accrues to the person who inherits the underlying asset from the
estate.
The estate duty addendum must be provided even if no estate duty is payable. See regulation
5(1)(h). See also Chapter 8 where estate duty is discussed in detail.
If the deceased owned fiduciary assets, the transfer of such assets to the fideicommissary must
be reflected in this account. The assets must be reflected in this account in the same manner
that other assets are reflected in the liquidation and distribution account. Furthermore, any
applicable claims and expenses must be debited against this account. This account also forms
an integral part of the executor’s account. If there are no fiduciary assets, this fact must be
stated under this heading. See regulation 5(1)(g). See also Example 2 which includes a fiduciary
asset.
Regulations 5(1)(c), (e) and (f) are also applicable to this account, that is to say it also
encompasses a (separate) liquidation, distribution and income and expenditure account in
respect of the fiduciary asset or assets. The origin of the fiduciary right (will or document in
which the right was created) must be stated, together with the Master’s reference number in
the estate of the person who created the right.
Certificate
See the discussion in paragraph 7.2.8 in Chapter 7.

9.3 Example 2 – Adiation

This example is based on the same basic facts as in Example 1, but the effect of the following
differences or adjustments are highlighted and accentuated:
1. In this case the marriage is in community of property.
2. There is a joint will with adiation by the surviving spouse.
3. The deceased was the owner of a fiduciary right, among others.
4. The amount of the cash legacy to the surviving spouse has been increased from R2 250 000
to R2 700 000.
Please note the following:
 How the heading differs from the heading in Example 1.
 The effect of the marriage in community of property as far as funeral expenses,
administration costs and estate duty are concerned. Also, note the apportionment of estate
duty.
 The treatment of a fiduciary asset in the Fiduciary Asset Account.
(1) Particulars – Example 2 (adiation)

ID number: 520228 5050 082
Marital status: Married in community of property to Joan Smith (born Carter)
identity number 460126 5066 008, who survived the deceased.
Immovable property
The same particulars as in Example 1 apply.
Movable property
Fiduciary property
The remaining portion of portion 10 of the farm Vlermuiskrans, registration division JL,
Gauteng Province, measuring 45 hectares, held by the deceased in terms of deed of transfer
number 355/1974, dated 4 June 1974. The estate number was 345/1974. The deceased
acquired this fideicommissary interest in terms of the conditions of clause 3 of the will of his
late father, Alfred Smith, who died on 12 February 1974. In terms of the said will, Alfred Smith
bequeathed the farm Vlermuiskrans to his son Peter Smith, on condition that it would be
transferred to William Smith, ID number 730818 0069 008, born 18 August 1973, grandson of
Alfred Smith and son of Peter Smith, after Peter Smith’s death. The market value of the farm
was R570 000 when Peter Smith died. The deceased let this property during his lifetime. The
executor collected rent amounting to R3 000 on 30 September 2017. R1 161 had accrued to
date of death and R1 839 was income after death.
Liabilities – claims and administration costs
The same particulars as in Example 1 apply, plus an additional expense of R10 134 for transfer
costs of the fiduciary asset referred to above.
The deceased and his surviving spouse made a valid joint will. It provided for the following
bequests:
1. To the survivor of the testators:
 The residence situated at 18 Willow Ave, Rocky Ridge, free of any mortgage bond
 A cash legacy of R2 700 000.
 The Musgrave 30-06 hunting rifle
 All livestock
 The agricultural implements.
3. To Jenny Brown, only sister of the deceased, the residue of the estate. Jenny Brown is
married out of community.

Please also refer to paragraph 4.9.2 and paragraph 7.1.2 for a full discussion of the
implications of adiation and repudiation in the case of marriages in community of property,
and on the right of beneficiaries to inherit. In this example the adiation means that the survivor
elected to accept the benefits conferred on her in the will and thereby abandoned all her rights
to her half share of the joint estate due to the marriage in community of property.
(2) Suggested solution – Example 2 (adiation)
THE FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE MASSED ESTATE OF PETER
SMITH (IDENTITY NUMBER 520228 5050 082) AND JOAN SMITH (BORN CARTER, IDENTITY NUMBER
460126 5066 008), TO WHOM THE DECEASED WAS MARRIED IN COMMUNITY OF PROPERTY. THE
SPOUSES RESIDED AT 18 WILLOW AVENUE, ROCKY RIDGE, FLORIDA, AND THE DECEASED DIED THERE
ON 10 SEPTEMBER 2017. MASTER’S REFERENCE NUMBER 1875/2017.
Liquidation account
Voucher
ASSETS Number R
– 19 Willow Ave, Rocky Ridge extension 6, Florida, registration division (1) 1 875 000
XY, Gauteng Province, measuring 1 580 square meters, held in terms
of deed of transfer number F456/1993 dated 8 June 1993. At
valuation
Gauteng, measuring 1 205 hectares, held by deed of transfer number
F98/1992, dated 1 April 1992. At fair market value
In terms of the conditions of the joint will of the deceased and his surviving spouse:
Immovable property – turned to cash 750 000
Certain portion 6, a portion of portion 2, of the farm Rocklands, (3) 750 000
registration division JK Gauteng Province, 210 hectares in extent, held
by the deceased in terms of deed of transfer T2389/1972, dated 10 April
1972. Sold by the executor
Movable property – not turned to cash 1 720 500
– Furniture and effects – at valuation (4) 360 000
– Agricultural implements – at valuation (5) 180 000
– Livestock – at valuation (6) 900 000
– Musgrave 30-06 hunting rifle – at valuation (7) 10 500
– 2012 Toyota Verso, registration number JCJ666GP – at valuation (8) 270 000
In terms of the deceased’s will:
2. Assets 5, 6 and 7 are transferred to William Smith, major son of the
deceased.
3. The motor vehicle, asset 8, forms part of the residue of the estate,
and is transferred to Jenny Brown, sister of the deceased, a major.
continued
Voucher
Number R
Claims in favour of the estate – turned to cash 3 201 261
plus interest accrued to date of death R1 425)
– Proceeds of Old Mutual policy number BB85856 on the life of the (10) 2 400 000
deceased
– 65 246 units in Investec Emerging Companies Unit Trusts, sold by the
executor (12) 687 360
– Accrued rent collected – fiduciary property3 (13) 1 161

LIABILITIES
– ABSA Bank – mortgage bond over 18 Willow Ave, Rocky Ridge (asset 1 (14) 101 625
above)
South African Revenue Service – final assessment (income tax) (18) 271 565
Cost of administration 379 914
– Bank charges – estate bank account (19) 219
– The Local News – cost of advertisements
– Government Gazette advertisements
– Transfer costs i.r.o. fixed properties (assets 1 and 2 above) (24) 20 565
– Valuation costs (25) 2 250
– Master’s fee – apportioned 568
(10 171 761/(10 171 761 + 570 000) × 600)
– Executor’s remuneration @ 3,5 % of R10 171 761 356 012
Subtotal 860 129

Estate duty 125 403
BALANCE AVAILABLE FOR DISTRIBUTION 9 186 229
continued
___________
3 The bare dominium holder of an asset (fiduciary asset) is not entitled to the income (fruits) of the
property. Therefore, the rent collected for the period before death is shown here and not in the
fiduciary section of the accounts.
R
Cash and assets reduced to cash (asset 3 and assets 9 to 13 above) 3 951 261
Less: Total liabilities, costs of administration and estate duty 985 532
2 965 729
Less: Cash legacy to Joan Smith, surviving spouse 2 700 000
Cash available for distribution 265 729
Amount available for distribution (as per liquidation account) 9 186 229
Distributed as follows:
1. To Joan Smith, surviving spouse of the deceased, in terms of clause 1 of the joint
will, to which she adiated. 4 935 000
– A cash legacy 2 700 000
2. To William Smith, major son of the deceased in terms of clause 2 of joint will
3 715 500
– The farm Greenfields (asset 3) 2 625 000
– Musgrave 30-06 hunting rifle (asset 7) 10 500
3. To Jenny Brown, major sister of the deceased, married out of community of
property, being the sole residuary heir, in terms of clause 3 of the will
535 729
– Cash 265 729
9 186 229
continued
Income and Expenditure account

Voucher R
Number
INCOME 49 017
Unit Trusts
– Dividends (accrued after date of death) on 65 246 units in Investec (12) 3 858
Unit Trusts
EXPENSES 30 256
– Bank charges (after date of death) (11) 690
– Electricity (after date of death) (27) 5 625
– Wages paid to farm labourers (after date of death) (29) 13 500

(Awarded to Jenny Brown, the sole residuary heir, in terms of clause 3 of the will)
(Calculation of the estate duty payable)
R

Liabilities before estate duty 860 129
8 524 132
Add: Funeral costs 22 500
8 546 632
Less: One half due to the marriage in community of property 4 273 316
4 273 316
Less: Funeral costs 22 500
4 250 816
Less: Deduction in respect of amounts accruing to the surviving spouse – Section 4(q)
of the Estate Duty Act (R4 935 000 – R4 273 316) 661 684
Dutiable estate before fiduciary interest 3 589 132
Add: Value of fiduciary interest (see calculation) 537 884
Less: Rebate – Section 4A of the Estate Duty Act 3 500 000
Estate duty @ 20% 125 403
continued
Apportionment of estate duty

The following persons are liable for estate duty in this estate:
William Smith, being the fiduciary beneficiary, on the value of the fiduciary right R 16 344
(537 884/4 127 016 × R125 403) R109 059
The estate on the residue
(3 589 132/4 127 016 × R125 403)
R125 403
Fiduciary liquidation account

ASSETS Voucher
Immovable property Number R
The remaining portion of portion 10 of the farm Vlermuiskrans, (30) 570 000
registration division JL, Gauteng Province, measuring 45 hectares, held
by the deceased in terms of Deed of Transfer number 355/1974 dated
4 June 1974.
At fair market value.
The property is transferred to William Smith, major son of the
deceased, as more fully set out in the accompanying distribution
account
Movable property – none NIL
Claims in favour of the estate – none NIL
TOTAL ASSETS 570 000
LIABILITIES
Claims against the estate – none NIL
Costs of administration
– Transfer costs (31) 10 134
– Master’s fee (apportioned – see calculation) 32
– Executor’s remuneration @ 3,5% of R570 000 19 950
Subtotal 30 116
Estate duty 16 344
Balance available for distribution 523 540
TOTAL ASSETS AS ABOVE 570 000
Fiduciary distribution account

R
Balance available for distribution 523 540
Awarded to William Smith, major son of the deceased 523 540
This award is made in terms of clause 3 of the will of the late Alfred Smith, father of the deceased,
who died on 12 February 1974. The Master’s reference number in Alfred Smith’s estate was
345/1974.
continued
Fiduciary income and expenditure account

INCOME R
Rent collected after date of death 1 839
EXPENSES
– Executor’s remuneration @ 6% 110
(Awarded to William Smith, major son of the deceased. This award is made in terms of clause 3 of the
will of the late Alfred Smith, father of the deceased, who died on 12 February 1974. Master’s
reference number 345/1974).
Calculation of the value of the deceased’s fiduciary right
Fair market value of fiduciary property on 10 September 2017 R570 000

Date of death of fiduciary (Peter Smith) 10 September 2017
Date of birth of fiduciary beneficiary (William Smith) 18 August 1973
Fiduciary beneficiary’s age next birthday 45 years
Value of deceased’s right therefore:
R570 000 × 12% × factor for man 45 (Table A – see Schedule 6)
= R570 000 × 12% × 7,863 80
= R68 400 × 7,86380
= R537 884
Please refer to Chapter 8 for a full discussion of the calculation of the values of limited interests.
Certificate
See the certificate in Example 1.
(3) Comments – Example 2 (adiation)
Heading
Note the information that must be provided regarding the deceased’s spouse due to the
marriage in community of property.
Liquidation Account
Master’s fees appear under the heading administration costs in the liquidation account.
Master’s fees are based on the value of assets in the estate; that is, before taking costs and
liabilities into account. If there are fiduciary assets, the Master’s fees must be apportioned
between the ordinary and fiduciary liquidation accounts, because every asset contributes
towards an increase in Master’s fees and one cannot expect that fiduciary beneficiaries should
be subsidised by the other beneficiaries. In this example the maximum amount of R600 is
payable as Master’s fees. This must be apportioned between the ordinary liquidation account
which reflects assets to the value of R10 171 761 and the fiduciary liquidation account which
reflects assets of R570 000. The value used in respect of the fiduciary asset is the value as per
the liquidation account and not the value in terms of the Estate Duty Act. The pro rata
apportionment of the Master’s fee is therefore based on the values in the accounts, as follows:
R
Ordinary liquidation account – 10 171 761/(10 171 761 + 570 000) × R600 568
Fiduciary liquidation account – 570 000/(10 171 761 + 570 000) × R600 32
600
The principle applicable to Master’s fees also applies to estate duty. Estate duty is therefore
also apportioned between the various liquidation accounts. Please note that cases may also
occur where estate duty is apportioned on the basis of assets that do not appear in either the
ordinary liquidation account or in a fiduciary liquidation account, for example an insurance
policy which has been ceded.
In this example the couple were married in community of property with a joint will, which was
adiated (accepted) by the surviving spouse. Because the estate was massed, the surviving
spouse obtains the benefits conferred on her in the will, but in return forfeits her half of the
estate due to the marriage in community of property.
In this example it can be seen why the surviving spouse adiated under the circumstances –
she receives a larger benefit than her half of the joint estate. Half of the estate amounts to
R4 273 316 (see estate duty addendum), whereas she now receives R4 935 000. (See
liquidation account.)
Estate duty is dealt with in Chapter 8. However, the items below require explanation.
(1) Funeral expenses
Funeral expenses are incurred after the date of death. It is therefore a liability of the
deceased’s estate, and not of the joint estate. In order to calculate the survivor’s half of the net
estate accurately the funeral expenses must first be added back, since it was treated as a joint
liability in the liquidation account. For estate duty purposes the funeral expenses are, however,
deductible and the full amount is therefore deducted from the deceased’s estate.
(2) Reduction due to marriage in community of property
It is not the joint estate which is liable for estate duty. Only the deceased’s half of the joint
estate must be taxed. The half belonging to the surviving spouse is therefore deducted.
(3) Deduction in terms of section 4(q) of the Estate Duty Act
The survivor’s half of the estate amounts to R4 273 316. According to the distribution account,
however, she receives an amount of R4 935 000. The difference of R661 684 therefore accrues
to her from the deceased’s estate and can be deducted for estate duty purposes.
(4) Fiduciary interest

A fiduciary interest is a personal right that means it belongs to the deceased personally in spite
of the fact that he is married in community of property. Therefore the survivor does not own a
half share in this interest, whereas she does own half of all the other assets.
(5) Apportionment of duty
See Chapter 8 where this matter is discussed. Also see the liquidation account – only the
estate’s share of the duty is reflected there.
This account is a miniature liquidation and distribution account, but only fiduciary assets are
reflected here. This account also contains its own income and expenditure account. See
regulation 5(1)(g). The administration costs and estate duty in respect of the fiduciary assets
will be recoverable from the beneficiary, William Smith. He therefore receives the total asset
(R570 000). However, he pays in R46 460 to cover the costs of realising the asset. He also
receives the R1 729 collected in respect of rent after date of death. See also the comments in
Example 1.
9.4 Example 3 – Repudiation

This example is based on the same basic facts as in Examples 1 and 2. Certain amounts have,
however, been changed and the following differences are emphasised:
1. In this case the marriage is in community of property, but the survivor repudiated the joint
will (in contrast with adiation in Example 2).
2. The fiduciary asset was left out here.
3. This example is based on the assumption that the heirs could not agree about the
distribution of the assets and that the executor liquidated all the assets with the approval
of the Master and the heirs. (Due to the repudiation it was not possible to carry out the
provisions of the will unchanged.) The proceeds of the assets differ from the valuations as
reflected in Examples 1 and 2. This would most likely also be the case in real life situations.
(1) Particulars – Example 3 (repudiation)

ID number: 520228 5050 082
Marital status: Married in community of property to Joan Smith (born Carter) ID number
460126 5066 008, who survived the deceased.
Immovable property
1. 18 Willow Ave, Rocky Ridge, sold by the executor out of hand for R1 860 000.
2. The farm Greenfields. Sold by the executor out of hand for R2 550 000.
3. The farm Rocklands. Sold by the executor out of hand for R750 000.
The rest of the particulars are the same as in Example 1.
Movable property
1. Furniture and household effects. Sold by the executor at a public auction for R342 000.
2. Agricultural implements. Sold by the executor at a public auction for R229 000.
3. Livestock. Sold by the executor at a public auction for R1 020 000.
4. Musgrave 30-06 hunting rifle. Sold by the executor at a public auction for R9 900.
5. 2012 Toyota Verso, registration number JCJ 666 GP. Sold by the executor at a public
auction for R240 000.
The particulars are the same as in Example 1.
The particulars are the same as in Example 1 except that the final income tax assessment
amounted to R292 220. Also note that the transfer costs (item 8 in Example 1) are not
applicable in this case because the fixed properties have been sold and it is customary for the
buyers to pay these costs. The estate therefore incurred no such costs in this example.
In terms of the joint will the following bequests were made from the joint estate:
1. To the surviving spouse:
 All furniture and household effects.
 All livestock
3. To Andrew Smith, only brother of the deceased, the residue of the estate.
1. The survivor, Joan Smith, repudiated (rejected) the will. (Please refer to paragraph 4.9.2 for
a full discussion of the implications of adiation and repudiation in the case of marriages in
community of property, and on the right of beneficiaries to inherit.) In this example the
repudiation means that the survivor elected to retain her half share of the estate and
thereby abandoned all her rights to inherit in terms of the provisions of the joint will.
2. Eskom electricity consumed on the farms for the period from 10 September to the date on
which the executor’s accounts were approved, amounted to R5 625 and was paid by the
executor. Wages paid to farm labourers for the period after 10 September amounted to
R13 500 and was paid by the executor. The executor also purchased fodder for R7 500.
(2) Suggested solution – Example 3 (repudiation)
FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF PETER SMITH
(IDENTITY NUMBER 520228 5080 082) AND JOAN SMITH (BORN CARTER), IDENTITY NUMBER 460126
5066 008, TO WHOM THE DECEASED WAS MARRIED IN COMMUNITY OF PROPERTY. THEY RESIDED
AT 18 WILLOW AVENUE, ROCKY RIDGE, FLORIDA, AND THE DECEASED DIED THERE ON
10 SEPTEMBER 2017. MASTER’S REFERENCE NUMBER 1875/2017.
Liquidation account
Voucher
ASSETS number R
Immovable property – reduced to cash 5 160 000
– 18 Willow Ave, Rocky Ridge extension 6, situated in the township of (1) 1 860 000
Florida. Registration division XY Gauteng Province, measuring 1580
square meters, held by the deceased in terms of deed of transport
number F456/1993, dated 8 June 1993. Sold out of hand.
Gauteng Province, measuring 1205 hectares, held by the deceased in
terms of deed of transfer number F98/1992, dated 1 April 1992. Sold out
of hand.
– Certain portion 6, a portion of portion 2, of the farm Rocklands, (3) 750 000
registration division JK, Gauteng, measuring 210 hectares, held by the
deceased in terms of deed of transfer number T2389/1972 dated
10 April 1972. Sold out of hand.
Movable property – reduced to cash – sold by public auction 1 840 900
– Furniture and household effects (4) 342 000
– Agricultural implements (5) 229 000
– Livestock (6) 1 020 000
– Musgrave 30-06 hunting rifle (7) 9 900
– 2012 Toyota Verso registration number JCJ 666 GP (8) 240 000
Claims in favour of the estate – reduced to cash 3 200 100
plus R1 425 interest accrued to date of death)
– Proceeds of Old Mutual policy number BB85856 on the life of the (10) 2 400 000
deceased
– 65 246 units in Investec Emerging Companies Unit Trusts, sold by the (12) 687 360
executor
continued
Voucher R
number
LIABILITIES
– ABSA Bank – first mortgage bond over 18 Willow Ave, Rocky Ridge (13) 101 625
(asset 1 above)
– South African Revenue Service – final assessment (Income Tax) (17) 292 220
Costs of administration 360 404
– Bank charges in respect of estate bank account (18) 219
– The Local News – cost of advertisement
– Government Gazette advertisement
– Master’s fees – maximum amount (24) 600
– Executor’s remuneration @ 3,5% of R10 201 000 357 035
Subtotal 861 274

Estate duty 231 723
TOTAL LIABILITIES 1 092 997
AMOUNT AVAILABLE FOR DISTRIBUTION 9 108 003
Cash and assets reduced to cash (all assets were sold) 10 201 000
Less: Liabilities 1 092 997
Cash available for distribution 9 108 003
continued
Amount available for distribution (according to liquidation account) 9 108 003
1. To Joan Smith, surviving spouse of the deceased, one half of the estate due to 4 681 113
the marriage in community of property and her repudiation of the joint will,
consisting of cash
The amount was calculated as follows:
– Available for distribution per liquidation account 9 108 003
– Plus funeral expenses added back 22 500
– Plus estate duty added back 231 723
9 362 226
Less deceased’s half 4 681 113
2. To William Smith, major son of the deceased, in terms of clause 2 of the will, a
cash amount 1 904 450
This amount was calculated as follows:
– ½ of the value of the farm Greenlands sold 1 275 000
– ½ of the value of the implements sold 114 500
– ½ of the value of the livestock sold 510 000
– ½ of the value of the Musgrave rifle sold 4 950
3. To Andrew Smith, major brother of the deceased, in terms of clause 3 of the
will, a cash amount 2 522 440
9 108 003

Voucher R
INCOME number 49 017
– Interest (accrued after date of death) on 65 246 units in Investec Unit (12) 44 064
Trusts
– Dividends (accrued after date of death) on 65 246 units in Investec Unit (12) 3 858
Trusts
EXPENSES 30 256
Awarded pro rata in accordance with the distribution account
– Joan Smith (4 681 113/9 108 003 × 18 761) 9 642
– William Smith (1 904 450/9 108 003 × 18 761) 3 922
– Andrew Smith (2 522 440/9 108 003 × 18 761) 5 197
continued

(Calculation of estate duty payable)
R
Less: Liabilities before estate duty 861 274
9 339 726
Add: Funeral expenses 22 500
9 362 226
Less: One half due to the marriage in community of property 4 681 113
Value of deceased’s estate 4 681 113
Less: Funeral expenses 22 500
Dutiable amount 1 158 613
Apportionment of estate duty

In this case the estate is liable for the full amount of the estate duty and no part can be apportioned to
other persons in terms of section 11 of the Estate Duty Act.
Certificate
(3) Comments – Example 3
Liquidation account
This account reflects a repudiation of the will and the inability of the beneficiaries to agree
about the distribution, with the result that all assets had to be liquidated. (That will not
necessarily always be the case.) The actual proceeds of assets can differ from valuations, as
indicated in this example. The sale of assets can also bring about additional expenses, for
example, auctioneer’s commission.
The most noticeable consequences of the repudiation are reflected in the distribution account.
The one heir, William Smith, gets substantially less than he would have got if it was not for the
repudiation. The joint will awarded specific assets to him. Due to the repudiation he is,
however, only entitled to half the value of those bequests, that is the half coming from his
father’s share of the estate and not the half coming from his mother’s share of the estate. His
inheritance is effectively halved.
The residuary heir is the one who gains most by the repudiation in this specific case. (This
will not necessarily always be the case). If it was the deceased’s intention, as would have to
appear from the wording of the will, that William Smith should receive the specific assets from
his father’s share of the estate, his son’s inheritance would not have been halved. In such a
case he would receive his full legacy and the residuary heir on the other hand, will similarly
receive a lesser amount. However, this intention would have to be clearly stipulated in the will.
Note that the spouse who repudiates receives only her own half of the estate. Due to the
repudiation she is not entitled to any benefits from the deceased’s half of the estate in terms
of the will.
The net income after death follows the assets which produced such income, for example the
person who inherited the asset is entitled to the income it produced. In this example all the
assets were sold and the beneficiaries inherit the cash. The income follows the cash awarded
and therefore it is apportioned to them pro rata.
9.5 Example 4 – Redistribution agreement

This example serves to illustrate the application of a redistribution agreement. The particulars
of the estate correspond mainly to those of Example 1, but with the following adjustments:
1. In this case the marriage is out of community of property and the deceased is survived by a
spouse and two major children.
2. The beneficiaries entered into a redistribution agreement which was approved by the
Master of the High Court.
(1) Particulars – Example 4 (redistribution agreement)

ID number: 520228 5050 082
Marital status: Married out of community of property. The accrual system did not apply.
Immovable property
Movable property

The deceased made a valid will. Provision was made for the following bequests:
1. To the surviving spouse, Joan Smith:
 A cash legacy of R2 250 000.
 All livestock
3. To Jenny Brown, major daughter of the deceased, the residue of the estate.
1. Eskom power consumed on the farms from 10 September to the date on which the
executor’s account was approved, amounted to R5 625 and was paid by the executor.
Wages paid to farm labourers for the period after 10 September 2017 amounted to
R13 500 and was paid by the executor. The executor also purchased fodder for R7 500.
2. The beneficiaries entered into a valid redistribution agreement, approved by the Master, in
which the testamentary distribution of the estate was adjusted.
Redistribution agreement
Redistribution agreement in the estate of the late Peter Smith, married out of community of property
to Joan Smith, and who died on 10 September 2017, entered into by and between
 Joan Smith, surviving spouse of the deceased; and
 William Smith, major son of the deceased; and
 Jenny Brown, major daughter of the deceased.
Since we, the above-mentioned have been nominated as beneficiaries in the will of the late Peter
Smith, we hereby agree for practical and other reasons to distribute the estate assets and income
after death as follows:
(1) To Joan Smith, surviving spouse, the following:
– The farm Greenfields
– Agricultural implements
– Livestock
– Furniture and household effects
– Cash to the amount of R420 000
continued
(2) To William Smith, the following:

– 18 Willow Ave, Rocky Ridge
– Musgrave 30-06 hunting rifle
– 2012 Toyota Verso JCJ 666 GP
– Cash to the amount of R1 560 000
(3) To Jenny Brown
The residue of the estate.
We hereby confirm that we understand and accept the contents of this agreement and declare that
we will have no further claim to the assets of the estate, other than those agreed to above. Signed at
Florida on this 20th day of September 2017.
]ÉtÇ fÅ|à{ As witnesses

Joan Smith
William Smith M Smith

William Smith Mrs J M Smith
Jenny Brown W Harmse

Jenny Brown Mr W Harmse
The particulars above have been applied in the suggested solution below to prepare a
complete executor’s account in the estate of the late Peter Smith.
(2) Suggested solution – Example 4 (redistribution agreement)
THE FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF PETER SMITH
(IDENTITY NUMBER 520228 5050 082), WHO RESIDED AT 18 WILLOW AVENUE, ROCKY RIDGE,
FLORIDA, AND WHO DIED THERE ON 10 SEPTEMBER 2017. MARRIED OUT OF COMMUNITY OF
PROPERTY. THE ACCRUAL SYSTEM DID NOT APPLY TO THE MARRIAGE. MASTER’S REFERENCE
NUMBER 1875/2017.
Liquidation account
Voucher R
ASSETS number
– 18 Willow Ave, Rocky Ridge, situated in the township of Florida. (1) 1 875 000
Registration division XY Gauteng Province, measuring 1580 square
meters, held by the deceased in terms of deed of transport number
F456/1993, dated 8 June 1993. At valuation
Gauteng Province, measuring 1205 hectares, held by the deceased in
terms of the deed of transfer number F98/1992, dated 1 April 1992. At
valuation
In terms of the redistribution agreement:
Immovable property – reduced to cash 750 000
Certain portion 6, a portion of portion 2, of the farm Rocklands, registration (3) 750 000
division JK, Gauteng, measuring 210 hectares, held by the deceased in
terms of deed of transfer number T2389/1972 dated 10 April 1972. Sold
out of hand.
Movable property – not reduced to cash 1 720 500
– Furniture and household effects. At valuation (4) 360 000
– Agricultural implements. At valuation (5) 180 000
– Livestock. At valuation (6) 900 000
– Musgrave 30-06 hunting rifle. At valuation (7) 10 500
– 2012 Toyota Verso, registration number JCJ 666 GP (8) 270 000
In terms of the redistribution agreement:
1. Assets 4, 5 and 6 are transferred to the surviving spouse, Joan Smith.
2. Assets 7 and 8 are transferred to the deceased’s major son, William Smith.
Claims in favour of the estate – reduced to cash 3 200 100
plus R1 425 interest accrued to date of death)
– Proceeds of Old Mutual policy number BB85856 on the life of the deceased (10) 2 400 000
– 65 246 units in Investec Emerging Companies Unit Trusts, sold by the
executor (12) 687 360
continued
Voucher R
number
LIABILITIES
– ABSA Bank – first mortgage bond over 18 Willow Ave, Rocky Ridge (asset (13) 101 625
1 above) (14) 22 500
South African Revenue Service – final assessment (Income Tax)
– The Local News – cost of advertisement
– Transfer costs in respect of fixed properties (assets 1 and 2 above) (23) 20 565
– Master’s fees – maximum amount (25) 600
Subtotal 860 120

Estate duty 107 596
R
Cash assets and assets sold (assets 3 and 9 to 12 above) 3 950 100
Less: Total liabilities 967 716
Cash available for distribution 2 982 384
continued
R
Amount available for distribution (according to liquidation account) 9 202 884
1. To Joan Smith, surviving spouse of the deceased, in terms the redistribution
agreement which was approved by the Master, the following: 4 485 000
– Portion 2 of the farm Greenfields (asset 2) 2 625 000

– Cash 420 000
2. To William Smith, major son of the deceased, in terms of the redistribution
agreement which was approved by the Master, the following:
3 715 500
– Musgrave hunting rifle (asset 7) 10 500
– Cash 1 560 000
3. To Jenny Brown, major daughter of the deceased, in terms of the redistribution
agreement which was approved by the Master, the residue of the estate. This
award consists entirely of cash. 1 002 384
9 202 884

Voucher R
number
INCOME 49 017
Unit Trusts
– Dividends (accrued after date of death) on 65 246 units in Investec (12) 3 858
Unit Trusts
EXPENSES 30 256
continued
BALANCE AVAILABLE FOR DISTRIBUTION R

Awarded to Jenny Brown, sole residual heir in terms of the redistribution agreement. 18 761
(These awards were made in terms of the provisions of the will and the redistribution
agreement between the heirs)
R
Liabilities before estate duty 860 120
Less: Deduction of bequest to surviving spouse – section 4(q) of the Estate Duty Act 4 485 000
Apportionment of duty
In this case the estate is liable for the full amount of the duty and no amount of the duty can be
apportioned to other persons in terms of section 11 of the Estate Duty Act.
Certificate
(3) Comments – Example 4 (redistribution agreement)
Liquidation account
Note the contents of the divestment note and how it differs from the divestment note in
Example 1.
The distribution of the estate takes place in terms of the conditions of the redistribution
agreement. Note the wording of the divestment notes.
The cash available for distribution is also distributed on the basis of the redistribution
agreement. Compare with Example 1.
Estate duty
In terms of a guideline issued by the Commissioner of Inland Revenue, the deduction in terms
of section 4(q) must be made on the basis of the conditions of the will; it cannot be amended
by way of a redistribution agreement. The redistribution agreement is therefore ignored for
estate duty purposes.
9.6 Example 5 – Section 38 takeover

This example illustrates the effect of a takeover of assets in terms of section 38 of the estates
Act. An accrual claim in favour of the survivor is also included with the liabilities.
(1) Particulars – Example 5 (section 38 takeover)

Deceased: Nicholas Jones
Residential address: 18 Skilpad Road, Sunset Park, Johannesburg
ID number: 520228 5050 082
Marital status: Married out of community of property. The accrual system did apply to
the marriage. This was Nicholas Jones’ first marriage.
Immovable property
Residence on stand 1234, Sunset Park extension 2, situated in the township of Johannesburg,
registration division JT, Gauteng Province, 2250 square meters in extent, held by the deceased
under deed of transfer T1245/1993, dated 8 June 1993. Valuation R1 050 000.
Movable property
1. Furniture and household effects. Valuation R270 000.

2. 2011 Opel Astra 200iE, registration number PGH567GP. Valuation R156 000.
1. R142 950 in a savings account at Nedbank, Johannesburg, collected by the executor.

Accrued interest of R4 425 for the period 1 July to 10 September 2017 and interest of
R5 940 for the period 11 September to 31 October is not included in the amount of
R142 950, and was collected by the executor at a later date.
2. R525 000, being the proceeds of Momentum Life policy number M789123, on the life of
the deceased, payable to the estate, collected by the executor.
3. R17 439, being the balance on current account number 1234-567-890 at Nedbank,
collected by the executor on 15 October 2017.
1. Accrual claim by the surviving spouse: R360 000.

2. Nedbank – mortgage bond over stand 33, Sunset Park, Johannesburg: R55 695.
3. ABC Funeral services – funeral expenses: R15 000.
4. Dr Fritz Fratz – medical account: R2 250.
5. Johannesburg Hospital – account: R37 506.
6. Paradise Boutique – account rendered: R2 595.
7. Bank charges in respect of estate bank account: R375.
8. Advertisements
 The Johannesburg Daily – debtors and creditors: R150
– account for inspection: R150
 Government Gazette – debtors and creditors: R60
– account for inspection: R60.
9. The appraiser charged R1 650 for his valuation services.
10. Executor’s remuneration and Master’s fees according to tariffs.
The deceased made a valid will. Provision was made for the following bequests:
1. To the surviving spouse, Molly Jones, a cash legacy of R876 000.
2. To Peter Jones, minor son of the deceased, a cash legacy of R600 000.
3. To Anthony Jones, only brother of the deceased, the residue of the estate.
To give effect to the conditions of the will it would mean that the house in Sunset Park would
have to be sold. To avoid this, the survivor took over the house and the movables, as well as
the Opel Astra, in terms of section 38 of the Administration of Estates Act, with the Master’s
permission. She paid in cash from her own sources in order that the inheritances of the other
beneficiaries could be awarded to them.
THE FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF NICHOLAS
JONES (IDENTITY NUMBER 520228 5050 082) WHO RESIDED AT 18 SKILPAD ROAD, SUNSET PARK,
JOHANNESBURG, AND DIED THERE ON 10 SEPTEMBER 2017. MARRIED OUT OF COMMUNITY OF
PROPERTY. THE ACCRUAL SYSTEM WAS APPLICABLE TO THE MARRIAGE. MASTER’S REFERENCE
NUMBER 1875/2017.
Liquidation account
Voucher R
ASSETS number
Stand 1234 Sunset Park, extension 2, Johannesburg, registration (1) 1 050 000
division JT, Gauteng, measuring 2 550 square meters, held in terms of
deed of transport number T1245/1993, dated 8 June 1993. At
valuation
Movable property – not reduced to cash 426 000
– Furniture and household effects. At valuation (2) 270 000
– 2011 Opel Astra 200iE, registration number PGH567GP. At valuation (3) 156 000
Assets 1 to 3 above are taken over by the spouse, Molly Jones, in terms
of section 38 of the Administration of Estates Act.
Claims in favour of the estate – reduced to cash 689 814
– Proceeds of Nedbank savings account (R142 950 plus R4 425 interest (4) 147 375
accrued to date of death)
– Proceeds of Momentum policy number M789123 on the life of the (5) 525 000
deceased.
– Proceeds of Nedbank current account number 1234-567-890 (6) 17 439
LIABILITIES
– Claim for accrual in favour of surviving spouse (7) 360 000
– Nebank – first mortgage bond over stand 33 Sunset Park (asset 1 (8) 55 695
above) (9) 15 000
– ABC Funeral Services – funeral expenses
– Dr Fritz Frats – medical claim (10) 2 250
– Johannesburg Hospital – account (11) 37 506
– Paradise Boutique – account (12) 2 595
continued
Voucher R
number
– The Johannesburg Daily – cost of advertisement
– Master’s fees – maximum amount 600
– Estate duty Nil

R
Cash paid in by the surviving spouse:
– Paid in physically (see calculation in comments) 240 000
– Claim for accrual – offset 360 000
Paid in due to takeover of assets in terms of section 38 600 000
Cash assets (assets 4 to 6 above) 689 814
1 289 814
737 920
Less: Cash legacy 600 000
CASH AVAILABLE FOR DISTRIBUTION 137 920
R
Amount available for distribution 1 613 920
1 To Molly Jones, surviving spouse of the deceased, in terms of clause 1 of the
testament and her takeover in terms of section 38 of the Estate Duty Act. The award 876 000
consists of
– Stand 1234 Sunset Park 1 050 000
– Furniture and household effects 270 000
– Motor vehicle 156 000
1 476 000
Less: Cash paid due to takeover 600 000
continued
R
2 To Peter Jones, a minor son of the deceased, a cash legacy of R600 000 in terms of 600 000
clause 2 of the will. This inheritance is deposited into the Guardian’s Fund since the
legatee is a minor.
3 To Anthony Jones, brother of the deceased, being the only residuary heir, in terms 137 920
of clause 3 of the will, cash.
1 613 920

Voucher R
INCOME number
Interest on Nedbank savings account (4) 5 940
EXPENSES
Executor’s remuneration – (6% of R5 940) 356
(Awarded to Anthony Johnson, only residuary heir, in terms of clause 3 of the will)
R
Less: Deduction of bequest to surviving spouse – section 4(q) of the Estate Duty Act 876 000
Net value of estate 737 920
Less: Rebate of R3,5 million – Section 4A of the Estate Duty Act 737 920
Dutiable amount Nil
Estate duty at 20% Nil
Certificate
See the certificate at Example 1.
(3) Comments – Example 5 (section 38 takeover)
General
Please refer to paragraph 6.4.14 for a discussion of section 38 takeovers before studying this
solution. Also refer directly to section 38 of the Act.
There was a cash deficit in this estate initially and the conditions of the will could only be
carried out if the residence and/or furniture were sold. The survivor and her minor son would
then have been left without a roof over their heads. In addition, the minor’s legacy is invested
in the Guardian’s Fund.
Section 38 of the Administration of Estates Act enables the survivor to avoid this situation, as
indicated in the example. She must, however, pay R240 000 into the estate (see below) to bring
this about. She would, alternatively, have to provide guarantees for this amount.
Note the manner in which the cash adjustment is done and the wording of the divestment
note. If the will had made provision therefore, the minor’s inheritance could have been
invested elsewhere (and not in the Guardian’s Fund).
Calculation of the amount to be paid by the surviving spouse
R
Taken over in terms of section 38
– Value of residence, furniture and car 1 476 000
Less: Legacy in terms of the will 876 000
Deficit to be paid in 600 000
Less: Accrual claim against the estate 360 000
To be paid in by the spouse to cover the deficit 240 000
10
Income tax & capital
gains tax
10.1 Introduction ............................................................................................................ 224

10.2 Income tax .............................................................................................................. 224
10.2.1 Date of death prior 1 March 2016 .......................................................... 225
10.2.2 Date of death on or after 1 March 2016 ................................................. 226
10.3 Capital gains tax (CGT) ............................................................................................ 228
10.3.1 Capital gain or loss of each individual asset ............................................ 229
10.3.2 Proceeds on disposal of asset ................................................................. 230
10.3.3 Base cost of the asset.............................................................................. 230
10.3.4 Market value of assets ............................................................................ 232
10.3.5 Time-apportionment base cost (TAB) (paragraph 30) ............................ 233
10.3.6 The 20% rule ........................................................................................... 235
10.3.7 Choice of valuation date value ................................................................ 236
10.3.8 Exclusions ................................................................................................ 236
10.3.9 Roll-overs ................................................................................................ 239
10.3.10 Annual exclusion ..................................................................................... 240
10.3.11 Inclusion rate........................................................................................... 240
10.3.12 Disposals to and from deceased estates ................................................. 241
10.3.13 Payment of tax on behalf of the estate .................................................. 244
10.4 Example 1 – Estate of a single person..................................................................... 246
10.5 Example 2 – Adiation .............................................................................................. 249
10.6 Example 3 – Repudiation ........................................................................................ 254
10.7 Example 4 – Redistribution agreement .................................................................. 258
10.8 Example 5 – Section 38 takeover ............................................................................ 261
223
10.1 Introduction
When someone dies, he or she ceases to be taxable but his or her estate becomes a new
taxpayer. It is the executor’s responsibility to ensure that the deceased’s final income tax
return and the returns of the deceased estate are submitted to the South African Revenue
Service. This chapter deals, first, with the tax implications of a deceased estate. Any references
to “the Act” refer to the Income Tax Act 58 of 1962, unless otherwise stated. For administrative
matters as prescribed in terms of the Tax Administration Act 28 of 2011, reference to that Act
will be made as “the TAA”.
Note that capital gains tax is also payable in deceased estates, where applicable, since the
Act regards a person’s death and the transfer of his or her assets to a beneficiary as disposals
of those assets. A number of significant amendments affecting deceased persons and their
estates came into operation on 1 March 2016 and apply to persons dying on or after that date.
Section 10.2.1 will discuss the position regarding deaths prior to 1 March 2016 whereas section
10.2.2 will elaborate on the amendments regarding deaths occurring on or after 1 March 2016.
Since part of the donations tax paid by the donor or recipient of an asset should be included
in the base cost of the asset being donated, we also give a short overview of donations tax
(refer also to Chapter 11 and 10.3.3).
10.2 Income tax

The definition of a person1 includes the estate of a deceased person. The deceased’s executor
is appointed as a representative taxpayer of the estate and must handle the tax affairs of both
the deceased to the date of death and those of the estate after the date of death. This means
that the executor has to do a tax calculation according to the provisions of the Income Tax Act
and complete and submit the required returns accordingly.
Upon the death of an individual taxpayer, there are two types of assessments that must be
taken into account, namely:
• a pre-date assessment (assessing the income and deductions applicable to the taxpayers up
to date of his/her death); and
• a post-date death assessment, i.e. the deceased estate (assessing the income earned and
deduction applicable to the deceased estate after date of death.
In terms of an amendment in 2016, a second income tax registration is required for the de-
ceased estate. The deceased estate will be given its own tax number and its returns of income
can be submitted via e-filing.2 The deceased estate is assessed at the rates applicable to indi-
viduals, but it does not qualify for any of the personal rebates. The executor is assessed in his
or her representative capacity as a taxpayer.
___________
1 S 1 – definition of “person”.
2 For more details, refer to www.sars.gov.za, specifically the following guides: (i) Guide to the IT12
return for deceased estates (for persons who die on or after 1 March 2016) and (ii) How to Com-
plete the Registration, Amendments and Verification From (RAV01).
Chapter 10 Income tax & capital gains tax 225
The conduit principle also applies to the deceased estate, in other words any income that
the estate receives retains its nature when it is paid over to the beneficiary or legatee. If the
estate receives interest and this income is paid to the beneficiary, he or she is deemed to
also have received interest and therefore qualifies for the annual interest exemption on that
interest received. The same principle applies to dividends, rent, and so on.
All the provisions of the Act for determining the tax liability of an individual apply, mutatis
mutandis, to the executor in his or her capacity as representative taxpayer, for example
whether the income is capital or income in nature. It is important, however, to highlight the
specific provisions of section 25 (read with section 9HA applicable to estates of persons dying
on or after 1 March 2016) of the Act that apply specifically to deceased estates.
10.2.1 Date of death prior 1 March 2016

Section 25 of the Act has to be taken into account in determining the tax liability of both the
beneficiary and the deceased estate. Section 25(1) applied to any income received or accruing
to the estate, and section 25(2) determines what deductions or allowances the estate may be
allowed in determining its tax liability.
According to section 25(1) any income received or accrued to the estate, but derived for the
immediate or future benefit of an ascertained beneficiary, will be deemed to be the income of
that beneficiary. If the beneficiary thus has a vested right to the income, the beneficiary will be
taxed in his or her own name on that income. If there is no vested right, the estate will be
taxable. This provision applies likewise to any amounts that the executor receives that would
have been taxable in the hands of the deceased if he or she was still alive. If the beneficiary has
a vested right to the income, the beneficiary is liable for tax, or alternatively the estate.
Section 25(2) determines the deductions or allowances that may be made in the determina-
tion of the taxable income that arose as a result of section 25(1). The implication of section
25(2) is that the deductions are apportioned between the estate and the beneficiary to the
extent that income is received by the estate or beneficiary in terms of section 25(1). If any of
the parties concerned suffers a loss as a result of the provision, the loss may be deducted from
any other income accrued to or received by that party.
Example – Taxable income
Deceased: Sandy Shabiri

Residential address: 1269 4th Avenue, Nelmapius, Pretoria, Gauteng
Province
ID number: 590115 5950 081
Date of birth: 15 January 1959
Date of death: 31 October 2015
Master’s no: 1875/2015
Marital status: Married out of community of property
Sandy had the following assets on date of death:
 She and her sister (Mandy) owned a business together (50 / 50). Her sister and the executor
have kept the business running and the deceased estate’s portion of the gross income for
the period 1 November 2015 to 29 February 2016 amounted to R5 500. The deceased es-
tate’s portion of deductible expenditure for the period amounted to R2 000.
 Residence situated at 1269 4th Avenue, Nelmapius, Pretoria, Gauteng Province. She also had
4 boarders and the gross rent amounted to R500 per month per boarder. The executor kept
the rental contracts in place.
The terms of Sandy’s will were as follows:

 Her sister inherits her share of the business.
 Her residence is bequeathed to her sister’s children but must be put in trust.
The above information is used in the suggested solution below to determine the taxable
income of the deceased estate and to indicate what amounts should be included in the taxa-
ble income of other taxpayers for the year of assessment 29 February 2016.
Suggested solution
Mandy (sister)
R
Income from business 5 500
Less: Expenditure (2 000)
Amount included in Mandy’s taxable income 3 500
Deceased estate
R
Rent received (4 × R500 × 4) 8 000
Less: Expenditure –
Taxable income of deceased estate 8 000
10.2.2 Date of death on or after 1 March 2016

The new provisions of section 25 of the Act came into operation on 1 March 2016 and are
applicable in respect of a person who dies on or after that date. Section 25(1) still applies to
any income received or accruing to the deceased estate but section 25(2) has been amended to
reflect the provisions where the estate of a person acquires an asset and no longer refers to
any deductions as per the previous version. More on section 25(2) will be provided in section
10.3.12 where the capital gains regime of deceased estates is discussed.
As stated in section 10.2.1, provisions in section 25 allowed for an heir or legatee to claim a
deduction in respect of expenses not incurred by him or her. This goes against the fundamental
principle underlying the Act, which requires a person to have actually borne the expense in
order to be able to claim a deduction in respect of that expense. In terms of the amended
section 25(1) any income received or accrued to the deceased estate, which would have been
income in the hands of that deceased person, had he or she received it before death, must now
be treated as income of the deceased estate regardless of who inherits the income. The de-
ceased estate must thus now account for all its income until the liquidation and distribution
account becomes final. The deceased estate however still qualifies for the annual interest
exemption.
Example – Taxable income
Deceased: Sandy Shabiri

Residential address: 1269 4th Avenue, Nelmapius, Pretoria, Gauteng
Province
ID number: 590115 5950 081
Date of birth: 15 January 1959
Date of death: 31 October 2016
Master’s no: 1875/2016
Marital status: Married out of community of property
Sandy had the following assets on date of death:
 She and her sister (Mandy) owned a business together (50/50). Her sister and the executor
have kept the business running and the deceased estate’s portion of the gross income for
the period 1 November 2016 to 28 February 2017 amounted to R5 500. The deceased es-
tate’s portion of deductible expenditure for the period amounted to R2 000.
 Residence situated at 1269 4th Avenue, Nelmapius, Pretoria, Gauteng Province. Sandy also
had 4 boarders and the gross rent amounted to R500 per month per boarder. The executor
kept the rental contracts in place and received all rental amounts due.
The terms of Sandy’s will were as follows:
 Her sister inherits her share of the business.
 Her residence is bequeathed to her sister’s children but must be put in a trust.
The above information is used in the suggested solution below to determine the taxable
income of the deceased estate and to indicate what amounts should be included in the taxa-
ble income of other taxpayers for the year of assessment 28 February 2017.
Suggested solution
Mandy (sister)
R
Income from business –
Less: Expenditure –
Amount included in Mandy’s taxable income –
Deceased estate
R
Rent received (4 × R500 × 4) 8 000
Income from business 5 500
Less: Expenditure (2 000)
Taxable income of deceased estate 11 500
10.3 Capital gains tax (CGT)

In order to determine the CGT liability (if any) of the deceased estate and the deceased person,
the general principles regarding CGT are briefly discussed in sections 10.3.1 to 10.3.11. During
the settlement of a deceased estate the specific provisions relevant for determining the capital
gains liability of the deceased person, deceased estate and beneficiaries (heirs) or legatees (see
10.3.13) must be borne in mind. Amendments to the Act that came into operation on 1 March
2016 (applicable to persons dying on or after that date) involved moving some of the rules in
paragraphs 40, 41 and 67 of the Eight Schedule to the main body of the Act in the form of a
new section 9HA and a redrafted section 25. Section 25(1) was already discussed in the section
dealing with income tax but section 25(2) now deals specifically with the deceased estate and
beneficiaries or legatees, including the surviving spouse. Section 9HA deals with the deceased
person.
This is by no means a comprehensive discussion of all the aspects of CGT, but should rather
be seen as providing a starting point3. More comprehensive sources should be consulted for a
complete overview of CGT. For the purposes of this book it is assumed that in practice the
reader will read more widely than just this section of this book.
As with income tax, at death two taxpayers come into being for CGT purposes. The first entity
is the deceased person and CGT will form part of the deceased person’s final tax assessment,
which extends from the beginning of the relevant year of assessment to the date of death. The
second taxpayer is the deceased estate. This is because the executor may sell certain assets of
the deceased estate during the administration of the deceased estate. The value of such assets
may increase or decrease between the date of death and the date of sale, which may have CGT
implications for the deceased estate. CGT is levied in a deceased estate at the same rate as that
for individuals (only 40% of the capital gain is included in taxable income).
Certain assets in a deceased estate are excluded from CGT. These assets include:
 assets for personal use (with certain exceptions) – see 10.3.8;
 assets inherited by the surviving spouse – see 10.3.9;
 the proceeds from life assurance policies – see 10.3.8; and
 interests in pension, provident or retirement annuity funds – see 10.3.8.
___________
3 For more information on CGT and deceased estates, refer to the SARS’s Draft Comprehensive Guide
to Capital Gains Tax (Issue 6 – Chapter 16) at www.sars.gov.za.
The determination of CGT for the year of assessment may be presented as follows:
Determination of taxable capital gain

Asset #1 – gain (see 10.3.1) XXX
Asset #2 – loss (see 10.3.1) (XX)
Asset #10 – gain XX
Total of capital gains (or losses) for the year XXX
Less: Annual exclusion* (see 10.3.10) (XXX)
XXX
Less: Assessed capital loss carried over from previous year of assessment (if any) (XX)
Net capital gain / (or loss) for the year of assessment** XXX
Inclusion rate (40%) (see 10.3.11)
Taxable capital gain (net capital gain × 40%) XXX
* If the person has a total capital loss for the year of assessment, the loss must also be decreased by the
annual exclusion. If the person’s total capital loss amounted to, say, R200 000, it must be decreased by
R40 000 (see 10.3.10) and the calculated loss that is carried over is thus only R160 000. In the case of a
person who died during the year of assessment, the annual exclusion changes to R300 000. If the de-
ceased has a net capital loss, it can obviously not be transferred to the next year and is thus forfeited.
** If a net capital loss arises for the year of assessment, the calculated loss is transferred to the next year
of assessment. The loss may not be offset against the taxable income of the taxpayer.
The general principles that are discussed next apply to all parties pertinent to the administra-
tion of the estate, namely the deceased person, deceased estate as well as the beneficiaries or
legatees. Provisions specific to each of the relevant parties are dealt with separately towards
the end of this chapter.
For the purposes of this book, all assets owned by the deceased person at date of death are
regarded as capital in nature and not speculative assets. The assets are therefore all subject to
CGT and do not form part of the deceased person’s gross income.
10.3.1 Capital gain or loss on each individual asset

The general principles to determine a capital gain or loss on each asset can be separately
illustrated through the determination of the process from disposal, the base cost at acquire-
ment, noting any exclusions and possible roll-over relief.
Separate determination for each asset

Proceeds on disposal of the asset (see 10.3.2) XXX
Less: Base cost of the asset (see 10.3.3) (XXX)
Capital gain or loss on the asset XXX
Less: Exclusions (see 10.3.8) (XX)
XXX
Less: Roll-over relief (see 10.3.9) (XX)
Capital gain or loss on the asset XXX
10.3.2 Proceeds on disposal of asset

The proceeds from the disposal of an asset is the amount received by or accrued to the taxpay-
er on the disposal (i.e. the sale or inheritance).
The proceeds on the disposal of an asset can, however, be reduced by:
 any amount that is included in the person’s taxable income (if, for instance, an amount is
recovered for wear and tear);
 any monies repaid or repayable to the person to whom the asset is alienated; and
 any reductions resulting from the cancellation, termination or amendment of the agree-
ment, or as a result of the limitation or waiving of a claim, or of an accrued amount that
forms part of the return on disposal.
10.3.3 Base costs of the asset

The base cost of an asset acquired before 1 October 2001 consists of two parts. The first is the
value of the asset at 1 October 2001, known as the valuation date, when capital gains tax took
effect. The second part of the base cost is the expenditure incurred in respect of the asset after
1 October 2001 (in other words, after the valuation date). In order to determine the base cost,
the value at the valuation date must be calculated and the expenses incurred after 1 October
2001 must be added.
The Act makes provision for three methods that can be used to determine the valuation date
(1 October 2001) value of an asset:
 the market value of the asset on 1 October 2001 (see 10.3.4);
 the time-apportionment base cost of an asset (see 10.3.5); and
 the value according to the 20% of proceeds rule (see 10.3.6).
The general rule is that the taxpayer may use the highest value of the three as the valuation
date value. There are also, however, a few special provisions in the Act that amend the value
that may be taken as the valuation date value (the limitation of loss rules). All three options
therefore have to be calculated, and the option giving the highest value is then selected.
The expenses referred to are the sum total of all expenses incurred in acquiring, maintaining
and selling the asset. Paragraph 20 of the Eighth Schedule contains a comprehensive list of
expenses that may be included. Examples of the expenses that may be taken as part of the
base cost include, among others, the actual expenses incurred in acquiring the asset (e.g.
purchase price, transfer fees, auctioneer’s commission, agent’s, broker’s or surveyor’s fees) as
well as the expenses incurred in valuing the asset for capital gain or capital loss purposes.
In this chapter we assume that all the relevant expenses referred to may be included in the
base cost of the assets in terms of paragraph 20.
Data – base cost
On 1 February 2017 Matthew Romas sold his holiday flat in Durban for R895 000. He purchased
the flat in December 1998 for R250 000. He had the property valued on 1 October 2001 and
the valuation value amounted to R625 000. The time-apportionment base cost of the asset was
R346 750. Calculate the valuation date value of the flat.
Calculation of base cost of an asset

The value of all three options must be determined so that the highest value may be selected:
1. Market value on 1 October 2001 = R625 000
2. Time-apportionment cost = R351 853
3. 20% of the proceeds = R895 000 × 20% = R179 000
The highest value is the market value at 1 October 2001 and the valuation date value is therefore
R625 000, subject to certain loss limitation rules.
Donations tax to be included in the base cost4
Where a person pays donations tax on disposing of an asset, a portion thereof may be added to
the base cost. Refer to Chapter 11 for a full discussion of donations tax. The following formula
may be used to determine what portion of the donations tax may be added to the base cost:
(M – A) × D, where
Y =
M
Y = the donations tax that must be included in the base cost
M = the market value of the asset donated, on which donations tax is payable
A = the base cost of the asset
D = the total amount of donations tax payable
Example – donations tax
On 15 July 2017 Samantha Strydom’s grandmother donated her holiday house to Samantha.
The holiday house had a market value of R700 000 at that date. Samantha’s grandmother paid
R350 000 for the holiday house when she bought it in January 2008. Assume the donations tax
amounted to R120 000 and that Samantha’s grandmother paid the donations tax. Calculate the
amount of donations tax that must be included in the base cost of the holiday house.
___________
4 Par 22.
Calculation of donations tax to be included in the base cost

The following formula is used:
(M – A)
Y = ×D
M
M = R700 000
A = R350 000
D = R120 000
Y = {(R700 000 – R350 000) / R700 000} × R120 000
Y = R60 000
The base cost of the asset for her grandmother would thus be:
Base cost = valuation date value + expenditure incurred after 1 October 2001 + donations tax
= R350 000 + R60 000
= R410 000
Commentary – donations tax
(1) If the base cost (A) is greater than the market value (M), the amount of donations tax that
must be taken into account in calculating the base cost is Rnil.
(2) The value of M is determined on the date of the donation.
(3) If the person who makes the donation pays the donations tax, the allowable portion of
the donations tax is included in the donor’s base cost.
(4) If the person who receives the gift pays the donations tax, the allowable portion of the
donations tax is included in his or her base cost.
10.3.4 Market value of assets

If the executor of an estate wishes to use the market value of the asset (on 1 October 2001) as
one of the options for the valuation date value, the asset must have been valued by 30 Sep-
tember 2004. What is important to remember here is that, regardless of when it is done, the
valuation must indicate the value of the asset at 1 October 2001.
The person who is responsible for submitting the deceased’s income tax return must hand in
the valuation with the taxpayer’s income tax return in the year of death, since the asset is then
regarded as having been disposed of.
The Act5 contains special rules for determining the market value of certain assets, such as
long-term insurance policies, collective investments, as well as a general rule for determining
the market value of other assets. The general rule that must be used to establish the market
value of an asset is the price on which a willing buyer and willing seller would agree. The Act
___________
5 Par 31 of the Eighth Schedule.
does not stipulate where the market value of an asset should be obtained. It is apparently not
necessary for the valuation to be done by a sworn valuator, but it is important to remember
that, in terms of section 102 of the Tax Administration Act, the onus of proof rests with the
taxpayer, who must therefore be able to show that the amount of the valuation is correct. The
general rule is also used in some instances to determine the proceeds of disposing of an asset,
for example where the taxpayer gives away an asset or dies. The Commissioner has published a
list of the market values at valuation date of all locally listed instruments (shares and unit
trusts).
It is important to keep the loss limitation rules in mind when the market value of the asset is
chosen as the valuation date value.
10.3.5 Time-apportionment base cost (TAB) (paragraph 30)

When the time-apportionment base cost method is used, the growth in the value of the asset is
spread over the period prior to 1 October 2001 and the period after 1 October 2001. In order
to calculate the time-apportionment base cost, it is important to establish when the expenses
associated with the asset were incurred. If they were all incurred in the years of assessment
prior to 1 October 2001, only the time-apportionment method must be used. If they were
incurred prior to as well as on, or after 1 October 2001, the time-apportionment method and
the proceeds formula must be used to calculate the time-apportionment base cost.
TAB: Expenses only incurred before the valuation date
Calculation of the time-apportionment base cost if all expenses were incurred before
1 October 2001
The following formula is used to calculate the time-apportionment base cost of an asset:
Y = B + {(P – B) × (N / (T + N))}
The symbols in the formula are defined as follows:
B = the amount of the expense (in terms of paragraph 20) incurred up to the day before the
valuation date (1 October 2001)
P = the proceeds of the sale of the asset less the selling cost (the selling cost incurred on or
after the valuation date must be used to reduce the proceeds; this is therefore not in-
cluded in the post-valuation date cost)
N = the number of years (a portion of a year is regarded as a full year) from the acquisition
of the asset to the day before the valuation date (where an expense was incurred over
more than one year, the period may not exceed 20 years)
T = the number of years the asset was retained from the valuation date to the date of
disposal; once again, a portion of a year is regarded as a full year
Y = the time-apportionment base cost
TAB: Expenses incurred before and after the valuation date
If expenses were incurred in years of assessment before and after 1 October 2001, the time-
apportionment formula and the proceeds formula must be used to calculate the time-
apportionment base cost. The proceeds formula is used to divide the proceeds from the dis-
posal of the asset into two parts: one part relates to expenses incurred before 1 October 2001,
while the remainder relates to expenses incurred on or after 1 October 2001. The portion of
the proceeds relating to expenses incurred before 1 October 2001 is used in the time-
apportionment formula.
Calculation of the time-apportionment base cost of an asset where the expenses

were incurred before and on or after 1 October 2001
The first formula that has to be applied is the proceeds formula, which is used to determine
the proceeds relating to the pre-valuation date cost:
P = R × {B / (A + B)}
R = the total proceeds on disposal of the asset less the cost of sale
A = the total expenses incurred on and after the valuation date (excluding costs of sale)
B = expenses incurred before the valuation date
P = the proceeds that relate to the expenses incurred before 1 October 2001
The time-apportionment base cost formula is then applied:
Y = B + {(P – B) × (N / (T + N))}
N = the number of years (a portion of a year is regarded as a full year) from acquisition of
the asset to the day before the valuation date (where an expense was incurred over
more than one year, the period may not exceed 20 years)
T = the number of years the asset was retained from the valuation date to the date of
disposal; a portion of a year is regarded as a full year
B = the amount of the allowable expenses (in terms of paragraph 20) incurred up to the day
before the valuation date
P = the amount calculated using the proceeds formula
Y = the time-apportionment base cost
Example – time-apportionment base cost
John Jones died on 30 September 2017. His will stipulates that his brother (Mike) will inherit his
holiday home. John purchased this house in November 1983 for R600 000. In 2006 he under-
took improvements to the house to the value of R300 000. The market value of the house at 30
September 2017 was R4 500 000. Calculate the valuation date value using the time-
apportionment base cost method.
Solution – time-apportionment base cost
To calculate the time-apportionment base cost, the proceeds formula must first be used since
expenses were incurred before as well as after 1 October 2001.
Proceeds formula:
P = R × B / (A + B)
R = R4 500 000
A = R300 000
B = R600 000
P = R × B / (A + B)
= R4 500 000 × R600 000 / (R300 000 + R600 000)
= R3 000 000
The proceeds amount that must be used in the time-apportionment base cost formula is
therefore R3 000 000.
Time-apportionment base cost formula:
Y = B + {(P – B) × (N / (T + N))}
B = R600 000
P = R3 000 000
N = 18 years
T = 16 years
Y = R600 000 + {(R3 000 000 – R600 000) × (18 / (16 + 18))}
= R600 000 + R1 270 588
= R1 870 588
Using the time-apportionment base cost formula, the valuation date value of the house is
therefore R1 870 588.
The base cost of the asset would thus be:
Base cost = valuation date value + expenditure incurred after 1 October 2001
= R1 870 588 + R300 000
= R2 170 588
10.3.6 The 20% rule

Calculation of the 20% valuation date value
The value is calculated as 20% of the proceeds from disposal of the asset after deducting
expenditure incurred on or after 1 October 2001.
Details – 20% rule
Assume John Jones (in the previous example) also made improvements to his holiday house
before 1 October 2001, but kept no record of these improvements. In addition, he neglected to
have the house valued on 1 October 2001. Calculate the valuation date value of the holiday
house.
Solution – 20% rule
1. Since the house was not valued on 1 October 2001, the market value at that date cannot
be used.
2. John kept no record of the costs of the improvements made before 1 October 2001 (pre-
valuation date expenditure), and accordingly the time-apportionment base cost cannot be
used.
3. The only available option for calculating the valuation date value is therefore the 20% rule.
Market value at the date of death = R4 500 000
Expenditure incurred on or after 1 October 2001 = R300 000
Valuation date value = 20% × (R4 500 000 – R300 000) = R840 000
Thus the valuation date value of the asset is R840 000.
The base cost of the asset would thus be:
Base cost = valuation date value + expenditure incurred after 1 October 2001
= R840 000 + R300 000
= R1 140 000
10.3.7 Choice of valuation date value

Obviously, the taxpayer will choose the option that gives the highest value as the base cost.
However, the Act6 contains a number of provisions that limit the value that may be used as the
valuation date value. These provisions take effect when the asset is sold for less than the
valuation date value or the expenditure. The effect of the regulations is to reduce the loss that
may be claimed.
10.3.8 Exclusions
Certain capital gains and losses are not taken into account in calculating the liability for capital
gains tax. The Act lists the assets and amounts that are excluded from the calculation and the
most common of these are discussed here.
Primary residence7
The first R2 million of the capital gain or loss incurred on the disposal of a primary residence is
excluded from capital gains tax. Should the proceeds from disposal of a primary residence not
exceed R2 million, any capital gain or capital loss on the sale of the primary residence will be
excluded from capital gains tax.
The definition of primary residence8 refers to the property which the deceased regarded as
his home – in other words the dwelling in which the family resided. It also includes a boat or a
caravan used by the deceased as a place of residence.
___________
6 Par 26 and 27 of the Eighth Schedule.
7 Par 44 to 51.
8 Par 44.
Calculation of the capital gain in respect of a primary residence

Sean Schoeman died on 15 December 2017. His primary residence was valued at R3 500 000 on that
date. Assume that the residence is not bequeathed to his spouse. The base cost of the residence is
R700 000. Calculate the capital gain or loss of the primary residence.
R
Proceeds 3 500 000
Less: Base cost (700 000)
Gain on disposal (R3 500 000 – R700 000) 2 800 000
Less: Primary residence exclusion (2 000 000)
Capital gain on disposal of asset (R2 800 000 – R2 000 000) 800 000
If the property is owned by more than one person, the R2 million exclusion must be divided pro
rata according to each owner’s share. If the person owns more than one residence, it has to be
established which one is regarded as the primary residence and the exclusion may then be
applied only to that residence.
The following reduce the primary residence exclusion:
1. If the deceased did not live in the house continuously. For example, if the house was
rented out for a period, the exclusion must be reduced on a pro rata basis for the rental
period.
2 If the land on which the house is situated is larger than 2 hectares, an apportionment must
be made in this regard as well because a maximum of 2 hectares is taken into account for
the exclusion.
3. The primary residence exclusion does not apply to foreigners.
4. If the deceased operated a business from his home at any time, a portion (the surface area
on which the business was operated, divided by the total surface area of the property) of
the exclusion is also disregarded in determining the R2 million exclusion.
Personal-use assets9
The capital gain or loss arising from the disposal of the deceased’s personal-use assets are not
taken into account in calculating the taxable capital gain or loss. These are assets that are not
used in carrying on a business.
However, the following items are specifically excluded from personal-use assets, and the
capital gain or loss in respect of these must therefore be included in calculating the taxable
capital gain:
 coins made mainly from gold or platinum, the market value of which is chiefly attributable
to the material from which it is minted or cast;
 immovable property;
 a financial instrument;
___________
9 Par 53.
 a contract in terms of which, in return for payment of a premium, a person is entitled to

policy benefits when a particular event takes place and includes a reinsurance policy in re-
spect of such a contract, but which does not include any short-term policy referred to in the
Short-term Insurance Act, 1998;
 a short-term policy as defined in the Short-term Insurance Act, 1998, to the extent that it
relates to an asset that is not a personal-use asset; and
 a right or interest of whatever nature to or in any of the above-mentioned assets.
Although the following are not personal-use assets, a capital loss in respect of the following
assets is not deductible, although a capital gain is, in fact, taxable:
 an aircraft whose empty mass exceeds 450 kilograms;
 a boat longer than 10 metres;
 any fiduciary right, usufruct or similar interest whose value decreases over time;
 the leasing of any immovable property;
 a fixed-period interest in a time-share or a fixed-period share in a share-block company
whose value decreases over time; and
 a right or interest of any kind to or in one of the above-mentioned assets.
Disposal of small business assets10
If a natural person owns a small business asset, the capital gain in respect of the asset (up to a
maximum of R1 800 00011 during the person’s lifetime) is disregarded when calculating the
total capital gain or loss.
This exclusion applies only where a person:
 possessed the small business asset at least five years prior to its disposal;
 was significantly involved in the business operations of the small business during the five-
year period; and
 has reached the age of 55 years; or
 disposed of the asset because of poor health, other infirmity, old age or death.
Paragraph 57 also provides that, for this relief to be considered, the person must dispose of all
the assets of the small business within 24 months of disposing of the first asset. This relief does
not apply if a person operates more than one business as sole proprietor, partner or share-
holder (with a direct interest of 10% or more) and the market value of the total assets in all
those businesses exceeds R10 million.
Retirement benefits12
Any capital gain or loss arising as a result of payment of a retirement lump sum benefit or
retirement fund withdrawal benefit as defined in the Second Schedule (i.e. lump sum upon
retirement, death or resignation from a pension, retirement annuity and provident fund), and
___________
10 Par 57.
11 R1.8 million (2013 – 2018); R900 000 (2012); R750 000 (2007 – 2011); R500 000 (2006 and earlier
years of assessment).
12 Par 54.
lump sum benefits paid for services rendered from a fund, arrangement or instrument outside
the Republic that is similar to a pension, retirement annuity or provident fund, is disregarded
for capital gains tax purposes.
Long-term assurance13
The capital gain or loss realised when a person disposes of an asset that results in the receipt of
an amount in terms of a policy (as defined in section 1 of the Long-term Insurance Act) is
disregarded for capital gains tax purposes, if:
 the person is the original beneficial owner (or one of the original owners);
 the person is the spouse, nominee, dependant or deceased estate of the original beneficial
owner and has not received any amount as a result of the cession of the policy; or
 the person is the former spouse of the original beneficial owner and the policy was ceded in
terms of a divorce order.
This provision also applies in the case of a policy on the life of a present or former employee or
director (section 11(w)) and a policy on the life of a present or former partner. Note, however,
that the person whose life is insured may not pay any premiums. The proceeds of a sec-
tion 11(w) policy will usually be taxable either in the hands of the company or in the estate of
the employee.
Collective investment schemes14
Investors who participate in collective investment schemes other than portfolios of collective
investment schemes in property only become liable for capital gains tax when they dispose of
their investment.
10.3.9 Roll-overs
Roll-overs refer to the instances in the Act where provision is made for the postponement of
capital gains tax to a later occasion. Note that this simply postpones the liability, it does not
dissolve it – the tax will still be paid, but at a later stage. The implication is that the base cost is
rolled over to another person and when the second person finally disposes of the asset, capital
gains tax is levied on the difference between the proceeds and the original base cost.
The Act provides for various situations, but for the purposes of the deceased estate, we dis-
cuss only the roll-over to the surviving spouse.
Transfer of assets to between spouses15
When the deceased’s assets are bequeathed to the surviving spouse or the assets are distrib-
uted intestate and the spouse receives the assets, it is deemed that the deceased disposed of
the assets on the day of his or her death, but the liability for capital gains tax is postponed until
the death of the surviving spouse. This relief is similar to the exemption in section 4(q) of the
Estate Duty Act – the estate duty liability in respect of the assets inherited by the surviving
spouse is postponed.
___________
13 Par 55.
14 Par 61.
15 S 9HA(2) read with s 25(4).
This relief will have the following consequences for the spouse who receives the assets:
 A deceased person is deemed to dispose an asset to the surviving spouse if that asset is
acquired by that surviving spouse through his or her will, redistribution or an accrual claim.
 It is deemed that the spouse acquired the asset on the same date as the deceased acquired
it.
 It is deemed that the same expenditure was incurred as that incurred by the deceased.
 It is deemed that the expenditure was incurred on the same day as it was incurred by the
deceased.
 It is deemed that the asset is used in the same way as it was used by the deceased.
It is deemed that an asset is transferred to a spouse at its base cost if the transfer takes place
by means of a divorce order.
10.3.10 Annual exclusion16

The annual exclusion in the year in which a person dies is R300 00017 in contrast to the
R40 00018 in the case of a living person. Since it is deemed that the deceased disposed of all his
or her assets on the day of death, the higher exclusion is intended to grant some relief in the
year concerned. The annual exclusion is not apportioned for part of a year of assessment. The
annual exclusion is deemed to be R40 000 for the examples later in the chapter to illustrate
the application of the annual exclusion, but the reader must ensure the correct amount for
the relevant year of assessment as per the Act.
10.3.11 Inclusion rate

A person’s taxable capital gain for the year of assessment is calculated as a percentage of the
net capital gain for the year. For normal tax purposes, the taxable capital gain is then added to
taxable income before deducting donations.
The percentage used to calculate the taxable capital gain is:
 40%19 for individuals (which includes deceased estates), special trusts (as defined) and
individual policyholder funds;
 80% for companies, close corporations, trusts, corporate policyholder funds as well as the
company policyholders funds; and
 0% for untaxed policyholder funds.
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16 Par 5(2).
17 R300 000 (2018 – 2013), R200 000 (2012), R120 000 (2011 – 2008), R60 000 (2007) and R50 000
(2006 and earlier tax years).
18 R40 000 (2017), R30 000 (2016 – 2013), R20 000 (2012), R17 500 (2011 – 2010), 16 000 (2009),
R15 000 (2008) and R12 500 (2007).
19 40% (2017), 33.3% (2016 – 2013), 25% (2012),
10.3.12 Disposals to and from deceased estates

Date of death: Prior 1 March 2016
In terms of paragraph 40(1) the deceased is deemed to have disposed of his or her assets on
the day of death for an amount equal to the market value on the date of death. However, as is
so often the case with taxation, there are once again exceptions to the regulation. The effect of
the exceptions is that the deceased is deemed not to have disposed of specific assets, hence
capital gains or losses are not calculated at that stage. The exceptions comprise the following:
 assets that accrue to the surviving spouse20 (refer to 10.3.9);
 the proceeds of life insurance policies of the deceased which, if the proceeds had been paid
to the deceased, the capital gain or capital loss would have been disregarded under para-
graph 55 of the Eighth Schedule; and
 interests in a South African pension, pension preservation, provident, provident preserva-
tion or retirement annuity funds or the foreign equivalent of such a fund, if the capital gain
or loss from the disposal of that interest would have been disregarded under paragraph 54
of the Eighth Schedule.
The executor has to select a method of valuation in order to place a value on the assets at
1 October 2001. It is essential for the taxpayer to maintain comprehensive records as this will
enable the executor to select the most advantageous value.
If the deceased disposed of a small business asset but did not use the full R 1 800 000 ex-
emption, the executor may use the balance if he or she sells such assets during the administra-
tion of the estate.
Care should be taken regarding the capital gains rules for specific assets, as there are differ-
ent valuation rules applicable between the various sections of the Act. A comprehensive
discussion regarding these differences falls outside the scope of this book,21 but the assets
under consideration are:
• livestock held and not disposed of at date of death;
• plantations and growing crops;
• assets subject to capital allowances; and
• usufructs created at death.
___________
20 As contemplated in par 67(2)(a).
Assets transferred from deceased person to deceased estate or heirs

The provisions of paragraph 40(1A) based on transfer from the deceased person to either the
deceased estate or heir or legatee can be summarised as follows:
ON DATE OF DEATH
DECEASED PERSON DECEASED ESTATE HEIR OR LEGATEE
Proceeds Base cost Base cost
Disposed of assets for Assets transferred directly to Assets transferred directly to
amount received or accrued the deceased estate is deemed the heir or legatee is deemed
equal to market value on to be at a cost equal to their to be at a cost equal to their
the date of death. market value on date of death. market value on date of
death.
Base cost
As determined in terms of
section 10.3.3
Assets transferred from deceased estate to heirs or legatees

For CGT purposes, a deceased estate is regarded as tax-neutral in respect of the transfer of
assets to beneficiaries (including the trustee of a trust, but excluding the surviving spouse or
approved public welfare organisations). The deceased estate is deemed to have acquired such
assets at market value from the deceased, and when these assets are transferred to the bene-
ficiaries, this is deemed to take place at the same market value. There is thus no gain and also
no taxation. Transfers to the surviving spouse are deemed not to have been acquired by the
deceased estate (see roll-overs – 10.3.9). The Act stipulates that the beneficiaries or legatees
acquire the assets from the deceased estate at the base cost of the deceased estate. The base
cost will be the market value of the assets at the date of death plus the costs of any improve-
ments or allowable expenses in terms of paragraph 20 incurred by the executor. The provisions
of paragraph 40(2) based on transfer from the deceased estate to the heir or legatee can be
summarised as follows:
DECEASED ESTATE HEIR OR LEGATEE22
Proceeds
Disposed of assets equal to the base cost of the
deceased estate
Base cost Base cost
• Assets transferred directly to the deceased Acquired that assets at a cost equal to the base
estate is deemed to be at a cost equal to their cost of the deceased estate.
market value on date of death, plus
• Any further costs incurred by the executor on
the asset.
No capital or loss incurred
___________
22 Par 40(2) used to refer to assets disposed of by a deceased estate to the trustee of a trust. These
superfluous references have been deleted effective 1 March 2006 because the trust contemplated
by the provision would in any event have been an heir or legatee in its own right.
Assets sold by the executor to third parties23

If the executor sells the assets to persons other than the beneficiaries or legatees, the de-
ceased estate becomes liable for CGT. However, the deceased estate also qualifies for the
annual exclusion of R40 000. Once again, the R40 000 is not apportioned for a period less than
a year.
The Act stipulates that the deceased estate must be in the same position as the deceased
would have been if he or she had disposed of the assets him- or herself. The inclusion rate of
the deceased estate is thus also 40%, and it also qualifies for the primary residence exclusion. If
the executor is unable to sell the residence within two years of the date of death (in instances
where the residence is not bequeathed to the spouse), the gain for the period exceeding the
two years will not qualify for the R2 million exclusion and the gain will have to be apportioned.
Date of death: On or after 1 March 2016
As previously stated, the changes affecting CGT regarding deceased estates refers to the
withdrawal of some of the rules in terms of the Eighth Schedule (paras 40, 41 and 67) and
embedding them into a new section 9HA and revised section 25 of the main act. Some
amendments to take note of in specialised circumstances in terms of the new section 9HA are:
• Allowance assets (recoupment of capital allowances).
• Trading stock held and not disposed of on date of death.
• Livestock held on date of death.24
Several of the provisions included in the new section 9HA was incorporated in paragraph 40 as
discussed in the previous section but will briefly be reported on in terms of the new provisions.
Exempt assets transferred from deceased person

In terms of section 9HA(1) a deceased person is treated as having disposed of his or her assets
at the date of death for an amount received or accrued equal to the market value as pre-
scribed,25 given the following exclusions:
 Assets disposed of to a surviving spouse (by means of ab intestate or testamentary succes-
sion, redistribution agreement between heirs and legatees or accrual settlement).
 Long-term insurance policy.
 Interests of the deceased in retirement funds in South Africa or similar international
instrument.
It is important to note that assets bequeathed to a surviving spouse under the deceased’s last
will and testament which are disposed of by the executor to a third party before the liquidation
and distribution account has become final do not qualify for roll-over treatment because they
are not acquired by the spouse.
___________
23 Par 40(3).
25 Par 31 of the Eighth Schedule.
Acquisition of assets by deceased estate from deceased person

The deceased estate is treated as having acquired an asset from the deceased person for an
amount of expenditure incurred equal to the market value as prescribed. Similar as the pre
1 March 2016 dispensation, a tax-neutral transfer of assets from the deceased estate to heirs
or legatees, including a surviving spouse is provided for.
Assets disposed of directly to heirs or legatees26

The deceased estate is treated as having disposed of an asset to an heir or legatee for an
amount received or accrued equal to the amount of expenditure incurred by the deceased
estate in respect of that asset. Once again, the deceased estate will be in a tax-neutral dispen-
sation.
The heir or legatee is treated as having acquired the asset for an amount equal to the ex-
penditure incurred by the deceased estate.
The tax treatment (excluding certain assets), has therefor predominantly remained the same
before and after 1 March 2016.
DECEASED ESTATE HEIR OR LEGATEE27
Proceeds
Disposed of assets equal to the base cost of the
deceased estate
Base cost Base cost
• Assets transferred directly to the deceased Acquired that assets at a cost equal to the base
estate is deemed to be at a cost equal to their cost of the deceased estate.
market value on date of death, plus
• Any further costs incurred by the executor on
the asset.
No capital or loss incurred
10.3.13 Payment of tax on behalf of the estate28

A situation can arise where the estate has a substantial CGT liability as a result of growth in the
value of the assets, but has no estate duty liability. This would be the case where the estate has
large liabilities that are not taken into account for CGT, but which reduce the net estate for
estate duty purposes.
Such a situation can present the estate with a considerable cash flow problem, which may
oblige the executor to sell some of the assets in order to pay the tax. The executor may make
an agreement with a legatee that he or she will take over the assets together with the appro-
priate portion of the CGT. If the CGT of the deceased (1) amounts to more than 50% of the net
value of the estate (as calculated in terms of Chapter 8) before taking that CGT into account;
___________
26 S 25(3)(a) and 25(3)(b)
27 Par 40(2) used to refer to assets disposed of by a deceased estate to the trustee of a trust. These
superfluous references have been deleted effective 1 March 2006 because the trust contemplated
by the provision would in any event have been an heir or legatee in its own right.
28 Par 41 regarding deaths prior to 1 March 2016 and s 25(6) regarding deaths on or after 1 March
2016.
and (2) the executor is obliged to sell the asset to pay that tax, the legatee who is entitled to
the assets involved may accept both the assets and the CGT liability on condition that he or she
will pay the portion of the CGT that exceeds the net value of the estate by 50%. The tax must
be paid within three years of the distribution. Fifty percent of the net value of the estate must
be used to settle the outstanding CGT.
Tax liability taken over by a beneficiary

The net value of the estate of the late John Smith before CGT was as follows:
Assets R
Residence (base cost: R600 000) 9 000 000
Cash in bank 150 000
Motor cars 300 000
Liabilities
Bond on residence (7 500 000)
Sundry creditors (1 050 000)
Net value of estate before CGT 900 000
John’s only son and heir, Jake, has informed the executor that he would like to take over the resi-
dence. In order to do so, he is prepared to pay any outstanding taxes owed by the estate. Prior to his
death John paid income tax at a marginal rate of 40%. Jake would like to pay as little tax as possible.
Calculate the CGT payable by the estate, as well as the portion payable by Jake if it is accepted that the
residence is not the primary residence.
First, the CGT in respect of the asset concerned is calculated: R
Deemed proceeds on disposal of the residence 9 000 000
Less: Base cost (600 000)
8 400 000
Less: Annual exclusion (300 000)
Total capital gain 8 100 000
Taxable capital gain @ 40% 3 240 000

Tax on the above @ 40% 1 296 000
Secondly 50% of the net value of the estate before CGT must be calculated:
Net value of estate before CGT 900 000
50% of the above 450 000
Lastly, the CGT must be apportioned:
Total CGT as calculated above 1 296 000
Less: Portion payable by estate – 50% of the net value of the estate 450 000
Portion payable by Jake 846 000
10.4 Example 1 – Estate of a single person

The following example for the calculation of capital gains tax is based on the estate of a single
person, Peter Smith, married out of community of property as per Example 1 (refer 9.2).
CGT Information
1. The proceeds for the deceased refer to the fair market value of the assets at the time of
death. Should the assets be sold by the executor, the proceeds for the deceased estate
would be the amount received by the executor.
2. In the information provided below, the amounts reflected are after taking any recoup-
ments or closing stock adjustments into account.
3. Assume in this example that all the cost of the livestock was allowed as a deduction in
terms of section 11(a) of the Income Tax Act, therefore the base cost of the livestock will
be Rnil for the deceased.
4. For purposes of this example we assume that the hunting rifle is a personal use asset and is
thus exempt from capital gains tax.
Assets Proceeds for Base cost for Beneficiary
deceased deceased
R R
Primary residence – 1 875 000 1 000 000 Spouse
18 Willow Ave
Farm Greenfields 1 837 500 1 500 000 Son
Farm Rocklands 550 000 250 000 Sold by executor for
R750 000
Furniture and household effects 360 000 100 000 Spouse
Agricultural implements 180 000 50 000 Son
Livestock 900 000 – Son
Musgrave 30-06 hunting rifle 10 500 5 000 Son
2009 Toyota Verso 270 000 300 000 Brother
32 days’ notice (savings account) 47 562 Spouse
Old Mutual policy (qualifies as an 2 400 000 Brother / Spouse
exempt policy)
Current account – bank 65 583 Brother / spouse
Investec Unit Trusts 674 870 620 000 Sold by executor for
R687 360
Firstly, the capital gains tax liability of the deceased must be calculated. Remember that capital
gains tax is included in the income tax liability as per the final assessment from the South
African Revenue Service. This must first be calculated before the estate duty can be calculated.
Example 1
Capital gains tax calculation for the deceased
Peter Smith
Step 1: Calculate the capital gain / (loss) per asset
Assets Proceeds Base cost Capital gain / Exclusions / Total capital

(loss) Rollovers gains
R R R R R
Primary residence –
Proceeds < R2 milion, thus excluded from CGT (par 45(b))
18 Willow Ave(1)
Farm Greenfields 1 837 500 1 500 000 337 500 – 337 500
Farm Rocklands 550 000 250 000 300 000 – 300 000
Furniture and Bequeathed to spouse – thus not taken into account / Also: personal use
household effects assets, thus excluded from CGT
Agricultural
implements(2) 180 000 50 000 130 000 – 130 000
Livestock(3) 900 000 – 900 000 – 900 000
Musgrave 30-06
hunting rifle(4) 10 500 5 000 5 500 (5 500) –
2009 Toyota Verso(4) 270 000 300 000 (30 000) 30 000 –
32-Days notice(5) Not a CGT asset
Old Mutual policy(6) Exempt policy i.t.o. par 55
Current account(5) Not a CGT asset
Investec Unit Trusts 674 870 620 000 54 870 – 54 870
Total 1 722 370
Step 2: Calculate the taxable capital gain

R
Capital gain 1 722 370
Annual exclusion(7) (300 000)
Total capital gain 1 422 370
Assessed capital loss carried over –
Net capital gain 1 422 370
Taxable capital gain (40%) 568 948

Example 1
Capital gains tax calculation for the deceased estate
Proceeds Base cost Capital gain / Exclusions / Total of

Assets (loss) Rollovers capital gains
R R R R R
Primary residence – 18
Proceeds < R2 milion, thus excluded from CGT (par 45(b))
Willow Ave(1)
Farm Greenfields(8) 1 837 500 1 837 500 – – –
Farm Rocklands(9) 750 000 550 000 200 000 – 200 000
Furniture and household Assets transferred to spouse do not trigger a disposal, thus no CGT
effects (s 9HA(1)(a))
Agricultural implements(8) 180 000 180 000 – – –
Livestock(8) 900 000 900 000 – – –
Musgrave 30-06 hunting
10 500 10 500 – – –
rifle(8)
2009 Toyota Verso(8) 270 000 270 000 – – –
32-Days notice(5) Not a CGT asset
Old Mutual policy(6) Exempt policy
Current account(5) Not a CGT asset
Total 212 490

R
Capital gain 212 490
(Note: please ensure what the actual annual exclusion for
Annual exclusion(7) (40 000)
the specific year of assessment is)
Total capital gain 208 490
Net capital gain 208 490

Comments
1. Should the proceeds have been more than R2 million and the deemed disposal resulted in
a capital gain, the payment of the capital gains tax relating to the disposal of the primary
residence would be postponed until the time of disposal by the surviving spouse. The capi-
tal gains tax is thus not exempted but postponed until a later date. The surviving spouse
inherits the history of the asset, for example the base cost of the deceased is transferred to
the surviving spouse and the capital gain or loss is only calculated at the date of disposal by
the surviving spouse.
Should the primary residence be bequeathed to someone other than the surviving spouse,
the deceased would be entitled to the primary residence exclusion that currently amounts
to R2 000 000 if the proceeds were more than R2 million. This amount needs to be amend-
ed by any change to the exclusion announced by the Minister of Finance from time to time.
2. The Act does not make provision for the recoupment of capital allowances at the time of
death, due to the deemed disposal. The full market value of the depreciable assets must be
brought to account as proceeds for the deceased.
In the case of the disposal of an asset to someone other than a beneficiary or legatee, in
respect of which the deceased claimed a capital allowance, the executor should take the
recoupment into account when the asset is sold on behalf of the deceased estate. There
would be a recoupment for the deceased estate of those allowances in terms of sec-
tion 25(1) read with section 8(4)(a). The proceeds from the disposal of the assets must be
reduced by the amount of the recoupment in terms of par 35(3)(a).
3. The proceeds of the livestock will be the difference between the market value and the
standard value of the livestock. Because the cost of the livestock was allowed as a deduc-
tion for Income Tax purposes, the base cost of the livestock is Rnil for the deceased at time
of death.
4. The asset is a personal use asset and thus any capital gain / loss is disregarded.
5. Cash is not an asset for capital gains tax purposes and thus not taken into account when
calculating the capital gain or loss.
6. The Old Mutual policy qualifies as an exempt policy and therefore is not taken into account
when calculating the capital gain or loss.
7. Should the Minister of Finance announce an increase in the value, the calculations should
be changed accordingly (see 10.3.11).
8. Certain assets are bequeathed to a specific beneficiary, and therefore the proceeds of the
deceased person and base cost for the deceased estate are equal to the market value at
date of death. The deceased estate is not affected by capital gains tax in such a situation.
9. The Farm Rocklands is sold by the executor to a third party, and the deceased estate
realised a capital gain which is subject to capital gains tax at the rate applicable to a natural
person.
10.5 Example 2 – Adiation

The following example illustrates the capital gains tax implications resulting from the disposal
of a fiduciary asset. This example concentrates on the fiduciary asset. The example is based on
the information as per Example 2 in Chapter 9 (refer 9.3) which includes a fiduciary asset. In
this example Peter was married in community of property and adiation occurred.
Peter was 22 years old at the time of his father Alfred’s death. At the time of Alfred’s death,
the base cost of the farm was R150 000 and the fair market value R300 000. The base cost of
Peter’s fiduciary asset must be calculated in terms of par 31(1)(d) and (2) of the Eighth Sched-
ule:
The base cost of the fiduciary asset must be calculated:
Base cost – fiduciary asset
Base cost – fiduciary asset

Annual value at 12% R36 000
Peter’s age at next birthday (which follows on the date of his father’s death) 23 years
Factor for a male person – 23 years (Table A Schedule 6) 8, 281 17
Base cost of Peter’s right (R36 000 × 8,281 17) R298 122
Calculation of the capital gain / loss with regard to Peter’s fiduciary right:
Proceeds Rnil
(The value of the fiduciary right expires at date of death)
Base cost R298 122
Capital loss R298 122
CGT Information
1. Because Peter was married in community of property, the capital gains tax liability should
be calculated for his half of the assets, therefore the proceeds and base cost of the joint
assets must be divided between the spouses. The proceeds and base costs reflected in the
table below, are thus the deceased’s half after taking any recoupments and adjustments
for livestock into account.
death. Should the assets have been sold by the executor, the proceeds for the deceased
estate would be the amount received by the executor.
3. Assume in this example that all the cost of the livestock was not allowed as a deduction in
not be Rnil for the deceased as in Example 1.

the deceased the deceased
R R
937 500 500 000 Spouse
18 Willow Ave
Farm Greenfields 918 750 750 000 Son
continued

the de- the de-
ceased ceased
R R
Farm Rocklands 275 000 125 000 Sold by the executor for
R750 000
Furniture and household effects 180 000 50 000 Spouse
Agricultural implements 90 000 25 000 Son
Livestock 450 000 425 000 Son
Musgrave 30-06 hunting rifle 5 250 2 500 Son
2009 Toyota Verso 135 000 150 000 Sister
32 days’ notice account 23 781 Spouse
Old Mutual policy 1 200 000 Sister / Spouse
Current account 32 792 Sister / Spouse
Investec Unit Trusts 337 435 310 000 Sold by the executor for
R687 360 (thus R687 360 / 2)
Example 2
Peter Smith
Proceeds Base cost Capital gain / Exclusions / Total of

Assets (loss) Rollovers capital gains
R R R R R
Primary residence – Proceeds < R2 milion, thus excluded from CGT (par 45(b))
18 Willow Ave(1)
Farm Greenfields 918 750 750 000 168 750 – 168 750
Farm Rocklands 275 000 125 000 150 000 – 150 000
effects (s 9HA(1) read with s 9HA(2))
Agricultural implements 90 000 25 000 65 000 – 65 000
Livestock 450 000 425 000 25 000 – 25 000
Musgrave 30-06 hunting 5 250 2 500 2 750 (2 750) –
rifle
2009 Toyota Verso 135 000 150 000 (15 000) 15 000 –
32-Days notice Not a CGT asset
Old Mutual policy Exempt policy i.t.o. par 55
Current account Not a CGT asset
Fiduciary right – Farm – 298 122 (298 122) 298 122 –
Vlermuis(2)
Total 436 185

R
Annual exclusion (300 000)

Example 2
Assets Proceeds Base cost Capital gain / Exclusions / Total of

(loss) Rollovers(1) capital gains
R R R R R
Primary residence – Proceeds < R2 milion, thus excluded from CGT (par 45(b))
18 Willow Ave(1)
Farm Greenfields 918 750 918 750 – – –
Farm Rocklands 375 000 275 000 100 000 – 100 000
effects (s 9HA(1) read with s 9HA(2))
Agricultural implements 90 000 90 000 – – –
Livestock 450 000 450 000 – – –
Musgrave 30-06 hunting 5 250 5 250 – – –
rifle
2009 Toyota Verso 135 000 135 000 – – –
32 days’ notice Not a CGT asset
Old Mutual policy Exempt policy
Fiduciary right – Farm
– – – – –
Vlermuis(2)
Total 106 245

R
(Note: please ensure what the actual annual exclusion for
the specific year of assessment is)

Comments
1. The same principles regarding exclusions and recoupments as per the previous examples
are applicable in this example.
2. The proceeds of the fiduciary right would always be Rnil as the right expires at date of
death. A capital loss will therefore result from the disposal of the fiduciary right. This capi-
tal loss is disregarded in terms of paragraph 15(c). As the fiduciary right is a personal right
of the deceased, it does not from part of the joint estate and thus the base cost is not di-
vided between the spouses.
10.6 Example 3 – Repudiation

The following example of capital gains tax at time of death is based on the information as per
Example 3 (refer 9.4), Peter Smith. In this example the executor had to sell all the assets due to
the fact that the beneficiaries could not reach an agreement regarding the assets. The pro-
ceeds from the disposal of the assets as well as the market values differ in this example from
the previous examples. The deceased was married in community of property but the surviving
spouse repudiated the will.
CGT Information
1. The executor liquidated all the assets, therefore the proceeds for the deceased estate
would be the actual sales value of the assets. The proceeds for the deceased would be the
fair market value at the time of death.
2. Because Peter was married in community of property, the capital gains tax liability should
be calculated for his half of the assets; thus the proceeds and base cost of the joint assets
must be divided between the spouses.
3. The proceeds and base costs reflected in the table below, is the deceased’s half after
taking any recoupments and adjustments for livestock into account.
terms of section 11(a) of the Income Tax Act; therefore the base cost of the livestock will
be Rnil for the deceased as in Example 1.
Because the deceased was married in community of property, only his half of the value of the
assets is taken into account:
Assets Actual sales Proceeds for Proceeds for Base cost for
value the deceased the deceased the deceased
estate (50%) R R
R
1 860 000 930 000 925 000 500 000
18 Willow Ave
Farm Greenfields 2 550 000 1 275 000 1 312 500 750 000
Farm Rocklands 750 000 375 000 275 000 125 000
Furniture and household
342 000 171 000 171 000 50 000
effects
Agricultural implements 229 000 114 500 90 000 75 000
Livestock 1 020 000 510 000 450 000 425 000
Musgrave 30-06 hunting
9 900 4 950 4 750 2 500
rifle
2009 Toyota Verso 240 000 120 000 135 000 150 000
32 days’ notice account 47 562 23 781 23 781
Old Mutual policy (quali-
2 400 000 1 200 000 1 200 000
fies as an exempt policy)
Current account 65 584 32 792 32 792
Investec Unit Trusts 343 680 343 680 337 435 310 000
Example 3
Peter Smith
Assets Proceeds Base cost Capital gain / Exclusions / Total of capital

(loss) Rollovers gains
R R R R R
Primary residence – Proceeds < R2 million, thus excluded from CGT (par 45(b))
18 Willow Ave
Farm Greenfields 1 312 500 750 000 562 500 – 562 500
Farm Rocklands 275 000 125 000 150 000 – 150 000
Furniture and 171 000 50 000 (121 000) – –
household effects
Agricultural 90 000 75 000 15 000 – 15 000
implements
Livestock 450 000 – 450 000 – 450 000
Musgrave 30-06 4 750 2 500 2 250 (2 250) –
hunting rifle
2009 Toyota Verso 135 000 150 000 (15 000) 15 000 –
Total 1 204 935

R
Capital gain 1 204 935

Example 3
Assets Proceeds(1) Base cost(1) Capital Exclusions / Total of capital

gain / (loss) Rollovers gains
R R R R R
18 Willow Ave
Farm Greenfields 1 275 000 1 312 500 (37 500) – (37 500)
Farm Rocklands 375 000 275 000 100 000 – 100 000
Furniture and 171 000 171 000 – – –
household assets
Agricultural 114 500 90 000 24 500 – 24 500
implements
Livestock 510 000 450 000 60 000 – 60 000
Musgrave 30-06 4 950 4 750 200 (200) –
hunting rifle
2009 Toyota Verso 120 000 135 000 (15 000) 15 000 –
Total 153 245

Capital gains 153 245
(Note: please ensure what the actual annual exclusion
for the specific year of assessment is!)

Comment
Due to the fact that the executor is now selling the assets to third parties, there is no longer
any postponement of the capital gains tax liability. The spouse is now inheriting cash which is
excluded from capital gains tax. Should the proceeds of the primary residence have been more
than R2 million, the deceased would have qualified for the primary residence exclusion, which
currently amounts to R2 million. The deceased estate also qualifies for the R2 million primary
residence rebate.
10.7 Example 4 – Redistribution agreement

The information is based on Example 4 (refer 9.5), Peter Smith. In this example the beneficiar-
ies conclude a redistribution agreement and the marriage was out of community of property.
CGT Information
death. Should the assets be sold by the executor, the proceeds for the deceased estate
would be the amount received by the executor.
2. In the information provided below, the amounts reflected are after taking any recoup-
ments or closing stock at standard values into account.
be Rnil for the deceased as in Example 1.
Proceeds for Base cost for Redistribution
Assets the deceased the deceased Beneficiary agreement
R R
Primary residence – 1 875 000 1 000 000 Spouse Son
18 Willow Ave
Farm Greenfields 1 837 500 1 500 000 Son Spouse
Farm Rocklands 550 000 250 000 Sold by the executor for R750 000
Furniture and household 360 000 100 000 Spouse Spouse
effects
Agricultural implements 180 000 150 000 Son Spouse
Livestock (note) 900 000 850 000 Son Spouse
Musgrave 30-06 hunting 10 500 5 000 Son Son
rifle
2009 Toyota Verso 270 000 300 000 Daughter Son
32 days’ notice 47 562 Spouse Everyone
Old Mutual policy (qualifies 2 400 000 Daughter / Spouse Everyone
as an exempt policy)
Current account 65 583 Daughter Everyone
Investec Unit Trusts 674 870 620 000 Sold by the executor for R687 360
Example 4
Peter Smith
Assets Proceeds Base cost Capital Exclusions / Total of

gain / (loss) Rollovers capital gains
R R R R R
18 Willow Ave(1)
Farm Greenfields Assets transferred to spouse do not trigger a disposal, thus no CGT
(s 9HA(1) read with s 9HA(2))
Farm Rocklands 550 000 250 000 300 000 – 300 000
Furniture and Assets transferred to spouse do not trigger a disposal, thus no CGT
household effects (s 9HA(1) read with s 9HA(2))
Agricultural implements Assets transferred to spouse do not trigger a disposal, thus no CGT
Livestock Assets transferred to spouse do not trigger a disposal, thus no CGT
Musgrave 30-06 10 500 5 000 5 500 (5 500) –
hunting rifle
2009 Toyota Verso 270 000 300 000 (30 000) 30 000 –
Ou Mutual policy Exempt policy
Total 354 870

R

Example 4
Assets Proceeds Base cost Capital Exclusions / Total of capital

gain / loss Rollovers gains
R R R R R
18 Willow Ave
Farm Greenfields Assets transferred to spouse do not trigger a disposal, thus no CGT
(par 40(1)(a))
Farm Rocklands 750 000 550 000 200 000 – 200 000
Furniture and Assets transferred to spouse do not trigger a disposal, thus no CGT
household effects (s 9HA(1) read with s 9HA(2))
Agricultural implements Assets transferred to spouse do not trigger a disposal, thus no CGT
Livestock Assets transferred to spouse do not trigger a disposal, thus no CGT
Musgrave 30-06 10 500 10 500 – – –
hunting rifle
2009 Toyota Verso 270 000 270 000 – – –
Total 212 490

R
(Note: please ensure what the actual annual exclusion
for the specific year of assessment is!)

Comment
Due to the fact that there was a redistribution agreement the assets are no longer distributed
as per the original will. The surviving spouse is no longer inheriting the primary residence, thus
the deceased would have been entitled to the primary residence (exclusion of R2 million) if the
proceeds exceeded R2 million.
10.8 Example 5 – Section 38 takeover

The last example is based on the information provided in Example 5 (refer 9.6), Nicholas Jones.
In this example a section 38 takeover is done by the surviving spouse and a redistribution of
the assets between the beneficiaries needs to take place. The marriage was out of community
of property.
CGT Information
The proceeds for the deceased refer to the fair market value of the assets at the time of death.
Should the assets be sold by the executor, the proceeds for the deceased estate would be the
amount received by the executor.
Assets Proceeds for Base cost for Beneficiary Section 38

the deceased the deceased takeover
R R
Primary residence – Sunset Park 1 050 000 500 000 Brother Spouse
Furniture and household effects 270 000 100 000 Brother Spouse
2011 Opel Astra 156 000 120 000 Brother Spouse
Savings – Nedbank 142 950 Spouse / Son Brother / Son
Momentum policy (qualifies as 525 000 Spouse / Son Brother / Son
an exempt policy)
Current account 17 439 Spouse / Son Brother / Son
Example 5
Nicholas Jones
Assets Proceeds Base cost Capital gain / Exclusions / Total of

loss Rollovers capital gains
R R R R R
Primary residence – Proceeds R2 million, thus excluded from CGT (par 45(b))
Sunset Park
effects (s 9HA(1) read with s 9HA(2 ))
2011 Opel Astra Assets transferred to spouse do not trigger a disposal, thus no CGT
Nedbank Not a CGT asset
Momentum policy Exempt policy
Total –

R
Capital gain –
Annual exclusion –
Total capital gain –
Net capital gain –
Taxable capital gain (40%) –
Comments
(1) In terms of a section 38 takeover, the surviving spouse is allowed to take over certain
assets and refunds the estate in cash for any shortfall. Due to the fact that the surviving
spouse is now receiving all the assets (other than cash), the capital gains tax liability will
be postponed until the date on which the surviving spouse disposes of the assets.
(2) No CGT assets remain in the deceased estate, thus the deceased estate does not have a
CGT calculation.
11
Donations tax
11.1 Introduction ............................................................................................................ 264

11.2 Levying of donations tax ......................................................................................... 264
11.3 Individuals who are liable for donations tax ........................................................... 265
11.3.1 General rule ............................................................................................... 265
11.3.2 Spouses married within community of property ...................................... 265
11.3.3 Donation by company at the insistence of a person ................................. 266
11.4 Time of payment ..................................................................................................... 266
11.5 Specific exemptions ................................................................................................ 266
11.5.1 Donations between spouses ................................................................... 267
11.5.2 Donatio mortis causa .............................................................................. 267
11.5.3 No benefit before death ......................................................................... 267
11.5.4 Cancellations ........................................................................................... 267
11.5.5 Traditional councils, traditional communities and certain tribes ........... 267
11.5.6 Property located outside of the Republic ............................................... 267
11.5.7 Exempt organisations .............................................................................. 267
11.5.8 Voluntary awards .................................................................................... 268
11.5.9 Trusts....................................................................................................... 268
11.5.10 Farming property .................................................................................... 268
11.5.11 Public companies .................................................................................... 268
11.5.12 Immovable property ............................................................................... 268
11.5.13 Group companies .................................................................................... 268
11.6 General exemptions................................................................................................ 268
11.6.1 Casual donations ....................................................................................... 268
11.6.2 Annual exemption ..................................................................................... 269
11.6.3 Bona fide maintenance payments ............................................................. 269
11.7 Value of the donation ............................................................................................. 269
11.7.1 Property other than limited rights ............................................................ 269
11.7.2 Usufructuary, fiduciary or similar rights .................................................... 270
11.7.3 Valuation of an annuity ............................................................................. 271
11.7.4 Property subject to a usufructuary, fiduciary or similar right
(bare dominium) ........................................................................................ 272
11.8 Calculation of donations tax – examples ................................................................ 272
263
11.1 Introduction
Since a portion of the donations tax paid by the giver or receiver of an asset should be included
in the base cost of the asset that is donated, we provide a short overview of donations tax.
Donations tax is regulated by the Income Tax Act and is dealt with in Part V of the Act, in
sections 54 to 64.
When a gift (or donation) is made the amount may sometimes simply be deducted from the
usual tax calculation. Such deductions are regulated by section 18A, which provides for the
deduction of donations to certain public charitable organisations. They should on no account,
however, be confused with the concept of “donations tax”.
Donations tax does not form part of the calculation of an individual’s income tax liability, and
the donations tax calculation is done separately on each occasion that a donation is made, not
once a year as is the case with the usual income tax calculation. It also has nothing to do with
the deductibility, for tax purposes, of certain donations to charitable organisations. It is
therefore important that transactions that are subject to donations tax should be identified
and a separate calculation done in this regard.
Donations tax is not levied on an individual’s income, but on the capital transferred (usually
in the form of assets). Two types of capital transfer tax, namely donations tax and estate duty,
are regulated in terms of the tax law. As discussed in Chapter 8, estate duty is payable on the
net worth of the property in an individual’s estate upon his or her death. If a person gave away
all his or her property before dying, he or she would make it impossible for estate duty to be
payable on the estate. The purpose of donations tax is to prevent this type of evasion.
Donations (taking into account certain exemptions) are therefore subject to donations tax,
which is levied at a rate of 20% on the value of the donation. This rate applies to donations
made on or after 1 October 2001.
11.2 Levying of donations tax

In terms of section 54, donations tax is payable on the value of property donated by any
resident (as defined). However, non-residents pay no donations tax, no matter where the
assets they donate are situated. No donation takes place if services are rendered free, since no
transfer of property takes place. Tax is payable whether the donation is made directly or
indirectly, or by means of a trust.
A “donation” is defined1 as a free transfer of property, as well as a free waiver of a right.
Property includes any right to property (movable or immovable, physical or non-physical),
regardless of where it is located.
Section 58(1) further stipulates that if a property is purchased for a consideration that, in the
view of the Commissioner, is inadequate, it will be deemed that the property is donated,
notwithstanding that payment has been made for the property. Section 58(1) is, however,
usually applied in instances where related parties are involved. It is accepted that a transaction
between non-related parties is an arm’s length transaction, and that the consideration is,
indeed, market-related.
___________
1 S 55(1).
Chapter 11 Donations tax 265
Section 58(2) provides for a possible deemed donation if section 8C (taxability of directors
and employees on the vesting of an equity instrument) applies. The main purpose of section 8C
is to defer taxation on a restricted equity instrument to the date of its vesting. The reason for
this is to ensure that the full profit is properly taxed at the normal tax rates. Taxpayers are
usually strongly inclined to activate the tax artificially at the usual rates, before the full value of
the increase in the share has been realised. One way in which contravention of section 8C can
be avoided is to sell the restricted equity instrument in a transaction that is not at arm’s length
or to a related person (section 8C(5)). Section 58(2) limits this type of scheme by stipulating
that a donation in terms of section 8C(5) must take place on the date of the vesting of the
restricted equity instrument. The value for donations tax is the fair market value of that
instrument on that date, reduced by any consideration in respect of the donation.
From 1 March 2017 the new section 7C will be applicable if there is an interest-free loan
account made by an individual to a trust. In short, it stipulates that the interest (calculated as
the difference between the interest that would have been charged at the official interest rate
and the actual interest paid) on an interest-free or low interest rate loan made to a trust by a
connected person who is a natural person or at the instance of a natural person, will be a
donation for donations tax purposes. The calculation of the deemed donation to the trust by
the individual will be done on the last day of the year of assessment of that trust. Section 7 falls
beyond the scope of this book. Note further that the capital gains tax implications of an
interest-free loan also have to be taken into consideration.
11.3 Individuals who are liable for donations tax

11.3.1 General rule
The parties involved in a gift or donation are usually the donor (the person who makes the
donation) and the donee (the person who receives the donation).2 Where property is
transferred to a trustee as a result of a donation, to be administered by him or her in the
interests of a beneficiary, the trustee will be regarded as the donee of the donation.
The donor is liable for the payment of donations tax. If the donor fails to pay this tax within
the prescribed period (see 11.4), the donor and the donee are jointly and severally liable for
the donations tax. The Commissioner may assess either the donor or the donee or both for the
donations tax that is payable, or for any amount still outstanding in respect of donations tax.
Payment by either of the parties clears the joint liability.3
11.3.2 Spouses married within community of property

If one of the spouses of a marriage within community of property makes a donation of
property which forms part of the joint estate of the spouses, it is deemed that the donation is
made in equal shares by each spouse.4 If the property is not part of the joint estate, it is
deemed that the donation is made solely by the spouse who makes it.5
___________
2 S 55(1).
3 S 60(5).
4 S 57A(a).
5 S 57A(b).
A spouse is defined in section 1 of the Act as the partner of any person:

 in a marriage or customary union recognised in terms of the laws of the Republic;
 in a union recognised as a marriage in accordance with the tenets of any religion; or
 in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be
permanent.
Unless specifically otherwise stated, it is assumed that the last two instances are marriages or
unions without community of property.
11.3.3 Donation by company at the insistence of a person

If someone instructs a company to donate property, it is deemed that the person who gives the
instruction has donated the property. Thus the donor is the person who instructs that the
donation be made, even if he himself does not actually make the donation.6 Since the donation
is usually made to a shareholder or connected person in relation to a shareholder, this type of
donation could also have dividends tax consequences for the shareholder (dividends tax is
beyond the scope of this book).
11.4 Time of payment

Donations tax must be paid to the Commissioner by the end of the month following the month
in which the donation took effect7 (or such longer period as the Commissioner may allow).
Donations tax is paid per specific donation. It is not calculated for a particular year of
assessment or tax period.
A donation is deemed to have been made on the date on which all the legal requirements for
a valid donation are met.8 A verbal donation takes effect on the date on which the property is
delivered, and a written donation takes effect on the date of the contract.
The payment of the tax must be accompanied by a return in the form prescribed by the
Commissioner.9
11.5 Specific exemptions

In terms of section 56 of the Act some donations are specifically exempt from donations tax. It
is important not to confuse these exemptions with the qualifying donations set out in section
18A. These exemptions are the donations on which no donations tax is payable, whereas
section 18A states the donations that may be deducted for income tax purposes. Although
some donations that are deductible in terms of section 18A are also exempt from donations
tax, the donations that are exempt from donations tax are not necessarily deductible for
income tax purposes.
___________
6 S 57.
7 S 60(1).
8 S 55(3).
9 S 60(4).
The following donations are specifically exempt from donations tax:
11.5.1 Donations between spouses

 Donations to or for the benefit of the donor’s spouse in terms of a properly registered ante-
nuptial or post-nuptial contract or in terms of a notarial contract entered into in accordance
with the Matrimonial Property Act 88 of 1984. The words “for the benefit of” signify that
this exemption should also apply if the donation is made to a trust of which the spouse is the
sole beneficiary or in which the spouse has a vested right.
 Donations to or for the benefit of the donor’s spouse from whom the donor is not divorced.
The exemption should also apply to a trust of which the spouse is the sole beneficiary or in
which the spouse has a vested right.
11.5.2 Donatio mortis causa

This is a donation made with death in mind (donatio mortis causa) (see 8.3.3).
11.5.3 No benefit before death

These are donations in terms of which the donee will only receive the benefit upon the death
of the donor.
11.5.4 Cancellations
This refers to donations that are cancelled within six months of taking effect.
11.5.5 Traditional councils, traditional communities and certain tribes

Donations made by or to or for the benefit of any traditional council, traditional community or
tribe referred to in section 10(1)(t)(vii).
11.5.6 Property located outside the Republic

This refers to the donation of property or any right in property located outside the Republic, if
the donor acquired the property:
(i) before the donor became a resident of the Republic for the first time; or
(ii) by inheritance from someone who, at the date of his or her death, was not usually
resident in the Republic or in consequence of a donation from a non-resident donor
(other than a company); or
(iii) using funds from the sale of the property referred to in (i) to (ii) above, or if the donor
sold such property and replaced it with other properties (also located outside the
Republic and purchased from the returns on the sale of the property).
11.5.7 Exempt organisations

Donations to or by any organisation referred to in section 10(1)(a), (cA), (cE), (cN), (cO), (cQ),
(d) or (e) of the Act. This includes government, provincial administrations, municipalities,
registered political parties, public welfare organisations approved in terms of section 30(3),
recreational clubs approved by the Commissioner in terms of section 30A, small business
funding entities approved by the Commissioner in terms of section 30C (from 1 March 2015),
pension, provident, retirement or relief funds and share block companies.
11.5.8 Voluntary awards

Voluntary awards whose value is included in the gross income of the donee in terms of
paragraphs (c), (d) or (i) of the definition of “gross income”. Voluntary awards whose value
must be included in the income of the donee in terms of section 8A, 8B or 8C are also exempt
from donations tax.
11.5.9 Trusts
Donations made under or in pursuance of a trust. These are donations made by the trust to a
beneficiary, not donations made to the trust. Donations to a trust remain subject to donations
tax.
11.5.10 Farming property

The donation of a right (excluding a fiduciary, usufructuary or similar right) to the use or
occupation of property used for farming purposes if the donee is a child of the donor.
11.5.11 Public companies

Donations by a company that is recognised as a public company in terms of section 38.
11.5.12 Immovable property

This refers to donations of immovable property, if such property was acquired by a donee who,
in accordance with the Land Reform Programme, is entitled to a grant or services and the
Minister of Land Affairs has approved the project in terms of which the donee has acquired the
immovable property concerned.
Furthermore, full ownership in immovable property, if such property was acquired on or after
1 March 2016 in terms of land reform initiatives in accordance to the National Development
Plan: Vision 2030.
11.5.13 Group companies

This refers to any donation by a company to another company (that is a resident) if both
companies are part of the same group of companies.
11.6 General exemptions
11.6.1 Casual donations

The first R10 000 per year of assessment, of casual donations by a donor other than a natural
person (e.g. a company or close corporation), is exempt from donations tax.10 If the year of
assessment is shorter or longer than 12 months, the amount of R10 000 is increased or reduced
___________
10 S 56(2)(a).
in the same proportion as that between the year of assessment and 12 months. If a large
donation of R50 000 or more is made, this might not be regarded as a casual donation, in which
case the R10 000 exemption might not apply.
11.6.2 Annual exemption

The sum of the values of all property donated by a natural person not exceeding R100 00011 in
any year of assessment is exempt from donations tax. This amount is not subject to pro rata
reductions or increases. The exemption is applicable to all donations made by the natural
person concerned, regardless of their size.
Thus, should a natural person make a donation of R150 000, the first R100 000 thereof will
be exempt, provided the R100 000 exemption has not already been used in the year of
assessment. The R100 000 exemption is applicable per person. Spouses married in community
of property may therefore donate R200 000 per year from the joint estate, on which no
donations tax would be payable, since each spouse is entitled to the R100 000 exemption.
The above-mentioned exemptions are usually applied to the donations in the order in which
the donations were made.12 If a donor makes more than one donation on the same date, it is
deemed that, for the purposes of donations tax, the donations were made:
 in the order chosen by the donor; or
 in the order determined by the Commissioner if the donor fails to make a choice within 14
days of being instructed by the Commissioner to do so.13
11.6.3 Bona fide maintenance payments

Bona fide contributions by a donor to the maintenance of any person provided the
Commissioner deems such contributions to be reasonable.
11.7 Value of the donation

Section 62 sets out the valuation guidelines of the following types of property for donations tax
purposes:
 fiduciary rights, usufructs or other similar rights;
 a right to an annuity;
 property subject to a usufruct or other similar right; and
 any other property.
11.7.1 Property other than limited rights

The value of a property for the purposes of donations tax is the “fair market value”14 of the
property at the date on which the donation takes effect. If the Commissioner is of the opinion
___________
11 S 56(2)(b). The exemption was R50 000 for the period 1 March 2007 to 1 March 2008 prior to
1 March 2007 it was R30 000.
12 S 60(2).
13 S 60(3).
that the donor has imposed conditions that result in a reduction in the value of the property,
the value of the property is determined as though the conditions were not imposed.15
The Commissioner is empowered to place a fair market value on the property if in his or her
opinion the amount shown in any return as the fair market value of the property is less than
the fair market value.16 The Commissioner will consider the following factors in determining a
fair market value of the property:17
 the municipal or divisional council valuation of the property concerned;
 any sworn valuation of the property submitted by or on behalf of the donor or the donee;
and
 any valuation made by a competent, disinterested party appointed by the Commissioner.
The fair market value of immovable property on which a bona fide farming enterprise is
conducted is, for donations tax purposes, 70% of the actual market value.
The value of the donation is reduced by any consideration paid for the property donated.
11.7.2 Usufructuary, fiduciary or similar rights
Example – usufruct
On 30 September 2017 Albert gives his son Vusi a usufruct over a house he owns. At that stage
the fair market value of the house is R2 500 000. Albert turns 65 on 31 December 2017 and
Vusi turns 38 on 30 September 2017.
Calculation of the value of the usufruct

Fair market value of the property at the time of the donation R2 500 000
Annual value of the right at 12% R300 000
Albert’s life expectancy (Table A – based on his age of 65 years at his next birthday) 11,77
Vusi’s life expectancy (Table A – based on his age of 39 years at his next birthday) 30,41
Albert’s life expectancy is the shortest, and is therefore used. Factor for a male person per
Table A with a life expectancy of 11,77 years 6,137 89
Value of Vusi’s usufruct for donations tax purposes (R300 000 × 6,137 89) R1 841 367
Commentary
1. The second and third provisos in calculating the value of the usufruct for estate duty
purposes (see 8.7.8) are not applicable here. The value as calculated is therefore subject to
donations tax.
___________
14 S 55(1).
15 S 62(1)(d).
16 S 62(4).
17 S 62(5).
2. The fair market value at the date of the donation of the property in respect of which a
usufruct is given, is used.
3. The annual value of the right is 12% of the fair market value (12% of R2 500 000 =
R300 000).
4. If the Commissioner is satisfied that any of the properties in the calculation of the
restricted rights cannot yield an annual return of 12%, the annual return is determined by
the Commissioner.
5. The period for which a usufruct is to be enjoyed must now be determined. If the usufruct is
a lifelong interest, the usufructuary’s life expectancy as set out in Table A must be used.
This life expectancy must then be compared with that of the donor. The calculation must
be based on the shorter of the two, or, if the usufruct is granted for a shorter period, on
such shorter period. The value of the right is obtained by the factor in Table A for a man
who turns 65, multiplied by the annual value of the right (6,137 89 × R300 000 =
R1 841 367).
6. If the remaining life expectancy has to be calculated in respect of a person other than a
natural person, a period of 50 years is used (e.g. in the case of a trust or a company).
7. The above calculations are based on the provisions of section 62(1)(a) and (2) of the
Income Tax Act.
8. The calculation may be summarised as follows: The value is determined by capitalising the
annual value of the right of use of the property at 12% over the expected life of the donor
(or donee, if shorter), or a shorter period (if the right is granted for a shorter period).
9. If the property consists of books, paintings, statuary and other works of art, the annual
value (the amount in Step 2) is the average net receipts of the person who was entitled to
the right of enjoyment of the property during the three previous years of assessment
(before the donation came into effect).
11.7.3 Valuation of an annuity

An annuity is valued in the same way as a usufructuary, fiduciary or similar right, except that
the annual value is not calculated at 12% of the fair market value; instead, the actual annual
amount of the annuity is used.
Calculation of the value of the annuity

Annuity per annum R15 000
Life expectancy of donor – Alex next birthday 50 21,47 years
Life expectancy of donee – Ben next birthday 32 36,66 years
The shortest period is 21,47 years and the appropriate discount rate is 7,602 01
Value of the annuity for donations tax purposes (R15 000 × R7,602 01) R114 030
11.7.4 Property subject to a usufructuary, fiduciary or similar right

(bare dominium)
The bare dominium of a property subject to a usufructuary, fiduciary or similar right is valued
here. A full property right is made up of two components, namely the usufruct and the bare
dominium; in other words:
Full property right = usufruct + bare dominium
We shall use the same information as in the previous example (11.7.2). At the time of giving his
son Vusi the usufruct, Albert gave the bare dominium right to his other son Isaac, who was then
25 years old.
Calculation of the value of the bare dominium

Fair market value of the property at the time of its donation
Annual value of the right at 12% R2 500 000
Vusi’s life expectancy (Table A – based on his age (39) at his next birthday OR if the right R300 000
is for a shorter period, the latter) 30,41
Factor for male with a life expectancy of 30,41 per Table A 8,067 81
R300 000 × 8,067 81 R2 420 343
Value of Isaac’s bare dominium for the purposes of donations tax
(R2 500 000 – R2 420 343) R79 657
Commentary
1. The fair market value at the date of the donation must be established.
2. The annual value of the right is 12% of the fair market value (12% of R2 500 000 =
R300 000).
3. The period for which the usufruct may be enjoyed must then be determined.
4. Reduce the fair market value (R2 500 000) by the value of the usufruct calculated above
(R2 420 343) to arrive at the value of the bare dominium (R79 657).
5. The total value of the donation of the usufruct and the bare dominium of the farm thus
amounts to R1 841 367 + R79 657 = R1 921 024. Donations tax can therefore be reduced if
the property is divided into a usufruct right and a bare dominium right. There will,
however, be a saving only if the person who receives the usufruct is younger than the
donor.
11.8 Calculation of donations tax – examples
Example 1
Pollock Smith died of a sudden heart attack on 4 February 2017. He was born on 2 February
1944 in Oudtshoorn and was a South African resident throughout his life. At the time of his
death, Pollock was married out of community of property to his second wife, Ricky. During the
previous few years he had undertaken the following transactions:
1. On 4 August 2015 he sold the bare dominium of a flat to his son, Boucher, for R900 000.
The fair market value of the flat at that time was R4 500 000. On 4 February 2017 the
market value stood at R5 250 000. Boucher was 43 years old when he bought the bare
dominium from Pollock. (Pollock retained the usufruct of the flat for himself.)
2. On 26 December 2015 Pollock did his first bungee jump. He was worried that he might not
survive the jump because of his weak heart, so he made certain preparations. He gave his
car to Boucher on condition that, if he survived the jump, it would remain his (Pollock’s)
property. The car was valued at R240 000 on 26 December 2015.
3. On 1 January 2016 Pollock made an interest-free loan of R150 000 to Boucher, who paid
back R30 000 of the loan on 28 February 2016. Pollock then cancelled the balance of the
debt.
4. On 17 March 2016 Pollock gave Ricky, his wife, R75 000 cash. This amount represents
R3 000 for each year of their marriage.
5. He also gave his ex-wife, Sandy, R75 000 cash on her seventieth birthday on 23 October
2016.
6. On 1 January 2017 he created an annuity of R6 000 per year in favour of his brother,
Andrew, who turned 80 on 28 December 2016.
7. On 15 January 2017, Pollock also gave R300 000 to a local approved public welfare
organisation.
Calculate how much donations tax Pollock Smith’s estate has to pay in respect of the above
donations.
2016 year of assessment

Sale of bare dominium at less than market value
The usufructuary is Pollock. His life expectancy is 8,15 years. The
factor is 5,024 37.
Fair market value on 4 Aug 2015 4 500 000
Less: Value of usufruct
(R4 500 000 × 12% × 5,024 37) (2 713 160)
Value of bare dominium* 1 786 840
Deemed donation in terms of s 58
Value of bare dominium 1 786 840
Less: Amount paid by Boucher (900 000) 886 840
Less: Annual exemption (100 000)

Donation of a car – exempt (donatio mortis causa) –
Interest-free loan – not a donation –
Cancellation of debt 120 000
906 840
Donations tax @ 20% 181 368
continued
2017 year of assessment

Cash to Ricky – exempt –
Cash to Sandy 75 000
Less: Annual exemption (R100 000 limited to amount of donation) (75 000)
Annuity to Andrew 23 343
Annual value of annuity: R6 000
Pollock’s age at next birthday = 74 years
Pollock’s life expectancy = 7,77 years
Andrew’s age at next birthday = 81 years
Andrew’s life expectancy = 5,55 years
Use the shortest period (thus Andrew’s life expectancy)
Andrew’s factor: 3,890 51
Value: R6 000 × 3,890 51
Less: Annual exemption (remaining balance of R100 000, i.e. R25 000) (23 343)
Approved public welfare organisation –
–
Donations tax @ 20% –
Example 2
Mark Mighty is a very generous man. He has one daughter, Christine, and two sons, Wayne and
John. He also has two grandchildren, Josey and Patsy. Their dates of birth are as follows:
Christine 1 January 1972 Josey 1 January 1990
Wayne 17 June 1969 Patsy 1 February 1994
John 18 October 1960 Mark Mighty 1 September 1946
Mark Mighty made the following donations during the 12-month period 1 March 2016 to
28 February 2017:
March:  A cash gift of R9 000 to Christine on her birthday.
 Diamond earrings worth R15 000 to his wife as a birthday present.
April:  An annuity to his former housekeeper, Sandra, of R7 200 per annum for the
rest of her life. Sandra retired on 15 April 2016, her 60th birthday, and the gift
was in recognition of her 20 years of service.
May:  On 12 May, R45 000 to the University of South Africa.
 A house worth R900 000 to his son, Wayne, as a wedding present.
June:  His holiday flat at Muizenberg, on 1 June, to Josey, subject to John’s right of
use. The fair market value at that time was R1 050 000.
September:  On 15 September his farm, Sterkstroom, valued at R1 200 000, to his
granddaughter, Patsy, subject to Christine’s right of use for the rest of her life.
No bona fide farming activities are carried out on the farm.
February:  A cash donation of R45 000 to his church, which is not registered as a public
welfare organisation.
 An amount of R75 000 to his nephew, Alex, to help him start his own business.
Calculate the amount of donations tax Mark Mighty has to pay in respect of the donations
made in the 2017 year of assessment.
Solution
R R
Gift to Christine (not bona fide maintenance) 9 000
Gift to his spouse – exempt –
Sandra’s annuity – exempt (in terms of par (c) of the definition of –
gross income, included in Sandra’s gross income)
Donation to university (exempt – s 56(1)(h)) –
House to son – Wayne 900 000
Holiday flat – Josey
John’s usufruct
Annual value: R1 050 000 × 12% = 126 000
Age at next birthday = 56
Life expectancy = 17,18 years 7,144 14
Value: R126 000 × 7,144 14 = 900 162
Market value of flat 1 050 000
Less: usufruct 900 162
Value of bare dominium 149 838
Right of use of holiday flat

Value of property 1 050 000
Annual value: R1 050 000 × 12% = 126 000
Age at next birthday (donor has the shorter life expectancy) = 70
Factor = 5,451 65
Value: R126 000 × 5,415 65 = 686 908
Value of Christine’s usufruct
Fair market value of property 1 200 000
Annual value: R1 200 000 × 12% = 144 000
Age at next birthday (donor has the shorter life expectancy,
donor had a birthday after previous donation) = 71
Factor = 5,307 75
Value: R144 000 × 5,307 75 = 764 316
continued
R R
Value of bare dominium to Patsy
Value of property 1 200 000
Annual value: R1 200 000 × 12% = 144 000
Age at next birthday of usufructuary, Christine = 45
Factor = 8,085 27
Value: R144 000 × 8,085 27 = 1 164 279
Market value of property 1 200 000

Less: Usufruct 1 164 279
Value of bare dominium 35 721
Donation to the church 45 000
Donation to nephew 75 000
2 665 783
Less: Annual exemption (100 000)
2 565 783
Donations tax @ 20%

(R2 565 783 × 20%) 513 157
Note that donations tax must be calculated separately and paid, for each donation. In practice,
the R100 000 rebate will therefore be applied first against the donation of R9 000, and no
donations tax is payable on this donation. The balance of R91 000 is then calculated against the
R900 000 donation, of which R809 000 is subject to donations tax at 20%. The tax must be paid
by the end of the following month. All subsequent donations will then be subject to donations
tax at 20% as the entire R100 000 general exemption has been used up. The example simply
shows the total donations tax for the year of assessment.
Acts, regulations and
tables
Schedule 1
INTESTATE SUCCESSION ACT

NO. 81 OF 1987
[ASSENTED TO 30 SEPTEMBER, 1987]
[DATE OF COMMENCEMENT: 18 MARCH, 1988]
(English text signed by the State President)
This Act has been updated to Government Gazette 33576 dated 17 September, 2010.
as amended by
Law of Succession Amendment Act, No. 43 of 1992
Reform of Customary Law of Succession and Regulation of Related Matters Act, No. 11 of 2009
ACT
To regulate anew the law relating to intestate succession; and to provide for matters connected
therewith.
ARRANGEMENT OF SECTIONS
1. Intestate succession
2. Repeal of laws
3. Short title and commencement
Schedule Laws repealed
1. Intestate succession.—(1) If after the commencement of this Act a person (hereinafter referred to
as the “deceased”) dies intestate, either wholly or in part, and—
(a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;
(b) is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate
estate;
277
(c) is survived by a spouse as well as a descendant—

(i) such spouse shall inherit a child’s share of the intestate estate or so much of the intes-
tate estate as does not exceed in value the amount fixed from time to time by the Minis-
ter of Justice by notice in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the intestate estate;
(d) is not survived by a spouse or descendant, but is survived—
(i) by both his parents, his parents shall inherit the intestate estate in equal shares; or
(ii) by one of his parents, the surviving parent shall inherit one half of the intestate estate
and the descendants of the deceased parent the other half, and if there are no such de-
scendants who have survived the deceased, the surviving parent shall inherit the intes-
tate estate; or
(e) is not survived by a spouse or descendant or parent, but is survived—
(i) by—
(aa) descendants of his deceased mother who are related to the deceased through her
only, as well as by descendants of his deceased father who are related to the de-
ceased through him only; or
(bb) descendants of his deceased parents who are related to the deceased through
both such parents; or
(cc) any of the descendants mentioned in subparagraph (aa), as well as by any of the
descendants mentioned in subparagraph (bb),
the intestate estate shall be divided into two equal shares and the descendants related
to the deceased through the deceased mother shall inherit one half of the estate and the
descendants related to the deceased through the deceased father shall inherit the other
half of the estate; or
(ii) only by descendants of one of the deceased parents of the deceased who are related to
the deceased through such parent alone, such descendants shall inherit the intestate es-
tate;
(f) is not survived by a spouse, descendant, parent, or a descendant of a parent, the other blood
relation or blood relations of the deceased who are related to him nearest in degree shall in-
herit the intestate estate in equal shares.
(2) Notwithstanding the provisions of any law or the common or customary law, but subject to the
provisions of this Act and sections 40 (3) and 297 (1) (f) of the Children’s Act, 2005 (Act No. 38 of 2005),
having been born out of wedlock shall not affect the capacity of one blood relation to inherit the intestate
estate of another blood relation.
[Sub-s. (2) substituted by s. 8 of Act No. 11 of 2009.]
(3) A notice mentioned in subsection (1) (c) (i) shall not apply in respect of the intestate estate of a
person who died before the date of that notice.
(4) In the application of this section—
(a) in relation to descendants of the deceased and descendants of a parent of the deceased,
division of the estate shall take place per stirpes, and representation shall be allowed;
(b) “intestate estate” includes any part of an estate which does not devolve by virtue of a will;
[Para. (b) substituted by s. 8 of Act No. 11 of 2009.]
(c) ......
[Para. (c) deleted by s. 14 (a) of Act No. 43 of 1992.]
(d) the degree of relationship between blood relations of the deceased and the deceased—
(i) in the direct line, shall be equal to the number of generations between the ancestor and
the deceased or the descendant and the deceased (as the case may be);
Acts, regulations and tables 279
(ii) in the collateral line, shall be equal to the number of generations between the blood
relations and the nearest common ancestor, plus the number of generations between
such ancestor and the deceased;
(e) an adopted child shall be deemed—
(i) to be a descendant of his adoptive parent or parents;
(ii) not to be a descendant of his natural parent or parents, except in the case of a natural
parent who is also the adoptive parent of that child or was, at the time of the adoption,
married to the adoptive parent of the child; and
(eA) a person referred to in paragraph (a) of the definition of “descendant” contained in section 1
of the Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009,
shall be deemed—
(i) to be a descendant of the deceased person referred to in that paragraph;
(ii) not to be a descendant of his or her natural parent or parents, except in the case of a
natural parent who is also the parent who accepted that person in accordance with cus-
tomary law as his or her own child, as envisaged in the said definition, or was, at the
time when the child was accepted, married to the parent who so accepted the child; and
[Para. (eA) inserted by s. 8 of Act No. 11 of 2009.]
(f) a child’s portion, in relation to the intestate estate of the deceased, shall be calculated by
dividing the monetary value of the estate by a number equal to the number of children of the
deceased who have either survived him or have died before him but are survived by their de-
scendants, plus one.
(5) If an adopted child in terms of subsection (4) (e) is deemed to be a descendant of his adoptive
parent, or is deemed not to be a descendant of his natural parent, the adoptive parent concerned shall be
deemed to be an ancestor of the child, or shall be deemed not to be an ancestor of the child, as the case
may be.
(5A) If a person referred to in paragraph (a) of the definition of “descendant” contained in section 1
of the Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009, is deemed to
be a descendant of the deceased person referred to in that paragraph, or is deemed not to be a descend-
ant of his or her natural parent, the deceased person shall be deemed to be an ancestor of the person
referred to in that paragraph, or shall be deemed not to be an ancestor of that person, as the case may
be.
[Sub-s. (5A) inserted by s. 8 of Act No. 11 of 2009.]
(6) If a descendant of a deceased, excluding a minor or mentally ill descendant, who, together with
the surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his right
to receive such a benefit, such benefit shall vest in the surviving spouse.
[Sub-s. (6) added by s. 14 (b) of Act No. 43 of 1992.]
(7) If a person is disqualified from being an heir of the intestate estate of the deceased, or renounces
his right to be such an heir, any benefit which he would have received if he had not been so disqualified
or had not so renounced his right shall, subject to the provisions of subsection (6), devolve as if he had
died immediately before the death of the deceased and, if applicable, as if he was not so disqualified.
[Sub-s. (7) added by s. 14 (b) of Act No. 43 of 1992.]
2. Repeal of laws.—The laws specified in the Schedule are hereby repealed to the extent set out in
the third column of the Schedule.
3. Short title and commencement.—This Act shall be called the Intestate Succession Act, 1987, and
shall come into operation on a date to be fixed by the State President by proclamation in the Gazette.
Schedule
LAWS REPEALED
No. and year of law Title, subject or heading Extent of repeal
The Political Ordinance of 1 “Ordonnantie van die Policien binnen Hollandt.” Sections 19 to 28, inclusive
April 1580 (“Groot Placaet-
Boek”, Part 1) ..................
Interpretation of 13 May 1594 “Verklaringe van de Heeren Staten van Hollandt en The whole
(“Groot Placaet-Boek”, de Wes-Vrieslandt op de Ordonnantie van de
Part 1) Successien.”
Octrooi of 10 January 1661 “Octroy, by haer Hoogh Mog: Verleent aende Oost- The whole
(“Groot Placaet-Boek”, Indische Compagnie deser Landen op ‘t recht
Part 2) ............................ van de Successien ab intestato in Oost-Indien,
ende op de reyse gints ende herwaerts.”
Act No. 13 of 1934 ............... Succession Act, 1934 The whole
Act No. 93 of 1962 ............... General Law Further Amendment Act, 1962 Section 15
Act No. 44 of 1982 ............... Succession Amendment Act, 1982 The whole
Act No. 88 of 1984 ............... Matrimonial Property Act, 1984 Section 27

Schedule 2
WILLS ACT
NO. 7 OF 1953
[ASSENTED TO 25 FEBRUARY, 1953]
[DATE OF COMMENCEMENT: 1 JANUARY, 1954]
(English text signed by the Governor-General)
This Act has been updated to Government Gazette 17477 dated 4 October, 1996.
as amended by
Wills Amendment Act, No. 48 of 1958
General Law Amendment Act, No. 80 of 1964
[with effect from 24 June, 1964, unless otherwise indicated]
Wills Amendment Act, No. 41 of 1965

[with effect from 4 October, 1996]
ACT
To consolidate and amend the law relating to the execution of wills.
1. Definitions
2. Formalities required in the execution of a will
2A. Power of court to declare a will to be revoked
2B. Effect of divorce or annulment of marriage on will
2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will
2D. Interpretation of wills
3. ......
3bis. Validity of certain wills executed in accordance with the internal law of certain other
states
4. Competency to make a will
4A. Competency of persons involved in execution of will
5. ......
6. ......
7. Repeal of laws
8. ......
9. Short title and date of commencement
Schedule 1
Schedule 2
Schedule 3 Laws repealed
1. Definitions.—In this Act, unless the context otherwise indicates—

“amendment” means a deletion, addition, alteration or interlineation;
[Definition of “amendment” inserted by s. 2 (a) of Act No. 43 of 1992.]
“competent witness” means a person of the age of fourteen years or over who at the time he wit-
nesses a will is not incompetent to give evidence in a court of law;
“Court” means a provincial or local division of the Supreme Court of South Africa or any judge
thereof;
[Definition of “Court” amended by s. 1 of Act No. 49 of 1996.]
“deletion” means a deletion, cancellation or obliteration in whatever manner effected, excluding a
deletion, cancellation or obliteration that contemplates the revocation of the entire will;
[Definition of “deletion” inserted by s. 2 (b) of Act No. 43 of 1992.]
“internal law” means the law of a state or territory, excluding the rules of the international private
law of that state or territory;
[Definition of “internal law” inserted by s. 2 (c) of Act No. 43 of 1992.]
“Master” means a Master, Deputy Master or Assistant Master of the Supreme Court appointed un-
der section 2 of the Administration of Estates Act, 1965 (Act No. 66 of 1965);
[Definition of “Master” substituted by s. 2 (d) of Act No. 43 of 1992.]
“sign” includes the making of initials and, only in the case of a testator, the making of a mark and
“signature” has a corresponding meaning;
[Definition of “sign” substituted by s. 2 (e) of Act No. 43 of 1992.]
“will” includes a codicil and any other testamentary writing.
2. Formalities required in the execution of a will.—(1) Subject to the provisions of section 3bis—
(a) no will executed on or after the first day of January, 1954, shall be valid unless—
(i) the will is signed at the end thereof by the testator or by some other person in his
presence and by his direction; and
(ii) such signature is made by the testator or by such other person or is acknowledged by
the testator and, if made by such other person, also by such other person, in the pres-
ence of two or more competent witnesses present at the same time; and
(iii) such witnesses attest and sign the will in the presence of the testator and of each other
and, if the will is signed by such other person, in the presence also of such other person;
and
(iv) if the will consists of more than one page, each page other than the page on which it
ends, is also signed by the testator or by such other person anywhere on the page; and
[Sub-para. (iv) amended by s. 20 (a) of Act No. 80 of 1964 and substituted by s. 3 (b) of Act No. 43 of
1992.]
(v) if the will is signed by the testator by the making of a mark or by some other person in
the presence and by the direction of the testator, a commissioner of oaths certifies that
he has satisfied himself as to the identity of the testator and that the will so signed is the
will of the testator, and each page of the will, excluding the page on which his certificate
appears, is also signed, anywhere on the page, by the commissioner of oaths who so cer-
tifies: Provided that—
(aa) the will is signed in the presence of the commissioner of oaths in terms of sub-
paragraphs (i), (iii) and (iv) and the certificate concerned is made as soon as possi-
ble after the will has been so signed; and
(bb) if the testator dies after the will has been signed in terms of subparagraphs (i), (iii)
and (iv) but before the commissioner of oaths has made the certificate concerned,
the commissioner of oaths shall as soon as possible thereafter make or complete
his certificate, and sign each page of the will, excluding the page on which his cer-
tificate appears;
[Sub-para. (v) amended by s. 1 (a) of Act No. 48 of 1958 and substituted by s. 20 (b) of Act No. 80 of
1964 and by s. 3 (c) of Act No. 43 of 1992.]
(b) no amendment made in a will executed on or after the said date and made after the execution
thereof shall be valid unless—
(i) the amendment is identified by the signature of the testator or by the signature of some
other person made in his presence and by his direction; and
(ii) such signature is made by the testator or by such other person or is acknowledged by
the testator and, if made by such other person, also by some other person, in the pres-
ence of two or more competent witnesses present at the same time; and
(iii) the amendment is further identified by the signatures of such witnesses made in the
presence of the testator and of each other and, if the amendment has been identified by
the signature of such other person, in the presence also of such other person; and
(iv) if the amendment is identified by the mark of the testator or the signature of some other
person made in his presence and by his direction, a commissioner of oaths certifies on
the will 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: Provided that—
(aa) the amendment is identified in the presence of the commissioner of oaths in
terms of subparagraphs (i) and (iii) and the certificate concerned is made as soon
as possible after the amendment has been so identified; and
(bb) if the testator dies after the amendment has been identified in terms of subpara-
graphs (i) and (iii) but before the commissioner of oaths has made the certificate
concerned, the commissioner of oaths shall as soon as possible thereafter make or
complete his certificate.
[Sub-s. (1) amended by s. 1 of Act No. 41 of 1965 and by s. 3 (a) of Act No. 43 of 1992. Para. (b)
amended by s. 3 (d) of Act No. 43 of 1992. Sub-para. (iv) amended by s. 1 (b) of Act No. 48 of 1958
and substituted by s. 3 (e) of Act No. 43 of 1992.]
(2) Any amendment made in a will executed after the said date shall for the purposes of subsection
(1) be presumed, unless the contrary is proved, to have been made after the will was executed.
[Sub-s. (2) substituted by s. 3 ( f ) of Act No. 43 of 1992.]
(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a
person who has died since the drafting or execution thereof, was intended to be his will or an amend-
ment of his will, the court shall order the Master to accept that document, or that document as amended,
for the purposes of the Administration of Estates Act, 1965 (Act No. 66 of 1965), as a will, although it does
not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).
[Sub-s. (3) added by s. 3 (g) of Act No. 43 of 1992.]
(4) The certificate of a commissioner of oaths referred to in subsection (1) (a) (v) or (b) (iv) may be in
the form set out in Schedule 1 or 2, as the case may be.
[Sub-s. (4) added by s. 3 (g) of Act No. 43 of 1992.]
2A. Power of court to declare a will to be revoked.—If a court is satisfied that a testator has—
(a) made a written indication on his will or before his death caused such indication to be made;
(b) performed any other act with regard to his will or before his death caused such act to be
performed which is apparent from the face of the will; or
(c) drafted another document or before his death caused such document to be drafted,
by which he intended to revoke his will or a part of his will, the court shall declare the will or the part
concerned, as the case may be, to be revoked.
[S. 2A inserted by s. 4 of Act No. 43 of 1992.]
2B. Effect of divorce or annulment of marriage on will.—If any person dies within three months after
his marriage was dissolved by a divorce or annulment by a competent court and that person executed a
will before the date of such dissolution, that will shall be implemented in the same manner as it would
have been implemented if his previous spouse had died before the date of the dissolution concerned,
unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding
the dissolution of his marriage.
[S. 2B inserted by s. 4 of Act No. 43 of 1992.]
2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will.—(1) If
any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the
surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive
such benefit, such benefit shall vest in the surviving spouse.
(2) If a descendant of the testator, whether as a member of a class or otherwise, would have been
entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the
testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his
right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of
subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.
[S. 2C inserted by s. 4 of Act No. 43 of 1992.]
2D. Interpretation of wills.—(1) In the interpretation of a will, unless the context otherwise indi-
cates—
(a) an adopted child shall be regarded as being born from his adoptive parent or parents and, in
determining his relationship to the testator or another person for the purposes of a will, as the
child of his adoptive parent or parents and not as the child of his natural parent or parents or
any previous adoptive parent or parents, except in the case of a natural parent who is also the
adoptive parent of the child concerned or who was married to the adoptive parent of the child
concerned at the time of the adoption;
(b) the fact that any person was born out of wedlock shall be ignored in determining his relation-
ship to the testator or another person for the purposes of a will;
(c) any benefit allocated to the children of a person, or to the members of a class of persons,
mentioned in the will shall vest in the children of that person or those members of the class of
persons who are alive at the time of the devolution of the benefit, or who have already been
conceived at that time and who are later born alive.
(2) In the application of this section “will” means any writing by a person whereby he disposes of his
property or any part thereof after his death.
[S. 2D inserted by s. 4 of Act No. 43 of 1992.]
3. . . . . . .
[S. 3 repealed by s. 5 of Act No. 43 of 1992.]
3bis. Validity of certain wills executed in accordance with the internal law of certain other states.—
(1) A will, whether executed before or after the commencement of this section, shall—
(a) not be invalid merely by reason of the form thereof, if such form complies with the internal law
of the state or territory—
(i) in which the will was executed;
(ii) in which the testator was, at the time of the execution of the will or at the time of his
death, domiciled or habitually resident; or
(iii) of which the testator was, at the time of the execution of the will or at the time of his
death, a citizen;
(b) so far as immovable property is disposed of therein, not be invalid merely by reason of the
form thereof, if such form complies with the internal law of the state or territory in which that
property is situate;
(c) so far as therein a power conferred by any instrument is exercised or a duty imposed by any
instrument is performed, not be invalid merely by reason of the form thereof, if such form
complies with the internal law of the state or territory in which such instrument was executed;
(d) so far as it revokes a will or a portion of a will which by virtue of the provisions of paragraph
(a), (b) or (c) is not invalid, not be invalid merely by reason of the form thereof, if such form
complies with the internal law referred to in the paragraph in terms of which the revoked will
or portion is not invalid;
(e) not be invalid merely by reason of the form thereof, if it was executed on board a vessel or
aircraft and such form complies with the internal law of the state or territory in which such
vessel or aircraft was registered at the time of such execution, or with which it was otherwise
most closely connected at that time.
(2) Any requirement of the internal law of any other state or territory in terms of which a testator of
a particular age or nationality or having any other personal qualification is to observe special formalities in
the execution of a will, or a witness to a will is to possess certain qualifications, shall be construed as a
requirement relating to form only.
(3) If there are in force in any state or territory two or more systems of internal law relating to the
form of wills, the internal law to be applied for the purposes of this section shall be the internal law
determined in accordance with any relevant rule in force in the state or territory in question or, if there is
no such rule in force therein, the internal law with which the testator was most closely connected at the
time of his death, if the matter is to be determined by reference to the circumstances prevailing at his
death, or at the time of the execution of the will in any other case.
(4) The provisions of this section shall not apply in respect of—
(a) a will made by a South African citizen otherwise than in writing; and
(b) a will made by a person who died before the commencement of this section.
(5) The provisions of this section shall not affect the validity of a will which but for such provisions
would be valid.
[S. 3bis inserted by s. 2 of Act No. 41 of 1965 and amended by s. 6 of Act No. 43 of 1992.]
4. Competency to make a will.—Every person of the age of sixteen years or more may make a will
unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his
act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging
the same.
4A. Competency of persons involved in execution of will.—(1) Any person who attests and signs a
will as a witness, or who signs a will in the presence and by direction of the testator, or who writes out
the will or any part thereof in his own handwriting, and the person who is the spouse of such person at
the time of the execution of the will, shall be disqualified from receiving any benefit from that will.
(2) Notwithstanding the provisions of subsection (1)—
(a) a court may declare a person or his spouse referred to in subsection (1) to be competent to
receive a benefit from a will if the court is satisfied that that person or his spouse did not de-
fraud or unduly influence the testator in the execution of the will;
(b) a person or his spouse who in terms of the law relating to intestate succession would have
been entitled to inherit from the testator if that testator has died intestate shall not be thus
disqualified to receive a benefit from that will: Provided that the value of the benefit which the
person concerned or his spouse receives, shall not exceed the value of the share to which that
person or his spouse would have been entitled in terms of the law relating to intestate succes-
sion;
(c) a person or his spouse who attested and signed a will as a witness shall not be thus disqualified
from receiving a benefit from that will if the will concerned has been attested and signed by at
least two other competent witnesses who will not receive any benefit from the will concerned.
(3) For the purposes of subsections (1), and (2) (a) and (c), the nomination in a will of a person as ex-
ecutor, trustee or guardian shall be regarded as a benefit to be received by such person from that will.
5. . . . . . .
6. . . . . . .
7. Repeal of laws.—The laws specified in Schedule 3 are hereby repealed to the extent set forth in the
fourth column of the Schedule: Provided that the laws so repealed shall continue to apply in respect of
any will executed before the first day of January, 1954.
[S. 7 substituted by s. 9 of Act No. 43 of 1992.]
8. . . . . . .
[S. 8 substituted by s. 21 of Act No. 80 of 1964 with effect from 1 January, 1954 and repealed by s. 10
of Act No. 43 of 1992.]
9. Short title and date of commencement.—This Act shall be called the Wills Act, 1953, and shall
come into operation on the first day of January, 1954.
Schedule 1
[Schedule 1 inserted by s. 11 of Act No. 43 of 1992.]
Certificate in terms of section 2 (1) (a) (v)

I, (full name).......................................................................................................................................................................
of (full address) ..................................................................................................................................................................
...........................................................................................................................................................................................
in my capacity as commissioner of oaths certify that I have satisfied myself as to the identity of the testator (full name)
...........................................................................................................................................................................................
and that the accompanying will is the will of the testator.
...................................................................................
Signature
Commissioner of Oaths
...................................................................................
Capacity
.......................................................................................... ...................................................................................
Place Date
Schedule 2
[Schedule 2 inserted by s. 11 of Act No. 43 of 1992.]
Certificate in terms of section 2 (1) (b) (iv)

I, (full names) .....................................................................................................................................................................
of (full address) ..................................................................................................................................................................
...........................................................................................................................................................................................
in my capacity as commissioner of oaths certify that I have satisfied myself as to the identity of the testator (full name)
...........................................................................................................................................................................................
and that the alteration(s) to this will was/were made by/at the request of the testator.
...................................................................................
Signature
Commissioner of Oaths
...................................................................................
Capacity
.......................................................................................... ...................................................................................
Place Date
Schedule 3
LAWS REPEALED
Province or Union No. and Year of Law Title or Subject of Law Extent of Repeal
Cape of Good Ordinance No. 15 Execution of Wills So much as is unrepealed

Hope of 1845 .........
,, Act No. 22 of Attesting Witnesses Act, 1876 The whole, excepting section
1876 ............ two in so far as it applies
to powers of attorney
,, Act No. 3 of 1878 Wills Attestation Amendment Act, 1878 The whole
.....................
Natal Ordinance No. 1 Testamentary dispositions of Natal- The whole

of 1856 ......... born subjects of Great Britain and
Ireland
,, Law No. 2 of 1868 Execution of Wills and Codicils The whole

.....................
Orange Free Ordinance No. 11 Execution of Wills and other Testamen- Sections one to five inclusive
State of 1904 ......... tary Instruments Ordinance, 1904 and sections seven and ten
in so far as the two last
mentioned sections apply
to wills
South-West Proclamation No. Wills Proclamation, 1920 The whole

Africa 23 of 1920 ....
Transvaal Ordinance No. 14 Wills Ordinance, 1903 The whole

of 1903 .........
Union Act No. 14 of Wills Ordinance, 1903 (Transvaal) The whole

1920 ............. Amendment Act, 1920
Schedule 3
ADMINISTRATION OF ESTATES ACT

NO. 66 OF 1965
[ASSENTED TO 21 MAY, 1965]
[DATE OF COMMENCEMENT: 2 OCTOBER, 1967]
(Except Chapter 3)
(English text signed by the State President)
This Act has been updated to Government Gazette 41018 dated 2 August, 2017.
as amended by
[with effect from 21 June, 1967]
Establishment of the Northern Cape Division of the Supreme Court of South Africa Act, No. 15 of 1969
[with effect from 1 May, 1969]
Administration of Estates Amendment Act, No. 54 of 1970


Divorce Act, No. 70 of 1979
[with effect from 1 July, 1979]

Transfer of Powers and Duties of the State President Act, No. 97 of 1986
Trust Property Control Act, No. 57 of 1988

[with effect from 31 March, 1989]

Mentally Ill Persons’ Legal Interests Amendment Act, No. 108 of 1990
Abolition of Racially Based Land Measures Act, No. 108 of 1991



[with effect from 7 August, 1992]
General Law Fourth Amendment Act, No. 132 of 1993

[with effect from 1 December, 1993]
General Law Fifth Amendment Act, No. 157 of 1993

[with effect from 1 December, 1993]
Guardianship Act, No. 192 of 1993


Judicial Matters Amendment Act, No. 104 of 1996

[with effect from 14 February, 1997]
Public Service Laws Amendment Act, No. 47 of 1997


[with effect from 28 April, 1999]

Administration of Estates Laws Interim Rationalisation Act, No. 20 of 2001


[with effect from 11 January, 2006, unless otherwise indicated]
Repeal of the Black Administration Act and Amendment of Certain Laws Act, No. 28 of 2005
[with effect from 12 April, 2006]

[with effect from 17 February, 2009]
Reform of Customary Law of Succession and Regulation of Related Matters Act,

No. 11 of 2009
[with effect from 20 September, 2010]

[with effect from 2 August, 2017]
ACT
To consolidate and amend the law relating to the liquidation and distribution of the estates of de-
ceased persons, the administration of the property of minors and persons under curatorship, and of
derelict estates; to regulate the rights of beneficiaries under mutual wills made by any two or more
persons; to amend the Mental Disorders Act, 1916; and to provide for incidental matters.
[Long title substituted by s. 26 of Act No. 57 of 1988.]
1. Definitions
CHAPTER I
ADMINISTRATIVE PROVISIONS
2. Appointment of Masters, Deputy Masters and Assistant Masters
2A. Designation by Minister of service points and of posts of persons to exercise functions on
behalf of Master
3. Master’s office to be at seat of High Court
4. Jurisdiction of Masters
5. Records of Master’s office, etc
6. Appraisers for the valuation of property
CHAPTER II
DECEASED ESTATES
7. Death notices
8. Transmission or delivery of wills to Master and registration thereof
9. Inventories
10. ......
11. Temporary custody of property in deceased estates
12. Appointment of interim curator
13. Deceased estates not to be liquidated or distributed without letters of executorship or
direction by Master
14. Letters of executorship to executors testamentary
15. Endorsement of appointment of assumed executors on letters of executorship
16. Letters of executorship and endorsements to or in favour of corporations
17. ......
18. Proceedings on failure of nomination of executors or on death, incapacity or refusal to act,
etc
19. Competition for office of executor
20. Application of section 21 to foreign letters of executorship
21. Sealing and signing of letters granted in a State
22. The Master may refuse to grant, endorse or sign and seal letters of executorship in certain
cases
23. Security for liquidation and distribution
24. Reduction of security given by executors
25. Estates of persons who upon their death are not resident in the Republic and do not own
any property other than movable property in the Republic
26. Executor charged with custody and control of property in estate
27. Inventories by executors and valuation at instance of Master
28. Banking accounts
29. Notice by executors to lodge claims
30. Restriction on sale in execution of property in deceased estates
31. Late claims
32. Disputed claims
33. Rejected claims
34. Insolvent deceased estates
35. Liquidation and distribution accounts
36. Failure by executor to lodge account or to perform duties
37. Massed estates
38. Taking over by surviving spouse of estate or portion thereof
39. Registration of immovable property in deceased estate
40. Endorsement of testamentary trusts against title deeds and bonds
41. Production of title deed or bond to executor
42. Documents to be lodged by executor with registration officer

43. Movable property to which minors and moneys to which absentees or persons under
curatorship are entitled
44. Movable property to which minor or unborn heir is entitled subject to usufructuary or
fiduciary rights or other like interests
45. Payment of moneys to minors or persons under curatorship domiciled outside the Repub-
lic
46. Failure to pay over moneys
47. Sales by executor
48. Extension of time and compounding of debts
49. Purchases by executor of property in estate, or mortgaged or pledged to the deceased
50. Executor making wrong distribution
51. Remuneration of executors and interim curators
52. No substitution or surrogation
53. Absence of executor from Republic
54. Removal from office of executor
55. Continuance of pending legal proceedings by remaining or new executor
56. Discharge of executors, and proceedings against discharged executors
CHAPTER III
57 to 70 ......
inclusive.
CHAPTER IV
TUTORS AND CURATORS
71. Certain persons not to administer property as tutor or curator without letters of tutorship
or curatorship
72. Letters of tutorship and curatorship to tutors and curators nominate and endorsement in
case of assumed tutors and curators
73. Proceedings on failure of nomination of tutors or curators, or on death, incapacity or
refusal to act, etc
74. Foreign letters of tutorship or curatorship
75. Notifications in respect of tutors and curators
76. Authority conferred by letters of tutorship and curatorship
77. Security by tutors and curators
78. Inventories by tutors and curators
79. Returns by Masters to registration officers of immovable property included in inventory
80. Restriction on alienation or mortgage of immovable property by natural guardian, tutor or
curator
81. Purchase by tutor or curator of property administered by him
82. Payment to Master of certain moneys
83. Accounts by tutors and curators
84. Remuneration of tutors and curators
85. Application of certain sections to tutors and curators
CHAPTER V
THE GUARDIAN’S FUND
86. Existing guardian’s fund to continue
87. Moneys in guardian’s fund to be deposits for purposes of Act 45 of 1984
88. Interest on certain moneys in guardian’s fund
89. Payments from guardian’s fund
90. Payments to natural guardians, tutors and curators, or for and on behalf of minors and
persons under curatorship
90A. Payment to usufructuary or fiduciary or to his tutor or curator
91. Publication of list of unclaimed moneys

92. Forfeiture to State of moneys unclaimed for thirty years
93. Statements of certain unclaimed moneys to be published, and amounts unclaimed to be
paid into guardian’s fund
CHAPTER VI
MISCELLANEOUS PROVISIONS
94. Consent of Master to sub-division of immovable property on behalf of minor or unborn
heir
95. Review of Master’s appointments, etc
96. Proceedings by Master
97. Master’s costs
98. Recovery of costs ordered to be paid de bonis propriis by executor, etc
99. Master incapacitated from being executor, etc
100. Exemption from liability for acts or omissions in Master’s office
101. Evidence
102. Penalties
103. Regulations
104. Application of Act
105. Repeal of laws, and savings
106. Re-instatement for certain purposes of the provisions which were contained in subsection
(2) of section 5 of Act 24 of 1913 prior to its substitution in terms of section 16 of Act 68 of
1957
107.
108. ......
108A. ......
109. Short title and commencement
Schedule Laws repealed
PRELIMINARY
1. Definitions.—In this Act, unless the context otherwise indicates—
“absentee” means any person of whom the Master, after enquiry, believes that his whereabouts are
unknown and that he has no legal representative in the Republic;
“accountant” . . . . . .
[Definition of “accountant” deleted by s. 26 of Act No. 57 of 1988.]
“act of insolvency” means an act of insolvency in terms of section eight of the Insolvency Act, 1936
(Act No. 24 of 1936);
“administrator” . . . . . .
[Definition of “administrator” deleted by s. 26 of Act No. 57 of 1988.]
“appraiser” means an appraiser appointed or deemed to have been appointed under section six;
“bank” means a public company registered as a bank in terms of the Banks Act, 1990 (Act No. 94 of
1990);
[Definition of “bank” inserted by s. 1 (b) of Act No. 20 of 2001.]
“banking institution” . . . . . .
[Definition of “banking institution” inserted by s. 1 of Act No. 79 of 1971 and deleted by s. 1 (a) of Act
No. 20 of 2001.]
“building society” . . . . . .
[Definition of “building society” inserted by s. 1 of Act No. 79 of 1971 and deleted by s. 1 (a) of Act
No. 20 of 2001.]
“Court” means the High Court having jurisdiction, or any judge thereof;
[Definition of “Court” substituted by s. 1 (c) of Act No. 20 of 2001.]
“curator” means any person who is authorized to act under letters of curatorship granted or signed
and sealed by a Master, or under an endorsement made under section seventy-two;
“executor” means any person who is authorized to act under letters of executorship granted or
signed and sealed by a Master, or under an endorsement made under section fifteen;
“heir” includes a legatee and a donee under a donatio mortis causa;
“immovable property” means land and every real right in land or minerals (other than any right un-
der a bond) which is registrable in any office in the Republic used for the registration of title to land or
the right to mine;
“letters of administratorship” . . . . . .
[Definition of “letters of administratorship” deleted by s. 26 of Act No. 57 of 1988.]
“letters of curatorship” includes any document issued or a copy of any such document duly certified
by any competent public authority in any State by which any person named or designated therein is
authorized to act as curator of any property belonging to a minor or other person;
“letters of executorship” includes any document issued or a copy of any such document duly certi-
fied by any competent public authority in any State by which any person named or designated therein
is authorized to act as the personal representative of any deceased person or as executor of the estate
of any deceased person;
“letters of tutorship” includes any document issued or a copy of any such document duly certified
by any competent public authority in any State by which any person named or designated therein is
authorized to act as the tutor of a minor, or to administer any property belonging to a minor as tutor;
“magistrate” includes an additional magistrate and an assistant magistrate and, in relation to any
particular act to be performed or power or right exercisable or duty to be carried out by the magistrate
of a district, includes an additional magistrate or assistant magistrate permanently carrying out at any
place other than the seat of magistracy of that district the functions of the magistrate of that district in
respect of any portion of that district, whenever such act, power, right or duty has to be performed,
exercised or carried out by virtue of any death occurring, thing being or deceased having resided or
carried on business, as the case may be, in such portion of that district;
“Master”, in relation to any matter, property or estate, means the Master, Deputy Master or Assis-
tant Master of a High Court appointed under section 2, who has jurisdiction in respect of that matter,
property or estate and who is subject to the control, direction and supervision of the Chief Master;
[Definition of “Master” substituted by s. 1 (d) of Act No. 20 of 2001 and by s. 2 of Act No. 22 of 2005.]
“Minister” means the Minister of Justice;
“office” includes a sub-office referred to in section 3 (2) (b);
[Definition of “office” inserted by s. 1 (e) of Act No. 20 of 2001.]
“person under curatorship” includes any person whose property has been placed under the care or
administration of a curator;
“property” includes any contingent interest in property;
“Republic” . . . . . .
[Definition of “Republic” inserted by s. 1 (a) of Act No. 54 of 1970 and deleted by s. 1 of Act No. 49 of
1996.]
“State” means any state in respect of which a proclamation has been issued under section twenty;
“territory” . . . . . .
[Definition of “territory” inserted by s. 1 (b) of Act No. 54 of 1970 and deleted by s. 1 of Act No. 49 of
1996.]
“trustee” means a trustee as defined in section 1 of the Trust Property Control Act, 1988;
[Definition of “trustee” inserted by s. 26 of Act No. 57 of 1988.]
“tutor” means any person who is authorized to act under letters of tutorship granted or signed and
sealed by a Master, or under an endorsement made under section seventy-two.
CHAPTER I
ADMINISTRATIVE PROVISIONS
2. Appointment of Masters, Deputy Masters and Assistant Masters.—(1) (a) Subject to subsection
(2) and the laws governing the public service, the Minister—
(i) shall appoint a Chief Master of the High Courts;
(ii) shall, in respect of the area of jurisdiction of each High Court, appoint a Master of the High
Court; and
(iii) may, in respect of each such area, appoint one or more Deputy Masters of the High Court and
one or more Assistant Masters of the High Court, who may, subject to the control, direction
and supervision of the Master, do anything which may lawfully be done by the Master.
(b) The Chief Master—
(i) is subject to the control, direction and supervision of the Minister;
(ii) is the executive officer of the Masters’ offices; and
(iii) shall exercise control, direction and supervision over all the Masters.
[Sub-s. (1) substituted by s. 2 of Act No. 20 of 2001, by s. 14 of Act No. 16 of 2003 and by s. 3 of Act
No. 22 of 2005.]
(1A) The Minister may appoint a person as Master, Deputy Master or Assistant Master in respect of
the area of jurisdiction of more than one High Court.
[Sub-s. (1A) substituted by s. 2 of Act No. 20 of 2001.]
(2) No person shall be appointed as Master, Deputy Master or Assistant Master of a High Court unless
he or she has passed the diploma iuris examination or an examination deemed by the Minister for the
Public Service and Administration to be equivalent thereto, or has before the commencement of this Act
held a substantive appointment as a Master or Assistant Master of the Supreme Court: Provided that
whenever a Master, Deputy Master or Assistant Master of a High Court is because of absence or for any
other reason unable to carry out the functions of his or her office or whenever such office becomes
vacant, the Minister may authorize any officer in the public service to act in his or her place during his or
her absence or incapacity or to act in the vacant office until the vacancy is filled, as the case may be.
(3) . . . . . .
[Sub-s. (3) deleted s. 2 of Act No. 20 of 2001.]
(4) The Minister may delegate any power conferred on him or her by this section, to the Director-
General: Justice or a Deputy Director-General in the Department of Justice.
[S. 2 amended by s. 2 of Act No. 79 of 1971 and by s. 35 of Act No. 47 of 1997. Sub-s. (4) substituted
by s. 2 of Act No. 20 of 2001.]
2A. Designation by Minister of service points and of posts of persons to exercise functions on behalf
of Master.—(1) The Minister may designate posts in, or additional to, the fixed establishment of the
Department of Justice and Constitutional Development for the purpose of this section.
(2) Persons appointed to, or acting in, posts which have been designated by the Minister, must exer-
cise the powers and perform the duties delegated to them on behalf of, and under the direction of, the
Master.
(3) The Minister may designate places within the area of jurisdiction of a Master as service points
where the powers are exercised and the duties are performed on behalf of the Master in terms of subsec-
tion (2).
(4) The Minister may delegate any power conferred on him or her in terms of this section to the Di-
rector-General: Justice and Constitutional Development or to a person in the Department holding the
rank of a Deputy Director-General.
3. Master’s office to be at seat of High Court.—(1) Each Master shall, subject to subsection (2), have
an office at the seat of the High Court in respect of whose area of jurisdiction he or she has been appointed.
(2) If a person has been appointed as Master in respect of the area of jurisdiction of more than one
High Court, the Minister—
(a) shall specify the seat of the High Court at which the Master concerned shall have an office; and
(b) may designate one or more places, within the area of jurisdiction in respect of which that
Master has been appointed, where sub-offices of that Master may be established.
(3) The Minister may direct that a person who has been appointed as Deputy Master or Assistant
Master shall be the head of a sub-office referred to in subsection (2) and he or she shall exercise the
powers, perform the functions and carry out the duties conferred upon, assigned to or imposed upon him
or her by or under this Act or any other law, subject to the control, direction and supervision of the
Master of the High Court concerned.
[S. 3 amended by s. 20 of Act No. 15 of 1969 and substituted by s. 3 of Act No. 20 of 2001.]
4. Jurisdiction of Masters.—(1) In respect of the estate of a deceased person, or of any portion

thereof, jurisdiction shall lie—
(a) in the case of a deceased person who was, at the date of his or her death, ordinarily resident
within the area of jurisdiction of a High Court, with the Master appointed in respect of that
area; and
[Para. (a) substituted by s. 4 (a) of Act No. 20 of 2001.]
(b) in the case of a deceased person who was not at that date so resident, with the 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:
Provided that on written application by any person having an interest in a deceased estate, a Master who
would otherwise have no jurisdiction in respect of that estate may, with the consent of the Master who
has such jurisdiction, assume jurisdiction in respect of that estate.
[Sub-s. (1) amended by s. 26 of Act No. 57 of 1988, by s. 2 (a) of Act No. 47 of 2002 and by s. 8 of Act
No. 11 of 2009.]
(1A) . . . . . .
[Sub-s. (1A) inserted by s. 2 (b) of Act No. 47 of 2002 and deleted by s. 8 of Act No. 11 of 2009.]
(2) In respect of the property belonging to a minor, including property of a minor governed by the
principles of customary law, or property belonging to a person under curatorship or to be placed under
curatorship, jurisdiction shall lie—
(a) in the case of any such person who is ordinarily resident within the area of jurisdiction of a
High Court, with the Master appointed in respect of that area; and
(b) in the case of any such person who is not so resident, with the Master appointed in respect of
any such area in which is situate the greater or greatest portion of the property of that person:
Provided that—
(i) a Master who has exercised jurisdiction under paragraph (a) or (b) shall continue to have
jurisdiction notwithstanding any change in the ordinary residence of the person concerned or
in the situation of the greater or greatest portion of his or her property; and
(ii) in the case of any mentally ill person who under the Mental Health Act, 1973 (Act No. 18 of
1973), has been received or is detained in any place, jurisdiction shall lie with the Master who,
immediately prior to such reception or detention, had jurisdiction in respect of his or her
property under paragraph (a) or (b).
[Sub-s. (2) amended by s. 1 of Act No. 86 of 1983 and by s. 4 (b) of Act No. 20 of 2001 and substituted
by s. 2 of Act No. 28 of 2005.]
(3) No act performed by a Master in the bona fide belief that he has jurisdiction shall be invalid merely
on the ground that it should have been performed by another Master.
(4) If more than one Master has in such belief exercised jurisdiction in respect of the same estate or
property, that estate or property shall, without prejudice to the validity of any act already performed by
or under the authority of any other Master, as soon as it becomes known to the Masters concerned, be
liquidated, distributed or administered as the case may be, under the supervision of the Master who first
exercised such jurisdiction, and any appointment made and any grant, signing and sealing or endorse-
ment of letters of executorship, tutorship or curatorship, by any other Master in respect of that estate or
property, shall thereupon be cancelled by such other Master.
[Sub-s. (4) amended by s. 26 of Act No. 57 of 1988.]
5. Records of Master’s office, etc.—(1) Each Master shall, subject to the provisions of regulations
made under section 103, preserve of record in his office all original wills, copies of wills certified in terms
of section 14 (2), written instruments, death notices, inventories and accounts lodged at his office under
the provisions of this Act or any prior law under which any such documents were lodged at the office of
the Master, Orphan Master or registrar of deeds in the province concerned, and such other documents
lodged at his office as the Master may determine.
[Sub-s. (1) substituted by s. 2 of Act No. 54 of 1970 and amended by s. 1 of Act No. 49 of 1996.]
(2) Any person may at any time during office hours inspect any such document (except, during the
lifetime of the person who executed it, a will lodged with the Master under section fifteen of the Admin-
istration of Estates Act, 1913 (Act No. 24 of 1913)), and make or obtain a copy thereof or an extract
therefrom, on payment of the fees prescribed in respect thereof: Provided that any executor, trustee,
tutor or curator, or his surety, may inspect any such document or cause it to be inspected without
payment of any fee.
6. Appraisers for the valuation of property.—(1) The Minister or any officer of the Department of
Justice with the rank of director, or an equivalent or higher rank, delegated thereto in writing by the
Minister may from time to time appoint for any area specified by the Minister or the delegated officer
such and so many persons as the Minister or the delegated officer thinks fit, to be appraisers for the
valuation of property for the purposes of this Act, and may at any time revoke any appointments so
made.
(2) Every person so appointed shall take an oath before a justice of the peace or commissioner of
oaths that he will appraise all such properties as may be submitted to his valuation according to the true
valuation thereof and to the best of his skill and knowledge.
(3) Any appraiser appointed under the corresponding provision of the Administration of Estates Act,
1913 (Act No. 24 of 1913), or of any law repealed by that Act, and holding office at the commencement of
this Act, shall be deemed to have been appointed under this section, and it shall not be necessary for him,
if he has already taken an oath, to take any further oath under this section.
(4) No appraiser shall act in connection with any property in which or in the valuation of which—
(a) he or his spouse or partner has any pecuniary interest other than his remuneration as appraiser;
or
(b) his principal or employer or any person related to him within the third degree has any pecuni-
ary interest.
(5) Every appraiser shall, in respect of every appraisement made by him, be entitled to a reasonable
remuneration which shall be assessed according to a prescribed tariff of fees, and shall in case of a
dispute regarding the correctness thereof submit his account to the Master for taxation.
CHAPTER II
DECEASED ESTATES
7. Death notices.—(1) Whenever any person dies within the Republic leaving any property or any
document being or purporting to be a will therein—
(a) the surviving spouse of such person or more than one surviving spouse jointly, or if there is no
surviving spouse, his or her nearest relative or connection residing in the district in which the
death has taken place, shall within fourteen days thereafter give a notice of death substantially
in the prescribed form, or cause such a notice to be given to the Master; and
[Para. (a) substituted by s. 8 of Act No. 11 of 2009.]
(b) the person who at or immediately after the death has the control of the premises at which the
death occurs shall, unless a notice under paragraph (a) has to his knowledge already been giv-
en, within fourteen days after the death, report the death or cause the death to be reported to
the Master.
(2) Whenever any person dies outside the Republic leaving any property or any document being or
purporting to be a will therein, any person within the Republic having possession or control of any such
property or document, shall, within fourteen days after the death has come to his knowledge, report the
death to the Master who shall take such steps as may be necessary and practicable to obtain a correct
death notice.
(3) The Master may by written notice require any person who may, in his opinion, be able to furnish
the information required—
(a) if no death notice has been given or obtained, to submit to him within a period specified in the
notice, a death notice substantially in the prescribed form; and
(b) if a death notice has been given or obtained or has been submitted under paragraph (a) and
the Master desires any further information, to answer in writing to the best of his knowledge,
within a period so specified, such questions as may be set forth in the notice.
(4) If the person signing any death notice was not present at the death, or did not identify the de-
ceased after death, such person shall furnish the Master with proof of the death.
8. Transmission or delivery of wills to Master and registration thereof.—(1) Any person who has any
document being or purporting to be a will in his possession at the time of or at any time after the death of
any person who executed such document, shall, as soon as the death comes to his knowledge, transmit or
deliver such document to the Master.
(2) Every person shall, at the expense of the estate and when required by the Master to do so, trans-
mit the original minute of any notarial will passed before him or in his possession, to the Master, and shall
at the same time file a certified copy thereof in his protocol and endorse thereon that the original has
been transmitted to the Master.
(3) Any such document which has been received by the Master, shall be registered by him in a regis-
ter of estates, and he shall cause any such document which is closed to be opened for the purpose of such
registration.
(4) If it appears to the Master that any such document, being or purporting to be a will, is for any rea-
son invalid, he may, notwithstanding registration thereof in terms of subsection (3), refuse to accept it for
the purposes of this Act until the validity thereof has been determined by the Court.
(4A) In taking a decision concerning the acceptance of a will for the purposes of this Act, the Master
shall take into account the revocation of a will by a later will, but not the common law presumptions
concerning the revocation of a will.
(4B) The Master may for the purposes of this Act also accept a duplicate original will.
[Sub-s. (4B) inserted by s. 12 of Act No. 43 of 1992 and substituted by s. 10 of Act No. 104 of 1996.]
(5) If the Master is satisfied that the person who executed any will transmitted or delivered to him in
terms of subsection (1), has not left any property in the Republic, he may release such will to any person
lawfully requiring it for the purpose of liquidating and distributing the estate of the deceased person
outside the Republic.
9. Inventories.—(1) If any person dies within the Republic or if any person ordinarily resident in the
Republic at the time of his or her death dies outside the Republic leaving any property therein, the
surviving spouse of such person or more than one surviving spouse jointly, or if there is no surviving
spouse, his or her nearest relative or connection residing in the district in which such person was ordinarily
resident at the time of his or her death, shall, within fourteen days after the death or within such further
period as the Master may allow—
(a) make an inventory in the prescribed form, in the presence of such persons having an interest in
the estate as heirs as may attend, of all property known by him to have belonged, at the time
of the death—
(i) to the deceased; or
(ii) in the case of the death of one of two spouses married in community of property, to the
joint estate of the deceased and such surviving spouse; or
(iii) in the case of the death of one of two or more persons referred to in section thirty-
seven, to the massed estate concerned;
(b) subscribe such inventory in his own hand and endorse thereon the names and addresses of the
persons in whose presence it was made; and
(c) deliver or transmit such inventory to the Master.
(2) The Master may at any time, notwithstanding the provisions of subsection (1), by written notice—
(a) require any person to make, in the presence of such persons referred to in paragraph (a) of the
said subsection as may attend, to subscribe and endorse as provided in paragraph (b) of the
said subsection and to deliver or transmit to him, within the period specified in the notice, an
inventory in the prescribed form of all property known by such person to have belonged at the
time of the death—
(i) to the deceased; or
(ii) in the case of the death of one of two spouses married in community of property, to the
joint estate of the deceased and the surviving spouse; or
(iii) in the case of the death of one of two or more persons referred to in section thirty-
seven, to the massed estate concerned;
(b) require any person who at or immediately after the death had control of the premises where
the death occurred or of any premises where the deceased was living or staying or carrying on
any business at the time of his death, to make, in the presence of the said persons, to sub-
scribe and endorse as provided in paragraph (b) of the said subsection, and to deliver or
transmit to him, within the period specified in the notice, an inventory in the prescribed form
of all the property known by him to have been in the possession of the deceased upon the said
premises at the time of his death.
(3) Any person required by subsection (1) or under paragraph (a) of subsection (2) to make an inven-
tory shall include therein a list specifying—
(a) all immovable property registered in the name of the deceased or in which he knows that the
deceased had any interest at the date of his death; and
(b) all particulars known to such person, concerning any such property or interest.
10. . . . . . .
11. Temporary custody of property in deceased estates.—(1) Any person who at or immediately
after the death of any person has the possession or custody of any property, book or document, which
belonged to or was in the possession or custody of such deceased person at the time of his death—
(a) shall, immediately after the death, report the particulars of such property, book or document
to the Master and may open any such document which is closed for the purpose of ascertain-
ing whether it is or purports to be a will;
(b) shall, unless the Court or the Master otherwise directs, retain the possession or custody of
such property, book or document, other than a document being or purporting to be a will, until
an interim curator or an executor of the estate has been appointed or the Master has directed
any person to liquidate and distribute the estate: Provided that the provisions of this para-
graph shall not prevent the disposal of any such property for the bona fide purpose of provid-
ing a suitable funeral for the deceased or of providing for the subsistence of his family or
household or the safe custody or preservation of any part of such property;
(c) shall, upon written demand by the interim curator, executor or person directed to liquidate
and distribute the estate, surrender any such property, book or document in his possession or
custody when the demand is made, into the custody or control of such executor, curator or
person: Provided that the provisions of this paragraph shall not affect the right of any person
to remain in possession of any such property, book or document under any contract, right or
retention or attachment.
(2) Any person who fails to comply with the provisions of paragraph (b) of subsection (1) shall, apart
from any penalty or other liability he may incur thereby, be liable for any estate duties payable in respect
of the property concerned.
12. Appointment of interim curator.—(1) The Master may appoint an interim curator to take any
estate into his custody until letters of executorship have been granted or signed and sealed, or a person
has been directed to liquidate and distribute the estate.
(2) Every person to be so appointed shall, before a certificate of appointment is issued to him, find
security to the satisfaction of the Master in an amount determined by the Master for the proper perfor-
mance of his functions.
(3) An interim curator may, if specially authorized thereto by the Master—
(a) collect any debt and sell or dispose of any movable property in the estate, wherever situate
within the Republic;
(b) subject to any law which may be applicable, carry on any business or undertaking of the
deceased; and
(c) release such money and such property out of the estate as in his opinion are sufficient to
provide for the subsistence of the deceased’s family or household.
(4) If any interim curator is authorized under subsection (3) to carry on any business or undertaking
he shall not, without the special authority of the Master, purchase any goods which he may require for
that business or undertaking otherwise than for cash and out of the takings of that business or undertaking.
(5) The reference in section 118 (1) of the Liquor Act, 1989 (Act No. 27 of 1989), to a curator, shall
include a reference to an interim curator appointed under subsection (1), who has under subsection (3)
been authorized to carry on the business of the licensee or person referred to in the said sections.
[Sub-s. (5) substituted by s. 3 of Act No. 54 of 1970, amended by s. 1 of Act No. 49 of 1996 and substi-
tuted by s. 5 (a) of Act No. 20 of 2001.]
(6) An interim curator shall account for the property in respect of which he has been appointed, in
such manner as the Master may direct.
(7) Sections 23 (3), (4) and (5), 26, 28, 36, 46 and 54 (1) (b) (ii) shall with the necessary changes apply
with reference to interim curators.
[Sub-s. (7) substituted by s. 5 (b) of Act No. 20 of 2001.]
13. Deceased estates not to be liquidated or distributed without letters of executorship or direction
by Master.—(1) No person shall liquidate or distribute the estate of any deceased person, except under
letters of executorship granted or signed and sealed under this Act, or under an endorsement made
under section fifteen, or in pursuance of a direction by a Master.
(2) No letters of executorship shall be granted or signed and sealed and no endorsement under sec-
tion fifteen shall be made to or at the instance or in favour of any person who is by any law prohibited
from liquidating or distributing the estate of any deceased person.
(3) The provisions of subsection (2) shall not apply to any person nominated as executor by the will of
a person who dies before the first day of July, 1966.
14. Letters of executorship to executors testamentary.—(1) The Master shall, subject to subsection
(2) and sections 16 and 22, on the written application of any person who—
(a) has been nominated as executor by any deceased person by a will which has been registered
and accepted in the office of the Master; and
(b) is not incapacitated from being an executor of the estate of the deceased and has complied
with the provisions of this Act,
grant letters of executorship to such person.
(2) For the purposes of paragraph (a) of subsection (1), the Master may—
(a) if the will of any deceased person is not in the Republic, register and accept a copy thereof
certified by a competent public authority in the country or territory in which such will is; or
(b) if the will is also the will of any other deceased person and has been registered and accepted
by any other Master, register and accept a copy thereof certified by such Master.
15. Endorsement of appointment of assumed executors on letters of executorship.—(1) The Master
shall, subject to subsection (2) and sections 16 and 22—
(a) on the written application of any person who has been duly nominated as an assumed execu-
tor, is not incapacitated from being an executor of the estate of the deceased and has com-
plied with the provisions of this Act; and
(b) on production of the deed of assumption duly signed by the person so nominated and the
executor who has so nominated him,
endorse the appointment of such person as assumed executor on the letters of executorship granted to
the executor testamentary.
(2) No endorsement under subsection (1) shall be made after the executor vested with the power of
assumption, or if there are two or more executors jointly vested with the said power, after every such
executor has for any reason ceased to be executor.
(3) The appointment of any person in terms of subsection (1) shall not be affected by the subsequent
incapacity or death of the executor by whom he was assumed.
16. Letters of executorship and endorsements to or in favour of corporations.—If any person re-
ferred to in subsection (1) of section fourteen or in subsection (1) of section fifteen is a corporation, the
relevant letters of executorship or endorsement, as the case may be, shall be granted or made—
(a) to or in favour of any person who is an officer or director of the corporation and has been
nominated by the testator or, if the testator has not nominated any person, by the corpora-
tion; and
(b) in the event of the death, resignation or dismissal of such person, or of his vacating for any
reason the office with reference to which he has been so nominated, to or in favour of his suc-
cessor in office so nominated,
for whose acts and omissions as executor the corporation accepts liability.
17. . . . . . .
18. Proceedings on failure of nomination of executors or on death, incapacity or refusal to act,

etc.—(1) The Master shall, subject to the provisions of subsections (3), (5) and (6)—
(a) if any person has died without having by will nominated any person to be his executor; or
(b) if the whereabouts of any person so nominated to be sole executor or of all the persons so
nominated to be executors are unknown, or if such person or all such persons are dead or re-
fuse or are incapacitated to act as executors or when called upon by the Master by notice in
writing to take out letters of executorship within a period specified in the notice, fail to take
out such letters within that period or within such further period as the Master may allow; or
(c) if, in the case of two or more persons being so nominated to be executors, the whereabouts of
one or some of them are unknown, or one or some of them are dead or refuse or are incapaci-
tated to act as executors or when so called upon by the Master fail so to take out letters of ex-
ecutorship, and in the interests of the estate, one or more executors should be joined with the
remaining executor or executors; or
(d) if the executors in any estate are at any time less than the number required by the will of the
testator to form a quorum; or
(e) if any person who is the sole executor or all the persons who are executors of any estate, cease
for any reason to be executors thereof; or
(f) if, in the case of two or more persons who are the executors of any estate, one or some of
them cease to be executors thereof, and in the interests of the estate, one or more executors
should be joined with the remaining executor or executors,
appoint and grant letters of executorship to such person or persons whom he may deem fit and proper to
be executor or executors of the estate of the deceased, or, if he deems it necessary or expedient, by
notice published in the Gazette and in such other manner as in his opinion is best calculated to bring it to
the attention of the persons concerned, call upon the surviving spouse (if any), the heirs of the deceased
and all persons having claims against the estate, to attend before him or, if more expedient, before any
other Master or any magistrate at a time and place specified in the notice, for the purpose of recom-
mending to the Master for appointment as executor or executors, a person or a specified number of
persons.
[Sub-s. (1) amended by s. 4 (a) and (b) of Act No. 86 of 1983.]
(2) If the Master has published a notice under subsection (1) he shall, on receipt of the recommenda-
tion in question or when it appears that the persons concerned have failed to make any recommendation,
subject to the provisions of subsection (3) and sections 19, 22 and 23, unless it appears to him to be
necessary or expedient to postpone the appointment and to publish another notice under subsection (1),
appoint and grant letters of executorship to such person or persons as he deems fit and proper to be
executor or executors of the estate of the deceased.
[Sub-s. (2) substituted by s. 4 (c) of Act No. 86 of 1983.]
(3) If the value of any estate does not exceed the amount determined by the Minister by notice in the
Gazette, the Master may dispense with the appointment of an executor and give directions as to the
manner in which any such estate shall be liquidated and distributed.
[Sub-s. (3) substituted by s. 1 (a) of Act No. 15 of 1978, by s. 1 of Act No. 90 of 1981, by s. 4 (d) of Act
No. 86 of 1983 and by s. 2 of Act No. 63 of 1990.]
[General Note: Amount determined under Government Notice No. R.920 in Government Gazette 38238 of
24 November, 2014: R250 000.]
(4) . . . . . .
[Sub-s. (4) substituted by s. 1 (b) of Act No. 15 of 1978 and deleted by s. 4 (e) of Act No. 86 of 1983.]
(5) The Master may at any time—
(a) if, in the case of two or more persons—
(i) who have been nominated by will to be executors, the whereabouts of one or some of
them are unknown, or one or some of them are dead or refuse or are incapacitated to
act as executors, or when called upon by the Master by notice in writing to take out let-
ters of executorship within a period specified in the notice, fail to take out such letters
within that period or within such further period as the Master may allow; or
(ii) who are the executors in any estate, one or some of them cease to be executors thereof,
grant letters of executorship to the remaining executor or executors, or authorize the remain-
ing executor or executors to liquidate and distribute the estate, as the case may be; or
(b) if after the discharge of any executor it appears that there is property in the estate which has
not been distributed by such executor, appoint and grant letters of executorship to such per-
son as he deems fit and proper to liquidate and distribute such property.
[Sub-s. (5) amended by s. 4 (f) of Act No. 86 of 1983.]
(6) Nothing in this section contained shall authorize the Master to grant letters of executorship to any
person who is legally incapacitated to act as executor of the estate of the deceased.
(7) The provisions of section sixteen shall mutatis mutandis apply with reference to the grant of let-
ters of executorship under this section.
19. Competition for office of executor.—If more than one person is nominated for recommendation
to the Master, the Master shall, in making any appointment, give preference to—
(a) the surviving spouse or his nominee; or
(b) if no surviving spouse is so nominated or the surviving spouse has not nominated any person,
an heir or his nominee; or
(c) if no heir is so nominated or no heir has nominated any person, a creditor or his nominee; or
(d) the tutor or curator of any heir or creditor so nominated who is a minor or a person under
curatorship, in the place of such heir or creditor:
Provided that the Master may—
(i) join any of the said persons as executor with any other of them; or
(ii) if there is any good reason therefor, pass by any or all of the said persons.
[S. 19 amended by s. 5 of Act No. 86 of 1983.]
20. Application of section 21 to foreign letters of executorship.—(1) The Minister may by notice in
the Gazette declare that the provisions of section twenty-one shall, as from the date fixed by such notice
or during a period specified in such notice, apply to letters of executorship granted in any State so speci-
fied, and may by like notice withdraw or amend any such notice.
[Sub-s. (1) amended by ss. 46 and 47 of Act No. 97 of 1986.]
(2) The provisions of the said section applying to letters of executorship granted in any State, shall
apply also to letters of executorship granted by any consular court of that State.
(3) Any proclamation issued under section forty of the Administration of Estates Act, 1913 (Act No. 24
of 1913), shall be deemed to have been issued under subsection (1).
21. Sealing and signing of letters granted in a State.—Whenever letters of executorship granted in
any State and authenticated as provided in the rules made under section 6 (1) (i) of the Rules Board for
Courts of Law Act, 1985 (Act No. 107 of 1985), are produced to or lodged with the Master by the person
in whose favour those letters have been granted or his or her duly authorized agent, those letters may,
subject to sections 22 and 23, be signed by the Master and sealed with his or her seal of office, and such
person shall thereupon with respect to the whole estate of the deceased situate in the Republic, for the
purposes of this Act be deemed to be an executor to whom letters of executorship have been granted by
the Master: Provided that before any such letters are signed and sealed a duly certified and authenticated
copy of the will (if any) of the deceased and an inventory of all property known to belong to him within
the Republic shall be lodged with the Master.
22. The Master may refuse to grant, endorse or sign and seal letters of executorship in certain
cases.—(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 for an order restraining the grant of let-
ters 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 en-
dorsement 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 domicilium citandi et executandi in the Republic; or
(b) if any such person could, if he is appointed as executor, be removed from his office under
subparagraph (ii), (iii) or (iv) of paragraph (a) of subsection (1) of section fifty-four or subpara-
graph (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 execu-
torship have not already been granted or signed and sealed by any other Master in the Repub-
lic,
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.
23. Security for liquidation and distribution.—(1) Subject to the provisions of section twenty-five,
every person who has not been nominated by will to be an executor shall, before letters of executorship
are granted, or signed and sealed, and thereafter as the Master may require, find security to the satisfac-
tion of the Master in an amount determined by the Master for the proper performance of his functions:
Provided that if such person is a parent, spouse or child of the deceased, he shall not be required to
furnish security unless the Master specially directs that he shall do so.
(2) Subject to the provisions of section twenty-five, every person nominated by will to be an executor
and every person to be appointed assumed executor shall be under the like obligation of finding security
unless—
(a) he is the parent, child or surviving spouse of the testator or has been assumed by such parent,
child or spouse; or
(b) he has been nominated by will executed before the first day of October, 1913, or assumed by
the person so nominated, and has not been directed by the will to find security; or
(c) he has been nominated by will executed after the first day of October, 1913, or assumed by
the person so nominated, and the Master has in such will been directed to dispense with such
security; or
(d) the Court shall otherwise direct:
Provided that if the estate of any such person has been sequestrated or if he has committed an act of
insolvency or is or resides or is about to reside outside the Republic, or if there is any good reason there-
for, the Master may, notwithstanding the provisions of paragraph (a), (b) or (c), refuse to grant or to sign
and seal letters of executorship or to make any endorsement under section fifteen until he finds such
security.
(3) The Master may by notice in writing require any executor (including any executor who would not
otherwise be under any obligation of finding security) whose estate or whose surety’s estate has been
sequestrated, or who or whose surety has committed an act of insolvency, or who is about to go or has
gone to reside outside the Republic, to find, within a period specified in the notice, security or additional
security, as the case may be, to the satisfaction of the Master in an amount determined by the Master, for
the proper performance of his functions.
(4) The Master shall allow the reasonable costs of finding security to be paid out of the estate.
(5) If any default is made by any executor in the proper performance of his functions, the Master may
enforce the security and recover from such executor or his sureties the loss to the estate.
24. Reduction of security given by executors.—If any executor who has given security to the Master
for the proper performance of his functions, has accounted to the satisfaction of the Master for any
property, the value of which was taken into consideration when the amount of such security was as-
sessed, the Master may reduce the amount of the security to an amount which would, in his opinion, be
sufficient to cover the value of the property which such executor has been appointed to liquidate and
distribute, and which has not been so accounted for.
25. Estates of persons who upon their death are not resident in the Republic and do not own any
property other than movable property in the Republic.—(1) Upon the death of any person who is
neither ordinarily resident within the Republic nor the owner of any property therein other than movable
property, the Master may, subject to the provisions of subsection (2)—
(a) without observing the usual procedure or requiring security—
(i) sign and seal letters of executorship produced to or lodged with him under section 21; or
(ii) if no such letters are produced or lodged, appoint an executor to liquidate and distribute
the estate, or direct the manner in which the estate shall be liquidated and distributed;
and
(b) by writing under his hand and subject to such conditions as he may determine, exempt the
executor from compliance with the provisions of section 35.
(2) The Master shall not exercise his powers under subsection (1) unless—
(a) an affidavit made by such person and containing such particulars as may be prescribed has
been lodged with him in the place of the documents required in terms of the proviso to section
21;
(b) the estate duty payable in respect of the said movable property has been paid or the payment
thereof has been secured to the satisfaction of the proper authority; and
(c) he is satisfied that no person in the Republic will be prejudiced.
26. Executor charged with custody and control of property in estate.—(1) Immediately after letters
of executorship have been granted to him an executor shall take into his custody or under his control all
the property, books and documents in the estate and not in the possession of any person who claims to
be entitled to retain it under any contract, right of retention or attachment.
(1A) The executor may before the account has lain open for inspection in terms of section 35 (4), with
the consent of the Master release such amount of money and such property out of the estate as in the
executor’s opinion are sufficient to provide for the subsistence of the deceased’s family or household.
(2) If the executor has reason to believe that any such property, book or document is concealed or
otherwise unlawfully withheld from him, he may apply to the magistrate having jurisdiction for a search
warrant mentioned in subsection (3).
(3) If it appears to a magistrate to whom such application is made, from a statement made upon
oath, that there are reasonable grounds for suspecting that any property, book or document in any
deceased estate is concealed upon any person or at any place or upon or in any vehicle or vessel or
receptacle of any nature, or is otherwise unlawfully withheld from the executor concerned, within the
area of the magistrate’s jurisdiction, he may issue a warrant to search for and take possession of that
property, book or document.
(4) Such a warrant shall be executed in like manner as a warrant to search for stolen property, and
the person executing the warrant shall deliver any article seized thereunder to the executor concerned.
27. Inventories by executors and valuation at instance of Master.—(1) An executor who has been
ordered thereto by the Master or who in terms of section 23 was required to find security, shall—
(a) within thirty days after letters of executorship have been granted to him, or within such
further period or periods as the Master may allow, lodge with the Master an inventory in the
prescribed form signed by him in person showing the estimated value of all property in the es-
tate; and
(b) thereafter, whenever he comes to know of any such property which is not mentioned in any
inventory lodged by him with the Master, within fourteen days after he has come to know of
such property, or within such further period as the Master may allow, lodge with the Master
an additional inventory so signed by him showing the estimated value thereof.
[Sub-s. (1) substituted by s. 6 (a) of Act No. 86 of 1983.]
(2) If in any inventory lodged with the Master in terms of section 9 or subsection (1) of this section,
any estimate has been made of the value of any property which the Master has reason to believe is not a
reasonably correct estimate thereof, the Master may, at the expense of the estate, order that property to
be appraised by an appraiser or any other person approved by the Master.
(3) . . . . . .
[Sub-s. (3) deleted by s. 6 (c) of Act No. 86 of 1983.]
28. Banking accounts.—(1) An executor—

(a) shall, unless the Master otherwise directs, as soon as he or she has in hand moneys in the
estate in excess of R1 000, open a cheque account in the name of the estate with a bank in the
Republic and shall deposit therein the moneys which he or she has in hand and such other
moneys as he or she may from time to time receive for the estate;
(b) may open a savings account in the name of the estate with a bank and may transfer thereto so
much of the moneys deposited in the account referred to in paragraph (a) as is not immediate-
ly required for the payment of any claim against the estate;
(c) may place so much of the moneys deposited in the account referred to in paragraph (a) as is
not immediately required for the payment of any claim against the estate on interest-bearing
deposit with a bank.
[Sub-s. (1) substituted by s. 7 (a) of Act No. 86 of 1983 and by s. 9 (a) of Act No. 20 of 2001.]
(2) Every executor shall whenever required by the Master to do so, notify the Master in writing of the
bank and the office or branch thereof with which he or she has opened an account referred to in subsec-
tion (1), and furnish the Master with a bank statement or other sufficient evidence of the position of the
account.
(3) No executor who in compliance with a request of the Master under subsection (2), has notified
the Master of the office or branch of the bank with which he or she has opened an account referred to in
subsection (1) shall transfer any such account from any such office or branch to any other such office or
branch, except after written notice to the Master.
[Sub-s. (3) substituted by s. 7 (b) of Act No. 86 of 1983 and by s. 9 (c) of Act No. 20 of 2001.]
(4) All cheques or orders drawn upon any such account shall contain the name of the payee and the
cause of payment and shall be drawn to order and be signed by every executor or his duly authorized
agent.
(5) The Master and any surety of the executor shall have the same right to information in regard to
any such account as the executor himself or herself possesses, and may examine all vouchers in relation
thereto, whether in the hands of the bank or of the executor.
[Sub-s. (5) substituted by s. 9 (d) of Act No. 20 of 2001.]
(6) The Master may in writing direct the manager of any office or branch with which an account has
been opened under subsection (1), to refuse, except with the consent of the Master, any further with-
drawals of money from that account or to pay over into the guardian’s fund all moneys standing to the
credit of the account at the time of the receipt, by the said manager, of that direction, and all moneys
which may thereafter be paid into that account, and shall notify the executor of any such direction.
29. Notice by executors to lodge claims.—(1) Every executor shall, as soon as may be after letters of
executorship have been granted to him, cause a notice to be published in the Gazette and in one or more
newspapers circulating in the district in which the deceased ordinarily resided at the time of his death
and, if at any time within the period of twelve months immediately preceding the date of his death he so
resided in any other district, also in one or more newspapers circulating in that other district, or if he was
not ordinarily so resident in any district in the Republic, in one or more newspapers circulating in a district
where the deceased owned property, calling upon all persons having claims against his estate to lodge
such claims with the executor within such period (not being less than thirty days or more than three
months) from the date of the latest publication of the notice as may be specified therein.
[Sub-s. (1) amended by s. 2 of Act No. 15 of 1978 and by s. 8 of Act No. 86 of 1983.]
(2) All claims which would be capable of proof in case of the insolvency of the estate may be lodged
under subsection (1).
30. Restriction on sale in execution of property in deceased estates.—No person charged with the
execution of any writ or other process shall—
(a) before the expiry of the period specified in the notice referred to in section twenty-nine; or
(b) thereafter, unless, in the case of property of a value not exceeding R5 000, the Master or, in
the case of any other property, the Court otherwise directs,
[Para. (b) substituted by s. 3 of Act No. 15 of 1978 and by s. 9 of Act No. 86 of 1983.]
sell any property in the estate of any deceased person which has been attached whether before or after
his death under such writ or process: Provided that the foregoing provisions of this section shall not apply
if such first-mentioned person could not have known of the death of the deceased person.
31. Late claims.—If any person fails to lodge his claim against any deceased estate before the expiry
of the period specified in respect of that estate under subsection (1) of section twenty-nine, he shall—
(a) if he lodges his claim thereafter and does not satisfy the Master that he has a reasonable
excuse for the delay, be liable for any costs payable out of the estate, in connection with the
reframing of any account or otherwise, as a result of the delay; and
(b) whether or not he lodges his claim thereafter, not be entitled in respect of his claim to demand
restitution from any other claimant of any moneys paid to such other claimant at any time or
before he lodged his claim, as the case may be, in pursuance of a valid claim against the estate.
32. Disputed claims.—(1) If an executor disputes any claim against the estate, he may, by notice in
writing—
(a) require the claimant to lodge, in support of his claim, within a period specified in the notice, an
affidavit setting forth such details of the claim as the executor may indicate in the notice; and
(b) with the consent of the Master, require the claimant or any other person who may in the
opinion of the Master be able to give material information in connection with the claim, to ap-
pear before the Master or any magistrate or Master nominated by the Master, at a place and
time stated in the notice, to be examined under oath in connection with the claim.
(2) At an examination under paragraph (b) of subsection (1), the person concerned may be ques-
tioned by the magistrate or Master before whom the examination takes place, and by the executor and
any heir or the attorney or advocate acting on behalf of the executor or any heir.
(3) If any claimant fails without reasonable excuse to comply with any notice under subsection (1), or
having appeared in answer to any such notice, refuses to take the oath or to submit to examination or to
answer fully and satisfactorily any lawful question put to him, his claim may be rejected by the executor.
(4) Any magistrate or Master before whom any such examination takes place shall take or cause to be
taken a record thereof and shall, at the request of the executor or of the claimant and at the expense of
the estate, or of the claimant, as the case may be, furnish the executor or claimant with a copy of such
record.
33. Rejected claims.—(1) If any executor rejects any claim against the estate, he shall forthwith notify
the claimant in writing by registered post and shall state in the notice his reasons for rejecting the claim.
(2) Any Court by which any claim against a deceased estate is adjudged in favour of a claimant may
decline to grant the claimant his costs against the estate if the Court is satisfied that the information given
by the claimant to the executor was insufficient or that the executor was justified in rejecting the claim
under subsection (3) of section thirty-two.
34. Insolvent deceased estates.—(1) On the expiry of the period specified in the notice referred to in
section 29 the executor shall satisfy himself as to the solvency of the estate and, if the estate is found to
be insolvent then or any time before distribution under subsection (12) of section 35, he shall forthwith
by notice in writing (a copy of which he shall lodge with the Master) report the position of the estate to
the creditors, informing them that unless the majority in number and value of all the creditors instruct
him in writing within a period specified in the notice (not being less than fourteen days) to surrender the
estate under the Insolvency Act, 1936 (Act No. 24 of 1936), he will proceed to realize the assets in the
estate in accordance with the provisions of subsection (2): Provided that—
(a) no creditor whose claim amounts to less than R1 000 shall be reckoned in number;
(b) any creditor holding any security which a trustee would under section 83 of the said Act have
been authorized to take over if the estate had been sequestrated, shall, if called upon to do so
in writing by the executor, place a value thereon within the period specified by the executor,
and shall be reckoned in respect of the balance of his claim which is, according to such valua-
tion, unsecured; and
[Para. (b) amended by s. 3 (1) (a) of Act No. 12 of 1984 (English only).]
(c) if any creditor fails to place a value on any such security within the said period, he shall not be
reckoned as a creditor for the purpose of this subsection.
(2) If after the expiry of the period specified in the notice under subsection (1) the executor has not in
accordance with such notice been directed to surrender the estate, he shall, after the creditors have been
notified in writing, for a period not being less than fourteen days, of the manner and conditions of the
intended sale of the assets, sell the assets in the estate.
(3) A creditor may at any time before the sale of an asset lodge with the executor an objection to the
intended sale of that asset, and shall send a copy of that objection to the Master.
(4) After considering the objection, any comment the executor may have made regarding the objec-
tion and the further particulars which the Master may have required, the Master shall order the executor
to proceed with the sale or give any other order regarding the sale of the asset as he thinks fit.
(5) In so far as a date of sequestration is relevant for the purposes of the distribution of an estate un-
der this section, such date shall be deemed to be the date immediately following the date on which the
period specified in the notice given in respect of the estate in question under subsection (1), has expired.
(6) If any creditor has under paragraph (b) of the proviso to subsection (1) placed a value on any se-
curity, the executor may at any time within six weeks thereafter deal therewith mutatis mutandis in the
manner provided in section 83 of the Insolvency Act, 1936.
(7) (a) An executor shall, as soon as may be after the expiry of the period specified in a notice re-
ferred to in subsection (1), but within—
(i) six months after letters of executorship have been granted to him; or
(ii) such further period as the Master may in any case allow,
submit to the Master an account in the prescribed form, supported by vouchers, of the liquidation and
distribution of the estate.
(b) Such account shall provide for the distribution of the proceeds in the order of preference pre-
scribed under the Insolvency Act, 1936, in the case of a sequestrated estate.
(7A) (a) If at any time after the account contemplated in subsection (7) was submitted to the Master,
additional assets are found in the estate and the account is not amended in terms of this section so as to
provide for the application or distribution of the proceeds of those assets, the executor shall in respect of
those assets submit to the Master a supplementary account in the prescribed form supported by vouch-
ers.
(b) The provisions of subsection (7) (b) shall mutatis mutandis apply in respect of a supplementary
account contemplated in paragraph (a) of this subsection.
[Sub-s. (7A) inserted by s. 3 (1) (b) of Act No. 12 of 1984.]
(8) The Master may at any time in any case in which he has exercised his powers under subsection
(7) (a) (ii) or in which an executor has funds in hand which ought, in the opinion of the Master, to be
distributed or applied towards the payment of debts, direct the executor in writing to submit to him
within a specified period an interim account in the prescribed form, supported by vouchers.
(9) The provisions of subsections (3) to (11), inclusive, of section 35 shall mutatis mutandis apply with
reference to any account referred to in this section.
(10) When an account has lain open for inspection and—
(a) no objection has been lodged; or
(b) an objection has been lodged and the account has been amended in accordance with the
Master’s direction and has again lain open for inspection and no application has been made to
the Court to set aside the Master’s decision; or
(c) an objection has been lodged but has been withdrawn or has not been sustained, and no such
application has been made to the Court within the said period,
the Master shall confirm the account and his confirmation shall be conclusive save as against a person in
whose favour the Court may, before a dividend has been paid out in accordance with the account, have
granted an order to re-open the account.
(11) When an account has been confirmed by the Master, the executor shall forthwith pay the credi-
tors and distribute the estate among the heirs, if any, in accordance with the account, and lodge with the
Master the receipts and acquittances of the creditors and heirs, if any: Provided that a cheque purporting
to be drawn payable to a creditor or heir in respect of any claim or share due to him and paid by the
banker on whom it is drawn, may be accepted by the Master in lieu of any such receipt or acquittance.
(12) The executor shall not later than two months after the estate has become distributable in terms
of subsection (11), pay to the Master for deposit in the guardian’s fund on behalf of the persons entitled
thereto, all moneys which he has for any reason been unable to distribute in accordance with the ac-
count.
(13) The provisions of this section shall not prevent the sequestration of any estate in terms of the
Insolvency Act, 1936.
[S. 34 amended by s. 4 of Act No. 15 of 1978 and substituted by s. 10 (1) of Act No. 86 of 1983.]
35. Liquidation and distribution accounts.—(1) An executor shall, as soon as may be after the last
day of the period specified in the notice referred to in section 29 (1), but within—
(a) six months after letters of executorship have been granted to him; or
(b) such further period as the Master may in any case allow,
submit to the Master an account in the prescribed form of the liquidation and distribution of the estate.
[Sub-s. (1) amended by s. 5 of Act No. 15 of 1978, substituted by s. 11 (a) of Act No. 86 of 1983 and
amended by s. 4 (a) of Act No. 12 of 1984.]
(1A) If at any time after the account contemplated in subsection (1) was submitted to the Master,
additional assets are found in the estate and the account is not amended in terms of this section so as to
provide for the application or distribution of the proceeds of those assets, the executor shall in respect of
those assets submit to the Master a supplementary account in the prescribed form.
[Sub-s. (1A) inserted by s. 4 (b) of Act No. 12 of 1984.]
(2) The Master may at any time in any case in which he has exercised his powers under paragraph (b)
of subsection (1) or in which an executor has funds in hand which ought, in the opinion of the Master, to
be distributed or applied towards the payment of debts, direct the executor in writing to submit to him an
interim account in the prescribed form within a period specified.
[Sub-s. (2) substituted by s. 11 (b) of Act No. 86 of 1983 and by s. 4 (c) of Act No. 12 of 1984.]
(2A) The Master may in respect of an account contemplated in subsection (1), (1A) or (2) direct the
executor to submit to him within a period determined by him such voucher or vouchers in support of the
account or any entry therein as he may require for the purpose of performing his functions in connection
with the examination or amendment of the account.
[Sub-s. (2A) inserted by s. 4 (d) of Act No. 12 of 1984.]
(3) The executor shall set forth in any interim account all debts due to the estate and still outstanding
and all property still unrealized, and the reasons why such debts or property, as the case may be, have
not been collected or realized.
(4) Every executor’s account shall, after the Master has examined it, lie open at the office of the Mas-
ter, and if the deceased was ordinarily resident in any district other than that in which the office of the
Master is situate, a duplicate thereof shall lie open at the office of the magistrate of such other district for
not less than twenty-one days, for inspection by any person interested in the estate.
(5) (a) The executor shall give notice that the account will be so open for inspection by advertise-
ment in the Gazette and in one or more newspapers circulating in the district in which the deceased was
ordinarily resident at the time of his death and, if at any time within the period of twelve months imme-
diately preceding the date of his death he was so resident in any other district, also in one or more
newspapers circulating in that other district, and shall state in the notice the period during which and the
place at which the account will lie open for inspection.
(b) If, in the case of a supplementary account contemplated in subsection (1A), the value of the as-
sets concerned is in the opinion of the Master too small to justify the cost of publication of the notices
contemplated in paragraph (a) of this subsection, that paragraph shall not apply in respect of such
supplementary account and the Master may, if he finds it necessary, direct the executor to give notice, in
such manner and to such persons as the Master may determine, of the place at which and the period
during which the account will lie open for inspection in terms of subsection (4).
[Para. (b) added by s. 4 (e) of Act No. 12 of 1984.]
(6) The magistrate shall cause to be affixed in some public place in or about his office, a list of all such
accounts lodged in his office, showing the date on which each such account will be transmitted to the
Master, and, upon the expiry of the period allowed for inspection, shall endorse on each account his
certificate that the account has lain open in his office for inspection in accordance with this section and
transmit the account to the Master.
(7) Any person interested in the estate may at any time before the expiry of the period allowed for
inspection lodge with the Master in duplicate any objection, with the reasons therefor, to any such
account and the Master shall deliver or transmit by registered post to the executor a copy of any such
objection together with copies of any documents which such person may have submitted to the Master in
support thereof.
(8) The executor shall, within fourteen days after receipt by him of the copy of the objection, transmit
two copies of his comments thereon to the Master.
(9) If, after consideration of such objection, the comments of the executor and such further particu-
lars as the Master may require, the Master is of opinion that such objection is well-founded or if, apart
from any objection, he is of opinion that the account is in any respect incorrect and should be amended,
he may direct the executor to amend the account or may give such other direction in connection there-
with as he may think fit.
(10) Any person aggrieved by any such direction of the Master or by a refusal of the Master to sustain
an objection so lodged, may apply by motion to the Court within thirty days after the date of such direc-
tion or refusal or within such further period as the Court may allow, for an order to set aside the Master’s
decision and the Court may make such order as it may think fit.
(11) If any such direction affects the interests of a person who has not lodged an objection and the
account is amended, the account as so amended shall, unless the said person consents in writing to the
account being acted upon, again lie open for inspection in the manner and with the notice and subject to
the remedies hereinbefore provided.
(12) When an account has lain open for inspection as hereinbefore provided and—
(a) no objection has been lodged; or
(b) an objection has been lodged and the account has been amended in accordance with the
Master’s direction and has again lain open for inspection, if necessary, as provided in subsec-
tion (11), and no application has been made to the Court within the period referred to in sub-
section (10) to set aside the Master’s decision; or
(c) an objection has been lodged but withdrawn, or has not been sustained and no such applica-
tion has been made to the Court within the said period,
the executor shall forthwith pay the creditors and distribute the estate among the heirs in accordance
with the account, lodge with the Master the receipts and acquittances of such creditors and heirs and
produce to the Master the deeds of registration relating to such distribution, or lodge with the Master a
certificate by the registration officer or a conveyancer specifying the registrations which have been
effected by the executor: Provided that—
(i) a cheque purporting to be drawn payable to a creditor or heir in respect of any claim or share
due to him and paid by the banker on whom it is drawn; or
(ii) an affidavit by the executor in which he declares that a creditor was paid or that an heir
received his share in accordance with the account,
may be accepted by the Master in lieu of any such receipt or acquittance.
[Sub-s. (12) amended by s. 4 ( f ) of Act No. 12 of 1984.]
(13) The executor shall not later than two months after the estate has become distributable in terms
of subsection (12), pay to the Master for deposit in the guardian’s fund on behalf of the persons entitled
thereto, all moneys which he has for any reason been unable to distribute in accordance with the ac-
count.
36. Failure by executor to lodge account or to perform duties.—(1) If any executor fails to lodge any
account with the Master as and when required by this Act, or to lodge any voucher or vouchers in support
of such account or any entry therein in accordance with a provision of or a requirement imposed under
this Act or to perform any other duty imposed upon him by this Act or to comply with any reasonable
demand of the Master for information or proof required by him in connection with the liquidation or
distribution of the estate, the Master or any person having an interest in the liquidation and distribution
of the estate may, after giving the executor not less than one month’s notice, apply to the Court for an
order directing the executor to lodge such account or voucher or vouchers in support thereof or of any
entry therein or to perform such duty or to comply with such demand.
(2) The costs adjudged to the Master or to such person shall, unless otherwise ordered by the Court,
be payable by the executor, de bonis propriis.
37. Massed estates.—If any two or more persons have by their mutual will massed the whole or any
specific portion of their joint estate and disposed of the massed estate or of any portion thereof after the
death of the survivor or survivors or the happening of any other event after the death of the first-dying,
conferring upon the survivor or survivors any limited interest in respect of any property in the massed
estate, then upon the death after the commencement of this Act of the first-dying, adiation by the
survivor or survivors shall have the effect of conferring upon the persons in whose favour such disposition
was made, such rights in respect of any property forming part of the share of the survivor or survivors of
the massed estate as they would by law have possessed under the will if that property had belonged to
the first-dying; and the executor shall frame his distribution account accordingly.
38. Taking over by surviving spouse of estate or portion thereof.—(1) The Master may, if—
(a) one of two spouses, whether they were married in or out of community of property, has died;
and
(b) the deceased has made no provision to the contrary in any will; and
(c) the major heirs and any claimants against the estate consent; and
(d) it appears to him that no person interested would be prejudiced thereby,
authorize the executor, subject to security being given mutatis mutandis as provided in subsection (2) of
section forty-three for the payment of any minor’s share, and to such conditions as the Master may
determine, to make over any property or all the property of the deceased, or the whole or any part of
that portion of his property in respect of which he has made no testamentary provision to the contrary, to
the surviving spouse at a valuation to be made by an appraiser or any other person approved by the
Master, and to frame his distribution account on the basis of such valuation.
(2) Subsections (3), (4) and (5) of section forty-three shall mutatis mutandis apply in respect of any
security given under subsection (1).
39. Registration of immovable property in deceased estate.—(1) An executor shall, subject to the
provisions of subsections (2) and (3), the Deeds Registries Act, 1937 (Act No. 47 of 1937), cause immova-
ble property (including, in the case of a massed estate, any such property forming part of the share of the
survivor or survivors of that estate) to which an heir is entitled according to a distribution account, to be
registered in the name of the heir, subject to any rights and conditions affecting such property.
(2) If a usufructuary or other like limited interest in any immovable property has been bequeathed to
any person with a direction that after the expiry of such interest the property shall devolve upon some
person uncertain or that the proceeds of the property shall devolve upon any person, whether certain or
uncertain, the executor shall, subject to the provisions of section 25 of the said Act, cause the terms of
the will or a reference thereto to be endorsed against the title deeds of the property, and lodge with the
Master a certificate by the registration officer concerned or a conveyancer that the title deeds have been
so endorsed.
(3) If any heir is unable or could not without hardship be required to pay the costs involved in having
any immovable property to which he is entitled according to a distribution account, registered in his
name, the Master may authorize the executor to cause a note that the property has been bequeathed or
inherited, as the case may be, to be endorsed against the title deeds of the property.
(4) If the executor is a practising conveyancer and has performed any work in terms of this section in
connection with the registration of, or the endorsement against the title deeds of, immovable property
referred to in subsection (1), he shall be entitled to remuneration for such work in accordance with the
fees and charges prescribed by regulation under section 10 (1) (c) of the Deeds Registries Act, 1937 (Act
No. 47 of 1937).
[Sub-s. (4) added by s. 7 of Act No. 139 of 1992.]
40. Endorsement of testamentary trusts against title deeds and bonds.—(1) If a trustee has been
appointed to administer any property of a deceased person under his will (including in the case of a
massed estate any property forming part of the share of the survivor or survivors of that estate which,
according to a distribution account, is to be administered by such trustee), the executor shall—
(a) deliver to the trustee such of the movable property as should, according to the distribution
account, be delivered to him;
(b) cause the terms of the will, or a reference thereto, in so far as they relate to the administra-
tion, to be endorsed against the title deeds of such of the property as is immovable, and
against any mortgage or notarial bond forming part of the property, and deliver the title deeds
and any such bond, subject to the provisions of section 41 (2), to the trustee; and
(c) lodge with the Master the trustee’s acquittance for any such movable property, deeds or bond,
and a certificate by the registration officer concerned or a conveyancer that such deeds or
bond has been endorsed as aforesaid.
(2) . . . . . .
[Sub-s. (2) substituted by s. 5 of Act No. 54 of 1970 and by s. 29 of Act No. 57 of 1975 and deleted by
s. 26 of Act No. 57 of 1988.]
(3) . . . . . .
[Sub-s. (3) deleted by s. 26 of Act No. 57 of 1988.]
41. Production of title deed or bond to executor.—(1) Any person who has the possession or custody
of any title deed or bond required by an executor for the purposes of any registration or endorsement in
terms of this Act, shall deliver such deed or bond to the executor within a period of fourteen days after
written demand has been made therefor by the executor.
(2) If any such person notifies the executor in writing at the time of the delivery of such deed or
bond, that he has a right of retention in respect thereof, the executor shall return such deed or bond to
such person as soon as it is no longer required by him for the purposes of this Act.
(3) Any person who fails to comply with the provisions of subsection (1), shall be liable for the costs
to which the executor may be put in obtaining an order of the Court for the production of such deed or
bond.
42. Documents to be lodged by executor with registration officer.—(1) Except as is otherwise pro-
vided in subsection (2), an executor who desires to have any immovable property registered in the name
of any heir or other person legally entitled to such property or to have any endorsement made under
section 39 or 40 shall, in addition to any other deed or document which he may be by law required to
lodge with the registration officer, lodge with the said officer a certificate by a conveyancer that the
proposed transfer or endorsement, as the case may be, is in accordance with the liquidation and distribu-
tion account.
(2) An executor who desires to effect transfer of any immovable property in pursuance of a sale shall
lodge with the registration officer, in addition to any such other deed or document, a certificate by the
Master that no objection to such transfer exists.
43. Movable property to which minors and moneys to which absentees or persons under curator-
ship are entitled.—(1) The natural guardian of a minor shall, subject to the provisions of subsections (2)
and (3) and to the terms of the will (if any) of the deceased, be entitled to receive from the executor for
and on behalf of the minor, any movable property to which the minor is, according to any liquidation and
distribution account in any deceased estate, entitled.
(2) Subject to any express provision to the contrary in the will—
(a) no sum of money shall be paid to any such guardian in terms of subsection (1); and
(b) if the Master so directs, no other movable property shall be delivered to any such guardian
under that subsection,
unless payment of such sum of money or payment, in default of delivery, of the value of such movable
property according to a valuation by an appraiser or any other person approved by the Master, as the
case may be, to the minor, at the time when he is to become entitled to the payment of such sum of
money or delivery of such property, has been secured to the satisfaction of the Master.
(3) Any such guardian shall, if called upon to do so by the Master by notice in writing, lodge with the
Master, within a period specified in the notice or within such further period as the Master may allow, a
statement in writing, signed by him in person and verified by an affidavit made by him, giving such
particulars in respect of any such property or sum of money as may be indicated in the notice.
(4) If the estate of any such guardian or of his surety is sequestrated, or if such guardian or surety
commits an act of insolvency, or is about to go or has gone to reside outside the Republic, or if in the
opinion of the Master the security given under subsection (2) has become inadequate, the Master may,
by notice in writing, require such guardian to provide within the period stated in the notice, such addi-
tional security as the Master may specify, and if the guardian fails to comply with the notice within the
said period or within such further period as the Master may allow, the amount in question shall, unless
the notice has been withdrawn by the Master, forthwith become payable into the hands of the Master.
(a) if any payment or delivery referred to in subsection (2) has been made to any minor entitled
thereto; or
(b) if any minor entitled to any such payment or delivery at any time after his majority, consents
thereto in writing after he has attained majority,
reduce the amount of the security to an amount which would, in his opinion, be sufficient to secure any
other such payment or delivery still to be made by the guardian.
(6) Subject to the provisions of subsection (1) and to the terms of the will (if any) of the deceased, an
executor shall pay into the hands of the Master any money to which any minor, absentee, unknown heir
or person under curatorship is entitled according to any liquidation or distribution account in the estate of
the deceased: Provided that the Court may, upon consideration of a report by the Master and of the
terms of the will (if any) of the deceased, make such order exempting the executor from compliance with
the provisions of this subsection as it may deem fit.
44. Movable property to which minor or unborn heir is entitled subject to usufructuary or fiduciary
rights or other like interests.—(1) If according to any distribution account a minor is, or an unborn heir
will when born be, entitled to any movable property out of a deceased estate, subject to usufructuary or
fiduciary rights or any other like interest in favour of any other person including the natural guardian,
tutor or curator of the minor or unborn heir, then, subject to the provisions of subsection (3) and any
express provision to the contrary in the will—
(a) the executor shall, in the case of a sum of money, pay such sum of money into the hands of the
Master, and, in the case of any other movable property, deal with such property in such man-
ner as the Master may direct; and
(b) such sum of money and, unless the Master otherwise directs, such other movable property
shall not, during the minority of the minor or before the birth and during the minority of the
heir, as the case may be, be paid or delivered to such person unless such person has given se-
curity mutatis mutandis as provided in subsection (2) of section forty-three, for the payment of
such sum or the delivery of such property to the minor or heir at the time when the minor or
heir is to become entitled to such payment or delivery.
(2) Subsections (3), (4) and (5) of section forty-three shall mutatis mutandis apply in respect of any
security given under subsection (1).
(3) The provisions of subsection (1) shall not apply in relation to any disposition in a will executed in
the Republic prior to a date twelve months after the date of commencement of this Act.
45. Payment of moneys to minors or persons under curatorship domiciled outside the Republic.—
(1) If according to any distribution account in any deceased estate, any minor or person under curator-
ship domiciled outside the Republic is entitled to any sum of money, the executor with the concurrence of
the Master, or the Master, if the said sum has been paid into his hands, may remit the said sum to the
government of the country in which such minor or person is domiciled or to the natural guardian, tutor or
curator of such minor or person in that country.
(2) If the executor has remitted any sum under subsection (1), he shall in due course produce proof to
the satisfaction of the Master that he has done so.
(3) No action shall lie against the Master at the instance of any such minor or person under curator-
ship in respect of any sum remitted under subsection (1).
46. Failure to pay over moneys.—Any executor who fails to pay over any money to the Master or to
any other person or to deposit it in any banking account under section twenty-eight when required by or
under this Act to do so, or who uses or knowingly permits any co-executor to use any property in the
estate except for the benefit of the estate, shall pay into the estate an amount equal to double the
amount which he has so failed to pay over or to deposit or to double the value of the property so used:
Provided that the Master may, on good cause shown, exempt any executor, in whole or in part, from any
liability which he may have incurred under this section.
47. Sales by executor.—Unless it is contrary to the will of the deceased, an executor shall sell prop-
erty (other than property of a class ordinarily sold through a stock-broker or a bill of exchange or property
sold in the ordinary course of any business or undertaking carried on by the executor) in the manner and
subject to the conditions which the heirs who have an interest therein approve in writing: Provided that—
(a) in the case where an absentee, a minor or a person under curatorship is heir to the property; or
(b) if the said heirs are unable to agree on the manner and conditions of the sale,
the executor shall sell the property in such manner and subject to such conditions as the Master may
approve.
48. Extension of time and compounding of debts.—An executor may accept from a debtor of the
deceased estate who is unable to pay his or her debt in full, any reasonable part of the debt in discharge
of the whole debt or grant any debtor of the deceased estate an extension of time for the payment of his
or her debt in so far as this is compatible with section 35: Provided that if the debt exceeds R2 000, an
executor shall, subject to the terms of the will (if any) of the deceased, not accept a part of the debt in
discharge of the whole debt, unless he or she has been authorized to do so by the Master.
49. Purchases by executor of property in estate, or mortgaged or pledged to the deceased.—(1) If

any executor or his spouse, parent, child, partner, employer, employee or agent purchases any property
in the estate which he has been appointed to liquidate and distribute, the purchase shall, subject to the
terms of the will (if any) of the deceased, and, in the case of an executor who is the surviving spouse of
the deceased, to the provisions of section thirty-eight, be void, unless it has been consented to or is
confirmed by the Master or by the Court.
(2) An executor may, in his capacity as such, and subject to the consent of or confirmation by the
Master, buy in any property mortgaged or pledged to the deceased.
50. Executor making wrong distribution.—Any executor who makes a distribution otherwise than in
accordance with the provisions of section thirty-four or thirty-five, as the case may be, shall—
(a) be personally liable to make good to any heir and to any claimant whose claim was lodged
within the period specified in the notice referred to in section twenty-nine, any loss sustained
by such heir in respect of the benefit to which he is entitled or by such claimant in respect of
his claim, as a result of his failure to make a distribution in accordance with the said provisions;
and
(b) be entitled to recover from any person any amount paid or any property delivered or trans-
ferred to him in the course of the distribution which would not have been paid, delivered or
transferred to him if a distribution in accordance with the said provisions had been made: Pro-
vided that no costs incurred under this paragraph shall be paid out of the estate.
51. Remuneration of executors and interim curators.—(1) Every executor (including an executor
liquidating and distributing an estate under subsection (4) of section thirty-four) shall, subject to the
provisions of subsections (3) and (4), be entitled to receive out of the assets of the estate—
(a) such remuneration as may have been fixed by the deceased by will; or
(b) if no such remuneration has been fixed, a remuneration which shall be assessed according to a
prescribed tariff and shall be taxed by the Master.
(2) An interim curator appointed under section twelve shall, subject to the provisions of subsection
(3), be entitled to receive out of the assets of the estate a remuneration which shall be so assessed and
taxed.
(a) if there are in any particular case special reasons for doing so, reduce or increase any such
remuneration;
(b) disallow any such remuneration, either wholly or in part, if the executor or interim curator has
failed to discharge his duties or has discharged them in an unsatisfactory manner; and
(c) if the deceased had a limited interest in any property which terminated at his death, direct that
so much of such remuneration as the Master considers equitable, or the whole thereof if there
are no other assets available for the payment of such remuneration, shall be paid in such pro-
portion as he may determine by the persons who became entitled to the property at the death
of the deceased.
(4) An executor shall not be entitled to receive any remuneration before the estate has been distrib-
uted as provided in section 34 (11) or 35 (12), as the case may be, unless payment of such remuneration
has been approved in writing by the Master.
52. No substitution or surrogation.—It shall not be competent for any executor to substitute or sur-
rogate any other person to act in his place.
53. Absence of executor from Republic.—An executor shall not be absent from the Republic for a
period exceeding 60 days unless—
(a) the Master has before his departure from the Republic granted him permission in writing to be
absent;
(b) he complies with such conditions as the Master may think fit to impose; and
(c) he has given such notice of his intention to be so absent as the Master may have directed.
54. Removal from office of executor.—(1) An executor may at any time be removed from his office—
(a) by the Court—
(i) . . . . . .
[Sub-para. (i) deleted by s. 16 (a) of Act No. 86 of 1983.]
(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 rec-
ommendation; or
(iv) if he has accepted or expressed his willingness to accept from any person any benefit
whatsoever in consideration of such person being engaged to perform any work on be-
half of the estate; or
(v) if for any other reason the Court is satisfied that it is undesirable that he should act as
executor of the estate concerned; and
(b) by the Master—
(i) if he has been nominated by will and that will has been declared to be void by the Court
or has been revoked, either wholly or in so far as it relates to his nomination, of if he has
been nominated by will and the Master is of the opinion that the will is for any reason
invalid; or
[Sub-para. (i) substituted by s. 13 of Act No. 43 of 1992.]
(ii) if he fails to comply with a notice under section 23 (3) within the period specified in the
notice or within such further period as the Master may allow; or
[Sub-para. (ii) substituted by s. 16 (b) of Act No. 86 of 1983.]
(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
[Sub-para. (iii) substituted by s. 12 of Act No. 20 of 2001.]
(iv) if at the time of his appointment he was incapacitated, or if he becomes incapacitated to
act as executor of the estate of the deceased; or
(v) if he fails to perform satisfactorily any duty imposed upon him by or under this Act or to
comply with any lawful request of the Master; or
(vi) if he applies in writing to the Master to be released from his office.
(2) Before removing an executor from his office under subparagraph (i), (ii), (iii), (iv) or (v) of para-
graph (b) of subsection (1), the Master shall forward to him by registered post a notice setting forth the
reasons for such removal, and informing him that he may apply to the Court within thirty days from the
date of such notice for an order restraining the Master from removing him from his office.
(3) An executor who has not been nominated by will may at any time be removed from his office by
the Master if it appears that there is a will by which any other person who is capable of acting and
consents to act as executor has been nominated as executor to the estate which he has been appointed
to liquidate and distribute: Provided that if the non-production or non-disclosure of the will prior to the
appointment of such first-mentioned executor has been due to the fault or negligence of the person
therein nominated executor, the person so nominated shall be personally liable, at the instance of the
Master or any person interested, to make good all expenses which have been incurred in respect of the
appointment of such first-mentioned executor.
(4) The Court removing any executor from his office may declare him incapable, during the period of
his life or such other period as it may determine, of holding office as an executor.
(5) Any person who ceases to be an executor shall forthwith return his letters of executorship to the
Master.
55. Continuance of pending legal proceedings by remaining or new executor.—(1) No civil legal
proceedings instituted by or against any executor shall lapse merely because he has ceased to be an
executor.
(2) The Court in which any such proceedings are pending may, upon receiving notice that such execu-
tor has ceased to be an executor, allow the name of any remaining or new executor to be substituted for
the former, and the proceedings shall thereupon be continued as if they had originally been instituted by
or against such remaining or new executor.
56. Discharge of executors, and proceedings against discharged executors.—(1) Upon the comple-
tion to the satisfaction of the Master of the liquidation and distribution of a deceased estate, the executor
shall, subject to the provisions of section seventeen of the Estate Duty Act, 1955 (Act No. 45 of 1955), be
entitled to obtain his discharge from the Master.
(2) No person shall institute any legal proceedings against any person who has been discharged as
executor under subsection (1), in respect of any claim against the deceased estate or any benefit out of
that estate: Provided that the provisions of this subsection shall not exempt any such person from liability
in respect of any fraudulent dealing in connection with the estate or the liquidation or distribution
thereof.
(3) (a) After two years have elapsed as from the date upon 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.
(b) Paragraph (a) shall apply also in relation to any deceased estate liquidated and distributed prior
to the date of commencement of this Act.
CHAPTER III
[Heading to Chapter III repealed by s. 26 of Act No. 57 of 1988.]
57 to 70 inclusive. . . . . . .
[Ss. 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 and 70 inclusive repealed by s. 26 of Act No. 57 of
1988.]
CHAPTER IV
TUTORS AND CURATORS
71. Certain persons not to administer property as tutor or curator without letters of tutorship or
curatorship.—(1) No person who has been nominated, appointed or assumed as provided in section
seventy-two shall take care of or administer any property belonging to the minor or other person con-
cerned, or carry on any business or undertaking of the minor or other person, unless he is authorized to
do so under letters of tutorship or curatorship, as the case may be, granted or signed and sealed under
this Act, or under an endorsement made under the said section.
(2) Any letters of confirmation or certificate granted or issued under the Administration of Estates
Act, 1913 (Act No. 24 of 1913), or under section sixty-two of the Mental Disorders Act, 1916 (Act No. 38 of
1916), and in force at the commencement of this Act, shall be deemed to be letters of tutorship or
curatorship, as the case may be, granted under this Act.
72. Letters of tutorship and curatorship to tutors and curators nominate and endorsement in case of
assumed tutors and curators.—(1) The Master shall, subject to the provisions of subsection (3) and to
any applicable provision of section 5 of the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), or any
order of court made under any such provision or any provision of the Divorce Act, 1979, on the written
application of any person—
(a) who has been nominated by will or written instrument—
(i) by the parent of a legitimate minor who has not been deprived, as a result of an order
under subsection (1) of the said section 5 or the Divorce Act, 1979, of the guardianship
of such minor and who immediately before his death was the sole natural guardian of
such minor; or
[Sub-para. (i) substituted by s. 3 (b) of Act No. 192 of 1993.]
(ii) by the mother of a minor born out of wedlock who has not been so deprived of the
guardianship of such minor or of her parental powers over him or her; or
[Sub-para. (ii) substituted by s. 3 (c) of Act No. 192 of 1993 and by s. 6 of Act No. 62 of 2000.]
(iii) by the parent to whom the sole guardianship of a minor has been granted under subsec-
tion (1) of the said section 5 or under the Divorce Act, 1979,
[Sub-para. (iii) substituted by s. 3 (d) of Act No. 192 of 1993.]
to administer the property of such minor and to take care of his person as tutor, or to take care
of or administer his property as curator; or
(b) who has been nominated by will or written instrument by any parent of a minor to administer
as curator any property which the minor has inherited from such parent; or
(c) who has been nominated by will or written instrument by any deceased person who has given
or bequeathed any property to any other person, to administer that property as curator; or
(d) who has been appointed by the Court or a judge to administer the property of any minor or
other person as tutor or curator and to take care of his person or, as the case may be, to per-
form any act in respect of such property or to take care thereof or to administer it; and
(e) who is not incapacitated from being the tutor or curator of the minor or other person con-
cerned or of his property, as the case may be, and has complied with the provisions of this Act,
grant letters of tutorship or curatorship, as the case may be, to such person.
[Sub-s. (1) substituted by s. 7 of Act No. 54 of 1970 and amended by s. 17 of Act No. 70 of 1979 and
by s. 3 (a) of Act No. 192 of 1993.]
(2) The Master shall, subject to the provisions of subsection (3)—
(a) on the written application of any person who has been duly nominated as an assumed tutor or
curator, is not incapacitated from being the tutor or curator of the minor or other person con-
cerned or of his property, as the case may be, and has complied with the provisions of this Act;
and
(b) on production of the deed of assumption duly signed by the person so nominated and the
tutor or curator, as the case may be, so assuming him,
endorse the appointment of such person as assumed tutor or curator on the letters of tutorship or
curatorship, as the case may be, granted to such tutor or curator.
(3) The provisions of sections sixteen and twenty-two shall mutatis mutandis apply with reference to
letters of tutorship or curatorship to be granted under subsection (1) and any endorsement to be made
under subsection (2), and the provisions of subsections (2) and (3) of section fifteen shall so apply with
reference to any such endorsement.
73. Proceedings on failure of nomination of tutors or curators, or on death, incapacity or refusal to

act, etc.—(1) The Master may, subject to the provisions of subsections (2), (3) and (4)—
(a) if it comes to his knowledge—
(i) that any minor is the owner of any property in the Republic which is not under the care
of any guardian, tutor or curator; or
(ii) that any absentee is the owner of any property in the Republic,
and he is satisfied that the said property should be cared for or administered on behalf of such
minor or absentee; or
(b) in any case in which it would, in terms of the proviso to section 56 (1) of the Mental Health Act,
1973 (Act No. 18 of 1973), be competent for a judge in chambers to appoint a curator, or in
any case in which the Master would be competent to appoint a curator in terms of section 56A
of the said Act; or
[Para. (b) substituted by s. 17 (b) of Act No. 86 of 1983 and by s. 6 of Act No. 108 of 1990.]
(c) if any eventuality referred to in paragraph (b), (c), (d), (e) or ( f ) of section 18 (1) occurs with
reference to any person who has been nominated or appointed as provided in paragraph (a),
(b), (c) or (d) of section 72 (1), or to whom letters of tutorship or curatorship have been grant-
ed under the latter section or under this subsection,
[Para. (c) substituted by s. 4 of Act No. 63 of 1990.]
by notice published in the Gazette and in such other manner as in his opinion is best calculated to bring it
to the attention of the persons concerned, call upon the relatives of the minor, absentee or other person
concerned, and upon all persons having an interest in the care or administration of his property to attend
before him or, if more expedient, before any other Master or any magistrate at a time and place specified
in the notice, for the purpose of recommending to the Master for appointment as tutor or tutors or as
curator or curators, a person or a specified number of persons.
[Sub-s. (1) amended by s. 17 (a) of Act No. 86 of 1983.]
(2) Subsections (2), (5) and (6) of section 18 shall mutatis mutandis apply with reference to tutors and
curators: Provided that for the purposes of the application under this subsection of the said subsection
(2), the reference to section 18 (3) and to section 19 shall be deemed to be omitted.
[Sub-s. (2) substituted by s. 17 (c) of Act No. 86 of 1983.]
(3) The Master may, without any notice under subsection (1), if he is satisfied that any absentee or
other person would be prejudiced by the non-performance by the absentee of any particular act in
respect of any property of the absentee in the Republic, appoint and grant letters of curatorship to such
person as he deems fit and proper, to perform such act on behalf of the absentee.
(4) The Master may, if the value of the property of any minor or absentee or other person referred to
in subsection (1) does not exceed R5 000, without any notice under that subsection, appoint and grant
letters of tutorship or curatorship to such person or persons as he deems fit and proper as tutor or tutors
or curator or curators, as the case may be.
[Sub-s. (4) added by s. 17 (d) of Act No. 86 of 1983.]
74. Foreign letters of tutorship or curatorship.—Whenever the provisions of section twenty-one ap-
ply, in terms of section twenty, to letters of executorship granted in any State, the said provisions shall
mutatis mutandis apply also to letters of tutorship or curatorship so granted.
75. Notifications in respect of tutors and curators.—The Master shall, whenever he has granted or
signed and sealed letters of tutorship or curatorship or has made an endorsement under section seventy-
two, to or in favour of any person, and whenever any such person ceases to be a tutor or curator, cause
to be published in the Gazette and in one or more newspapers circulating in the district in which the
minor or person under curatorship is ordinarily resident, or if he is not so resident in any district in the
Republic, in one or more newspapers circulating in the area in which such minor or person owns property,
a notice stating that a tutor or curator has been appointed to such minor or person, and specifying the
names and addresses of the tutor or curator and of such minor or person, or stating that the tutor or
curator has ceased to be a tutor or curator and specifying the names and addresses aforesaid, as the case
may be.
76. Authority conferred by letters of tutorship and curatorship.—(1) The Master may—
(a) by any letters of tutorship granted by him, authorize the tutor to administer the property of
the minor, and may by such letters also authorize the tutor to carry on, subject to any law
which may be applicable, any business or undertaking of the minor; and
(b) by any letters of curatorship granted by him, authorize the curator to do any one or more of
the following, namely—
(i) to perform any particular act in respect of the property of the person concerned;
(ii) to take care of the said property;
(iii) to administer the said property; and
(iv) to carry on, subject to any law which may be applicable, any business or undertaking of
the person concerned.
(2) The Master shall, by any such letters granted by him—
(a) in any case referred to in paragraph (d) of subsection (1) of section seventy-two, confer upon
the tutor or curator such powers as will give effect to the terms of the appointment by the
Court or the judge; and
(b) in any case referred to in paragraph (a), (b) or (c) of that subsection, or in subsection (2) of that
section, if in terms of the will or other written instrument concerned, the curator is to adminis-
ter the property of the person concerned, or if in terms of the will or other written instrument
concerned the tutor or curator is to carry on any business or undertaking of the minor or other
person concerned, authorize the curator to administer the property or, as the case may be, au-
thorize the tutor or curator to carry on such business or undertaking subject to any law which
may be applicable.
77. Security by tutors and curators.—(1) Every person appointed or to be appointed tutor or curator
as provided in section 72 (1) (d) or (2) or under section 73 or 74, shall, subject to the proviso to section
57 (3) of the Mental Health Act, 1973 (Act No. 18 of 1973), before letters of tutorship or curatorship are
granted or signed and sealed, or any endorsement is made, as the case may be, and at any time thereaf-
ter when called upon by the Master to do so, find security or additional security to the satisfaction of the
Master in an amount determined by the Master, for the proper performance of his functions.
[Sub-s. (1) substituted by s. 18 of Act No. 86 of 1983 and by s. 7 of Act No. 108 of 1990.]
(2) Every person nominated as provided in paragraph (a), (b) or (c) of subsection (1) of section
seventy-two to be a tutor or curator, shall be under the like obligation of finding security unless—
(a) he has been nominated by will or written instrument executed before the first day of October,
1913, or if he is the parent of the minor, by will or written instrument executed before the
commencement of this Act, and has not been directed by the will or instrument to find securi-
ty; or
(b) he has been nominated by will or written instrument executed after the first day of October,
1913, or if he is the parent of the minor, by will or written instrument executed after the com-
mencement of this Act, and the Master has in such will or instrument been directed to dis-
pense with such security; or
(c) the Court shall otherwise direct:
Provided that if the estate of any such person has been sequestrated or if he has committed an act of
insolvency or is or resides or is about to reside outside the Republic, or if there is any good reason there-
for, the Master may, notwithstanding the provisions of paragraph (a) or (b), refuse to grant letters of
tutorship or curatorship until he finds such security.
(3) The Master may by notice in writing require any tutor or curator (including any tutor or curator
who would not otherwise be under any obligation of finding security) whose estate or whose surety’s
estate has been sequestrated, or who or whose surety has committed an act of insolvency, or who is
about to go or has gone to reside outside the Republic, or who is the parent of the minor or other person
concerned and is or becomes a widower or widow or divorced and remarries, to find, within a period
specified in the notice, security or additional security, as the case may be, to the satisfaction of the
Master in an amount determined by the Master, for the proper performance of his functions.
(4) The costs of finding any security under this section shall be paid out of the income derived from
the property concerned or out of the property itself.
(5) If any default has been made by any tutor or curator in the proper performance of his functions,
the Master may enforce the security and recover from such tutor or curator or his sureties the loss to the
minor or person under curatorship.
78. Inventories by tutors and curators.—(1) A tutor or curator shall—
(a) within thirty days after letters of tutorship or curatorship have been granted to him, or within
such further period as the Master may allow, lodge with the Master an inventory in the pre-
scribed form signed by him in person of all the property to be taken care of or administered by
him;
(b) thereafter, whenever he comes to know of any such property which is not mentioned in any
inventory lodged by him with the Master, within fourteen days after he has come to know of
such property, or within such further period as the Master may allow, lodge with the Master
an additional inventory thereof so signed by him; and
(c) if any immovable property is included in any such inventory, specify therein all particulars
known to him concerning such property.
(2) A tutor or curator shall not dispose of any property which he has been appointed to take care of
or to administer, if that property has not been mentioned in any inventory lodged by him with the
Master, unless he does so in the ordinary course of any business or undertaking carried on by him as tutor
or curator.
79. Returns by Masters to registration officers of immovable property included in inventory.—
(1) The Master shall forthwith after receipt by him of an inventory under section seventy-eight in which
immovable property has been included, furnish to the registration officer concerned a return specifying
the name of the minor or other person concerned and of the tutor or curator, and particulars of such
property.
(2) No registration officer who has been furnished with such a return, shall register any transaction in
respect of such property entered into by the tutor or curator concerned, except in pursuance of any will
or written instrument by which that tutor or curator has been nominated or in pursuance of any authority
granted under section eighty.
80. Restriction on alienation or mortgage of immovable property by natural guardian, tutor or cura-
tor.—(1) No natural guardian shall alienate or mortgage any immovable property belonging to his minor
child, and no tutor or curator shall alienate or mortgage any immovable property which he has been
appointed to administer, unless he is authorized thereto by the Court or by the Master under this section
or, in the case of a tutor or curator, by any will or written instrument by which he has been nominated.
(2) The Master may at any time authorize—
(a) any alienation of immovable property belonging to a minor or to a person for the administra-
tion of whose property a tutor or curator has been appointed, if the value of the particular
property to be alienated does not exceed the amount determined by the Minister from time to
time by notice in the Gazette and the alienation would be in the interest of the minor or of
such person, as the case may be; and
24 November, 2014: R250 000.]
(b) any mortgage of any such immovable property to an amount not exceeding in the case of any
one such minor or person, the amount determined by the Minister from time to time by notice
in the Gazette, if the mortgage is necessary for the preservation or improvement of the prop-
erty or for the maintenance, education or other benefit of such minor or person, as the case
may be.
24 November, 2014: R250 000.]
81. Purchase by tutor or curator of property administered by him.—If any tutor or curator or the
spouse, parent, child, partner, employer, employee or agent of any tutor or curator, purchases any
property which he has been appointed to administer, the purchase shall, subject to the terms of any will
or written instrument by which he has been nominated, be void, unless it has been consented to or is
confirmed by the Court or the Master.
82. Payment to Master of certain moneys.—Every tutor and curator shall, whenever he receives any
money belonging to the minor or other person concerned, from any person other than the Master,
forthwith pay the money into the hands of the Master: Provided that the foregoing provision of this
section shall not apply—
(a) if the Court appointing the tutor or curator or if the Master otherwise directs; or
(b) if any will or written instrument by which the tutor or curator has been nominated or by which
the money has been disposed of, otherwise provides; or
(c) to so much of the money as is immediately required—
(i) for the payment of any debt of the minor or other person; or
(ii) for the preservation or safe custody of any property of the minor or other person; or
(iii) for the maintenance or education of the minor or other person or any of his dependants;
or
(iv) to meet any current expenditure in any business or undertaking of the minor or other
person carried on by the tutor or curator.
83. Accounts by tutors and curators.—(1) Every tutor or curator shall—
(a) on or before the date in every year which the Master may in each case determine, lodge with
the Master a complete account in the prescribed form of his administration during the year
ending upon a date three months prior to the date so determined, supported by vouchers, re-
ceipts and acquittances and including a statement of all property under his control at the end
of such last-mentioned year, and if he carries on any business or undertaking in his capacity as
tutor or curator, also a statement relating to such business or undertaking; and
(b) if required to do so by the Master by notice in writing, produce, within a period specified in the
notice, for inspection by the Master or by any person nominated by him for the purpose, any
securities held by him as tutor or curator.
(2) Any person who ceases to be tutor or curator shall, not later than thirty days thereafter, or within
such further period as the Master may allow, lodge with the Master a complete account, in the prescribed
form, of his administration between the date up to which his last account was rendered under subsection
(1) and the date on which he ceased to be tutor or curator, supported by vouchers, receipts and acquit-
tances, and including a statement of all property under his control immediately before he ceased to be
tutor or curator.
84. Remuneration of tutors and curators.—(1) Every tutor and curator shall, subject to the provisions
of subsection (2), be entitled to receive out of the income derived from the property concerned or out of
the property itself—
(a) such remuneration as may have been fixed by any will or written instrument by which he has
been nominated; or
(b) if no such remuneration has been fixed, a remuneration which shall be assessed according to a
prescribed tariff and shall be taxed by the Master.
(a) if there are in any particular case special reasons for doing so, reduce or increase any such
remuneration; or
(b) if the tutor or curator has failed to discharge his duties or has discharged them in an unsatis-
factory manner, disallow any such remuneration, either wholly or in part.
85. Application of certain sections to tutors and curators.—Sections 24, 26, 28 and 36, subsection (2)
of section 42, sections 46 and 48, subsection (2) of section 49 and sections 52, 53, 54 and 56 shall mutatis
mutandis apply with reference to tutors and curators: Provided that any reference in any of the said
sections to a will shall, for the purposes of its application under this section, include a reference to any
written instrument by which the tutor or curator concerned has been nominated.
CHAPTER V
THE GUARDIAN’S FUND
86. Existing guardian’s fund to continue.—(1) The guardian’s fund established by section ninety-one
of the Administration of Estates Act, 1913 (Act No. 24 of 1913), shall continue in existence, and shall
consist of all moneys—
(a) in that fund at the commencement of this Act; or
(b) received by the Master under this Act or any other law or in pursuance of an order of Court; or
(c) accepted by the Master in trust for any known or unknown person.
(2) Whenever any money is so received or accepted by the Master, he shall open in the books of the
guardian’s fund an account in the name of the person to whom that money belongs or the estate of
which that money forms part: Provided that if it is not known to whom any such money belongs, or if it is
more convenient, the account may be opened in the name of the person from whom that money has
been received, or of the estate from which that money is derived, as the case may be.
(3) . . . . . .
[Sub-s. (3) added by Proclamation No. R.57 of 31 March, 1987 and deleted by s. 1 of Act No. 49 of
1996.]
87. Moneys in guardian’s fund to be deposits for purposes of Act 45 of 1984.—The moneys in the
guardian’s fund shall be deemed to be deposits for the purposes of the Public Investment Commissioners
Act, 1984 (Act No. 45 of 1984), and the Master may from time to time pay out of any working balance
retained at his or her disposal under the said Act, any amounts due and payable out of the said fund.
[S. 87 substituted by s. 19 of Act No. 86 of 1983 and by s. 13 of Act No. 20 of 2001.]
88. Interest on certain moneys in guardian’s fund.—(1) Subject to the provisions of subsections (2)
and (3), compounded interest calculated on a monthly basis at the rate per annum determined from time
to time by the Minister for Justice and Constitutional Development, in consultation with the Minister of
Finance, shall be allowed on each rand of the principal of every sum of money received by the Master for
account of any minor, mentally ill person or person with severe or profound intellectual disability, unborn
heir or any person having an interest therein of a usufructuary, fiduciary or fideicommissary nature.
(2) No interest shall be allowed on any sum of money—
(a) in the case of money which became legally claimable before the first day of April, 1962, in
respect of any period after it became so claimable;
(b) in the case of money which became legally claimable on or after the said date, in respect of
any period after the expiration of five years after it became so claimable, unless it is legally
claimed before such expiration.
(3) Interest shall be calculated in the case of any sum of money held by the Master on the first day of
April, 1962, from that date, and in all other cases from the first day of the month following that in which
the money has been received by the Master, until—
(a) in the case of any sum of money claimed after the expiration of a period of five years after it
became claimable, the last day of the month preceding the month during which such period
expires;
(b) in all other cases, the last day of the month preceding the month during which the money is
paid out.
89. Payments from guardian’s fund.—The Master shall, upon the application of any person who has
become entitled to receive any money out of the guardian’s fund, pay that money to that person.
90. Payments to natural guardians, tutors and curators, or for and on behalf of minors and persons
under curatorship.—(1) The Master may, subject to subsection (2) and subject to the terms of any will or
written instrument disposing of the money or, in the case of a tutor or curator, by which the tutor or
curator has been nominated, pay to the natural guardian or to the tutor or curator, or for and on behalf of
the minor or other person concerned, so much of any moneys standing to the credit of the minor or other
person in the guardian’s fund as may be immediately required for the maintenance, education or other
benefit of the minor or other person or any of his dependants, or for any purpose referred to in subpara-
graph (i), (ii) or (iv) of paragraph (c) of the proviso to section 82, or for any investment in immovable
property within the Republic or in any mortgage over such immovable property on behalf of the minor or
other person, approved by the Master: Provided that, subject to the terms of any such will or instrument,
the aggregate of the payments made in the case of any minor or other person for purposes of mainte-
nance, education or other benefit shall not, without the sanction of the Court, exceed the amount
determined by the Minister from time to time by notice in the Gazette of the capital amount received for
account of the minor or other person concerned.
[General Note: Amount determined under Government Notice No. R.920 in Government
Gazette 38238 of 24 November, 2014: R250 000.]
(2) Where a natural guardian gives security in terms of section 43 (2) after the sum of money to
which a minor is, according to any liquidation and distribution account in any deceased estate or by virtue
of any other source, entitled, has been paid into the guardian’s fund, the Master may pay to that guardi-
an, for and on behalf of such minor, the sum of money standing to the credit of the minor in the guardi-
an’s fund, whereafter the provisions of section 43 (3), (4) and (5) shall mutatis mutandis apply.
[S. 90 amended by s. 20 of Act No. 86 of 1983 and substituted by s. 7 of Act No. 12 of 1984. Sub-s. (2)
substituted by s. 2 of Act No. 35 of 1986.]
90A. Payment to usufructuary or fiduciary or to his tutor or curator.—(1) The Master may, where
any person has a right as usufructuary or fiduciary to money which was paid into the guardian’s fund, pay
such money to that person or, if that person is a minor or a person under curatorship, to his tutor or
curator, on condition that such person or his tutor or curator, as the case may be, has given security to
the satisfaction of the Master for the refund of such money on the termination of his right or of his
tutorship or curatorship, as the case may be.
(2) The provisions of section 43 (3), (4) and (5) shall mutatis mutandis apply in respect of any security
given under subsection (1).
91. Publication of list of unclaimed moneys.—The Master shall in the month of September of each
year cause to be published in the Gazette a list of all amounts of R1 000 or more in the guardian’s fund,
other than the amounts deposited therein in terms of section 93 (3), which have been claimable and have
remained unclaimed by the persons entitled thereto for a period exceeding one year but not exceeding
three years.
[S. 91 substituted by s. 21 of Act No. 86 of 1983, amended by s. 25 of Act No. 108 of 1991 and substi-
tuted by s. 14 of Act No. 20 of 2001.]
92. Forfeiture to State of moneys unclaimed for thirty years.—Any money in the guardian’s fund
(whether such money has been paid into the said fund before or after the commencement of this Act)
which has remained unclaimed by the person entitled thereto for a period of thirty years as from the date
upon which such person became entitled to claim the said money, shall be forfeited to the State.
93. Statements of certain unclaimed moneys to be published, and amounts unclaimed to be paid
into guardian’s fund.—(1) Every person carrying on business in the Republic shall in the month of
January in each year prepare in the prescribed form and publish in the Gazette a detailed statement in
respect of all amounts of R100 or more which were held by him or her or by any agent on his or her
behalf in the Republic on the thirty-first day of December of the immediately preceding year and which
were not his or her property or subject to any valid lien, but at the time of the preparation of the said
statement have remained unclaimed for a period of five years or more by the rightful owners.
[Sub-s. (1) substituted by s. 22 (1) (a) of Act No. 86 of 1983, by s. 5 of Act No. 63 of 1990 and by s. 15
of Act No. 20 of 2001.]
(2) Any person who has prepared the said statement for publication, may deduct from the said
amounts the cost of publication apportioned as far as possible among the owners.
[Sub-s. (2) substituted by s. 22 (1) (b) of Act No. 86 of 1983.]
(3) After the expiration of three months from the date of publication of the said statement, such per-
son shall forthwith transmit a statement and affidavit in the prescribed form to the Master and deposit in
the guardian’s fund to the credit of the rightful owners all such amounts still remaining unclaimed by the
rightful owners.
[Sub-s. (3) amended by s. 4 of Act No. 79 of 1971 and by s. 22 (1) (c) of Act No. 86 of 1983 and
substituted by s. 26 of Act No. 108 of 1991.]
CHAPTER VI
MISCELLANEOUS PROVISIONS
94. Consent of Master to sub-division of immovable property on behalf of minor or unborn heir.—If
the Master is satisfied that it is expedient to partition any immovable property which is registered in the
name of any minor or in which any minor has or any unborn heir may acquire any interest, and that the
proposed sub-division is fair and equitable, he may, upon such terms as to costs or otherwise as he thinks
fit, and subject to the provisions of section 30 of the Deeds Registries Act, 1937 (Act No. 47 of 1937),
consent, on behalf of such minor or heir, to the sub-division and to any exchange of property, payment of
money or mortgage incidental to the sub-division.
[S. 94 substituted by s. 8 of Act No. 54 of 1970 and amended by s. 1 of Act No. 49 of 1996.]
95. Review of Master’s appointments, etc.—Every appointment by the Master of an executor, tutor,
curator or interim curator, and every decision, ruling, order, direction or taxation by the Master under this
Act shall be subject to appeal to or review by the Court upon motion at the instance of any person
aggrieved thereby, and the Court may on any such appeal or review confirm, set aside or vary the ap-
pointment, decision, ruling, order, direction or taxation, as the case may be.
96. Proceedings by Master.—(1) Notwithstanding anything in any other law contained, the Master
may—
(a) institute any civil proceedings in pursuance of this Act, against any executor, tutor, curator or
interim curator, in the High Court within whose area of jurisdiction the appointment of such
executor, tutor, curator or interim curator was made, whether or not such executor, tutor, cu-
rator or interim curator is resident within that area or otherwise subject to the jurisdiction of
that High Court; and
[Para. (a) amended by s. 26 of Act No. 57 of 1988 and substituted by s. 16 of Act No. 20 of 2001.]
(b) in any such proceedings, proceed by way of application or motion and report to the Court in
writing the facts upon which he relies instead of stating them in an affidavit.
(2) Whenever in the course of his duties the Master finds it necessary to lay any facts before the
Court otherwise than upon formal application or motion, he may do so by a report in writing: Provided
that the Court may refer any such report back to the Master and direct him to proceed by way of formal
application or motion.
(3) Whenever any difference of opinion upon a question of law arises between the Master and an
executor in the distribution of an estate and a minor is interested in the decision of that question, the
Master and the executor may state a case in writing for determination by a judge in chambers, and the
determination of the judge shall be binding upon the Master and the executor, without prejudice to the
rights of other persons interested in the distribution: Provided that the judge may refer the matter to the
Court for argument.
97. Master’s costs.—All costs incurred by the Master in the exercise of his powers and the perfor-
mance of his duties under this Act or in any proceedings in pursuance of the provisions of this Act which
cannot be recovered from any other source may, unless the Court has ordered that they be paid by him
de bonis propriis, be paid out of the guardian’s fund: Provided that the Minister may specially authorize
that any costs ordered to be paid by the Master de bonis propriis be refunded to him or be paid out of the
said fund.
98. Recovery of costs ordered to be paid de bonis propriis by executor, etc.—Whenever any execu-
tor, tutor, curator, interim curator or surety has been ordered to pay de bonis propriis the costs of any
proceedings instituted by the Master, the Master may, if he is unable to recover the said costs from any
property belonging to the executor, tutor, curator, interim curator or surety, recover them from the
property in the deceased estate or the property subject to the administration of the tutor or curator, as
the case may be.
99. Master incapacitated from being executor, etc.—No Master shall in his official capacity be capa-
ble of acting as executor, tutor or curator.
100. Exemption from liability for acts or omissions in Master’s office.—No act or omission of any
Master or of any officer employed in a Master’s office shall render the State or such Master or officer
liable for any damage sustained by any person in consequence of such act or omission: Provided that if
such act or omission is mala fide or if such Master or officer has, in connection with such act or omission
in the course of his duties or functions, not exercised reasonable care and diligence, the State shall be
liable for the damage aforesaid.
101. Evidence.—(1) A copy certified by the Master of any letters of executorship, tutorship or cura-
torship lodged with him under section 21, or under the said section read with section 74, or of a copy of
any such letters, shall be admissible in evidence as if it were the original letters.
(2) A certificate under the hand of the Master that any person named in the certificate has under any
such letters signed and sealed by him been authorized—
(a) in the case of an executor, to liquidate and distribute the estate in the Republic of the de-
ceased person named in the certificate;
(b) . . . . . .
[Para. (b) deleted by s. 26 of Act No. 57 of 1988.]
(c) in the case of a tutor or curator, to perform any act in respect of or to take care of or adminis-
ter the property in the Republic of the minor or other person so named, or to carry on any
business or undertaking in the Republic of such minor or person, as the case may be,
shall be admissible in evidence as prima facie proof that such first-mentioned person has been so author-
ized.
(3) A certificate under the hand of the Master shall be prima facie proof of any loss referred to in
section 23 (5) or in section 77 (5), and of any value referred to in section 35 (1) or in section 46 or in the
last-mentioned section as applied by section 85.
102. Penalties.—(1) Any person who—

(a) steals or wilfully destroys, conceals, falsifies or damages any document purporting to be a will;
or
(b) wilfully makes any false inventory under this Act; or
(c) wilfully submits to or lodges with a Master any false account under this Act; or
(d) wilfully makes any false valuation for the purposes of this Act; or
(e) when being interrogated under oath under section 32, makes, relative to the subject in con-
nection with which he or she is interrogated, any statement whatever which he or she knows
to be false or which he or she does not know or believe to be true; or
[Para. (e) substituted by s. 17 (a) of Act No. 20 of 2001.]
( f ) being an executor wilfully distributes any estate otherwise than in accordance with the provi-
sions of section 35 (12), or of the relevant will; or
[Para. ( f ) substituted by s. 26 of Act No. 57 of 1988.]
(g) contravenes or fails to comply with the provisions of section 9 (1) or (3), 13, 27 (1), 35 (13), 47,
71, 83, 93 (1) or (3), or with any notice under section 9 (2); or
[Para. (g) substituted by s. 23 of Act No. 86 of 1983 and by s. 26 of Act No. 57 of 1988.]
(h) contravenes or fails to comply with the provisions of section 6 (4), section 8 (1) or (2), section
11 (1), section 26 (1) or of the last-mentioned section as applied by section 85, section 28 (1),
(2) or (3) or of the last-mentioned section as applied by section 12 (7) or by section 85, section
30, section 35 (1), or with any direction under section 35 (2) or any notice under section 43 (3)
or (4); or
[Para. (h) substituted by s. 7 of Act No. 15 of 1978 and by s. 26 of Act No. 57 of 1988.]
(i) contravenes or fails to comply with the provisions of sections 7 (1) or (2), section 35 (8), section
41 (1), section 54 (5) or of the last-mentioned section as applied by section 85, or with any no-
tice under section 7 (3) or any direction under section 28 (6) or of the last-mentioned section
as applied by section 85, or fails without reasonable excuse to comply with a notice under sec-
tion 32 (1) (b), or, having appeared in answer to such notice, refuses to take the oath or to
submit to examination or to answer fully and satisfactorily any lawful question put to him,
[Para. (i) substituted by s. 26 of Act No. 57 of 1988.]
shall be guilty of an offence and liable on conviction—
(i) in the case of an offence referred to in paragraph (a), to a fine or to imprisonment for a period
not exceeding seven years;
[Para. (i) substituted by s. 17 (b) of Act No. 20 of 2001.]
(ii) in the case of an offence referred to in paragraph (b), (c), (d) or (e), to a fine or to imprison-
ment for a period not exceeding five years;
[Para. (ii) substituted by s. 17 (b) of Act No. 20 of 2001.]
(iii) in the case of an offence referred to in paragraph (f) or (g), to a fine or to imprisonment for a
period not exceeding twelve months;
[Para. (iii) substituted by s. 17 (b) of Act No. 20 of 2001.]
(iv) in the case of an offence referred to in paragraph (h), to a fine or to imprisonment for a period
not exceeding six months; and
[Para. (iv) substituted by s. 17 (b) of Act No. 20 of 2001.]
(v) in the case of an offence referred to in paragraph (i), to a fine or to imprisonment for a period
not exceeding three months.
[Para. (v) substituted by s. 17 (b) of Act No. 20 of 2001.]
(2) The court convicting any person for failure to perform any act required to be performed by him by
or under this Act may, in addition to any penalty which it imposes, order such person to perform such act
within such period as the Court may fix.
103. Regulations.—(1) The Minister may make regulations—
(a) providing for the custody and preservation of any records, moneys or securities in the offices
of Masters, the removal from such offices and preservation in any other place of such records
and the destruction of such records of an ephemeral nature;
(b) as to payments out of working balances of the guardian’s fund;
(c) providing for the good conduct of Master’s offices or prescribing the practice and procedure to
be observed therein;
(d) prescribing the matters in respect of which Master’s fees shall be payable, the tariff of such
fees and the manner in which such fees shall be payable;
(e) prescribing a tariff of remuneration payable to any person performing any act relating to the
liquidation or distribution of an estate on behalf of the executor of the estate in question and
prohibiting the charging or recovery of remuneration at a higher tariff than the tariff so pre-
scribed;
(eA) prescribing which persons, including juristic persons, are prohibited from liquidating or distrib-
uting a deceased estate;
[Para. (eA) inserted by s. 6 of Act No. 8 of 2017.]
(eB) prescribing any exemptions from the prohibition contemplated in paragraph (eA), which
exemptions may be permanent or to the extent specified in each case;
[Para. (eB) inserted by s. 6 of Act No. 8 of 2017.]
( f ) as to all matters which by this Act are required or permitted to be prescribed; and
(g) generally, as to all matters which he considers it necessary or expedient to prescribe in order
that the purposes of this Act may be achieved.
(2) Any regulations made under subsection (1) may provide that any person who contravenes such
regulations or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine
or to imprisonment for a period not exceeding three months.
(3) Any regulations made under section 118 of the Administration of Estates Act, 1913 (Act No. 24 of
1913), shall be deemed to have been made under subsection (1).
104. Application of Act.—This Act shall not apply—
(a) to the property on board any vessel in any port or harbour of the Republic and belonging to
any person who, being one of the officers or crew or a passenger of that vessel, dies when on
land within the Republic or on board that vessel while it is lying in such port or harbour unless
at the time of his death the person so dying has left any property other than personal effects
within the Republic, or was domiciled within the Republic; or
(b) to the property of any person belonging to and serving with any visiting force as defined in
section one of the Defence Act, 1957 (Act No. 44 of 1957), who dies within the Republic while
on service with that force, unless it be shown to the satisfaction of the Court or the Master
that for the proper liquidation and distribution of that property it is expedient that it be dealt
with under this Act.
105. Repeal of laws, and savings.—(1) Subject to the provisions of subsections (2) and (3), the laws
set out in the Schedule are hereby repealed to the extent specified in the third column thereof.
(2) The estate of any person who died before the commencement of this Act shall be liquidated and
distributed, and any matter relating to the liquidation and distribution of such estate shall be dealt with
as if this Act had not been passed.
(3) If the surviving spouse of any person—
(a) who died in the Republic before the commencement of this Act; or
[Para. (a) amended by s. 1 of Act No. 49 of 1996.]
(b) ......
[Para. (b) deleted by s. 1 of Act No. 49 of 1996.]
(c) who died or dies after the commencement referred to in paragraph (a) but before the relevant
date referred to in section 44 (3) leaving a will in terms of which any minor child of the de-
ceased and such spouse is or will when born be entitled to any movable property subject to
usufructuary or fiduciary rights or any other like interest in favour of such spouse,
[Para. (c) substituted by s. 19 of Act No. 20 of 2001.]
intends to marry under circumstances where a certificate under section 56 of the Administration of
Estates Act, 1913 (Act No. 24 of 1913), would, but for the repeal of that Act, have been required before
the intended marriage could be solemnized, the provisions of the said section 56 shall apply in relation to
the intended marriage as if this Act had not been passed.
106. Re-instatement for certain purposes of the provisions which were contained in subsection (2)
of section 5 of Act 24 of 1913 prior to its substitution in terms of section 16 of Act 68 of 1957.—For the
purposes of the application of subsection (2) of section one hundred and five in respect of any estate
which prior to the substitution effected by section sixteen of the General Law Amendment Act, 1957, was
being dealt with under the provisions which prior to such substitution were contained in subsection (2) of
section five of the Administration of Estates Act, 1913, the said provisions shall with effect from the date
of commencement of the said section sixteen, be deemed not to have been affected by such substitution.
107. Amends section 62 of the Mental Disorders Act, No. 38 of 1916.
108. . . . . . .
108A. . . . . . .
[S. 108A inserted by s. 10 of Act No. 54 of 1970 and repealed by s. 1 of Act No. 49 of 1996.]
109. Short title and commencement.—This Act shall be called the Administration of Estates Act,
1965, and shall come into operation upon a date to be fixed by the State President by proclamation in the
Gazette.
Schedule
LAWS REPEALED
No. and Year of Law Short Title Extent of Repeal

No. 24 of 1913 Administration of Estates Act, 1913 ................ The whole
No. 38 of 1916 Mental Disorders Act, 1916 ............................. Sections sixty-four and sixty-
five
No. 44 of 1926 Financial Adjustments Act, 1926...................... Section three
No. 45 of 1931 Financial Adjustments Act, 1931...................... Section four
No. 49 of 1935 Finance Act, 1935 ............................................ Section eight
No. 17 of 1938 Finance Act, 1938 ............................................ Sections twenty and twenty-
one
No. 46 of 1944 Finance Act, 1944 ............................................ Section eighteen
No. 57 of 1946 Finance Act, 1946 ............................................ Section nineteen
No. 45 of 1953 Finance Act, 1953 ............................................ Section twelve
No. 62 of 1955 General Law Amendment Act, 1955 ................ Sections eight to twelve,
inclusive, and the First
Schedule
No. 68 of 1957 General Law Amendment Act, 1957 ................ Sections fifteen to twenty-
one, inclusive
No. 81 of 1957 Finance Act, 1957 ............................................ Section eight
No. 37 of 1958 Finance Act, 1958 ............................................ Section ten
No. 76 of 1961 Finance Act, 1961 ............................................ Section five
No. 93 of 1962 General Law Further Amendment Act, 1962 ... Sections six to twelve, inclu-
sive
No. 93 of 1963 General Law Further Amendment Act, 1963 ... Section one
Schedule 4
Regulations
1. Definitions.—In these regulations, unless the context otherwise indicates—
“Act” means the Administration of Estates Act, 1965 (Act No. 66 of 1965);
“identity number” means the identity number assigned to a person in terms of the Population Reg-
istration Act, 1950 (Act ), or of the Identity Documents in South-West Africa Act, 1970 (Act ); and
a word or expression to which a meaning has been assigned in the Act bears that meaning.
2. Notice of Death.—The notice of death referred to in section 7 of the Act shall be substantially in
the form set out in Form A in Schedule 1.
3. Inventory.—Form B in Schedule I shall, by deleting therefrom matter which is not applicable in the
relevant circumstances, be applied to make an inventory in pursuance of section 9, 27 or 78 of the Act.
4. Affidavit in Terms of Section 25 of the Act.—The affidavit required by section 25 of the Act shall be
made by the person referred to in section 21 of the Act in whose favour letters of executorship have been
granted and shall specify—
(a) that it is an affidavit in terms of section 25 of the Act;
(b) the full name of the deceased;
(c) the full name and address of the deponent;
(d) the place and country or territory wherein the deceased was ordinarily resident at the time of
his death;
(e) the place, country or territory and date of death of the deceased, and whether the death has
been registered by the authorities of the country or territory concerned;
(f) whether letters of executorship have been granted and, if so, in whose favour and where such
letters have been granted;
(g) whether the deceased died intestate or left a will and, in the latter event, whether such will
has been accepted as a valid will;
(h) that the deceased was not the owner of any property in the Republic other than movable
property;
(i) particulars of such movable property;
(j) whether any usufructuary, fiduciary or fideicommissary or other like interest in property within
the Republic in favour of the deceased has ceased upon his death and, if that be the case, par-
ticulars thereof;
(k) the full name and address of any beneficiary in the estate of the deceased, resident in the
Republic;
(l) the full name and address of any person in the Republic having any claim against the estate of
the deceased and details of such claim, or that, to the knowledge of the deponent, no person
in the Republic has any claim against the estate of the deceased;
(m) that to the knowledge of the deponent no person in the Republic can be prejudiced by the
transmission of property in the estate of the deceased to the person in whose favour letters of
executorship have been granted or to his duly authorised agent; and
(n) the full name and address of any duly authorised agent in the Republic acting on behalf of the
person in whose favour letters of executorship have been granted.
5. Liquidation and Distribution Account.—(1) The account referred to in section 35 (1) of the Act
shall—
(a) contain a heading which shall—
(i) describe it as a liquidation and distribution account;
(ii) reflect the ordinal number of such account;
(iii) specify whether it is a final or supplementary or an amended final or supplementary
liquidation and distribution account, as the case may be;
(iv) state the full name and surname and date of death of the deceased, and, if an identity
number was assigned to the deceased such identity number also;
(v) state the marital status of the deceased at the date of his death;
(vi) if the deceased was a married person at the date of his/her death, state whether the
marriage was in or out of community of property, and, if the marriage was in community
of property, state the full name (including a maiden name, if applicable) of the person to
whom he/she was so married, and, if an identity number has been assigned to that per-
son, state such identity number also, and, if the marriage was out of community of prop-
erty, state whether the marriage was subject to the accrual system in terms of section 2
of the Matrimonial Property Act, 1984 (Act 88 of 1984);
(vii) specify, if adiation has taken place, that it is the massed estate of the deceased and the
person who has so adiated; and
(viii) state the Master’s reference number;
(b) contain a money column;
(c) specify under a subheading “Liquidation Account”—
(i) the immovable property (other than property subject to a fideicommissum) forming part
of the estate as described in the title deed thereof and reflect the number and date of
the title deed and, in the case of an amended description of such property, also specify
such amended description;
(ii) an accurate and concise description of the movable property (not subject to a fideicom-
missum) forming part of the estate;
(iii) in parentheses next to the money column of the account a consecutive number in
respect of each item under this subheading, such number to correspond, where applica-
ble, to the serial number of the voucher, receipt or acquittance referred to in subregula-
tion (3), relating to such item;
(iv) in the money column of the account, the value of each asset or a number of assets
grouped together or the gross proceeds of each asset or a number of assets grouped to-
gether and sold by the executor;
(v) the manner in which the executor intends dealing with or divesting the estate of any
asset or group of assets, other than cash found in the estate or cash proceeds from as-
sets realised,
and then the money column shall be totalled and thereafter the account shall, under this
subheading, further specify—
(vi) in the money column, the administration charges incurred in connection with the
liquidation and distribution of the estate;
(vii) the name of each creditor, together with the amount of his claim which shall be reflect-
ed in the money column of the account;
(viii) in the money column, any estate duty payable by the estate, and the amounts reflected
in the money column in respect of sub-paragraphs (vi) to (viii), inclusive, shall be totalled
and any balance for distribution to be carried forward to the distribution account shall
be reflected in such column;
(d) specify under a subheading “Recapitulation Statement” a cash statement reflecting—

(i) the total of the items comprising cash or property reduced to cash;
(ii) the total debts and charges appearing under the subheading “Liquidation Account” and
any legacy payable in cash; and
(iii) the cash deficiency, if any, and how such deficiency will be settled;
(e) specify under a subheading “Distribution Account”—
(i) the balance for distribution and particulars of any rights conferred under the provisions
of section 37 of the Act;
(ii) the full names of the heirs and whether an heir is a major or a minor, and in the case
of—
(a) a minor, also the date of birth, and if an identity number has been assigned to
such minor, also such identity number;
(b) a woman, also her marital status and, if married in community of property, the full
name of her husband and, if married out of community of property, whether the
marital power has been excluded;
(iii) briefly details of the property included in every award and the reason for every award
and if the award to any beneficiary or administrator is subject to any condition in the
will, stating that it is made subject to and in terms of such condition without specifying
or summarising the terms of the condition,
and where any redistribution agreement was entered into by the heirs and distribution has to
be made by the executor pursuant to such agreement, the redistribution agreement shall ac-
company the account;
(f) specify under a subheading “Income and Expenditure Account”—
(i) any income collected which has accrued subsequent to the death of the deceased to the
date of the account;
(ii) any expenses paid from such income;
(iii) in parentheses next to the money column of the account, a consecutive number in
respect of each entry;
(iv) the balance available for distribution and to whom it was awarded;
and if no income was collected, that fact that shall be stated;
(g) specify under a subheading “Fiduciary Assets Account”—
(i) mutatis mutandis in the manner set out in subparagraph (c) of this regulation, the
fiduciary assets held by the deceased as a fiduciary pursuant to any will or other instru-
ment;
(ii) the origin of the fiduciary interest in such assets, including the Master’s reference
number of the estate, will or instrument in the terms of which such interest was created;
(iii) any debts, charges and administration expenses which are chargeable against such
fiduciary assets;
(iv) in so far as the provisions of subparagraphs (e) and ( f ) of this regulation may be applied
to the fiduciary assets account, the information required by those provisions;
(h) where applicable, specify under a subheading “Estate Duty”—
(i) the calculations to establish whether estate duty is payable and the amount of estate
duty payable, if any; and
(ii) the apportionment thereof in respect of the persons liable for such duty in terms of the
Estate Duty Act, 1955 (Act 45 of 1955);
(i) conclude with a certificate signed and dated by the executor in which he—
(i) declares that the account is to the best of his knowledge and belief a true and proper
account of the liquidation and distribution of the estate;
(ii) declares, if it is a final account, that to the best of his knowledge and belief all the assets
and income collected subsequent to the death of the deceased to the date of the ac-
count have been disclosed therein; and
(iii) sets forth, if the account is not a final account, full particulars of all the debts due to the
estate and still outstanding and all assets, stating the approximate value of each asset,
still unrealised with an explanation why such debts and assets have not been collected
or realised.
(2) Where the estate has been liquidated and distributed or the assets in the estate have been real-
ised and the proceeds distributed under the provisions of section 34 of the Act, the account shall, subject
to the provisions of section 34 (7) and 34 (7A) of the Act, consist of—
(i) a liquidation account framed in accordance with the provisions of section 92 of the Insolvency
Act, 1936 (Act 24 of 1936);
(ii) a trading account containing the particulars referred to in section 93 of the Insolvency Act,
1936, if any business is carried on on behalf of the estate;
(iii) a distribution account in the form referred to in section 94 of the Insolvency Act, 1936;
(iv) a certificate by the executor that the requisite majority in number and value of the creditors
did not instruct him to surrender the estate under the Insolvency Act, 1936;
(v) a liquidation and distribution account in respect of protected assets which are not subject to
the rights of creditors mutatis mutandis in the form prescribed by subregulation (1) (c), (e),
( f ) and (g) in so far as the said subregulation can be applied;
(vi) a certificate containing the particulars referred to in subregulation (1) (i).
(3) Every voucher, receipt or acquittance in support of any asset or number of assets grouped to-
gether or of each claim or charge against the estate shall be numbered with a number corresponding to
the number of the item to which it relates.
(4) The account referred to in section 35 (2) of the Act shall, in so far as it is appropriate, contain the
particulars referred to in subregulation (1) and (2).
(5) If the Master is satisfied that the non-compliance with any of the requirements mentioned in sub-
regulation (1) is not material, he can waive compliance therewith.
6. Extension of Period for Lodgement of Account.—Any executor who for good reason is unable to
lodge the account referred to in section 35 (1) of the Act within the period referred to in that section shall
make application, in writing, to the Master for a further period within which to lodge such account and
shall specify in such application—
(a) why the account cannot be rendered within the period mentioned in that section;
(b) the steps taken by him to expedite the submission of the account and what progress has been
made;
(c) what progress has been made in the liquidation or realisation of the estate;
(d) what moneys he has in hand or have been deposited in an account or savings account opened
in the name of the estate and why an interim account referred to in section 35 (2) of the Act
should not be submitted to the Master;
(e) if a written report has not been made to the Master in terms of section 34 (1) of the Act,
whether the estate is solvent.
7. Accounts by Tutors and Curators.—The account referred to in section 83 (1) and (2) of the Act
shall—
(1) contain a heading which shall—
(a) describe it as a tutor’s or curator’s account, as the case may be;
(b) reflect the ordinal number of such account and, when it is a final account, state such fact;
(c) specify the full name of the minor or other person concerned and, in the case of a minor, also
the date of birth;
(d) specify the period in respect of which the account is rendered and state whether it is an
account in terms of section 83(1) or (2) of the Act; and
(e) reflect the Master’s reference number;
(2) contain a money column;
(3) specify under a subheading “Income and Expenditure Account”—
(a) any credit balance of income or a deficiency brought forward from a previous account lodged
with the Master in respect of the administration of the property concerned;
(b) all income actually collected reflecting the source from which it is derived;
(c) any money transferred from the “Capital Account” referred to in subregulation (4) to meet
debts and charges;
(d) all debts and maintenance charges paid by the tutor or curator during the period in respect of
which the account is rendered, specifying the nature thereof and the name of the payee;
(e) all administration expenses, separately reflected, the name of the payee and the nature of the
charge;
(f) the debit or credit balance, as the case may be, which shall, in the case of a debit balance,
contain a statement whether this has been paid out of the “Capital Account” referred to in
subregulation (4) or is being carried forward to the next account;
(g) whether any credit balance has to be carried forward to the “Capital Account”, so referred to,
or will be required for immediate use; and
(h) in parentheses next to each item a consecutive number;
(4) specify under a subheading “Capital Account”—
(a) an accurate description of all property under the control of the tutor or curator at the end of
the period in respect of which the account is rendered;
(b) the rate of interest on all investments bearing a predetermined rate of interest;
(c) any credit balance shown under the subheading “Income and Expenditure Account” and
brought forward as provided in subregulation (3) (g);
(d) a description of any property leased, with a reference to the lease, the full name of the lessee,
the period of the lease and the annual rental thereof;
(e) the amount of any capital asset or part thereof realised, with a description of such asset, and
the amount of any money transferred to the “Income and Expenditure Account” as provided in
subregulation (3) (c), with reasons for such transfer;
(f) all capital debts owing by the person for the administration of whose property the tutor or
curator has been appointed; and
(g) in a footnote under this subheading any income due but not collected, the reason why such
income has not been collected and the steps taken by the tutor or curator to collect such in-
come;
(5) under a subheading “Cash Reconciliation Statement” reconcile the cash reflected under the sub-
headings “Income and Expenditure Account” and “Capital Account” with the banking account as at the
end of the period in respect of which the account is rendered, and every voucher, receipt or acquittance
supporting such account shall bear a number corresponding to the number of the item in the account in
support of which it is lodged;
(6) conclude with a certificate by the tutor or curator in which he declares that—
(a) the account is to the best of his knowledge and belief a true and proper account of his admin-
istration of the relative property of the minor or other person during the specified period in re-
spect of which the account is rendered; and
(b) to the best of his knowledge and belief the account reflects all property of and all debts owing
by the person for the administration of whose property he has been appointed and all income
collected and debts, expenses and charges paid by him during the period covered by the ac-
count and that he is not aware of any disputed right to assets or liabilities.
7A. If the Master is satisfied that the non-compliance with any of the requirements mentioned in
regulation 7 is not material, he can waive compliance therewith.
8. Tariff of Remuneration of Executors, Interim Curators, Tutors and Curators.—(1) The executor’s
remuneration referred to in section 51(1) (b) of the Act shall be assessed according to the following tariff:
(a) On the gross value of assets in an estate: 3,5 per cent;
(b) on income accrued and collected after the death of the deceased: 6 per cent:
Provided that the remuneration in respect of any deceased estate shall not be less than R350.
(2) An interim curator appointed under section 12 of the Act shall be entitled to a remuneration of
one-eighth per cent on the gross value of the estate under his custody on the date upon which letters of
executorship are granted or signed and sealed or upon which any person is directed to liquidate and
distribute the estate.
(3) The remuneration of tutors and curators referred to in section 84 (1) (b) of the Act shall be as-
sessed according to the following tariff:
(a) On income collected during the existence of the tutorship or curatorship: 6 per cent;
(b) on the value of capital assets on distribution, delivery or payment thereof on termination of
the tutorship or curatorship: 2 per cent.
9. Tariff of Remuneration and Allowances Payable to Appraisers.—(1) Every appraiser is entitled to
remuneration according to the following tariff in respect of every separate or continuous appraisement
made by him or her for the purposes of the Act:
(a) Valuations of R10 000 or less: R140.
(b) Valuations exceeding R10 000 up to and including R20 000: R160.
(c) Valuations exceeding R20 000 up to and including R300 000: R160 for the first R20 000 and
R2,20 per R1 000 or part thereof thereafter.
(d) Valuations exceeding R300 000 up to and including R800 000: R780 for the first R300 000 and
R1,50 per R1 000 or part thereof thereafter.
(e) Valuations exceeding R800 000: R1 530 for the first R800 000 and R1,00 per R1 000 or part
thereof thereafter.
(2) The tariff fee shall be increased by 20 per cent subject to a maximum of R37 for every separate or
continuous appraisement when an appraiser values any property and the Master or the Commissioner for
Inland Revenue desires particulars of the property including the completion of any prescribed form.
(3) ”Continuous appraisement” shall mean an appraisement of two or more properties situated in the
same locality or region where the facts and features considered in valuing one of them are of substantial
assistance in valuing the other or others.
10. (1) In addition to the remuneration set out in regulation 9 the following transport allowance may
be claimed in all cases in which the appraisement is made at a place more than two kilometres from the
place of business of the appraiser:
(a) When own conveyance is used, R2,00 per kilometre.
(b) When public transport is used, the actual cost.
(c) When conveyance is hired, the actual cost.
(2) Where, in the course of one journey, appraisements are made on the instructions of two or more
persons, the transport allowance claimed in respect of that journey shall be recovered pro rata from the
persons concerned.
(3) No transport allowance shall be claimed when the person desiring the appraisement provides
suitable and safe transport: Provided that, where transport which is uninsured in respect of third party
risk, other than compulsory third party risk, is offered, the appraiser need not accept such conveyance but
shall be free to proceed as if no transport facilities have been offered.
11. In addition to the remuneration and transport allowance set out in regulations 9 and 10, the fol-
lowing allowance may be claimed:
(a) For time spent in travelling to and from the place of appraisement: R25 per completed hour,
but not exceeding R250 per day.
(b) For necessary detention while the appraiser is not engaged in the appraisement: R25 per
completed hour, but not exceeding R250 per day.
12. When an appraiser lays an account before the Master for taxation in respect of any appraisement
which he did for the purposes of the Act—
(a) a copy of the appraisement to which the account refers shall be attached thereto; and
(b) full particulars of the distance actually and necessarily travelled shall be given if a transport
allowance is claimed; and
(c) it be stated that the journey was undertaken for the purpose of the appraisement; and
(d) the time occupied in travelling and the time of detention, if any, be stated if a subsistence
allowance is claimed.
13. Statements of Certain Unclaimed Moneys.—The statements referred to in section 93 (1) of the
Act shall be prepared in the form set out in Form C in Schedule 1.
14. The statement and affidavit referred to in section 93 (3) of the Act shall be prepared in the form
set out in Forms D and E, respectively, in Schedule 1.
15. The surnames and first names of the rightful owners, in that order, alphabetically arranged, and
their last known addresses shall, as far as practicable, be furnished in the statements referred to in
regulations 13 and 14.
16. Master’s Fees.—The matters in respect of which Master’s fees shall be payable, the tariff of such
fees and the manner in which such fees shall be payable shall be as specified in Schedule 2 to these
regulations.
17. Repeal of Regulations.—(1) Subject to the provisions of subregulation (2), the regulations pub-
lished under Government Notice R.1534 dated 29 September 1967, are hereby repealed.
(2) The estate of any person who died before the commencement of these regulations shall be liqui-
dated and distributed and any matter relating to the liquidation and distribution of such estate shall be
dealt with as if these regulations had not been made.
Schedule 2
TARIFF OF MASTER’S FEES
[Schedule 2 amended by GN 1161 of 3 November 2017 w.e.f. 1 January 2018.]*
1. (1) On all estates of deceased persons or estates under curatorship or administration in terms of
the Mental Health Care Act, 2002 (Act No. 17 of 2002), (except estates under the custody of an interim
curator pending the appointment of an executor) the gross value of which according to the executor’s or
curator’s account—
(a) is R250 000 or more but less than R400 000: R600;
(b) is R400 000 or more for each complete further R100 000 with which the gross value exceeds
R400 000, a further R200;
subject to a maximum fee of: R7000.
Where the deceased was one of two spouses married in community of property the said fees shall be
assessed upon the gross assets of the joint estate.
[Item 1 (1) substituted by GN R2482 of 1985, corrected by GN R655 of 1986 and substituted by GN
1161 of 3 November 2017.]
(2) The fees referred to in subparagraph (1) shall be assessed by the Master and shall be payable in
the manner as determined administratively by the Director-General: Justice and Constitutional Develop-
ment. Proof of such payment shall be submitted by the executor or curator to the Master.
[Sub-para. (2) substituted by r. 2 (a) of GNR.1057 of 5 November 2009.]
2. (1) (a) For a copy of any document preserved in the office of a Master, R25,00 per document pack
shall be paid.
(b) For a certified copy of any document preserved in the office of a Master, R50,00 per document
pack of certified copies shall be paid.
(c) For an electronic copy of any document preserved in the office of a Master, when it is made in
such office, and if it is available, no fee is payable.
[Sub-para. (1) substituted by GN R2482, by GN R610 of 1984, by GN R1921 of 1990 and by GN 1161 of
3 November 2017.]
Schedule 5
ESTATE DUTY ACT

NO. 45 OF 1955
[ASSENTED TO 15 JUNE, 1955]
[DATE OF COMMENCEMENT: 1 APRIL, 1955]
(English text signed by the Governor-General)
This Act has been updated to Government Gazette 40562 dated 19 January, 2017.
as amended by
Finance Act, No. 59 of 1956
Estate Duty Amendment Act, No. 59 of 1957

Revenue Laws Amendment Act, No. 71 of 1961
Finance Act, No. 77 of 1962

Taxation Laws Amendment Act, No. 86 of 1987

Abolition of Restrictions on the Jurisdiction of Courts Act, No. 88 of 1996
[with effect from 22 November, 1996]
South African Revenue Service Act, No. 34 of 1997
Second Revenue Laws Amendment Act, No. 60 of 2001
Revenue Laws Second Amendment Act, No. 32 of 2005
Small Business Tax Amnesty and Amendment of Taxation Laws Act, No. 9 of 2006
Taxation Laws Second Amendment Act, No. 18 of 2009
Tax Administration Act, No. 28 of 2011

proposed amendments by
Tax Administration Act, No. 28 of 2011

(provision mentioned below not yet proclaimed)
Proposed amendments by Sections to be amended
S. 271 of Act No. 28 of 2011 Amends s. 10 of Act No. 45 of 1955
Tax Administration Laws Amendment Act, No. 21 of 2012

(provision mentioned below not yet proclaimed)
Proposed amendments by Sections to be amended
S. 3 of Act No. 21 of 2012 Amends s. 10 of Act No. 45 of 1955
ACT
To impose an estate duty upon the estates of deceased persons, to repeal the Death Duties Act,
1922, and to provide for matters incidental thereto.
1. Definitions
2. Levy of estate duty
3. What constitutes an estate
4. Net value of an estate
4A. Dutiable amount of an estate
5. Determination of value of property
6. Administration of Act
7. Rendering of returns
8. ......
8bis. ......
8A. ......
8B. ......
8C. ......
8D. ......
8E. ......
9. Assessment of duty by Commissioner
9A. ......
9B. ......
10. Payment of interest
11. Person liable for duty

12. Duty payable by executor
12A. ......
12B. ......
13. Right of recovery by executor
14. Right to mortgage property
15. Recovery of duty paid in certain cases
16. Deduction of transfer duty and donations tax
17. No account to be filed by Master before duty is paid or secured
18. No property to be delivered by executor before duty provided for
19. ......
20. Expenditure incurred by executor
21 and 22. ......
23. ......
23bis. ......
24. ......
25. ......
25A. ......
26. Prevention of, or relief from double taxation
27. ......
28. Offences
28A. ......
29. Regulations
30. ......
31. Repeal of laws
32. Short title and date of commencement
First Schedule Rate of estate duty
Second Schedule Laws repealed
1. Definitions.—(1) In this Act and in any regulations made thereunder, unless the context otherwise
indicates—
“administration and distribution account” . . . . . .
[Definition of “administration and distribution account” deleted by s. 3 (a) of Act No. 92 of 1971.]
“child”, in relation to any person, includes any person adopted by him—
(a) under any law of the Republic; or
(b) under the law of any country other than the Republic, provided the adopted person is under
such law accorded the status of a legitimate child of the adoptive parent and the adoption was
made at a time when the adoptive parent was ordinarily resident in such country;
[Definition of “child” inserted by s. 7 (a) of Act No. 77 of 1964.]
“close corporation” means a close corporation within the meaning of the Close Corporations Act,
1984 (Act No. 69 of 1984);
[Definition of “close corporation” inserted by s. 6 (a) of Act No. 97 of 1993.]
“Commissioner” means the Commissioner for the South African Revenue Service appointed in terms
of section 6 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997), or the Acting Commis-
sioner designated in terms of section 7 of that Act;
[Definition of “Commissioner” deleted by s. 7 (b) of Act No. 77 of 1964, inserted by s. 9 (1) (a) of Act
No. 106 of 1980, substituted by s. 34 (1) of Act No. 34 of 1997 and by s. 271 read with para. 12 (a) of
Sch. 1 of Act No. 28 of 2011.]
“company” includes any association incorporated or registered under any law in force in the Repub-
lic and any association which, although not so incorporated or registered, carries on business or has an
office or place of business or maintains a share transfer register in the Republic;
“domestic policy” means any life policy as defined in section 1 of the Long-term Insurance Act,
1998 (Act No. 52 of 1998), issued anywhere upon an application made or presented to a representative
of an insurer (or to any person on behalf of such a representative) at any place in the Republic, exclud-
ing a life policy which has been made payable at a place outside the Republic at the request of the
owner, but including any life policy issued outside the Republic which has subsequently been made
payable in the Republic at the request of the owner;
[Definition of “domestic policy” inserted by s. 6 of Act No. 30 of 2000.]
“duty” means estate duty payable under this Act;
[Definition of “duty” amended by s. 1 (1) (a) of Act No. 65 of 1960 and substituted by s. 3 (b) of Act
No. 92 of 1971.]
“executor” means any person to whom letters of administration or of executorship have been
granted by a Master in respect of the estate of a deceased person under any law relating to the admin-
istration of estates, or whose appointment as assumed executor of such an estate has been endorsed
by a Master under such law, or who liquidates or distributes such an estate in pursuance of a direction
of a Master, and includes a person acting or authorized to act under letters of administration or of
executorship granted outside the Republic but signed and sealed by a Master for use within the Repub-
lic and, in any case where the estate is not required to be administered under the supervision of the
Master, the person administering the estate;
[Definition of “executor” substituted by s. 3 (c) of Act No. 92 of 1971.]
“fair market value”, means—
(a) the price which could be obtained upon a sale of the property between a willing buyer and a
willing seller dealing at arm’s length in an open market; or
(b) in relation to immovable property on which a bona fide farming undertaking is being carried on
in the Republic, the amount determined by reducing the price which could be obtained upon a
sale of the property between a willing buyer and a willing seller dealing at arm’s length in an
open market by 30 per cent;
[Definition of “fair market value” inserted by s. 1 (a) of Act No. 59 of 1957 and substituted by
s. 1 (1) (b) of Act No. 65 of 1960, by s. 7 (1) of Act No. 87 of 1988 and by s. 1 (1) (a) of Act No. 32 of
2005 with effect from the date of promulgation of that Act, 1 February, 2006 and applicable in re-
spect of the estate of any person who dies on or after that date.]
“family company”, in relation to a deceased person, means any company (other than a company
whose shares are quoted on a recognized stock exchange) which at any relevant time was controlled or
capable of being controlled directly or indirectly, whether through a majority of the shares thereof or
any other interest therein or in any other manner whatsoever, by the deceased or by the deceased and
one or more of his relatives;
[Definition of “family company” inserted by s. 7 (c) of Act No. 77 of 1964, deleted by s. 6 (b) of Act No.
97 of 1993 and inserted by s. 2 (1) of Act No. 140 of 1993.]
“liquidation and distribution account” means the account required to be rendered by an executor
to a Master in accordance with section 35 of the Administration of Estates Act, 1965 (Act No. 66 of
1965), or where the provisions of section 68 of the Administration of Estates Act, 1913 (Act No. 24 of
1913), apply, the account required to be rendered by an executor to a Master in accordance with the
last-mentioned section;
[Definition of “liquidation and distribution account” inserted by s. 3 (d) of Act No. 92 of 1971.]
“Master” in relation to any matter, property or estate, means the Master or Assistant Master of the
High Court appointed under the Administration of Estates Act, 1965, who has jurisdiction in respect of
that matter, property or estate;
[Definition of “Master” amended by s. 3 (e) of Act No. 92 of 1971 and by s. 5 of Act No. 27 of 1997.]
“relative”, in relation to any person, means the spouse of such person or anybody related to him or
his spouse within the third degree of consanguinity, or any spouse of anybody so related, and for the
purpose of determining the relationship between any child referred to in the definition of “child” in
this subsection and any other person, such child shall be deemed to be related to its adoptive parent in
the first degree of consanguinity;
[Definition of “relative” inserted by s. 7 (d) of Act No. 77 of 1964.]
“Secretary” . . . . . .
[Definition of “Secretary” inserted by s. 7 (d) of Act No. 77 of 1964 and deleted by s. 9 (1) (b) of Act
No. 106 of 1980.]
“South African Revenue Service” means the South African Revenue Service established by section 2
of the South African Revenue Service Act, 1997;
[Definition of “South African Revenue Service” inserted by s. 34 (1) of Act No. 34 of 1997.]
“spouse”, in relation to any deceased person, includes a person who at the time of death of such
deceased person was the partner of such person—
(a) in a marriage or customary union recognised in terms of the laws of the Republic;
[Para. (a) substituted by s. 3 (a) of Act No. 5 of 2001 with effect from 27 April, 1994.]
(b) in a union recognised as a marriage in accordance with the tenets of any religion; or
[Para. (b) substituted by s. 3 (a) of Act No. 5 of 2001 with effect from 27 April, 1994.]
(c) in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be
permanent:
[Para. (c) substituted by s. 3 (a) of Act No. 5 of 2001 with effect from 27 April, 1994.]
Provided that a marriage or union contemplated in paragraph (b) or (c) shall, in the absence of proof to
the contrary, be deemed to be a marriage or union without community of property.
[Definition of “spouse” inserted by s. 1 (1) of Act No. 59 of 2000 with effect from 27 April, 1994 and
amended by s. 3 (b) of Act No. 5 of 2001 with effect from 27 April, 1994.]
“stocks or shares” in relation to any company means any part of the share capital or members’ in-
terest of that company and includes any debenture, debenture stock or any other like form of market-
able security.
[Definition of “stocks or shares” substituted by s. 6 (c) of Act No. 97 of 1993.]
“Tax Administration Act”, means the Tax Administration Act, 2011.
[Sub-s. (1), previously s. 1, renumbered by s. 271 read with para. 12 (c) of Sch. 1 of Act No. 28 of 2011.
Definition of “Tax Administration Act” inserted by s. 271 read with para. 12 (b) of Sch. 1 of Act No. 28
of 2011.]
(2) Unless the context indicates otherwise, a word or expression to which a meaning has been as-
signed in the Tax Administration Act bears that meaning for purposes of this Act.
[Sub-s. (2) added by s. 1 (b) of Act No. 59 of 1957, amended by s. 1 of Act No. 65 of 1960, by s. 3 of
Act No. 92 of 1971 and by s. 8 of Act No. 88 of 1996 and deleted by s. (1) (b) of Act No. 32 of 2005 and
inserted by s. 271 read with para. 12 (d) of Sch. 1 of Act No. 28 of 2011.]
2. Levy of estate duty.—(1) There shall be charged, levied and collected in respect of the estate of
every person who dies on or after the first day of April, 1955, a duty to be known as an estate duty.
(2) Estate duty shall be charged upon the dutiable amount of the estate calculated in accordance with
the provisions of this Act, and shall be levied at the rate set out in the First Schedule.
[Sub-s. 2 amended by s. 8 (1) of Act No. 87 of 1988.]
3. What constitutes an estate.—(1) For the purposes of this Act the estate of any person shall consist
of all property of that person as at the date of his death and of all property which in accordance with this
Act is deemed to be property of that person at that date.
(2) “Property” means any right in or to property, movable or immovable, corporeal or incorporeal,
and includes—
(a) any fiduciary, usufructuary or other like interest in property (including a right to an annuity
charged upon property) held by the deceased immediately prior to his death;
(b) any right to an annuity (other than a right to an annuity charged upon any property) enjoyed
by the deceased immediately prior to his death which accrued to some other person on the
death of the deceased,
(bA) so much of the amount of any contribution made by the deceased in consequence of member-
ship or past membership of any pension fund, provident fund, or retirement annuity fund, as
was not allowed as a deduction in terms of section 11 (k) or (n) of the Income Tax Act, 1962
(Act No. 58 of 1962), or paragraph 2 of the Second Schedule to that Act or, as was not exempt
in terms of section 10C of that Act in determining the taxable income as defined in section 1 of
that Act, of the deceased;
[Para. (bA) inserted by s. 2 (1) of Act No. 25 of 2015 and comes into operation on 1 January 2016 and
applicable in respect of the estate of a person who dies on or after that date in respect of contribu-
tions made on or after 1 March 2015.]
but does not include—
(c) in the case of a deceased who was not ordinarily resident in the Republic at the date of his
death, any right in immovable property situate outside the Republic;
[Para. (c) substituted by s. 2 (a) of Act No. 65 of 1960.]
(d) any right in movable property physically situate outside the Republic if the deceased was not
ordinarily resident in the Republic at the date of his death;
[Para. (d) amended by s. 2 (b) of Act No. 65 of 1960.]
(e) any debt not recoverable or right of action not enforceable in the Courts of the Republic if the
deceased was not ordinarily resident in the Republic at the date of his death;
[Para. (e) substituted by s. 2 (c) of Act No. 65 of 1960.]
(f) any goodwill, licence, patent, design, trade mark, copyright or other similar right not registered
or enforceable in the Republic or attaching to any trade, business or profession in the Republic
if the deceased was not ordinarily resident in the Republic at the date of his death;
[Para. (f) amended by s. 2 (d) of Act No. 65 of 1960.]
(g) in the case of a deceased who was not ordinarily resident in the Republic at the date of his
death—
(i) any stocks or shares held by him in a body corporate which is not a company; and
(ii) any stocks or shares held by him in a company, provided any transfer whereby any
change of ownership in such stocks or shares is recorded is not required to be registered
in the Republic;
[Para. (g) substituted by s. 2 (e) of Act No. 65 of 1960.]
(h) any rights to any income produced by or proceeds derived from any property referred to in
paragraph (e), (f) or (g);
(i) so much of any benefit which is due and payable by, or in consequence of membership or past
membership of, any pension fund, pension preservation fund, provident fund, provident
preservation fund or retirement annuity fund as defined in the Income Tax Act, 1962 (Act No.
58 of 1962), on or as a result of the death of the deceased.
[Para. (i) added by s. 2 (1) (a) of Act No. 60 of 2008 with effect from 1 January, 2009 and applicable in
respect of the estate of a person who dies on or after that date.]
(3) Property which is deemed to be property of the deceased includes—
(a) so much of any amount due and recoverable under any policy of insurance which is a “domes-
tic policy”, upon the life of the deceased as exceeds the aggregate amount of any premiums or
consideration proved to the satisfaction of the Commissioner to have been paid by any person
who is entitled to the amount due under the policy, together with interest at six per cent per
annum calculated upon such premiums or consideration from the date of payment to the date
of death: Provided that the foregoing provisions of this paragraph shall not apply in respect of
any amount due and recoverable under a policy of insurance, if—
(i) the amount due under such policy is recoverable by the surviving spouse or child of the
deceased under a duly registered ante-nuptial or post-nuptial contract; or
(iA) the Commissioner is satisfied that the policy was taken out or acquired by a person who
on the date of death of the deceased was a partner of the deceased, or held any share or
like interest in a company in which the deceased on that date held any share or like in-
terest, for the purpose of enabling that person to acquire the whole or part of—
(aa) the deceased’s interest in the partnership concerned; or
(bb) the deceased’s share or like interest in that company and any claim by the de-
ceased against that company,
and that no premium on the policy was paid or borne by the deceased; or
[Sub-para. (iA) inserted by s. 2 (1) (a) of Act No. 92 of 1983 and substituted by s. 4 (1) (a) of Act No. 81
of 1985.]
(ii) except where the provisions of paragraph (i) or (iA) of this proviso apply, the Commis-
sioner is satisfied and remains satisfied that such policy was not effected by or at the in-
stance of the deceased, that no premium on such policy was paid or borne by the
deceased, that no amount due or recoverable under such policy has been or will be paid
into the estate of the deceased and that no such amount has been or will be paid to, or
utilized for the benefit of, any relative of the deceased or any person who was wholly or
partly dependent for his maintenance upon the deceased or any company which was at
any time a family company in relation to the deceased;
[Para. (a) amended by s. 2 (1) (a) of Act No. 81 of 1965, substituted by s. 4 (1) (a) of Act No. 92 of
1971 and amended by s. 7 of Act No. 30 of 2000. Sub-para (ii) amended by s. 2 (1) (b) of Act No. 92 of
1983.]
(a)bis ......
[Para. (a)bis inserted by s. 2 (1) (b) of Act No. 81 of 1965, substituted by s. 3 (1) of Act No. 102 of
1979, by s. 10 (1) of Act No. 106 of 1980 and by s. 2 (1) (c) of Act No. 92 of 1983, amended by s. 6 of
Act No. 27 of 1997, substituted by s. 13 of Act No. 30 of 1998, amended by s. 7 of Act No. 30 of 2000
and deleted by s. 2 (1) (b) of Act No. 60 of 2008 with effect from 1 January, 2009 and applicable in re-
spect of the estate of a person who dies on or after that date.]
(b) any property donated by the deceased in terms of a donation which was exempt from dona-
tions tax under section 56 (1) (c) or (d) of the Income Tax Act, 1962 (Act No. 58 of 1962), if that
property is not otherwise included as property of the deceased for purposes of this Act;
[Para. (b) substituted by s. 5 (1) of Act No. 31 of 2005 deemed to have come into operation on 8 No-
vember, 2005 and applicable in respect of the estate of any person who dies on or after that date.]
(c) ......
[Para. (c) amended by s. 8 (a) and (b) of Act No. 77 of 1964, by s. 3 (1) of Act No. 89 of 1972 and by
s. 4 (1) (b) of Act No. 81 of 1985 and deleted by s. 9 (1) (a) of Act No. 87 of 1988.]
(cA) the amount of any claim acquired by the estate of the deceased under section 3 of the Matri-
monial Property Act, 1984, against the deceased’s spouse or the estate of his deceased spouse,
in respect of any accrual contemplated in that section;
[Para. (cA) inserted by s. 4 (1) (c) of Act No. 81 of 1985.]
(cB) . . . . . .
[Para. (cB) inserted by s. 9 (1) (b) of Act No. 87 of 1988 and deleted by s. 7 (a) of Act No. 97 of 1993.]
(d) property (being property not otherwise chargeable under this Act or the full value of which is
not otherwise required to be taken into account in the determination of the dutiable amount
of the estate) of which the deceased was immediately prior to his death competent to dispose
for his own benefit or for the benefit of his estate.
[Para. (d) substituted by s. 2 ( f ) of Act No. 65 of 1960.]
(4) . . . . . .
[Sub-s. (4) amended by s. 8 (c) of Act No. 77 of 1964 and by s. 4 (1) (b) of Act No. 92 of 1971, substi-
tuted by s. 9 (1) (c) of Act No. 87 of 1988 and deleted by s. 7 (b) of Act No. 97 of 1993.]
(5) For purposes of paragraph (d) of subsection (3)—
(a) the term “property” shall be deemed to include the profits of any property;
(b) a person shall be deemed to have been competent to dispose of any property—
(i) if he had such power as would have enabled him, if he were sui juris, to appropriate or
dispose of such property as he saw fit whether exercisable by will, power of appoint-
ment or in any other manner;
(ii) if under any deed of donation, settlement, trust or other disposition made by him he
retained the power to revoke or vary the provisions thereof relating to such property;
(c) the power to appropriate, dispose, revoke or vary contemplated in paragraph (b) shall be
deemed to exist if the deceased could have obtained such power directly or indirectly by the
exercise, either with or without notice, of power exercisable by him or with his consent;
(d) the expression “property of which the deceased was immediately prior to his death competent
to dispose” shall not include the share of a spouse of a deceased in any property held in com-
munity of property between the deceased and such spouse immediately prior to his death.
[Sub-s. (5) inserted by s. 2 (g) of Act No. 65 of 1960.]
4. Net value of an estate.—The net value of any estate shall be determined by making the following
deductions from the total value of all property included therein in accordance with section 3, that is to
say—
(a) so much of the funeral, tombstone and death-bed expenses of the deceased which the Com-
missioner considers to be fair and reasonable;
[Para. (a) substituted by s. 8 (1) (a) of Act No. 97 of 1993.]
(b) all debts due by the deceased to persons ordinarily resident within the Republic (other than
any debt which constitutes a claim by such a person to property donated by the deceased in
terms of a donation which was exempt from donations tax under section 56 (1) (c) or (d) of the
Income Tax Act, 1962 (Act No. 58 of 1962)), which it is proved to the satisfaction of the Com-
missioner have been discharged from property included in the estate;
[Para. (b) substituted by s. 6 (1) (a) of Act No. 31 of 2005 deemed to have come into operation on 8
November, 2005 and applicable in respect of the estate of any person who dies on or after that date.]
(c) all costs which have been allowed by the Master in the administration and liquidation of the
estate, other than expenses incurred in the management and control of any income accruing
to the estate after the date of death;
(d) all expenditure incurred in carrying out the requirements of the Master or the Commissioner in
pursuance of the provisions of this Act;
(e) the amount included in the total value of all property of the deceased as representing the
value of any right in or to property situate outside the Republic acquired by the deceased—
(i) before he became ordinarily resident in the Republic for the first time; or
(ii) after he became ordinarily resident in the Republic for the first time, by—
(aa) a donation if at the date of the donation the donor was a person (other than a
company) not ordinarily resident in the Republic; or
(bb) inheritance from a person who at the date of his death was not ordinarily resident
in the Republic; or
[Sub-para. (ii) substituted by s. 1 (1) (a) of Act No. 104 of 1976.]
(iii) out of the profits and proceeds of any such property proved to the satisfaction of the
Commissioner to have been acquired out of such profits or proceeds;
[Para. (e) substituted by s. 3 of Act No. 65 of 1960.]
(f) any debts due by the deceased to persons ordinarily resident outside the Republic (other than
any debt which constitutes a claim by such a person to property donated by the deceased in
terms of a donation which was exempt from donations tax under section 56 (1) (c) or (d) of the
Income Tax Act, 1962 (Act No. 58 of 1962), which have been discharged from property includ-
ed in the estate to the extent that the amount of such debts is proved to the satisfaction of the
Commissioner to exceed the value of any assets of the deceased outside the Republic and not
so included;
[Para. (f) substituted by s. 6 (1) (b) of Act No. 31 of 2005 deemed to have come into operation on 8
November, 2005 and applicable in respect of the estate of any person who dies on or after that date.]
(g) the value of any interest included as property of the deceased under paragraph (a) of subsec-
tion (2) of section three where such interest was held by the deceased by virtue of a donation
to him by the person to whom the right of enjoyment of the property in which the deceased
held the interest, accrues or, where the interest consists of a right to an annuity charged upon
property, by the person who is the owner of that property;
(h) the value of any property included in the estate which has not been allowed as a deduction
under any other provision of this section which accrues or accrued to—
(i) any public benefit organisation which is exempt from tax in terms of section 10 (1) (cN)
of the Income Tax Act, 1962 (Act No. 58 of 1962); or
[Sub-para. (i) substituted by s. 8 (1) (b) of Act No. 97 of 1993 and by s. 8 (1) (a) of Act No. 30 of 2000
with effect from 15 July, 2001.]
(iA) any institution, board or body, which is exempt from tax in terms of section 10 (1) (cA) (i)
of the Income Tax Act, 1962 (Act No. 58 of 1962), which has as its sole or principal object
the carrying on of any public benefit activity contemplated in section 30 of that Act; or
[Sub-para. (iA) inserted by s. 4 (1) (b) of Act No. 30 of 2002 with effect from 15 July, 2001.]
(ii) . . . . . .
[Sub-para. (ii) deleted by s. 8 (1) (b) of Act No. 30 of 2000 with effect from 15 July, 2001.]
(iii) the State or any “municipality” as defined in section 1 of the Income Tax Act, 1962 (Act
No. 58 of 1962); or
[Sub-para. (iii) substituted by s. 2 of Act No. 20 of 2006.]

(iv) . . . . . .
[Sub-para. (iv) amended by s. 7 (a) of Act No. 27 of 1997 and deleted by s. 8 (1) (b) of Act No. 30 of
2000 with effect from 15 July, 2001.]
(v) . . . . . .
[Para. (h) amended by s. 9 (a) of Act No. 71 of 1961 and by s. 3 (1) (a) of Act No. 81 of 1965, substitut-
ed by s. 6 (1) (a) of Act No. 86 of 1987 and by s. 10 (1) (a) of Act No. 87 of 1988 and amended by s. 4
(1) (a) of Act No. 30 of 2002 and by s. 5 (1) of Act No. 74 of 2002 with effect from 5 August, 2002. Sub-
para. (v) added by s. 3 (1) (b) of Act No. 20 of 1994 and deleted by s. 7 (b) of Act No. 27 of 1997.]
(i) the amount by which the value of any property included in the estate has been enhanced by
any improvements made to the property concerned—
(i) at the expense of the person to whom such property accrues on the death of the
deceased; and
(ii) during the lifetime of the deceased and with his consent;
(j) the amount by which the value of any fiduciary, usufructuary or other like interest which
ceased upon the death of the deceased has been enhanced by any improvements made to the
property concerned—
(i) at the expense of the person to whom the benefit arising by reason of the cessation of
such interest upon the death of the deceased, accrues; and
(ii) during the lifetime of the deceased and with his consent;
(k) ......
[Para. (k) substituted by s. 9 (1) (a) of Act No. 77 of 1964, by s. 3 (1) (b) of Act No. 81 of 1965, by
s. 2 (1) (a) of Act No. 94 of 1967 and by s. 2 (1) (a) of Act No. 70 of 1975, amended by s. 4 (1) (a) of Act
No. 102 of 1979 and by s. 11 (1) (a) of Act No. 106 of 1980 and deleted by s. 10 (1) (b) of Act No. 87 of
1988.]
(l) ......
[Para. (l) added by s. 2 of Act No. 59 of 1957, substituted by s. 9 (b) of Act No. 71 of 1961, by s. 9 (1)
(a) of Act No. 77 of 1964, by s. 3 (1) (c) of Act No. 81 of 1965, by s. 2 (1) (b) of Act No. 94 of 1967, by
s. 5 (1) (b) of Act No. 92 of 1971, by s. 2 (1) (b) of Act No. 70 of 1975 and by s. 1 (1) (b) of Act No. 104
of 1976, amended by s. 4 (1) (b) of Act No. 102 of 1979, by s. 11 (1) (b) of Act No. 106 of 1980 and by
s. 3 (1) of Act No. 99 of 1981 and deleted by s. 10 (1) (c) of Act No. 87 of 1988.]
(lA) the amount of any claim against the estate acquired under section 3 of the Matrimonial
Property Act, 1984 (Act No. 88 of 1984), by the surviving spouse of the deceased or by the es-
tate of his deceased spouse, in respect of an accrual contemplated in that section;
[Para. (lA) inserted by s. 5 (1) (a) of Act No. 81 of 1985.]
(m) the value of any usufructuary or other like interest in property and of any right to an annuity
charged upon property, included as property of the deceased under section 3 (2) (a), if such in-
terest or right was created by a predeceased spouse of the deceased and—
(i) the property over which the deceased enjoyed such interest or right formed part of the
estate of such predeceased spouse; and
(ii) no deduction in respect of the value of such interest or right was allowable in the
determination of the net value of the estate of the predeceased spouse under the provi-
sions of paragraph (q) of this section;
[Para. (m) added by s. 2 of Act No. 59 of 1957 and substituted by s. 6 (1) (b) of Act No. 86 of 1987 and
by s. 10 (1) (d) of Act No. 87 of 1988. Sub-para. (ii) substituted by s. 14 (1) of Act No. 30 of 1998.]
(n) ......
[Para. (n) added by s. 2 of Act No. 59 of 1957 and deleted by s. 10 (1) (e) of Act No. 87 of 1988.]
(o) any amount included in the estate in respect of—
(i) the value of books, pictures, statuary or other objects of art; or
(ii) so much of the value of any shares in a body corporate as is attributable to such body’s
ownership of books, pictures, statuary or other objects of art,
if such books, pictures, statuary or other objects of art have been lent under a notarial deed to
the government of the Republic in the national, provincial or local sphere for a period of not
less than thirty years, and the deceased died during such period;
[Para. (o) added by s. 9 (c) of Act No. 71 of 1961, amended by s. 10 (1) (f) of Act No. 87 of 1988 and by
s. 3 of Act No. 31 of 2013.]
(p) so much of the value of any property deemed to be property of the deceased by virtue of the
provisions of section 3 (3) as has not been deducted under any of the other provisions of this
section and as the Commissioner is satisfied has been taken into account under the provisions
of section 5 (1) (f)bis in the determination of the value of any company shares or a member’s
interest in a close corporation included as property in the estate;
[Para. (p) added by s. 9 (1) (b) of Act No. 77 of 1964 and substituted by s. 8 (1) (c) of Act No. 97 of
1993.]
(q) so much of the value of any property included in the estate which has not been allowed as a
deduction under the foregoing provisions of this section, as accrues to the surviving spouse of
the deceased: Provided that—
(i) the deduction allowable under the provisions of this paragraph shall be reduced by so
much of any amount as the surviving spouse is required in terms of the will of the de-
ceased to dispose of to any other person or trust;
(ii) no deduction shall be allowed under the provisions of this paragraph in respect of any
property which accrues to a trust established by the deceased for the benefit of the sur-
viving spouse, if the trustee of such trust has a discretion to allocate such property or
any income therefrom to any person other than the surviving spouse.
[S. 4 amended by s. 5 (1) (a) of Act No. 92 of 1971. Para. (q) added by s. 5 (1) (b) of Act No. 81 of 1985
and substituted by s. 6 (1) (c) of Act No. 86 of 1987.]
4A. Dutiable amount of an estate.—(1) Subject to subsections (2) and (3), the dutiable amount of the
estate of any person shall be determined by deducting from the net value of that estate, as determined in
accordance with section 4, an amount of R3,5 million.
(2) Where a person was the spouse at the time of death of one or more previously deceased persons,
the dutiable amount of the estate of that person shall be determined by deducting from the net value of
that estate, as determined in accordance with section 4, an amount equal to the amount specified in
subsection (1)—
(a) multiplied by two; and
(b) reduced by the amount deducted from the net value of the estate of any one of the previously
deceased persons in accordance with this section.
(3) Where a person was one of the spouses at the time of death of a previously deceased person, the
dutiable amount of the estate of that person shall be determined by deducting from the net value of that
estate, as determined in accordance with section 4, an amount equal to the sum of—
(a) the amount specified in subsection (1); and
(b) the amount specified in subsection (1) divided by the number of spouses, reduced by an
amount which is determined by dividing the amount deducted, in accordance with this section,
from the net value of the estate of the previously deceased person by the number of spouses
of that previously deceased person.
[Para. (b) substituted by s. 4 (1) (a) by Act No. 7 of 2010 deemed to have come into operation on 1
January, 2010 and applicable in respect of the estate of a person who dies on or after the date.]
(4) The amount contemplated in subsection (2) (b) or (3) (b) shall not exceed the amount specified in
subsection (1).
(5) Subsections (2) and (3) shall not apply unless the executor of the estate of that person submits, at
the time and in the manner and form prescribed by the Commissioner, to the Commissioner a copy of a
return submitted to the Commissioner in terms of section 7 or other relevant material that the Commis-
sioner may regard as reasonable in respect of the estate of the previously deceased person.
(6) Where a person and his or her spouse die simultaneously, the person of whom the net value of
the estate, determined in accordance with section 4, is the smallest must be deemed for the purposes of
this section to have died immediately prior to his or her spouse.
[S. 4A inserted by s. 6 (1) of Act No. 92 of 1971, amended by s. 3 (1) of Act No. 95 of 1978, by s. 5 (1)
of Act No. 102 of 1979, by s. 12 (1) of Act No. 106 of 1980, by s. 4 (1) of Act No. 99 of 1981, by s. 6 (1)
of Act No. 81 of 1985, by s. 2 (1) of Act No. 71 of 1986, substituted by s. 11 (1) of Act No. 87 of 1988,
amended by s. 5 (1) of Act No. 30 of 2002 and by s. 17 (1) of Act No. 9 of 2006 and substituted by
s. 1 (1) of Act No. 8 of 2007 and by s. 5 (1) of Act No. 17 of 2009 with effect from 1 January, 2010 and
applicable in respect of the estate of any person who dies on or after that date. Sub-s. (6) added by
s. 4 (1) (b) of Act No. 7 of 2010 deemed to have come into operation on 1 January, 2010 and applica-
ble in respect of the estate of a person who dies on or after the date.]
5. Determination of value of property.—(1) The value of any property for the purposes of the inclu-
sion thereof in the estate of any person in terms of section 3 or the deduction thereof in terms of sec-
tion 4, determined as at the date of death of that person, shall be—
(a) in the case of property, other than such property as is referred to in paragraph (f)bis or the
proviso to paragraph (g), disposed of by a purchase and sale which in the opinion of the Com-
missioner is a bona fide purchase and sale in the course of the liquidation of the estate of the
deceased, the price realized by such sale;
[Para. (a) amended by s. 4 (a) of Act No. 65 of 1960.]
(b) in the case of any such fiduciary, usufructuary or other like interest in property as is referred to
in paragraph (a) of section 3 (2), an amount determined by capitalizing at twelve per cent the
annual value of the right of enjoyment of the property in which the deceased held any such fi-
duciary, usufructuary or other like interest, to the extent to which the person who upon the
cessation of the said interest of the deceased in consequence of the death of the deceased be-
comes entitled to any right of enjoyment of such property of whatever nature, over the expec-
tation of life of such person, or if such right of enjoyment is to be held for a lesser period than
the life of such person, over such lesser period: Provided that in any case in which it is proved
to the satisfaction of the Commissioner that such person paid any consideration for the right of
ownership in the property whereby he became entitled to the right of enjoyment of the prop-
erty upon the death of the deceased, the value shall be so much of the value so arrived at as
exceeds the amount of such consideration together with interest thereon calculated at six per
cent per annum from the date of payment of such consideration to the date of death of the
deceased: Provided further that where upon the cessation of the interest of the deceased in
any property, there accrues to the holder of the bare dominium therein, the full ownership in
that property, the value of the advantage or benefit so accruing by reason of the cessation of
the interest held by the deceased, shall not exceed the difference between the fair market val-
ue of that property as at the date of such cessation and the value of the bare dominium as at
the date when such bare dominium was first acquired under the disposition creating the said
interest held by the deceased: Provided further that if upon the cessation of the interest held
by the deceased it is not possible to ascertain until some future date the person or some or all
of the persons who will become entitled to the right of enjoyment of the property, the value
shall be determined by capitalizing at twelve per cent over a period of fifty years the annual
value of the right of enjoyment of the property in which such interest was held, unless the
Commissioner and the executor agree that, having regard to the circumstances of the case, it
would be reasonable to adopt a lesser period than fifty years, in which event such lesser
period, as agreed, may be adopted accordingly;
[Para. (b) amended by s. 3 (a) of Act No. 59 of 1957 and by s. 4 (b) of Act No. 65 of 1960 and substi-
tuted by s. 7 (1) (a) of Act No. 114 of 1977.]
(c) in the case of any right to any annuity referred to in paragraph (a) of subsection (2) of section
three, an amount equal to the value of the annuity capitalized at twelve per cent.—
(i) in the case where the said right accrues to some other person on the death of the
deceased, over the expectation of life of the person to whom the said right accrues on
the death of the deceased, or if it is to be held for a lesser period than the life of such
person, over such lesser period;
(ii) in the case where the said right does not so accrue to some other person, over the
expectation of life of the person who on the death of the deceased is the owner of the
property upon which such annuity was charged;
[Para. (c) amended by s. 7 (1) (b) of Act No. 114 of 1977.]
(d) in the case of any right to any annuity referred to in paragraph (b) of subsection (2) of section
three, an amount equal to the value of the annuity capitalized at twelve per cent. over the ex-
pectation of life of the person to whom the right to such annuity accrues on the death of the
deceased, or if it is to be held for a lesser period than the life of such person, over such lesser
period;
[Para. (d) amended by s. 7 (1) (c) of Act No. 114 of 1977.]
(d)bis in the case of any annuity to which the provisions of section 3 (3) (a) or (a)bis apply, an
amount equal to the value of the annuity capitalized at twelve per cent. over the expectation
of life of the annuitant, or if the annuity is payable for a lesser period than the life of the an-
nuitant, over such lesser period: Provided that if within five years after the death of the de-
ceased the annuity ceases to be payable because of the death of the annuitant within that
period or, where the annuitant is the widow of the deceased, because of her re-marriage
within that period, the value of the annuity shall be deemed to be an amount equal to the
lesser of—
(i) the aggregate of the amounts which accrued to the annuitant in respect of the annuity
and any amounts which accrued to him or his estate upon or as a result of the termina-
tion of the annuity; or
(ii) the said capitalized value of the annuity;
[Para. (d)bis inserted by s. 4 (1) of Act No. 81 of 1965, substituted by s. 2 (1) of Act No. 56 of 1966 and
amended by s. 7 (1) (d) of Act No. 114 of 1977.]
(e) in the case of any property referred to in section 3 (3) (b), an amount determined in the
manner prescribed in section 62 of the Income Tax Act, 1962 (Act No. 58 of 1962);
[Para. (e) substituted by s. 10 of Act No. 77 of 1964, by s. 12 (1) (a) of Act No. 87 of 1988 and by s. 9
(a) of Act No. 97 of 1993.]
(f) in the case of a right of ownership in any movable or immovable property which is subject to a
usufructuary or other like interest in favour of any person, the amount by which the fair mar-
ket value of the full ownership of such property exceeds the value of such interest, deter-
mined—
(i) in the case of a usufructuary interest, by capitalizing at twelve per cent. the annual value
of the right of enjoyment of the property subject to such usufructuary interest over the
expectation of life of the person entitled to such interest, or if such right of enjoyment is
to be held for a lesser period than the life of such person, over such lesser period;
[Sub-para. (i) amended by s. 7 (1) (e) of Act No. 114 of 1977.]
(ii) in the case of an annuity charged upon the property, by capitalizing at twelve per cent.
the amount of the annuity over the expectation of life of the person entitled to such an-
nuity, or if it is to be held for a lesser period than the life of such person, over such lesser
period; or
[Sub-para. (ii) amended by s. 7 (1) (e) of Act No. 114 of 1977.]
(iii) in the case of any other interest, by capitalizing at twelve per cent. such amount as the
Commissioner may consider reasonable as representing the annual yield of such interest,
over the expectation of life of the person entitled to such interest, or if such interest is to
be held for a lesser period than the life of such person, over such lesser period;
[Para. (f) amended by s. 1 (b) of Act No. 19 of 2001. Sub-para. (iii) amended by s. 7 (1) (e) of Act No.
114 of 1977.]
(f)bis in the case of shares in any company not quoted on any stock exchange, the value of such
shares in the hands of the deceased at the date of his death, subject to the following provi-
sions, namely—
(i) no regard shall be had to any provision in the memorandum and articles of association,
founding statement, association agreement or rules of the company, as the case may be,
restricting the transferability of the shares therein, but it shall be assumed that such
shares were freely transferable;
[Sub-para. (i) substituted by s. 9 (b) of Act No. 97 of 1993.]
(ii) no regard shall be had to any provision in the memorandum and articles of association,
founding statement, association agreement or rules of the company, as the case may be,
whereby or whereunder the value of the shares of the deceased or any other member is
to be determined;
[Sub-para. (ii) substituted by s. 9 (b) of Act No. 97 of 1993.]
(iii) if upon a winding-up of the company the deceased would have been entitled to share in
the assets of the company to a greater extent pro rata to shareholding or membership
than other shareholders or members, no lesser value shall be placed on the shares held
by the deceased than the amount to which he would have been so entitled if the com-
pany had been in course of winding-up and the said amount had been determined as at
the date of his death;
[Sub-para. (iii) substituted by s. 9 (b) of Act No. 97 of 1993.]
(iv) no regard shall be had to any provision or arrangement resulting in any variation in the
rights attaching to any shares through or on account of the death of the deceased;
[Sub-para. (iv) substituted by s. 10 (b) of Act No. 71 of 1961.]
(v) there shall be taken into account any power of control exercisable by the deceased and
the company whereunder he was entitled or empowered to vary or cancel any rights at-
taching to any class of shares therein, including by way of redemption of preference
shares, if, by the exercise of such power he could have conferred upon himself any bene-
fit or advantage in respect of the assets or profits of the company;
(vi) . . . . . .
[Para. (f)bis inserted by s. 4 (c) of Act No. 65 of 1960 and amended by s. 10 (a) of Act No. 71 of 1961
and by s. 1 (c) of Act No. 19 of 2001. Sub-para. (vi) deleted by s. 10 (c) of Act No. 71 of 1961.]
(f)ter in the case of any property referred to in paragraph (d) of subsection (3) of section three
which consists only of profits, an amount determined by capitalizing at twelve per cent. such
amount as the Commissioner may consider reasonable as representing the annual value of
such profits over the expectation of life of the deceased immediately prior to the date of his
death, and in the case of any other property referred to in the said paragraph the amount
remaining after deducting from the fair market value of that property as at the date of death
of the deceased the expenses and liabilities which the deceased would have had to bear or
assume if he had at that date exercised his power of disposition;
[Para. (f)ter inserted by s. 4 (c) of Act No. 65 of 1960 and amended by s. 7 (1) (f) of Act No. 114 of 1977.]
(g) in the case of any other property, the fair market value of such property as at the date of
death of the deceased person: Provided that in any case in which, as a result of conditions
imposed by any person whomsoever, the value of any property could or would be reduced
for any reason or after the moment of death, the value of such property shall, unless the
Commissioner otherwise directs, be determined as though those conditions had not been
imposed.
[Sub-s. (1) amended by s. 1 (a) of Act No. 19 of 2001. Para. (g) amended by s. 4 (d) of Act No. 65 of
1960 and by s. 1 (d) of Act No. 19 of 2001.]
(1A) Where any company referred to in paragraph (f)bis of subsection (1) owns immovable property
on which bona fide farming operations are being carried on in the Republic, the value of such immovable
property shall, in so far as it is relevant for the purposes of determining in terms of that subsection the
value of any shares in such company, be determined in the manner prescribed in the definition of “fair
market value” in section 1.
[Sub-s. (1A) inserted by s. 7 (1) of Act No. 81 of 1985.]
(2) For the purposes of paragraphs (b) and (f) of subsection (1) and for purposes of determining the
value of any deduction contemplated in section 4, the annual value of the right of enjoyment of a prop-
erty means an amount equal to twelve per cent upon the fair market value of the full ownership of the
property which is subject to any fiduciary, usufructuary or other like interest: Provided that where the
Commissioner is satisfied that the property which is subject to any such interest could not reasonably be
expected to produce an annual yield equal to 12 per cent on such value of the property, the Commission-
er may fix such sum as representing the annual yield as may be reasonable, and the sum so fixed shall be
deemed to be the annual value of the right of enjoyment of such property: Provided further that where
the property which is subject to any such interest consists of books, pictures, statuary or other objects of
art, the annual value of the right of enjoyment thereof shall for the purposes of paragraph (b) of subsec-
tion (1) be deemed to be the average net receipts (if any) derived by the person entitled to such right of
enjoyment of such property during the three years immediately preceding the date of death of the
deceased.
[Sub-s. (2) amended by s. 7 (1) (g) of Act No. 114 of 1977, by s. 2 of Act No. 136 of 1991, by s. 1 (e) of
Act No. 19 of 2001 and by s. 12 (1) (b) of Act No. 60 of 2001 with effect from 27 July, 2001.]
(3) Where for the purposes of subsection (1) any calculation is required to be made over the expecta-
tion of life of any person, such calculation shall, in the case of a person who is not a natural person, be
made over a period of fifty years.
(4) Whenever the value of any property included in the estate of a deceased is reduced as a result of
the continuance after the death of that person of any right (other than a fiduciary, usufructuary or other
like interest) to the use or occupation of property for no consideration or for a consideration which in the
opinion of the Commissioner is not an adequate consideration, the value of such property shall for the
purposes of subsection (1) be determined as though the said right had not been granted.
[Sub-s. (4) added by s. 3 (b) of Act No. 59 of 1957 and substituted by s. 12 (1) (b) of Act No. 87 of 1988.]
(5) For the purposes of subsection (1) (f)bis, the term “shares” includes any members’ interests or
any class of shares, stock, debenture stock, debentures or right to purchase members’ interests or to
subscribe for or purchase shares, stocks or debentures, and the term “company” includes any company or
close corporation incorporated in the Republic or elsewhere.
[S. 5 amended by s. 12 (1) (a) of Act No. 60 of 2001 with effect from 27 July, 2001. Sub-s. (5) inserted
by s. 4 (e) of Act No. 65 of 1960, amended by s. 10 (d) of Act No. 71 of 1961 and substituted by s. 9 (c)
of Act No. 97 of 1993.]
6. Administration of Act.—(1) The Commissioner shall be responsible for the administration of this
Act.
(2) The powers conferred and the duties imposed upon the Commissioner by this Act may be exer-
cised or performed by the Commissioner or by any SARS official under the control, direction or supervi-
sion of the Commissioner.
[Sub-s. (2) substituted by s. 271 read with para. 13 (a) of Sch. 1 of Act No. 28 of 2011.]
(3) Administrative requirements and procedures for purposes of the performance of any duty, power
or obligation or the exercise of any right in terms of this Act are, to the extent not regulated in this Act,
regulated by the Tax Administration Act.
[Sub-s. (3) substituted by s. 271 read with para. 13 (b) of Sch. 1 of Act No. 28 of 2011.]
7. Rendering of returns.—(1) Every executor or, if he or she is called upon by the Commissioner to do
so, any person having the control of or any interest in any property included in the estate, shall submit to
the Commissioner a return disclosing the amount claimed by the person submitting the return to repre-
sent the dutiable amount of the estate together with full particulars regarding—
(a) the property of the deceased as at the date of his death;
(b) property which, in accordance with subsection (3) of section three, is deemed to be property of
the deceased as at that date;
(c) any deduction claimed in terms of section four.
[Sub-s. (1) amended by s. 271 read with para. 14 (a) of Sch. 1 of Act No. 28 of 2011.]
(2) . . . . . .
[Sub-s. (2) deleted by s. 271 read with para. 14 (b) of Sch. 1 of Act No. 28 of 2011.]
8. . . . . . .
[S. 8 amended by s. 4 of Act No. 59 of 1957, by s. 2 (1) of Act No. 32 of 2005, by s. 12 of Act No. 77 of
1962 and repealed by s. 271 read with para. 15 of Sch. 1 of Act No. 28 of 2011.]
8bis. . . . . . .
[S. 8bis inserted by s. 13 of Act No. 77 of 1962 and repealed by s. 7 of Act No. 46 of 1996.]
8A. . . . . . .
[S. 8A inserted by s. 7 of Act No. 46 of 1996, amended by s. 15 of Act No. 30 of 1998, s. 13 of Act No.
60 of 2001, s. 10 of Act No. 45 of 2003 and repealed by s. 271 read with para. 15 of Sch. 1 of Act No.
28 of 2011.]
8B. . . . . . .
[S. 8B inserted by s. 7 of Act No. 46 of 1996 and repealed by s. 271 read with para. 15 of Sch. 1 of Act
No. 28 of 2011.]
8C. . . . . . .
[S. 8C inserted by s. 7 of Act No. 46 of 1996 and repealed by s. 271 read with para. 15 of Sch. 1 of Act
No. 28 of 2011.]
8D. . . . . . .
[S. 8D inserted by s. 7 of Act No. 46 of 1996, amended by s. 9 of Act No. 30 of 2000 and repealed by s.
271 read with para. 15 of Sch. 1 of Act No. 28 of 2011.]
8E. . . . . . .
[S. 8E inserted by s. 7 of Act No. 46 of 1996, amended by s. 16 of Act No. 30 of 1998 and repealed by
s. 271 read with para. 15 of Sch. 1 of Act No. 28 of 2011.]
9. Assessment of duty by Commissioner.—(1) The Commissioner shall assess the duty payable under
this Act and shall in respect of every estate liable for the duty issue a notice of assessment to the executor
or, if there is no executor, to any person liable for the duty.
(1A) If the Commissioner, prior to the issue of a notice of assessment in terms of subsection (1)—
(a) is dissatisfied with any value at which any property is shown in any return; or
(b) is of the opinion that the amount claimed to represent the dutiable amount as disclosed in any
return, does not represent the correct dutiable amount,
the Commissioner shall adjust such value or amount and determine the dutiable amount upon which such
assessment shall be raised accordingly.
[Sub-s. (1A) inserted by s. 271 read with para. 16 (a) of Sch. 1 of Act No. 28 of 2011.]
(2) . . . . . .
[Sub-s. (2) deleted by s. 271 read with para. 16 (b) of Sch. 1 of Act No. 28 of 2011.]
(3) A notice of assessment shall be issued in respect of each return submitted in respect of any estate
in which liability for duty, other than in respect of additional property contemplated in subsection (4) (c),
is disclosed, due regard being had in the calculation of the duty to any duty chargeable on any previous
returns submitted in respect of the same estate.
[Sub-s. (3) substituted by s. 1 (1) (a) of Act No. 61 of 2008 with effect from 1 January, 2009.]
(4) (a) Unless a notice of assessment has already been issued, a notice of assessment shall be
deemed to have been issued in terms of section 9 (3) in respect of the estate of every person—
(i) if the value of the estate does not exceed the amount determined by the Minister by notice in
the Gazette contemplated in section 18 (3) of the Administration of Estates Act, 1965 (Act No.
66 of 1965), on the date on which a death notice is given to a Master in terms of section 7 of
that Act; or
(ii) in every other case, on the date on which the estate has become distributable in terms of
section 35 (12) of the Administration of Estates Act, 1965 (Act No. 66 of 1965).
(b) If additional property is found in respect of an estate within five years from the date contem-
plated in subparagraph (i) or (ii) and a supplementary liquidation and distribution account is required in
terms of section 35 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), paragraph (a) shall not
apply and a notice of assessment shall be deemed to have been issued in terms of section 9 (3) in respect
of the estate on the date on which the supplementary liquidation and distribution account has become
distributable in terms of section 35 (12) of the Administration of Estates Act, 1965.
(c) If additional property is found in respect of an estate more than five years after the date con-
templated in subparagraph (i) or (ii) and a liquidation and distribution account is required in terms of
section 35 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), the additional property shall be
subject to an estate duty as if that property were the sole property of the estate of the deceased and as if
the death of the deceased occurred on the date on which the additional property was reflected in the
supplementary liquidation and distribution account.
[Sub-s. (4) added by s. 1 (1) (b) of Act No. 61 of 2008 with effect from 1 January, 2009.]
(5) An assessment contemplated in subsection (4) (a) and (b) is deemed to be an assessment by way
of self-assessment.
[Sub-s. (5) inserted by s. 271 read with para. 16 (c) of Sch. 1 of Act No. 28 of 2011.]
9A. . . . . . .
[S. 9A inserted by s. 7 of Act No. 86 of 1987, amended by s. 14 (1) of Act No. 60 of 2001, by s. 3 of Act
No. 18 of 2009 and repealed by s. 271 read with para. 17 of Sch. 1 of Act No. 28 of 2011.]
9B. . . . . . .
No. 28 of 2011.]
10. Payment of interest.—(1) If any duty remains unpaid at the expiration of a period of thirty days
from the date of payment notified in accordance with subsection (2) of section nine, there shall be
payable, in addition to the unpaid duty, interest at the rate of six per cent. per annum on the amount of
unpaid duty calculated from the date of the expiration of the said period to the date of payment: Pro-
vided that, where the assessment of duty is delayed beyond a period of twelve months from the date of
death, interest at the rate of six per cent. per annum shall be payable as from a date twelve months after
the date of death on the difference (if any) between the duty assessed and any deposit (if any) made on
account of the duty payable within the said period of twelve months.
(2) Whenever the Commissioner is satisfied that the delay in the payment of duty within the period
of thirty days from the date of payment notified in accordance with subsection (2) of section nine, or
within the period of twelve months from the date of death, as the case may be, has not been occasioned
either by the executor or by any person liable for the duty, he may allow an extension of time within
which the duty may be paid without interest if, before the expiration of the said period of thirty days or
the said period of twelve months, as the case may be or such further period as the Commissioner may
allow—
(a) a deposit on account of the duty payable is made of an amount which, in the opinion of the
Commissioner, is reasonable, regard being had to the amount of the duty payable; and
(b) application is made in writing to the Commissioner for such extension of time.
11. Person liable for duty.—The person liable for the duty shall be—
(a) where duty is levied on property of the deceased which falls under subsection (2) of section
three—
(i) as to any property referred to in paragraph (a) or (b) of that subsection, the person to
whom any advantage accrues by the death of the deceased;
(ii) as to any other property, the executor;
(b) where duty is levied on property which, in accordance with subsection (3) of section three, is
deemed to be property of the deceased—
(i) as to property referred to in paragraph (a) of that subsection, the executor: Provided
that where the amount due under the policy is recoverable by any person other than the
executor, the person liable for the duty shall be the person entitled to recover the
amount due under the policy;
(iA) . . . . . .
[Sub-para. (iA) inserted by s. 3 (1) of Act No. 56 of 1966 and deleted by s. 3 (1) of Act No. 15 of 2016
deemed to have come into operation on 1 January, 2009 and applicable in respect of the estate of a
person who dies on or after that date.]
(ii) as to any property referred to in paragraph (b) of that subsection, the donee;
[Sub-para. (ii) substituted by s. 13 (1) of Act No. 87 of 1988 and by s. 3 of Act No. 37 of 1995.]
(iii) as to any property referred to in paragraph (cA) or (d) of that subsection, the executor.
[Sub-para. (iii) substituted by section 3 of Act No. 37 of 1995.]
12. Duty payable by executor.—Notwithstanding anything to the contrary contained in section 11,
any duty payable under this Act shall be payable by and recoverable from the executor of the estate
subject to the duty, to the extent contemplated in Chapter 10 and 11 of the Tax Administration Act.
[S. 12 amended by s. 4 (1) of Act No. 18 of 2009 and substituted by s. 271 read with para. 19 of Sch. 1
of Act No. 28 of 2011.]
12A. . . . . . .
[S. 12A inserted by s. 1 of Act No. 21 of 2006 and repealed by s. 271 read with para. 20 of Sch. 1 of Act
No. 28 of 2011.]
12B. . . . . . .
No. 28 of 2011.]
13. Right of recovery by executor.—(1) Every executor who is required to pay duty in respect of any
property referred to in paragraph (a) (i), or in the proviso to paragraph (b) (i) or (b) (iA), or in paragraph
(b) (ii), of section 11, shall be entitled to recover from the person liable therefor the duty attributable to
such property.
[Sub-s. (1) substituted by s. 7 (1) (a) of Act No. 92 of 1971.]
(2) The duty attributable to any such property shall be a sum which bears to the full duty payable in
respect of the estate (before the deduction in accordance with the provisions of section 16 of any amount
in respect of transfer duty or donations tax) the same ratio as that portion of the net value of the estate
(as determined under section 4) which is attributable to the inclusion in the estate of the value of the said
property, bears to the net value of the estate as so determined, reduced, in any case in which there is, in
accordance with the said section 16, deducted from the duty payable in respect of the estate, any amount
of transfer duty or donations tax paid in respect of any property included in the estate which has accrued
to the person liable for the duty attributable to that property, by the amount of the transfer duty or
donations tax so paid.
[Sub-s. (2) substituted by s. 7 (1) (b) of Act No. 92 of 1971.]
(3) Whenever duty is in terms of section 11 (b) (i) payable by more than one person on the value of
any property referred to in section 3 (3) (a), the amount of duty payable by each such person shall be
such proportion of the total duty attributable to the total value of the said property, as bears to the said
total duty the same ratio as so much of the amount which such person is entitled to recover under any
policy as is included in the estate under section 3 (3) (a), bears to the total value of the said property.
[Sub-s. (3) substituted by s. 14 (1) of Act No. 87 of 1988.]
14. Right to mortgage property.—To provide for the payment of any duty, the person liable therefor
may, with the consent of the Master, borrow any moneys or mortgage any property in respect of which
the liability for duty arises, notwithstanding any provision to the contrary contained in any deed or
testamentary disposition or in any law.
15. Recovery of duty paid in certain cases.—Any person who has disposed of property in respect of
which a liability for duty in accordance with subparagraph (ii) of paragraph (b) of section eleven, thereaf-
ter arises, without having received full consideration therefor, may recover from the person to whom he
has disposed of such property the amount of duty payable by him in respect thereof.
16. Deduction of transfer duty and donations tax.—There shall be deducted from any duty payable
under this Act—
(a) any transfer duty which is proved to the satisfaction of the Commissioner to have been paid in
respect of the acquisition from the deceased or his estate of any property included in the es-
tate for the purposes of the assessment of duty, by any person liable for the duty attributable
to that property;
(b) . . . . . .
[Para. (b) amended by s. 11 of Act No. 77 of 1964 and deleted by s. 15 (1) of Act No. 87 of 1988.]
(c) without in any way modifying or adding to the rights of any person under an agreement
entered into by the Government of the Republic with the Government of any other country or
territory relating to the prevention of or relief from double taxation in respect of estate duty,
any amount of any death duties proved to the satisfaction of the Commissioner to have been
paid to any other State in respect of any property situate outside the Republic and included in
the estate of any person who at the date of his death was ordinarily resident in the Republic:
Provided that the deduction under this paragraph shall not exceed the duty imposed on such
property by this Act.
[Para. (c) added by s. 5 (c) of Act No. 65 of 1960.]
17. No account to be filed by Master before duty is paid or secured.—The Master shall not file any
liquidation and distribution account in his office or grant a discharge to any executor until he is satisfied
that the duty payable under this Act has been paid or secured to the satisfaction of the Commissioner or
that the Commissioner consents to the discharge.
18. No property to be delivered by executor before duty provided for.—Before delivering or trans-
ferring any property of the deceased to any heir or legatee the executor shall satisfy the Commissioner
that due provision has been made for the payment of any duty payable under this Act.
19. . . . . . .
[S. 19 repealed by s. 5 (1) of Act No. 18 of 2009 with effect from the date of promulgation of that Act:
30 September, 2009.]
20. Expenditure incurred by executor.—Every executor who is required to incur any expenditure in
respect of any property which falls under paragraph (a) or (b) of subsection (2) or under subsection (3) of
section three, shall be entitled to recover such expenditure from the person liable, in accordance with
section eleven, for the duty payable in respect of such property.
21 and 22. . . . . . .
[Ss. 21 and 22 repealed by s. 8 of Act No. 81 of 1985.]
23. . . . . . .
[S. 23 amended by s. 6 of Act No. 81 of 1965 (only in English), substituted by s. 10 of Act No. 30 of
23bis. . . . . . .
[S. 23bis inserted by s. 14 of Act No. 77 of 1962 and repealed by s. 271 read with para. 20 of Sch. 1 of
Act No. 28 of 2011.]
24. . . . . . .
[S. 24 amended by s. 17 of Act No. 59 of 1956, by s. 5 of Act No. 59 of 1957 and by s. 11 of Act No. 71
of 1961, substituted by s. 15 of Act No. 77 of 1962, amended by s. 12 of Act No. 77 of 1964, by s. 8 of
Act No. 86 of 1987, by s. 10 of Act No. 97 of 1993, by s. 2 of Act No. 104 of 1996, by s. 8 of Act No. 27
of 1997 and by s. 9 of Act No. 53 of 1999, substituted by s. 15 (1) of Act No. 60 of 2001, amended by
s. 11 of Act No. 45 of 2003, by s. 15 (1) of Act No. 60 of 2001 (as substituted by s. 68 (1) of Act No. 30
of 2002) and repealed by s. 271 read with para. 20 of Sch. 1 of Act No. 28 of 2011.]
25. . . . . . .
[S. 25 amended by s. 16 of Act No. 77 of 1962, by s. 9 of Act No. 86 of 1987, by s. 11 of Act No. 97 of
25A. . . . . . .
[S. 25A amended by s. 16 (1) of Act No. 60 of 2001, by s. 7 of Act No. 30 of 2002 and repealed by
s. 271 read with para. 20 of Sch. 1 of Act No. 28 of 2011.]
26. Prevention of, or relief from double taxation.—(1) The National Executive may enter into an
agreement with the Government of any other country, whereby arrangements are made with such
Government with a view to the prevention, mitigation or discontinuance of the levying, under the laws of
the Republic and of such other country, of estate duty in respect of the same property or to the rendering
of reciprocal assistance in the administration of, and in the collection of estate duty under the laws
relating to estate duty in force in the Republic and in such other country.
[Sub-s. (1) substituted by s. 9 (a) of Act No. 27 of 1997.]
(2) As soon as may be after the approval of Parliament of any such agreement, as contemplated in
section 231 of the Constitution, the arrangements thereby made shall be notified by publication in the
Gazette and the arrangements so notified shall thereupon have effect as if enacted in this Act.
[Sub-s. (2) amended by s. 13 of Act No. 77 of 1964 and substituted by s. 9 (a) of Act No. 27 of 1997.]
(3) . . . . . .
[Sub-s. (3) amended by s. 5 of Act No. 99 of 1981 and deleted by s. 9 (b) of Act No. 27 of 1997.]
(4) . . . . . .
[Sub-s. (4) deleted by s. 9 (b) of Act No. 27 of 1997.]
(5) . . . . . .
[Sub-s. (5) amended by s. 5 of Act No. 99 of 1981 and deleted by s. 9 (b) of Act No. 27 of 1997.]
27. . . . . . .
[S. 27 amended by s. 10 of Act No. 27 of 1997 and repealed by s. 271 read with para. 20 of Sch. 1 of
Act No. 28 of 2011.]
28. Offences.—(1) . . . . . .
[Sub-s. (1) amended by s. 7 (a) of Act No. 81 of 1965, by s. 11 (a) of Act No. 30 of 2000 and deleted by
s. 271 read with para. 21 (b) of Sch. 1 of Act No. 28 of 2011.]
(2) Any person who—

(a) . . . . . .
[Para. (a) deleted by s. 9 of Act No. 81 of 1985.]
(b) ......
[Para. (b) deleted by s. 271 read with para. 21 (c) of Sch. 1 of Act No. 28 of 2011.]
(b)bis . . . . . .
[Para. (b)bis inserted by s. 17 of Act No. 77 of 1962, substituted by s. 8 of Act No. 46 of 1996 and de-
leted by s. 271 read with para. 21 (c) of Sch. 1 of Act No. 28 of 2011.]
(c) fails to comply with any reasonable requirement of the Commissioner or Master made for the
purpose of carrying out any provision of this Act; or
(d) obstructs or hinders the Commissioner or Master in carrying out any provision of this Act,
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period
not exceeding two years.
[S. 28 amended by s. 271 read with para. 21 (a) of Sch. 1 of Act No. 28 of 2011. Sub-s. (2) amended by
s. 7 (b) of Act No. 81 of 1965, by s. 12 of Act No. 97 of 1993 and by s. 11 (b) of Act No. 30 of 2000.]
28A. . . . . . .
[S. 28A inserted by s. 17 (1) of Act No. 30 of 1998 and repealed by s. 271 read with para. 22 of Sch. 1
of Act No. 28 of 2011.]
29. Regulations.—The Minister of Finance may make regulations for the better carrying out of the
objects and purposes of this Act, including regulations as to the valuation of annuities or of fiduciary,
usufructuary or other limited interests in property and the hearing of an appeal under section 24.
[S. 29 substituted by s. 4 of Act No. 89 of 1972 and by s. 3 of Act No. 92 of 1983 and amended by s. 46
of Act No. 97 of 1986.]
30. . . . . . .
[S. 30 repealed by s. 271 read with para. 22 of Sch. 1 of Act No. 28 of 2011.]
31. Repeal of laws.—(1) The laws set out in the Second Schedule are hereby repealed to the extent
set out in the third column of the said Schedule: Provided that the said laws shall continue to apply in
relation to the estate of any person who died before the first day of April, 1955.
(2) Any agreement entered into and any proclamation issued under section thirty six bis of the Death
Duties Act, 1922 (Act No. 29 of 1922), and in force at the date of commencement of this Act, shall be
deemed to have been entered into or issued also under section twenty six of this Act.
32. Short title and date of commencement.—This Act shall be called the Estate Duty Act, 1955, and
shall be deemed to have come into operation on the first day of April, 1955.
First Schedule
RATE OF ESTATE DUTY
[First Schedule amended by s. 6 of Act No. 59 of 1957, by s. 12 of Act No. 71 of 1961 and by s. 14 (1)
of Act No. 77 of 1964, substituted by s. 8 of Act No. 81 of 1965, amended by s. 1 (1) of Act No. 75 of
1968, substituted by s. 9 (1) of Act No. 92 of 1971 and amended by s. 13 (1) of Act No. 106 of 1980, by
s. 3 (1) of Act No. 71 of 1986, by s. 16 (1) of Act No. 87 of 1988, by s. 11 (1) of Act No. 37 of 1996, by
s. 4 (1) of Act No. 5 of 2001 and by s. 4 of Act No. 15 of 2016.]
(1) The rate of estate duty shall be—
(a) 20 per cent of the dutiable amount of the estate; or
(b) a percentage of the dutiable amount of the estate as the Minister of Finance may announce in
the national annual budget contemplated in section 27 (1) of the Public Finance Management
Act, 1999 (Act No. 1 of 1999), with effect from a date mentioned in that announcement:
Provided that where duty becomes payable upon the value of any movable or immovable property or on
a value determined by reference to the value of any movable or immovable property, and duty has, upon
the death of any person (hereinafter referred to as the first-dying person), who died within ten years prior
to the death of the deceased, become payable upon the value of that movable or immovable property or
upon a value determined by reference to the value of that movable or immovable property (or any
movable or immovable property for which the Commissioner is satisfied that that movable or immovable
property has been substituted), the duty attributable to the value of that movable or immovable property
or, as the case may be, the value determined by reference to the value of that movable or immovable
property, but not exceeding (in either case) an amount equal to the value on which duty has become
payable on the death of the first-dying person, shall be reduced by a percentage according to the follow-
ing scale—
if the deceased dies within two years of the death of the first-dying person ..................................... 100 per cent
if the deceased dies more than two years, but not more than four years after the death of the first-
dying person ....................................................................................................................................... 80 per cent
if the deceased dies more than four years, but not more than six years after the death of the first-
if the deceased dies more than six years, but not more than eight years after the death of the first-
if the deceased dies more than eight years, but not more than ten years after the death of the
first-dying person ................................................................................................................................ 20 per cent
subject to a maximum reduction equal to so much of the duty previously payable upon the death of the
first-dying person as is attributable to the value of that movable or immovable property or, as the case
may be, to an amount equal to the value determined by reference to the value of that movable or
immovable property, and as is proved to the satisfaction of the Commissioner to have been borne by the
deceased.
(2) If the Minister of Finance makes an announcement contemplated in subparagraph 1 (b), that rate
comes into effect on the date determined by the Minister in that announcement and continues to apply
for a period of 12 months from that date subject to Parliament passing legislation giving effect to that
announcement within that period of 12 months.
Second Schedule
LAWS REPEALED
Number and Year of Law Title Extent of Repeal
Act No. 29 of 1922 Death Duties Act, 1922. The whole.
Act No. 31 of 1925 Death Duties Act, 1922, Amendment Act, 1925. The whole.
Act No. 34 of 1930 Financial Adjustments Act, 1930. Section ten.
Act No. 64 of 1934 Finance Act, 1934. Section ten.
Act No. 33 of 1939 Finance Act, 1939. Section twelve.
Act No. 23 of 1942 Death Duties Amendment Act, 1942. The whole.
Act No. 46 of 1945 Finance Act, 1945. Sections sixteen and seven-
teen.
Schedule 6
Extracts from regulations Table A and B

EXTRACTS FROM THE REGULATIONS MADE IN TERMS OF SECTION 29 OF THE ESTATE DUTY ACT, 1955
(ACT 45 OF 1955). VALUATION OF ANNUITIES OR OF FIDUCIARY, USUFRUCTUARY OR OTHER LIMITED
INTERESTS IN PROPERTY IN THE ESTATES OF DECEASED PERSONS-REGULATIONS UNDER THE ESTATE
DUTY ACT, 1955.
Calculations for the purposes of the valuation of annuities or of fiduciary, usufructuary or other limited
interests in property in the estate of any person who died or dies on or after 1 April 1977 shall be made in
accordance with the Tables subjoined hereto:
Table A
The expectation of life and the present value of R1 per annum for life capitalised at 12 per cent over the
expectation of life of males and females of various ages
Expectation of life Present value of R1 per annum for life

Age Male Female Male Female Age
0 64,74 72,36 8,327 91 8,331 05 0
1 65,37 72,74 8,328 28 8,331 14 1
2 64,50 71,87 8,327 76 8,330 91 2
3 63,57 70,93 8,327 14 8,330 64 3
4 62,63 69,97 8,326 44 8,330 33 4
5 61,69 69,02 8,325 67 8,329 99 5
6 60,74 68,06 8,324 80 8,329 61 6
7 59,78 67,09 8,323 81 8,329 18 7
8 58,81 66,11 8,322 71 8,328 69 8
9 57,83 65,14 8,321 46 8,328 15 9
10 56,85 64,15 8,320 07 8,327 53 10
11 55,86 63,16 8,318 49 8,326 84 11

12 54,87 62,18 8,316 73 8,326 08 12
13 53,90 61,19 8,314 80 8,325 22 13
14 52,93 60,21 8,312 65 8,324 27 14
15 51,98 59,23 8,310 29 8,323 20 15
16 51,04 58,26 8,307 70 8,322 03 16
17 50,12 57,29 8,304 89 8,320 71 17
18 49,21 56,33 8,301 80 8,319 26 18
19 48,31 55,37 8,298 41 8,317 64 19
20 47,42 54,41 8,294 71 8,315 84 20
21 46,53 53,45 8,290 61 8,313 83 21

22 45,65 52,50 8,286 13 8,311 61 22
23 44,77 51,54 8,281 17 8,309 12 23
24 43,88 50,58 8,275 64 8,306 33 24
25 43,00 49,63 8,269 59 8,303 26 25
26 42,10 48,67 8,262 74 8,299 81 26

27 41,20 47,71 8,255 16 8,295 95 27
28 40,30 46,76 8,246 77 8,291 71 28
29 39,39 45,81 8,237 37 8,286 97 29
30 38,48 44,86 8,226 94 8,281 70 30
31 37,57 43,91 8,215 38 8,275 83 31

32 36,66 42,96 8,202 57 8,269 30 32
33 35,75 42,02 8,188 36 8,262 10 33
34 34,84 41,07 8,172 62 8,254 00 34
35 33,94 40,13 8,155 36 8,245 09 35
36 33,05 39,19 8,136 47 8,235 17 36
37 32,16 38,26 8,115 58 8,224 26 37
38 31,28 37,32 8,092 74 8,211 99 38
39 30,41 36,40 8,067 81 8,198 66 39
40 29,54 35,48 8,040 30 8,183 86 40

41 28,69 34,57 8,010 67 8,167 62 41
42 27,85 33,67 7,978 44 8,149 83 42
43 27,02 32,77 7,943 44 8,130 12 43
44 26,20 31,89 7,905 47 8,108 81 44
45 25,38 31,01 7,863 80 8,085 27 45
46 24,58 30,14 7,819 24 8,059 56 46
47 23,79 29,27 7,771 09 8,031 19 47
48 23,00 28,41 7,718 43 8,000 26 48
49 22,23 27,55 7,662 36 7,966 17 49
50 21,47 26,71 7,602 01 7,929 50 50
51 20,72 25,88 7,537 13 7,889 67 51

52 19,98 25,06 7,467 48 7,846 46 52
53 19,26 24,25 7,393 87 7,799 65 53
54 18,56 23,44 7,316 31 7,748 34 54
55 17,86 22,65 7,232 34 7,693 55 55
56 17,18 21,86 7,144 14 7,633 63 56
57 16,52 21,08 7,051 78 7,568 96 57
58 15,86 20,31 6,952 25 7,499 27 58
59 15,23 19,54 6,850 04 7,423 21 59
60 14,61 18,78 6,742 06 7,341 35 60
61 14,01 18,04 6,630 10 7,254 57 61

62 13,42 17,30 6,512 32 7,160 20 62
63 12,86 16,58 6,393 01 7,060 46 63
64 12,31 15,88 6,268 22 6,955 37 64
65 11,77 15,18 6,137 89 6,841 61 65
66 11,26 14,51 6,007 26 6,723 93 66
67 10,76 13,85 5,871 65 6,598 93 67
68 10,28 13,20 5,734 03 6,466 35 68
69 9,81 12,57 5,591 82 6,328 18 69

70 9,37 11,96 5,451 65 6,184 66 70
71 8,94 11,37 5,307 75 6,036 07 71
72 8,54 10,80 5,167 44 5,882 78 72
73 8,15 10,24 5,024 37 5,722 22 73
74 7,77 9,70 4,878 76 5,557 43 74
75 7,41 9,18 4,734 90 5,388 93 75
76 7,07 8,68 4,593 54 5,217 27 76
77 6,73 8,21 4,446 63 5,046 79 77
78 6,41 7,75 4,303 09 4,870 92 78
79 6,10 7,31 4,158 98 4,693 89 79
80 5,82 6,89 4,024 40 4,516 47 80
81 5,55 6,50 3,890 51 4,343 99 81

82 5,31 6,13 3,768 02 4,173 15 82
83 5,09 5,78 3,652 76 4,004 82 83
84 4,89 5,45 3,545 46 3,839 88 84
85 4,72 5,14 3,452 32 3,679 21 85
86 4,57 4,85 3,368 64 3,523 71 86
87 4,45 4,58 3,300 66 3,374 26 87
88 4,36 4,33 3,249 07 3,231 75 88
89 4,32 4,11 3,225 97 3,102 96 89
90 4,30 3,92 3,214 38 2,989 12 90
N.B. – The age is to be taken as at the next birthday after the date when the right is acquired. Example –
Find the present value of an annuity of usufruct of R100 per annum for life of: (A) a female who becomes
entitled thereto at the age of 42 years 3 months, or (B) a male who becomes entitled thereto at the age of
65 years 9 months.
(A) (B)
Age when acquired 42 years 65 years
Age next birthday 3 months 9 months
Present value of R1 per annum for life 43 years 66 years
Therefore present value of R100 per R8,130 12 R6,007 26
annum for life equals R813,01 R600,73
Table B
Present value of R1 per annum capitalised at 12 per cent over fixed periods
Years Amount Years Amount Years Amount Years Amount
R R R R
1 0,892 9 26 7,895 7 51 8,307 6 76 8,331 8
2 1,690 0 27 7,942 6 52 8,310 4 77 8,332 0
3 2,401 8 28 7,984 4 53 8,312 8 78 8,332 1
4 3,037 4 29 8,021 8 54 8,315 0 79 8,332 3
5 3,604 8 30 8,055 2 55 8,317 0 80 8,332 4
6 4,111 4 31 8,085 0 56 8,318 7 81 8,332 5
7 4,563 8 32 8,111 6 57 8,320 3 82 8,332 6
8 4,967 6 33 8,135 4 58 8,321 7 83 8,332 6
9 5,328 2 34 8,156 6 59 8,322 9 84 8,332 7
10 5,650 2 35 8,175 5 60 8,324 0 85 8,332 8
11 5,937 7 36 8,192 4 61 8,325 0 86 8,332 8

12 6,194 4 37 8,207 5 62 8,325 9 87 8,332 9
13 6,423 6 38 8,221 0 63 8,326 7 88 8,333 0
14 6,628 2 39 8,233 0 64 8,327 4 89 8,333 0
15 6,810 9 40 8,243 8 65 8,328 1 90 8,333 0
16 6,974 0 41 8,253 4 66 8,328 6 91 8,333 1
17 7,119 6 42 8,261 9 67 8,329 1 92 8,333 1
18 7,249 7 43 8,269 6 68 8,329 6 93 8,333 1
19 7,365 8 44 8,276 4 69 8,330 0 94 8,333 1
20 7,469 4 45 8,282 5 70 8,330 3 95 8,333 2
21 7,562 0 46 8,288 0 71 8,330 7 96 8,333 2

22 7,644 6 47 8,292 8 72 8,331 0 97 8,333 2
23 7,718 4 48 8,297 2 73 8,331 2 98 8,333 2
24 7,784 3 49 8,301 0 74 8,331 4 99 8,333 2
25 7,843 1 50 8,304 5 75 8,331 6 100 8,333 2
N.B – Fractions of a year are to be disregarded when using this table.

Example – Testator, who died on 1 April 1977 left to (A) an annuity or usufruct value R100 per annum, to
terminate when (A) attains majority, which will occur, say at 30 September 1987. This period is found to
be 10 years 6 months, but is taken as 10 years.
Present value of R1 for 10 years = R5,650 2
Therefore present value of R100 per annum for 10 years = R565,02
Schedule 7
Consumer Price Index
Table B – CPI headline

Table B1 – CPI headline index numbers1 (Dec 2016 = 100)
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Average
1980 5,0 5,1 5,1 5,1 5,2 5,3 5,4 5,4 5,5 5,7 5,7 5,8 5,4
1981 5,8 5,9 5,9 5,9 6,0 6,1 6,2 6,3 6,5 6,5 6,6 6,6 6,2
1982 6,6 6,7 6,9 6,9 7,0 7,0 7,1 7,2 7,3 7,4 7,5 7,5 7,1
1983 7,5 7,7 7,7 7,8 7,9 7,9 8,0 8,1 8,1 8,2 8,3 8,3 8,0
1984 8,4 8,4 8,5 8,7 8,8 8,8 8,9 9,0 9,1 9,2 9,3 9,4 8,9
1985 9,5 9,8 9,8 10,1 10,2 10,3 10,3 10,5 10,6 10,7 10,9 11,1 10,3
1986 11,4 11,5 11,7 11,9 11,9 12,1 12,3 12,5 12,7 12,9 13,0 13,1 12,3
1987 13,3 13,5 13,7 13,9 14,0 14,1 14,2 14,4 14,7 14,8 15,0 15,1 14,2
1988 15,2 15,2 15,5 15,6 15,8 15,9 16,1 16,3 16,5 16,7 16,8 17,0 16,1
1989 17,2 17,4 17,7 17,9 18,2 18,3 18,5 18,8 18,9 19,1 19,3 19,6 18,4
1990 19,8 20,0 20,3 20,4 20,7 20,8 21,0 21,3 21,6 21,8 22,3 22,4 21,0
1991 22,7 23,0 23,1 23,5 23,8 24,0 24,3 24,6 25,0 25,4 25,7 26,0 24,3
1992 26,4 26,6 26,8 27,2 27,3 27,6 27,9 28,2 28,3 28,4 28,6 28,6 27,7
1993 28,9 29,0 29,4 30,1 30,2 30,4 30,6 30,8 30,9 31,1 31,2 31,3 30,3
1994 31,7 31,8 32,0 32,2 32,4 32,6 33,1 33,6 34,0 34,2 34,3 34,3 33,0
1995 34,8 35,0 35,4 35,8 35,9 35,9 36,1 36,2 36,2 36,3 36,5 36,7 35,9
1996 37,2 37,3 37,5 37,8 38,0 38,4 38,7 38,8 39,2 39,6 39,8 40,2 38,5
1997 40,6 40,9 41,1 41,5 41,7 41,8 42,2 42,2 42,5 42,6 42,5 42,6 41,9
1998 43,0 43,1 43,4 43,6 43,8 44,0 45,0 45,5 46,3 46,5 46,5 46,5 44,8
1999 46,8 46,8 46,8 46,9 46,9 47,1 47,1 47,0 47,1 47,3 47,4 47,5 47,1
2000 48,1 47,9 48,4 49,0 49,3 49,6 50,0 50,2 50,4 50,6 50,7 50,8 49,6
2001 51,5 51,6 51,9 52,2 52,4 52,6 52,6 52,5 52,6 52,6 52,9 53,1 52,4
2002 54,1 54,6 55,2 56,0 56,4 56,8 57,7 57,9 58,6 59,4 59,7 59,7 57,2
2003 60,3 60,2 60,9 61,0 60,9 60,7 60,7 60,9 60,7 60,3 59,9 59,9 60,5
2004 60,4 60,7 61,1 61,2 61,2 61,4 61,6 61,6 61,6 61,8 62,1 62,0 61,4
2005 4,0 4,1 4,1 4,1 4,2 4,3 4,3 4,3 4,4 4,6 4,6 4,7 4,3
2006 4,7 4,7 4,7 4,7 4,8 4,9 5,0 5,1 5,2 5,2 5,3 5,3 5,0
2007 5,3 5,4 5,5 5,5 5,6 5,6 5,7 5,8 5,9 5,9 6,0 6,0 5,7
___________
1 Primary urban areas up to and including December 2008. All urban areas from January 2009. The
series were linked so as to provide a continuous index.
2008 6,0 6,2 6,2 6,3 6,3 6,3 6,4 6,5 6,5 6,6 6,7 6,7 6,4
20092 6,7 6,7 6,8 7,0 7,1 7,1 7,1 7,2 7,3 7,4 7,5 7,5 7,1
2010 7,6 7,9 7,9 8,1 8,2 8,3 8,3 8,4 8,5 8,6 8,7 8,9 8,3
2011 9,1 9,2 9,4 9,5 9,5 9,7 9,9 10,0 10,2 10,3 10,4 10,5 9,8
2012 10,7 10,8 11,0 11,1 11,2 11,3 11,4 11,5 11,8 11,9 12,0 12,1 11,4
2013 12,2 12,2 12,4 12,5 12,7 12,8 12,9 13,1 13,2 13,4 13,5 13,6 12,9
2014 13,8 14,0 14,2 14,4 14,6 14,7 14,8 15,1 15,2 15,3 15,5 15,7 14,8
2015 88,9 89,4 90,7 91,5 91,7 92,1 93,1 93,1 93,1 93,3 93,4 93,7 92,0
2016 94,4 95,7 96,4 97,2 97,4 97,9 98,7 98,6 98,8 99,3 99,6 100,0 97,8
2017 100,6 101,7 102,3 102,4 102,7 102,9 103.2 103.3 103.8 104.1
___________
2 Substantial changes were made to the compilation of the CPI in January 2009. Documentation is
available on the Stats SA Website.
Table B2 – CPI headline year-on-year rates3
1946 1,0 1,7 2,0 2,0 1,5 1,7 0,4 0,9 1,1 1,4 1,9 2,0 1,4
1947 1,9 2,7 3,0 3,3 3,9 4,4 5,5 5,6 5,6 4,9 4,3 4,7 4,2
1948 4,8 3,8 4,3 4,2 4,9 5,2 6,6 6,3 7,3 7,8 7,6 6,3 5,8
1949 6,6 6,5 5,2 5,4 5,1 4,2 2,1 2,6 1,6 1,0 1,5 2,7 3,7
1950 2,4 2,5 2,9 2,8 3,2 4,1 4,3 3,5 3,5 5,7 5,8 7,1 4,0
1951 7,0 7,0 7,1 7,4 7,0 6,6 7,8 8,4 8,4 6,3 6,7 8,7 7,3
1952 9,7 9,3 8,7 8,4 7,7 7,9 7,1 7,7 10,4 11,0 10,4 6,2 8,7
1953 4,4 3,8 4,0 3,8 3,9 4,6 4,5 5,7 3,3 2,6 1,1 0,7 3,5
1954 1,8 2,2 2,4 2,6 2,1 1,0 1,2 -0,3 1,0 1,3 3,0 4,0 1,8
1955 3,6 3,8 4,0 3,5 3,1 3,1 3,9 3,2 2,5 3,0 2,1 1,9 3,2
1956 1,7 2,0 1,6 2,0 2,5 2,4 2,2 1,9 1,5 1,2 1,8 1,9 1,9
1957 2,5 2,0 1,9 1,5 1,8 1,8 2,0 4,8 4,9 4,7 3,9 3,8 3,0
1958 4,0 3,9 4,2 4,6 4,3 4,2 4,4 2,7 2,0 2,0 2,7 3,1 3,5
1959 2,3 1,9 1,8 1,4 1,5 1,6 0,6 0,3 0,5 0,6 0,8 0,7 1,2
1960 0,8 1,1 1,0 1,4 1,4 1,3 1,6 1,8 1,5 1,4 1,3 1,6 1,4
1961 1,6 1,6 1,7 1,7 2,0 1,8 1,9 2,0 2,2 2,2 2,4 2,0 1,9
1962 1,6 1,4 1,5 1,6 1,8 1,6 1,8 1,3 1,4 1,3 1,2 1,0 1,5
1963 1,9 1,8 1,6 1,1 0,4 0,7 0,7 1,6 1,5 1,5 1,1 1,5 1,2
1964 0,9 1,2 1,6 2,1 2,1 2,3 2,8 2,5 3,1 3,2 4,0 4,1 2,4
1965 4,0 4,0 3,9 3,9 4,1 4,0 4,2 3,8 2,8 3,2 2,9 2,9 3,6
1966 3,3 3,6 3,2 3,4 3,0 3,3 2,7 3,0 4,5 4,3 4,6 4,3 3,6
1967 4,0 3,9 3,9 3,8 4,2 4,0 3,9 4,3 2,9 2,3 1,7 1,8 3,4
1968 1,7 1,8 1,7 1,5 1,3 1,1 1,5 1,2 1,7 2,0 2,7 2,7 1,7
1969 2,8 2,5 2,8 2,9 3,4 3,2 2,6 2,0 2,0 3,9 3,5 3,7 3,0
1970 3,6 3,9 4,1 5,6 5,4 5,8 6,1 6,4 6,6 5,3 5,1 5,0 5,3
1971 5,4 5,2 5,4 5,2 5,7 6,1 6,3 6,3 6,3 6,5 6,8 6,9 6,0
1972 6,7 7,0 6,7 5,5 5,7 5,4 5,7 6,4 7,2 7,3 7,0 7,3 6,5
1973 8,3 8,9 9,9 10,2 9,9 10,0 9,8 9,3 8,9 9,3 10,2 10,0 9,5
1974 8,9 9,4 9,7 9,6 9,7 11,2 12,0 13,2 13,8 13,6 13,6 14,1 11,6
1975 15,2 14,7 13,7 14,6 14,8 14,2 13,7 13,0 12,2 12,2 12,3 11,7 13,5
1976 11,4 10,9 11,5 11,3 11,6 11,1 10,9 11,2 11,4 11,1 10,4 10,8 11,1
___________
3 Rates shown in Table B2 show the official inflation rates as published in the monthly CPI release.
Differences due to rounding off may occur when using the rebased indices in Table B1 to calculate
the rates of change.
1977 10,7 11,9 11,8 11,5 11,1 11,0 11,3 11,3 11,3 11,2 11,4 11,1 11,3
1978 11,3 10,6 9,9 9,7 9,5 9,2 12,5 11,7 11,7 11,7 11,5 11,6 10,9
1979 11,6 11,3 12,6 12,8 12,8 13,5 12,9 13,9 14,3 14,2 14,2 14,0 13,2
1980 13,8 14,3 13,1 13,4 14,1 14,6 12,2 11,9 12,8 14,4 14,9 15,8 13,8
1981 15,5 16,0 16,2 15,5 15,0 14,5 15,5 16,1 15,6 14,5 14,4 13,9 15,2
1982 13,9 13,6 15,4 16,5 16,5 16,1 14,4 13,8 14,1 14,3 14,2 13,8 14,7
1983 14,4 14,9 13,6 12,6 12,8 12,4 12,1 12,2 10,9 10,7 10,6 11,0 12,4
1984 10,3 10,0 10,2 11,0 11,0 11,7 12,4 11,8 12,2 12,5 13,3 13,3 11,6
1985 13,3 16,0 15,1 15,8 16,1 16,4 15,9 16,4 16,6 16,8 16,9 18,4 16,1
1986 20,7 18,1 18,9 18,6 17,5 16,9 18,2 18,7 19,7 19,2 19,2 18,1 18,7
1987 16,1 16,3 16,8 16,2 17,3 17,2 16,3 16,3 15,8 15,8 15,0 14,7 16,1
1988 14,2 13,7 13,4 13,3 12,9 12,4 12,4 12,3 12,4 12,3 12,4 12,5 12,9
1989 13,3 13,5 13,8 14,0 14,9 15,7 13,5 15,5 14,9 14,8 14,9 15,3 14,7
1990 15,1 14,9 14,9 14,6 13,9 13,6 13,3 13,6 14,3 14,0 15,3 14,6 14,4
1991 14,3 15,0 15,7 15,6 15,2 15,2 15,8 15,6 15,4 16,8 15,5 16,2 15,3
1992 15,8 15,8 15,7 15,6 14,8 15,1 14,6 14,3 13,5 11,7 11,0 9,6 13,9
1993 9,7 9,0 9,7 11,0 10,6 10,0 9,9 9,3 9,1 9,4 9,2 9,5 9,7
1994 9,9 9,9 9,0 7,1 7,2 7,5 8,2 9,4 10,1 9,8 9,9 9,9 9,0
1995 9,6 9,9 10,2 11,0 10,8 10,0 9,0 7,5 6,4 6,3 6,4 6,9 8,7
1996 6,9 6,5 6,3 5,5 5,9 6,9 7,1 7,5 8,4 9,1 9,2 9,4 7,4
1997 9,4 9,8 9,6 9,9 9,5 8,8 9,1 8,7 8,0 7,5 6,8 6,1 8,6
1998 5,6 5,4 5,4 5,0 5,1 5,2 6,6 7,6 9,1 9,0 9,4 9,0 6,9
1999 8,9 8,6 7,9 7,7 7,1 7,3 4,9 3,2 1,9 1,7 1,9 2,2 5,1
2000 2,6 2,4 3,4 4,6 5,1 5,1 5,9 6,8 6,8 7,1 7,1 7,0 5,3
2001 7,1 7,8 7,4 6,5 6,4 6,3 5,3 4,6 4,4 4,0 4,3 4,6 5,7
2002 5,0 5,9 6,2 7,4 7,8 8,0 9,6 10,4 11,2 13,0 12,9 12,4 9,2
2003 11,6 10,3 10,2 8,8 7,8 6,7 5,2 5,1 3,7 1,5 0,4 0,3 5,8
2004 0,2 0,7 0,4 0,2 0,6 1,2 1,6 1,0 1,3 2,4 3,7 3,4 1,4
2005 3,0 2,6 3,0 3,4 3,3 2,8 3,4 3,9 4,4 4,0 3,4 3,6 3,4
2006 4,0 3,9 3,4 3,3 3,9 4,9 5,0 5,4 5,3 5,4 5,4 5,8 4,7
2007 6,0 5,7 6,1 7,0 6,9 7,0 7,0 6,7 7,2 7,9 8,4 9,0 7,1
2008 9,3 9,8 10,6 11,1 11,7 12,2 13,4 13,7 13,1 12,1 11,8 9,5 11,5
20094 8,1 8,6 8,5 8,4 8,0 6,9 6,7 6,4 6,1 5,9 5,8 6,3 7,1
2010 6,2 5,7 5,1 4,8 4,6 4,1 3,7 3,5 3,2 3,4 3,6 3,5 4,3
___________
4 Rates shown in Table B2 show the official inflation rates as published in the monthly CPI release.
Differences due to rounding off may occur when using the rebased indices in Table B1 to calculate
the rates of change.
2011 3,7 3,7 4,1 4,2 4,6 5,0 5,3 5,3 5,7 6,0 6,1 6,1 5,0
2012 6,3 6,1 6,0 6,1 5,7 5,5 4,9 5,0 5,5 5,6 5,6 5,7 5,6
2013 5,4 5,9 5,9 5,9 5,6 5,5 6,3 6,4 6,0 5,5 5,3 5,4 5,7
2014 5,8 5,9 6,0 6,1 6,6 6,6 6,3 6,4 5,9 5,9 5,8 5,3 6,1
2015 4,4 3,9 4,0 4,5 4,6 4,7 5,0 4,6 4,6 4,7 4,8 5,2 4,6
2016 6,2 7,0 6,3 6,2 6,1 6,3 6,0 5,9 6,1 6,4 6,6 6.8 6.4
2017 6,6 6,3 6,1 5,3 5,4 5,1 4,6 4,8 5,1 4,8
Examples of documents
Schedule 8
Death notice
J294
(81/816066)
REPUBLIC OF SOUTH AFRICA
DEATH NOTICE
(In terms of section 7 of the Administration of Estates Act, 1965)
1. Surname of deceased Burger

…………………………………………………………………………………………………………………..
Jan Albert
2. Full first names …………………………………………………………………………………………………………………..
3. ID/Passport number 3 9 1 1 1 9 0 2 4 7 0 8 6
White RSA Citizen
4. Population group ………………………………………………….. 5. Nationality ………………………………………….
Pensioner
6. Occupation ……………………………………………………………………………………………………….…………..
Gauteng
7. Ordinary place(s) of residence during the 12 months prior to death and the Province(s) ……………………………………………………
1 9 3 9 1 1 1 9 Pretoria
8. Date of birth 9. Place of birth ………………………………………………
10. Date of death 2 0 1 4 1 0 0 4

Yes Married
11.Has the deceased left a will? …………………………………. 12. Marital status at time of death …………………………………
Vrede
13. If married, place where married ……………………………………………………………………………………………………………..
14. Full names of surviving spouse Hendrika Burger

……………………………………………………………………………………………………………..
380231 0029 08 3
and his/her ID/Passport number ……………………………………………………………………………………………………………..
15. State whether marriage was in or out of community of property/whether accrual system is applicable.
Out of community with the accrual system
…………………………………………………………………………………………………………………………………………………………
(a) Name(s) of predeceased spouse(s) and/or divorced spouse(s) (state opposite name of each whether predeceased or divorced)
N/a
…………………………………………………………………………………………………………………………………………………………
N/a
(b) Date of death of predeceased spouse(s) ……………………………………………………………………………………………………
16. Master's office(s) where predeceased’s estate(s) is/are registered and number(s) of estate(s), if available
N/a
…………………………………………………………………………………………………………………………………………………………
17. Full names of children of deceased (state whether major or minor or predeceased and in the latter event, whether they left issue and,
if that be the case, the full names of such issue)
Hendrik Jacobus Burger (major)
…………………………………………………………………………………………………………………………………………………………
Elzie Welch (major)
…………………………………………………………………………………………………………………………………………………………
18. Names of parents of deceased (state whether parents alive or deceased):

Hendrik Jacobus Burger (deceased)
(a) Father …………………………………………………………………………………………………………………………………………..
Lena Maria Burger (deceased)
(b) Mother ………………………………………………………………………………………………………………………………………….
Hendrika Burger
19. Name and address of person signing the death notice ………………………………………………………………………………………
Surviving spouse
20. *Capacity ……………………………………………………………………………………………………………………………………..
Yes
21. (a) Was the signatory present at the deceased's death? ………………………………………………………………………………………
(b) If the answer to the previous question is no, did the signatory identify the deceased after his death?..............................................
Pretoria 15 October 2014

Dated at ....................................................................... the ..................... day of ................................................... in the year ..................
.............................................................................................. ..............................................................................................
Print Name Signature
* State whether signatory is surviving spouse, nearest blood relative or connection residing in the district in which death has taken place; or is
caused by such spouse, blood relative or connection to give this notice; or is required by the Master to submit this death notice.
If the answer to both questions is no, a death certificate or a certified copy must be submitted herewith.
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
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INVENTORY
In terms of section *9 (1) (a)/9 (2) (a)/9 (2) (b)/27/78 of the Administration of Estates Act, 1965.
Attention is directed to the provisions of section 102 (1) (b) of the Act which provides that any person who wiífully makes any false inventory under the Act shal!
be guilty of an offence and liable on conviction to a fine not exceeding R1 000 or to imprisonment for a period not exceeding five years or to both such fine and
such imprisonment.
Jan Albert Burger
* Full name of deceased …...........................................................................................................................................................................
Full name of surviving spouse (in a case where spouses were married in community of property)
Not applicable
......................................................................................................................................................................................................................
Address of surviving spouse

174 Marias Street, Brooklyn, Pretoria
………...........................................................................................................................................................................................................
Not applicable
Massed estate of …......................................................................................................................................................................................
of/or
* Full name(s) of minor(s) under tutorship or person in respect of whose property letters of curatorship have been granted:
Not applicable
......................................................................................................................................................................................................................
Not applicable
Full address ….............................................................................................................................................................................................
Hendrika Burger
l(full name) ...................................................................................................................................................................................................
174 Marias Street, Brooklyn, Pretoria
of (full address) …........................................................................................................................................................................................
Executor
in my capacity as..........................................................................................................................................................................................
hereby declare that to the best of my knowledge and belief the with-in mentioned is a true and correct inventory—
* (a) of all property known to me to have belonged, at the time of death, to the *above-named deceased/joint estate of the above-
named deceased and surviving spouse/above-named massed estate;
* (b) of all property known to me to have been in the possession of the above-named deceased upon the premises at
………………………………………………………..............................................................................................at the time of *his/her death;
* (c) showing the value of all property in the above-named estate;
* (d) of all the property taken care of or administered by me.
Pretoria
…………………………………
2014.12.08
…………………………………… …...……………………………..
Place Date Signature
H Burger
…...……………………………..
Print Name and Surname
Names and addresses of persons having an interest in the estate as heirs in whose presence this inventory was made. (To be
furnished in the case of an inventory under section 9 of the Act):
Not applicable
.......................................................................................................................................................................................................................
.......................................................................................................................................................................................................................
.......................................................................................................................................................................................................................
* Delete which is not applicable

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1. Immovable property
Description of property according to the title deed (also state number and date Value
thereof) R c
The remaining property of erf 412, Heroldsbay 1,300,000.00
Transport deed number: T25100/84
Date of deed: 15.05.1984
Section 2 of the farm Buffelsvlei, Aliwal North 1,400,000.00

Transport deed number: T36415/87
Date of deed: 28.11.1987
Total …….. R 2,700,000.00

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2. Movable property
Description Value
R c
2005 Renault Scenic 1.6 140,000.00
Furniture and household belongings 80,000.00
Rossi .38 revolver 20,000.00
Total …….. R 240,000.00
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 3

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3. Claims in favour of estate
Description Value
R c
ABSA - current account balance 2,075.00
ABSA - savings account balance 10,000.00
ABSA - fixed deposit account balance 100,000.00
Old Mutual Unit trusts 75,000.00
Old Mutual Policy 60,000.00
Loan - E Wiech 20,000.00
Total …….. R 267,075.00
R c
SUMMARY
2,700,000.00
1. Immovable property ………………………………………………………………………. ……………… …………
240,000.00
2. Movable property ………………………………………………..………………………… ……………… …………
3. Claims in favour of estate ………………………………………………………..…….... 267,075.00

……………… …………
Total ……… R 3,207,075.00

Schedule 10
Acceptance of trust as executor

J190
Complete in duplicate
ACCEPTANCE OF TRUST AS EXECUTOR
13114/14
Estate No. .............................................................................
A. Hendrika Burger
l/We (full names and surname) .………………………..…….……………………………………………………………………………..
Residential address.............................................................. Business address…....................................................................
174 Marias Street 174 Marais Street
.............................................................................................. …................................................................................................
Brooklyn Brooklyn
.............................................................................................. …................................................................................................
Pretoria Pretoria
.............................................................................................. …................................................................................................
012 460 1234
Telephone number(s) ................................................... 012 460 1234
Telephone number(s) ......................................................................
................................................... ....................................................................
Surviving spouse
Relationship to deceased...............................................................................................................................................................
hereby apply for appointment as Executor in the estate of:
Jan Albert Burger
Full names and surname................................................................................................................................................................
19 November 1939
Date of birth ....................................................................... 4 October 2014
Date of death ...............................................................................
391119 0247 08 6
Identity No. ....................................................................... 0740 1230 64 6
Income tax ref. No.........................................................................
Pretoria
District in which deceased normally resided…...............................................................................................................................
Name of surviving spouse (in case of deceased having been a married woman)
…………………………………………………………………………………………………………………………………………………..
B. For the purpose of this executorship l/we declare the following:
l/we choose domicilium citandi et executandi for the purpose of service of process of court, writs of execution and the receipt of all notices
contemplated in the Administration of Estates Act, No. 66 of 1965 (as amended), at (not P.O. box number):
174 Marias Street Brooklyn Pretoria
…………............................................................................................................................................................................................................
l/we understand the duties and penalties applying to the office of Executor which have been explained to me/us.
I am/we are not (an) unrehabilitated insolvent(s). Nor have l/we at any time committed an act of insolvency. [Note section 8 of the
Insolvency Act, No. 24 of 1936 (as amended)].
None
A Bond of Security to the value of R............................................................................................................. *for the full value of the estate is
attached/will be forwarded in due course.
I am/we are exempt from furnishing security.
I am/we are permanently residing in the Republic of South Africa, and l/we undertake to advise the Master of the Supreme Court
immediately should my/any of our estate(s) or that of a person who has signed as surety for the Bond of Security be sequestrated, or
commit an act of insolvency, or should l/any one of us proceed to reside outside the Republic of South
Africa.
Lamb & Nel

The name and address of my/our agent is...............................................................................................................................
…………....................................................................................................................................................................................
l/we fully understand that my/our appointment of an agent does not release me/us from my/our responsibilities as required by law.
Applicants Witnesses
1. H Burger
..................................................................................... A Lamb
1. ....................................................................................
2. ..................................................................................... B Nel
2. ....................................................................................
Pretoria 15 November 2014

C. Signed in my presence at........................................................................................on ................................................................... year ..............
................................................................................................................. .............................................................................................
Signature: Magistrate or other responsible person Capacity
.................................................................................................................
PRINT NAME AND SURNAME
_______________________________________________________________________________________________________________________
* Delete if not applicable
Examples of documents 375
Schedule 11
Letter of Financial Institution

Lamb and Nel
PO Box 900
PRETORIA
0001
14 December 2014
The Manager
ABSA Bank
Brooklyn-Branch
PRETORIA
0001
Dear Sir
ESTATE LATE PM VAN AARDT
The above person died on 20 November 2014 and we will administer the estate. The deceased had the
following accounts with your branch:
Current account: 1500871373
Savings account: 1500870201
Fixed deposits: 17006 and 17007
Please provide us with the following information:

(1) Certificates of balance of the accounts as at date of death, reflecting the capital balances as well as
accrued interest/dividends.
(2) Certificates of interest/dividends earned, for income tax purposes for the period 1 March 2014 to
20 November 2014.
(3) Details of any other accounts.
(4) Your requirements for paying out these balances.
Yours faithfully
……………………………
For EXECUTOR
Schedule 12
Letters of executorship
...............................................................................
...............................................................................
...............................................................................
...............................................................................
Schedule 13
Executor’s power of attorney

I, the undersigned, HENDRIKA VAN AARDT in my capacity as executrix in the estate of the late PIETER
MELT VAN AARDT in terms of letters of executorship no 13114/14 dated the 23rd day of July 2014 do
hereby nominate, constitute and appoint PIETER VAN AARDT VAN DER SPUY to be my legal agent for and
on behalf of the estate and to administer the said estate in a lawful manner, according to local laws and
usages, to liquidate and to do or cause to be done whatsoever 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 all and
whatsoever my said agent shall lawfully do, or cause to be done, by virtue of the power of attorney.
Without in any way restricting or limiting the aforementioned powers and authorities, I do hereby
specially authorise my agent:
1. To open and operate on a banking account in the name of the estate.
2. To demand, recover and receive all debts or sums of money which now are or hereafter may become
due, owing, payable or belong to the estate.
3. To complete and sign all the relevant documents for the cancellation or registration of bonds,
transfer of fixed properties, deeds of sale, transfer of title or any rights attached to shares and/or
immovable and movable property belonging to the estate and in respect of which the estate may be
committed to buyers, creditors, legatees or heirs and to represent the estate in matters relating
thereto.
4. To collect, for his own account, the entire executor’s commission payable by the estate as
remuneration for services rendered.
5. To sign any liquidation and distribution account.
6. To choose “domicilium citandi et executandi”.
SIGNED at PRETORIA on this 28th day of July 2014 in the presence of the undersigned witnesses.
WITNESSES:
..................................................................... 1. .....................................................................
EXECUTRIX
..................................................................... 2. .....................................................................
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FORM J 193
NOTICE TO CREDITORS IN DECEASED ESTATES

All persons having claims against the under-mentioned estate must lodge it with the Executor concerned within
30 days (or as indicated) from date of publication hereof.
13114/14 Pretoria
A. Estate No: ……………………………… Master’s Office: ………………………………………………………
Burger
Surname: …………………………………………………………………………………………………………………
Jan Albert
First Names: …………………………………………............................................................................................
……………………………………………………………………………………………………………………………...
1939.11.19 3911190247086
Date of Birth: ………………………. Identity No.: …………………………….
174 Marias Street
Last Address: ………………………………………………………………………...................................................
Brooklyn, Pretoria
…………………………………………………………………………………………………………............................
2014.10.04
Date of Death: ………………………
B. Only applicable if deceased was married in community of property/subject to the accrual system:
First Names and Surname of Surviving Spouse: .…………………………………………….................................
…………………………………………………………………………………………..................................................
Date of Birth: …………………………………. Identity No: …………………………….

Lamb & Nel
C. Name (only one) of Executor or Authorised Agent: …………………………………………………………………
PO Box 1009
Address of Executor or Authorised Agent: …………………………………………………………….....................
Pretoria 0001
…………………………………………………………………………………………..................................................
D. Period allowed for lodgement of claims, if other than 30 days: ……… days
Lamb & Nel

Advertiser Name: ……………………………………………………………………………………………………………………………………………..
PO Box 1009
Advertiser Address: ………………………………………………………………………………………………………………………………………….
estates@lambnel.co.za
Advertiser Email: ………………………………………………………………………………………………………………………………………………
27 December 2014 012 460 2338
Date Submitted: …………………………………. Advertiser Telephone: ………………………………………………….
9 January 2015
For publication in the Government Gazette on: ……………………………………

Schedule 15
Notice in a newspaper
Notice to creditors
BOEDELKENNISGEWING NOTICE TO CREDITORS IN

DECEASED ESTATES
KUYPER T BRUMMER JM
In die boedel van wyle: TRYNTJIE KUYPER Estate Late: JAMES MOODIE BRUMMER
Gebore: 13/03/29 Identity Number: 650201/5041/08/9
Identiteitsnommer: 130329 0061 18 0 Estate Number: 12782/14
Boedelnommer: 12581/14 Last address: NIX HOTEL, PRETORIA
Adres: AMANDASIG AFTREEOORD, BERGLAAN, Date of death: 30 April 2014
PRETORIA-NOORD All persons having claims against the above-
Datum van afsterwe: 28/07/2014 mentioned Estate are required to lodge their
Krediteure in bogenoemde boedel word hiermee claims with the undersigned within 30 days
versoek om hul vorderinge in te lewer by die after the date of publication hereof.
ondergetekende binne ŉ tydperk van 30 dae NAME & ADDRESS OF AGENT:
vanaf datum van publikasie hiervan. SENTINEL INTERNATIONAL TRUST COMPANY
NAAM EN ADRES VAN AGENT: (PTY) LTD
SENTINEL INTERNATIONAL TRUST PO BOX 11287, HATFIELD, 0028
COMPANY (PTY) LTD TEL: (012) 342-7600/1/19
POSBUS 11287 FAX: (012) 342-7603
HATFIELD, 0028 OCT. 8(S1) 170,170
TEL: (012) 342-7600/1/19
FAKS: (012) 342-7603
OKT 8(S1) 170,166
Notice of account for inspection
VAN WAMELEN B SCOTT JP

LIKWIDASIE- EN DISTRIBUSIEREKENING LIQUIDATION- AND DISTRIBUTION ACCOUNTS
IN BESTORWE BOEDELS WAT TER INSAE LÊ IN DECEASED ESTATE LYING FOR INSPECTION.
In die boedel van wyle: BASTIAN VAN WAMELEN In the estate of the late: JOYCE PATRICIA
Boedelnommer: 12117/14 SCOTT
Identiteitsnommer: 131103 5028 08 3 Estate Number: 11652/11
Adres: DE MEERPAAL, STELLENBERGWEG, Identity Number: 250909 0054 08 9
WILLOWGLEN, PRETORIA Last address: 25 ALCADE ROAD, LYNNWOOD
Datum van afsterwe: 30/06/2014 GLEN, PRETORIA
Nagelate gade: MARIA HENDRIKA VAN WAMELEN Date of death: 21/10/2014
Identiteitsnommer: 140408 0023 08 1 The First and Final Liquidation- and
Distribution Account in the Estate will be open
Die Eerste en Finale Likwidasie en Distribusie-
for inspection for a period of 21 days at the
rekening in die bogenoemde boedel sal ten
Office of the Master of the Supreme Court,
kantore van die Meester van Hooggeregshof,
PRETORIA, and magistrate district,
PRETORIA, en die Landdros, BARBERTON, ter
POLEKWANE, as from 08/10/2014
insae lê vir ŉ tydperk van 21 dae vanaf 8/10/2014
NAME & ADDRESS OF AGENT:
NAAM EN ADRES VAN AGENT:
SENTINEL INTERNATIONAL TRUST COMPANY
SENTINEL INTERNATIONAL TRUST
(PTY) LTD
COMPANY (PTY) LTD
PO BOX 11287, HATFIELD, 0028
POSBUS 11287
TEL: (012) 342-7600/1/19
HATFIELD, 0028
FAX: (012) 342-7603
TEL: (012) 342-7600/1/19
OCT. 8(S1) 170,165
FAKS: (012) 342-7603
OKT 8(S1) 170,177
Schedule 16
Example of Master’s memorandum

Schedule 17
Liquidation and distribution accounts in deceased estates lying for

inspection
J187
LIQUIDATION AND DISTRIBUTION ACCOUNTS IN DECEASED ESTATES LYING FOR INSPECTION
In terms of section 35 (5) of Act 66 of 1965 notice is hereby given that copies of the liquidation and distribution accounts
(first and final, unless otherwise stated) in the estates specified below will be open for the inspection of all persons with an
interest therein for a period of 21 days (or shorter or longer if specially stated) from the date specified or from the date of
publication hereof, whichever may be the later, and at the offices of the Masters and Magistrates as stated.
Should no objection thereto be lodged with the Masters concerned during the specified period, the executors will proceed
to make payments in accordance with the accounts.
Please type:
1. 13114/14
Registered number of estate ................................................... Burger
Surname .........................................................
Jan Albert
Christian names........................................................................ 391119 0247 08 6
Identity number................................................
Complete only if Christian names and surname of surviving spouse.............................................................

deceased was married ……………………………………………………………………………………………………….
in community of
property. Identity number......................................................
Description of account other than First and Final............................................................................................................
Period of inspection other than 21 days..........................................................................................................................
Magistrate’s Office......................................................................... Master’s Office Pretoria
2. Registered number of estate................................................... Surname..........................................................
Christian names........................................................................ Identity number................................................
Last address...................................................................................................................................................................
Complete only if Christian names and surname of surviving spouse.............................................................

deceased was married ……………………………………………………………………………………………………….
in community of
property. Identity number......................................................
Description of account other than First and Final............................................................................................................
Period of inspection other than 21 days..........................................................................................................................
Magistrate’s Office......................................................................... Master’s Office
Lamb & Nel

Advertiser, and address..........................................................................................
PO Box 1009
………………………………………………………………………………....................
Pretoria 0001 Rev. Rev.
…………………………………………………………………………...........................
15 February 2015 012 460 2338
Date......................................................... Tel.............................................
28 February 2015
Notice for Publication in the Government Gazette on……………………................

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APPLICATION FOR ENDORSEMENT

(JM33_42)
[Section 42(2) of the Administration of Estates Act No. 66 of 1965 (as amend)]
NB. This list of requirements, which must be fully complied with, must accompany each application. If the property was sold prior to
date of death, only paragraphs 1 to 6 and 12 needs to be complied with.
ESTATE LATE: Jan Albert Burger NO: 13114/14

REQUIREMENTS:
1. Short description of property.
2. Certificate by conveyancer explaining all discrepancies in the

description of the properties in Liquidation Account, Deed of
Sale and/or Power of Attorney.
3. Confirm that the purchaser is not one of the persons mentioned

in Section 49(1).
4. Power of Attorney to pass transfer/Certificate by conveyancer

in terms of Section 11(4) of the Sectional titles Act, No. 66 of
1971.
5. Is there any prohibition of the sale, e.g. in a Will, Title Deed of

Act?
6. Confirmation that the sale is in all respects legal and binding.
7. If the estate is insolvent:
• Copy of notice to creditors in terms of Sec. 34(2).

• Were any objections lodged in terms of Sec. 34(3)?
8. Written consent by major heirs and/or Tutors of minors to the

manner and conditions of sale.
9. If Section 47(2) or (b) is applicable:
• Valuation by appraiser
• Reasons why specific manner and conditions of sale is
preferred.
10. Comments by Executor on objections to sale.
11. Auctioneer’s conditions of sale duly completed or a certified

copy thereof.
12. Deed of Sale or certified copy thereof.
13. Assurance by Auctioneer that sale was well advertised and

attended, and that the purchase price is in accordance with
present day prices.
FOR OFFICE USE ONLY
Checked: Yes / No ……………………………………………..……………….

SIGNATURE OF EXECUTOR/AUTHORISED AGENT
Were objections received: Yes / No
……………………………………………..……………….
……………………………………………..………………… PRINT NAME AND SURNAME
ESTATE CONTROLLER
………………………………………….
DATE: ……………………… DATE
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UNDERTAKING AND ACCEPTANCE OF MASTER'S DIRECTIONS I
[SECTION. 18 (3), ACT No. 66 OF 19651
ESTATE No. ................................................................
1. Estate late .......................................................................................................................................................................

(Full names and surname)
…………….......................................................................................................................................................................
died on ........................................................... Identity number
2. District where deceased was residing ............................................................................................................................
3. Full names of applicant ...................................................................................................................................................
Identity number
4. Relationship to deceased ...............................................................................................................................................
5. Residential address ............................................................. Postal address ...............................................................
…………………………………………………………………… ……………………………………………………………….
…………………………………………………………………… ……………………………………………………………….
Telephone number (Home) ........... - …............................ Telephone number (Work) ............. - ............................
6. Name and postal address of agent (if applicable) .........................................................................................................
.......................................................................................... Telephone number .................. - …....................................
7. I undertake to administer the estate, to pay the debts from the estate assets and to distribute any balance according
to the Master's directions in terms of section 18 (3) of the Estates Act, 1965, and accept that I am bound by any
amendment or cancellation of such directions.
8. I undertake that I shall not administer any asset(s) which has/have not been reflected in the section 9 inventory, and
as soon as it becomes known to me that the value of the assets exceed R50 000 to report to the Master this fact. and
to return the directions.
9. I confirm that to the best of my knowledge the estate is solvent and undertake to immediately advise the Master
when it becomes known to me that the estate is insolvent. That to my knowledge the known liability/ies of the estate
is/are as follows:
…………….......................................................................................................................................................................
…………….......................................................................................................................................................................
10. I hereby declare that I am not an unrehabilited insolvent.
Signed on .............................................................................
(Date)
................................................................................
Signature of applicant
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Affidaaviit
GP-S 81/811521 J192
(81/811521)
AFFIDAVIT
PARTICULARS OF NEXT-OF-KIN
I, ..............................................................................................................................................................
of..............................................................................................................................................................
.................................................................................................................................................................
*do hereby make oath and say/affirm that within is a true and complete statement of the next-of-kin of
the deceased, and I make this statement conscientiously, believing the same to be true.
...................................................................... ......................................................................
Signature Print Name and Surname
Signed and *sworn to/affirmed before me
at………………………………………………………………………………………….
this............................... day of........................................... in the year.
The deponent has acknowledged that he/she knows and understands the contents of this affidavit
and adheres to it.
………………………………………………………………….
*Magistrate/Justice of the Peace/Commissioner of Oaths
Area for which appointed ......................................................................................................................
If appointment is held ex officio, state office held..................................................................................
* Delete if not applicable.

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* Separate affidavits in respect of each predeceased child must be completed.
Names and addresses of the next-of-kin of the late................................................................................................................
who died at............................................................................................................ on ...........................................................

(Place) (Date)
N.B.: The date of death is to be inserted opposite the name of any deceased relative. Against those degrees of
relationship in which the deceased never had any relative, the word "NONE" is to be inserted.
Relatives to be accounted Names of relatives and degree of relationship

1. Surviving spouse:
2. Children and date of their birth. Also state names of

*predeceased children and their dates of death:
Ignore questions 3, 4 and 5 if the deceased left children

or descendants.
3. Father of deceased:
Mother of deceased:
Ignore questions 4 and 5 if the parents are both alive.
4 Brothers and sisters of the deceased. State whether

full or half blood, and their addresses and dates of birth.
State the name of the step-parent of half brothers and
half sisters:
5. Names of brothers and sisters who are dead, date of

deaths, and names, addresses and dates of birth of their
children, if any

Schedule 21
Redistribution agreement
REDISTRIBUTION AGREEMENT IN THE ESTATE OF THE LATE JAN HENDRIK ROOME (IDENTITY NUMBER
280113 5021 005) OF THE TOLL HOUSE, ALIWAL NORTH. MARRIED OUT OF COMMUNITY OF PROPERTY.
DATE OF DEATH: 3 SEPTEMBER 2014 ESTATE NUMBER: 13114/14
Parties to the agreement:

1. PIETER MARTHINUS ROOME and
2. MELT HENDRIK ROOME,
both major sons of the deceased.
We, the undersigned, declare that we are the sole heirs in the abovementioned estate, in terms of the will of
the deceased dated 17 April 2002. We hereby agree to distribute the estate assets as follows:
1. To Pieter Marthinus Roome:
Portion 2 of the farm Buffelsvallei No. 60 situated in the District Aliwal North; in extent 550,0879 hectares;
2. To Melt Hendrik Roome:
(a) The remainder of the farm Sagtevlei No. 63 situated in the district Aliwal North; in extent
280,1667 hectares; and
(b) All movable estate assets.
3. An amount of R180 000 (One hundred and eighty thousand rand) will be paid in by the said Pieter
Marthinus Roome on demand of the executor, to make good the cash deficit.
We confirm that, apart from the above, we have no further claims to estate assets.
SIGNED AT ALIWAL NORTH ON .................................................... 2014
WITNESSES:
1. ..................................................................... ............................................................................
P M ROOME
2. ..................................................................... ............................................................................
SIGNED AT ALIWAL NORTH ON .................................................... 2014
WITNESSES:
1. ..................................................................... ............................................................................
M H ROOME
2. ..................................................................... ............................................................................
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ESTATE DUTY REV267
BOEDELBELASTING
Return of information required in terms of section 7
of the Estate Duty Act, Act 45 of 1955
Opgawe van inligting wat ingevolge artikel 7 van die
Boedelbelastingwet, Wet 45 van 1955, vereis word
NB. Interest on Estate Duty
Section 10 of the Estate Duty Act, Act 45 of 1955, provides that interest must be paid on the amount of any estate duty which is paid within 30 days
of the date of the assessment notice, or, if the assessment is made more than 12 months after the date of death, from a date twelve months after
death.
The Commissioner may allow an extension of the time within which payment may be made without interest if a reasonable amount is paid as a
deposit against the duty to be assessed and application is made in writing for such extension, provided the deposit is made and the application for
extension is lodged before the thirty days period or the twelve month period, as the case may be, has expired.
No formal documentation is required for the payment of a deposit against estate duty at SARS branch offices. (Name, number of estate and date of
death must be furnished.)
LW. Rente op Boedelbelasting
Artikel 10 van die Boedelbelastingwet, Wet 45 van 1955, bepaal dat rente betaal moet word op die bedrag van enige boedelbelasting wat nie binne
30 dae vanaf die datum van die aanslagkennisgewing of, indien die aanslag meer as twaalf maande na die datum van dood gehef word, vanaf ‘n
datum twaalf maande na dood, vereffen is nie.
Die Kommissaris mag ‘n verlenging toestaan van die tydperk waarin betaling sonder rente gemaak mag word indien ‘n redelike bedrag gestort is as
‘n deposito ten opsigte van die belasting wat aangeslaan moet word en skriftelik aansoek gedoen is vir sodanige verlenging, mits die deposito
gemaak word en die aansoek om verlenging ingedien word voor die verstryking van die tydperk van dertig dae of die tydperk van twaalf maande,
soos die geval mag wees.
Geen formele dokumentasie word vereis vir die betaling van ‘n deposito teen boedelbelasting by SARS takkantore nie. (Naam en nommer van
boedel en die datum van afsterwe moet verstrek word.)
If there is insufficient space on this form, the information must be submitted on a separate sheet
Indien die spasie op hierdie vorm onvoldoende is, moet die inligting op ‘n aparte vel papier verstrek word.
Deceased details
Oorledene se besonderhede
Surname
Van
First name(s)
Voorname
Date of birth Identity number

Geboortedatum Identiteitsnommer
Date of death Estate number
Datum van dood Boedelnommer
Master’s office where estate is reported
Meesterskantoor waar boedel geraporteer is
Last residential address
Laaste woonadres
Postal code
Poskode
Country of ordinary residence Period from to
Land waar gewoonlik woonagtig Tydperk vanaf tot
If ordinarily resident in a country other than RSA during 10 years immediately preceding the date of death, state name of country and periods
resident in that country
Indien binne tien jaar onmiddelik voor datum van dood in ‘n ander land as RSA woonagtig, meld naam van land en tydperke aldaar woonagtig
Period from to
Tydperk vanaf tot
Details of surviving spouse (if any)

Besonderhede van nagelate gade (indien enige)
Name and Surname
Naam en Van
Address
Adres
Postal code
Poskode
Indicate whether marriage was: In community of property Out community of property Subject to the accrual system
Dui aan of die huwelik Binne gemeenskap van goedere Buite gemeenskap van goedere Onderworpe aan die aanwasbedeling
Place of marriage Date of marriage
Plek van huwelik Datum van huwelik
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Account 1 - Property of the deceased as at date of death

Rekening 1 - Eiendom van die oorledene soos op datum van dood
A (i) Gross value of all property disclosed in the liquidation and distribution (L&D) account
Bruto waarde van alle eiendom in die likwidasie- en distribusierekening (L&D) aangetoon R
Deduct: Proceeds of all “domestic policies” of insurance upon the life of the deceased
Min: reflected in the L&D account (sec 3(3)(a))
Opbrengs van alle “binnelandse assuransiepolisse” op die lewe van die
oorledene wat in die L&D rekening aangetoon word. R
Any benefit which is due and payable by a fund reflected in the L&D account
(sec 3(3)(a)bis)
Enige voordeel deur ‘n fonds uitbetaal wat in L&D rekening aangetoon word
R
(artikel 3(3)(a)bis)
Value of any property which is not “property” as defined in section 3(2)(c)-(h)

Waarde van enige eiendom wat nie “eiendom” is nie soos in artikel 3(2)(c)-(h)
omskryf R
Selling price of non-listed shares / members interest in CC

Verkoopsprys van ongenoteerde aandele / ledebelang in BK R
Fair market value of farming property as per valuation

Billike markwaarde van boerdery eiendom per waardasie R R 0
Add: Counter-claim for suretyship given by the deceased - if such a claim is included
Plus: in the liabilities reflected in Account 3
Kontra eis vir borgstelling gegee deur oorledene - indien sodanige eis ingesluit
is by die laste in Rekening 3 R
Valuation of non-listed shares / members interest in CC

Waardasie van ongenoteerde aandele / ledebelang in BK R
Fair market value of farming property as per valuation

Billike markwaarde van boerdery eiendom per waardasie R
Less: 30% in terms of (b) of the definition of “fair market

value”
Min: 30% in terme van (b) van die wooromskrywing van
“billike markwaarde” R 0 R 0 R 0
(Where no L&D account is required to be rendered to any Master of the High Court, a separate statement of all property owned by the deceased at
the date of his/her death should be submitted with this return.)
(Waar dit nie vereis word dat ‘n L&D rekening aan ‘n Meester van die Hooggeregshof verstrek word nie, moet ‘n afsonderlike staat van alle eiendom,
deur die oorledene op datum van sy/haar dood besit, saam met hierdie opgawe verstrek word.)
(ii) Value of other property (if any) not reflected in the L&D account:
Waarde van ander eiendom (indien enige) nie in die L&D rekening aangetoon word nie:
(a) Property of which a beneficiary becomes the owner by a nomination agreement entered into by the deceased during his / her lifetime. (See
remark 1a on last page)
Eiendom waarvan ‘n begunstigde die eienaar word deur middel van ‘n nominasie ooreenkoms deur die oorledene gesluit tydens sy / haar
leeftyd. (Sien nota 1a op laaste bladsy)
Description of property
Beskrywing van eiendom
Value R
Waarde
(b) Immovable and movable property situated outside the Republic. (See remark 1b on last page)
Roerende en onroerende eiendom buite die Republiek geleë. (Sien nota 1b op laaste bladsy)
Description of property and where situated
Beskrywing van eiendom en waar geleë
Value R
Waarde
(c) Shares held by or on behalf of the deceased in a company (See remark 1c on last page)
Aandele deur of namens die oorledene gehou in ‘n maatskappy (Sien nota 1c op laaste bladsy)
Name of company and country of incorporation as well as the number and description of shares held
Naam van maatskappy en land waar geinkorporeer asook die aantal en beskrywing van aandele gehou
Value
Waarde R
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Account 1 - Property of the deceased as at date of death (continued)

Rekening 1 - Eiendom van die oorledene soos op datum van dood (vervolg)
(d) Any debt not recoverable or right of action not enforceable in the courts of the Republic (See remark 1d on last page)
Enige skuld of reg van aksie wat nie in die geregshowe van die Republiek verhaalbaar of afdwingbaar is nie (Sien nota 1d op laaste bladsy)
Name and address of debtor or other institution, etc., liable for payment
Naam en adres van skuldenaar of ander inrigting, ens., wat vir betaling aanspreeklik is
Value R
Waarde
(e) Gratuities or benefit society awards (See remark 1e on last page)

Gratifikasie of toekenings van ‘n onderlinge hulpverening (Sien nota 1e op laaste bladsy)
By whom payable as well as the name and address of person to whom gratuity or reward is payable
Deur wie betaalbaar asook die naam en adres van die persoon aan wie die gratifikasie of toekenning betaalbaar is
Value R
Waarde
Total of A(i), A(ii), (a), (b), (c), (d) and (e) 0

R
Totaal van A(i), A(ii), (a), (b), (c), (d) en (e)
Less: Survivor’s share thereof if the marriage was in community of property
Min: Oorlewende se aandeel indien die huwelik in gemeenskap van goedere was R
A R 0
B. Value of any fiduciary, usufructuary or other like interest in property situated in the Republic. Section 3(2)(a) read with section 5(1)(b)
Waarde van enige fidusiêre reg, vruggebruik of ander derglike reg op eiendom in die Republiek geleë. Artikel 3(2)(a) saamgelees met
artikel 5(1)(b)
Description of the burdened property
Beskrywing van beswaarde eiendom
Nature of interest, when and how the deceased acquired it.

Aard van reg, hoe en wanneer oorledene dit verkry het.
Fair market value of property at date of death of deceased (except farming property)
R
Billike markwaarde van eiendom op datum van dood van oorledene (uitgesonderd boerdery eiendom)
Fair market value of farming property less 30%
Billike markwaarde van boerdery eiendom min 30% R
Name, address and date of birth of person who upon the cessation of deceased’s interest becomes entitled to the right of enjoyment of the
property and period for which such right is held.
Naam, adres en datum van geboorte van persoon wat by verstryking van die oorledene se reg, op die reg van genot van die eiendom
geregtig word en die tydperk wat hy/sy die reg sal hou.
Less: Consideration paid for right of ownership and date of payment

Min: Vergoeding betaal vir die eiendomsreg en datum van betaling R
B R 0
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Account 1 - Property of the deceased as at date of death (continued)

Rekening 1 - Eiendom van die oorledene soos op datum van dood (vervolg)
C. Value of any right to an annuity. (Section 3(2)(b) read with section 5(1)(d))
Waarde van enige reg op ‘n jaargeld. (Artikel 3(2)(b) saamgelees met artikel 5(1)(d))
Annual amount of annuity
R
Jaarlikse bedrag van die jaargeld
How and when deceased first acquired it.
Hoe en wanneer deur oorledene die eerste maal verkry.
Name, address and date of birth of person to whom the annuity accrues on death of deceased and period for which such person is to
enjoy the annuity.
Naam, adres en datum van geboorte van persoon aan wie die jaargeld toeval op datum van dood van die oorledene en die periode
waarvoor sodanige persoon die jaargeld kan geniet.
Period for which such person is to enjoy the annuity

Tydperk waarvoor sodanige persoon die jaargeld kan geniet
Value of interest calculated in terms of paragraph (d) of subsection (1) of section 5 of the Act
R
Waarde van reg bereken ingevolge paragraaf (d) van subartikel (1) van artikel 5 van die Wet.
Property of the deceased: Total of A + B + C

R 0
Eiendom van die oorledene: Totaal van A + B + C
Account 2 - Property deemed to be property of the deceased as at the date of death

Rekening 2 - Eiendom wat geag word die eiendom van die oorledene te wees op die datum van dood
A Proceeds of all ‘domestic’ policies of insurance upon the life of deceased (Section 3(3)(a))
Opbrengs van alle ‘binnelandse’ assuransiepolisse op die lewe van oorledene (Artikel 3(3)(a))
Name of company Number of policy Name and address of person to whom proceeds are payable Gross proceeds of policy
Naam van maatskappy Nommer van polis Naam en adres van die persoon aan wie die opbrengs betaalbaar is Bruto opbrengs van polis
Gross value of all policies

R 0
Bruto waarde van alle polisse
Less: (i) Aggregate amount of premiums paid by the person (other than the deceased) entitled to the proceeds plus interest at 6% per annum
Min: thereon as calculated on a separate sheet.
Totale bedrag premies betaal deur die persoon (behalwe die oorledene) wat geregtig is op die opbrengs plus rente daarop teen 6%
per jaar soos bereken op ‘n aparte bladsy.
(ii) Consideration paid by the person entitled to the proceeds plus interest at 6% per annum thereon.
Vergoeding betaal deur die persoon geregtig op die opbrengs plus rente daarop teen 6% per jaar.
(iii) Proceeds of policy recoverable by surviving spouse or child of deceased under a registered antenuptial or post nuptial contract.
Opbrengs van polis verhaalbaar deur die oorlewende eggenoot of kind van die oorledene uit hoofde van ‘n regeregistreerde voor- of
na-huwelikse kontrak.
(iv) Proceeds of policy taken out or acquired by a partner/co-member of CC/co-shareholder of the deceased as envisaged in section
3(3)(a)(iA).
Opbrengs van polis uitgeneem deur ‘n vennoot/mede-lid van ‘n BK/mede-aandeelhouer van die oorledene kragtens artikel
3(3)(a)(iA).
(v) Proceeds of policies which were not effected by or at the instance of the deceased, as envisaged in terms of section 3(3)(a)(ii).
Opbrengs van polisse wat nie deur of in opdrag van die oorledene uitgeneem is nie, soos omskryf in artikel 3(3)(a)(ii).
Total of (i) - (v)
Totaal van (i) - (v) R
Net value of all taxable policies

Netto waarde van alle belasbare polisse R 0
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Account 2 - Property deemed to be property of the deceased as at the date of death (continued)
Rekening 2 - Eiendom wat geag word die eiendom van die oorledene te wees op die datum van dood (vervolg)
B Benefit due and payable from a fund: (Section 3(3)(a)bis)
Voordeel uit fonds verskuldig en betaalbaar: (Artikel 3(3)(a)bis)
Name of fund
Naam van fonds
Name and address of the person to whom payable

Naam en adres van die persoon aan wie betaalbaar
Less: Contributions or consideration paid by the beneficiary together with 6% interest.

Min: Bydraes of vergoeding betaal deur die begunstigde tesame met 6% rente R
Net benefit due and payable by any fund

Netto voordeel verskuldig en betaalbaar deur enige fonds R
C Value of property donated in terms of section 56(1)(c) or (d) of the Income Tax Act, if not otherwise included as property of the
deceased for purposes of this Act. (Section 3(3)(b))
Waarde van eiendom geskenk ingevolge artikel 56(1)(c) of (d) van die Inkomstebelastingwet, indien nie andersins ingesluit as
eiendom van die oorledene, vir doeleindes van hierdie Wet. (Artikel 3(3)(b))
Name and address of the person benefiting

Naam en adres van die bevoordeelde persoon
Value
R
Waarde
D Property acquired by the deceased under section 3 of the Matrimonial Property Act, 1984, in respect of any accrual contemplated in
that section: (Section 3(3)(cA))
Eiendom verkry deur die oorledene kragtens artikel 3 van die Wet op Huweliksgoedere, 1984, ten opsigte van enige toevalling in
daardie artikel: (Artikel 3(3)(cA))
Name and address of deceased’s spouse or, if deceased, name and address of executor, estate’s number and Master’s office where reported.
Naam en adres van die oorledene se gade of, indien oorlede, die naam en adres van die eksekuteur, boedelnommer en Meesterskantoor waar
boedel gerapporteer is
Amount of claim
Bedrag van eis R
E Property, meaning property situated where ever (i.e. property which has not already been accounted for in this return) of which the
deceased was immediately prior to his death competent to dispose of for his own benefit or the benefit of his estate (Section 3(3)(d)
read with Section 3(5))
Eiendom, met inbegrip van eiendom waar ook al geleë (dws. eiendom nie voorheen in hierdie opgawe verantwoord nie) waaroor die
oorledene onmiddellik voor sy dood bevoeg was om vir sy eie voordeel of vir die voordeel van sy boedel te beskik (Artikel 3(3)(d)
saamgelees met Artikel 3(5))
Person in whose name registered

Persoon in wie se naam geregistreer
Value
Waarde R
Total of A + B + C + D + E
R 0
Totaal van A + B + C + D + E
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Account 3 - Deductions claimed in terms of section 4 of the Act

Rekening 3 - Kortings geëis ingevolge artikel 4 van die Wet
A Total amount of liabilities disclosed in the L&D account (where no L&D account is required to be rendered to any
Master of the High Court a separate statement of liabilities should be submitted with this return)
Totale bedrag laste soos in die L&D rekening aangetoon (waar dit nie vereis word dat ‘n L&D rekening aan ‘n Meester
verstrek word nie moet ‘n afsonderlike staat van laste met hierdie opgawe verstrek word). R
Less: Any claim to property donated by the deceased in terms of section 56(1)(c) or (d) of the Income Tax Act
included in the total amount of liabilities
Min: Eiendom geskenk deur die oorledene ingevolge artikel 56(1)(c) of (d) van die Inkomste-belastingwet ingesluit in
die totale bedrag laste R
Total A
Totaal A R 0
B The calculation hereunder only applies where the deceased was married in community of property
Die ondergemelde berekening is slegs van toepassing indien die oorledene binne gemeenskap van goedere getroud was
Total A
Totaal A R 0
Less: Funeral costs
Min: Begrafniskoste R
½ share of liabilities (excluding funeral costs) R R 0

½ aandeel van die laste (uitgesluit begrafniskoste)
Add: Funeral costs - where the deceased was married in community of property
R
Plus: Begrafniskoste - waar oorledene binne gemeenskap van goedere getroud was
Total B
Totaal B R 0
Total A or B
Totaal A of B R
Add: Deduction claimed in terms of:
Plus: Korting geëis ingevolge:
Section 4(e) deduction (If the deceased was married in community of property claim
only ½ share of the value of the said property)
Artikel 4(e) aftrekking (Indien oorledene binne gemeenskap van goedere getroud was,
eis slegs ½ van die waarde van die betrokke eiendom) R
Section 4(f)
R
Artikel 4(f)
Section 4(g)
R
Artikel 4(g)
Section 4(h)
R
Artikel 4(h)
Section 4(i) & (j)
R
Artikel 4(i) & (j)
Section 4(m)
R
Artikel 4(m)
Section 4(o)
Artikel 4(o) R
Section 4(p)
R
Artikel 4(p)
Section 4(q)
R R 0
Artikel 4(q)
Total deductions claimed

R 0
Totale kortings geëis
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Summary
Opsomming
Account 1 - Value of all property of the deceased
R 0
Rekening 1 - Waarde van alle eiedom van die oorledene
Account 2 - Value of all property deemed to be property of the deceased

R 0 R 0
Rekening 2 - Waarde van alle eiendom wat geag word eiendom van die oorledene te wees
Less: Account 3 - Deductions claimed in terms of section 4 of the Act

R 0
Min: Rekening 3 - Aftrekkings geeis ingevolge artikel 4 van die Wet
Net value of estate 0

Netto waarde van boedel R
Less: Section 4A
R
Min: Artikel 4A
Dutiable amount 0
Belasbare bedrag R
Estate duty payable @ % R

Boedelbelasting betaalbaar @
Interest on Estate Duty - see section 10 of the Act

R
Rente op Boedelbelasting - sien artikel 10 van die Wet
Details of executor/executrix
Besonderhede van eksekuteur/eksekutrise
Name
Naam
Address
Adres
Postal code
Poskode
Name
Naam
Address
Adres
Postal code
Poskode
Details of agent
Besonderhede van agent
Name
Naam
Address
Adres
Postal code
Poskode
Declaration by executor(s)
Verklaring deur eksekuteur(s)
I/We, the aforesaid executor(s), hereby certify that the particulars stated in this return are true and correct to the best of my/our knowledge and belief,
and that, having made due and diligent enquiry, I/we are not aware of any other property which should be included in the return.
Ek/Ons, die voormelde eksekuteur(s), verklaar dat die besonderhede in hierdie opgaaf uiteengesit juis en waar is na my/ons beste kennis en wete,
en dat, nadat ons behoorlik en deeglik ondersoek gedoen het, ek/ons nie bewus is van enige ander eiendom wat daarby ingesluit moet word nie.
Name of executor(s) Signature(s) of executor(s)
Naam van eksekuteur(s) Handtekening(e) van eksekuteur(s)
Signed at on this day of

Geteken te op hierdie dag van 20
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1. Value of other property

Waarde van ander eiendom
(a) Certain investments are structured to grant the owner an option either to transfer the investment into the name of the deceased estate or to be
redeemed in full at the request of the executor (in which case it constitutes “property of the deceased”) or in the event of a beneficiary being
nominated, to be paid to the nominated beneficiary, in which case the value of the investment as at date of death of the deceased must be
reflected in the space provided for. The investment can also consist of a “policy” (excluding a “domestic policy on the life of the deceased”) which
does not mature or pay out on the death of the deceased (owner). Such policies run for an agreed time and can be terminated at the request of
the owner.
Sekere beleggings is so saamgestel dat die eienaar daarvan die keuse het dat die belegging by sy / haar boedel of op versoek van die eksekuteur
opgevra word (in welke geval dit “eiendom van die oorledene” verteenwoordig) of in die geval waar ‘n begunstigde (genomineerde) benoem is
gedurende die oorledene se leeftyd, die opbrengs aan die genomineerde uitbetaal word, in welke geval die waarde van die belegging soos op
datum van afsterwe verantwoord moet word in die gemelde spasie. Sodanige belegging kan ook bestaan uit ‘n “polis” (uitgesonderd ‘n
“binnelandse polis op die lewe van die oorledene”) wat nie opeisbaar of uitbetaal word op datum van afsterwe van die oorledene (eienaar) nie.
Sodanige polisse het ‘n ooreengekome leeftyd wat beeindig word op versoek van die eienaar.
(b) Movable and immovable property situated outside the Republic (to be completed only in cases in which the deceased was ordinarily resident in
the Republic)
Roerende en onroerende eiendom buite die Republiek geleë (voltooi slegs in gevalle waar die oorledene sy gewone verblyfplek in die Republiek
gehad het)
(c) Shares held by or for the deceased in a company which, although not incorporated or registered under any law in force in the Republic, carries on
business or has an office or place of business or maintains a share transfer register in the Republic, and, in additional, in the case of a deceased
person who was ordinarily resident in the Republic at the date of his death, shares held by or for him in any company whatsoever.
Aandele deur of namens die oorledene gehou in ‘n maatskappy wat, alhoewel nie geinkorporeer of geregistreer ingevolge ‘n Wet wat in die
Republiek van krag is nie, in die Republiek besigheid doen of ‘n kantoor of ‘n besigheidsplek het of ‘n aandeleregister in die Republiek in stand
hou, en daarbenewens, in die geval van ‘n oorledene wat op datum van dood sy gewone verblyfplek in die Republiek gehad het, aandele deur of
namens hom gehou in enige maatskappy hoegenaamd.
(d) Any debt not recoverable or right or action not enforceable in the courts of the Republic, including credits at any bank, building society,
corporation, trust, etc., outside the Republic (to be completed only in cases in which the deceased was ordinarily resident in the Republic).
Enige skuld of reg van aksie wat nie in die geregshowe van die Republiek verhaalbaar of afdwingbaar is nie, met inbegrip van bedrae wat op
krediet van die oorledene staan by enige bank, bougenootskap, maatskappy, trust ens., buite die Republiek (moet slegs ingevul word in gevalle
waar die oorledene sy gewone verblyfplek in die Republiek gehad het).
(e) Gratuities or benefit society awards in respect of which the deceased or his estate has a right of action enforceable in the courts of the Republic,
and, in additional, in the case of a deceased who was ordinarily resident in the Republic at the date of his death, gratuities or benefit society
awards, etc., the rights of action in correction with which are enforceable outside the Republic.
Gratifikasies of toekenings van ‘n onderlinge hulpvereniging ten opsigte waarvan die reg van aksie buite die Republiek afdwingbaar is. In die
geval van gratifikasies betaalbaar kragtens enige Wet, vermeld die Wet of magtiging waar kragtens toegestaan.
2. Value of any fiduciary, usufructuary or other like interest in property situated in the Republic (including a right to an annuity charged upon such
property) held by the deceases immediately prior to his death, and, in addition, in the case of a deceased who was ordinarily resident in the Republic
at the date of his death, the value of any such interest held in property situated outside the Republic.
Waarde van enigefidusiëre reg, vruggebruik of ander dergelike reg op eiendom in die Republiek geleë (Met inbegrip van ‘n reg op ‘n jaargeld
waarmee sodanige goed beswaar is) wat die oorledene onmiddelik voor sy dood besit het, en daarbenewens, in die geval van ‘n oorledene wat op
datum van dood sy gewone verblyfplek in die Republiek gehad het, die waarde van enige sodanige belang in eiendom wat buite die Republiek geleë
is.
3. Value of any right to an annuity (other than a right to an annuity charged upon property) enjoyed by the deceases immediately prior to his death
which accrued to some other person on his death.
Waarde van enige reg op ‘n jaargeld (behalwe ‘n reg op ‘n jaargeld waarmee enige goed beswaar is) wat die oorledene onmiddelik voor sy dood
besit het en wat by sy dood aan iemand anders toeval.
4. If this form is completed in respect of a date prior to 16 March 1988, the names and addresses of the children of the deceased that survive him
(stepchildren excluded) and also the names of children of the deceased who predeceased the deceased leaving issue or a spouse surviving the
deceased who had not remarried on or before the date of death of the deceased (stepchildren excluded) must be mentioned.
Indien hierdie vorm voltooi word ten opsigte van ‘n datum voor 16 Maart 1988 moet die name en die adresse van kinders van die oorledene wat
hom/haar oorleef (stiefkinders uitgesluit) asook die name van kinders van die oorledene wat voor hom te sterwe gekom het en wat nakomelinge
nagelaat het wat die oorledene oorleef, of ‘n eggenoot nagelaat het wat die oorledene oorleef en wie nie op of voor die datum van afsterwe van die
oorledene hertrou het nie, vermeld word.
5. Penalties:
Any person who, after having been called upon to do so by the Commissioner in terms of section 7 of the Act, fails within the period prescribed by the
Commissioner, to submit the return required to be submitted in terms of that section or knowingly omits from such return any particulars by the Act to
be included therein, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years. In terms of
section 28A of the Act, the Commissioner has the power to publish in the Government Gazette the names and particulars of the persons who have
been convicted of any offence in terms of section 28 and the common law, where the criminal conduct corresponds materially with an offence referred
to in section 28 of the Act.
Strafbepalings:
Iemand wat, nadat hy/sy kragtens artikel 7 van die Wet, deur die Kommissaris daartoe aangesê is, versuim om binne die voorgeskrewe tydperk die
opgawe voor te lê wat volgens daardie artikel voorgelê moet word of wetens besonderhede wat volgens Wet daarin vertstrek moet word, so ‘n opgawe
weglaat, is aan ‘n misdryf skuldig en by skuldigbevinding strafbaar met ‘n boete of met gevangenisstraf vir ‘n tydperk van hoogtens twee jaar. Die
Kommissaris het kragtens die bepalings van artikel 28A van die Wet die bevoegdeheid om die name en besonderhede van die persone wat skuldig
bevind word aan ‘n misdryf ingevolge artikel 28 van die Wet en die gemenereg, waar die strafbare gedrag wesenlik ooreenstem met die misdryf in
artikel 28 van die Wet, in die Staatskoerant te publiseer.
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Bibliography
and selected reading
Ailola DA The rights of the separate creditors of a solvent spouse – understanding section 21 is
the key Journal for Judicial Science (1993) vol 18(1).
Blackman MS, Jooste RD and Everingham GK Commentary on the Companies Act (2002) Cape
Town: Juta.
Burdette D Insolvencies: Proof of claims by credit grantors under instalment sale transactions
De Rebus (1992).
Bertelsman et al Mars the Law of Insolvency in South Africa (9th ed 2008) Cape Town: Juta.
Evans RG A critical analysis of section 21 of the Insolvency Act 24 of 1936 THRHR 613 (1996)
and THRHR 71 (1997).
Evans RG Insolvency – The costs to which securities are subject and the utilisation of
section 89(2) of the Insolvency Act by secured creditors South African Mercantile Law
Journal (1995) vol 7.
Joubert N Skenkings tussen man en vrou, simulasie en artikel 21 van die Insolvensiewet 24 van
1936 Tydskrif vir Suid-Afrikaanse Reg (1992).
Meskin PM Insolvency Law and its Operation in Winding-Up (2004) Durban: Butterworths.
Sharrock R et al Hockly’s Insolvensiewet (3rd ed 2006) Cape Town: Juta and English translation
(8th ed 2006).
Swart BH Die Rol van ’n Concursus Creditorum in die Suid-Afrikaanse Insolvensiereg,
(unpublished dissertation) (1990) University of Pretoria.
423
Word register
Par Par
20% rule ........................................................ 10.3.6 B
A bank account ...................................................6.4.5
acceptance of trust as executor .......... 6.3.2; Sch 10 bare dominium .......................... 7.3.6; 8.4.9; 11.7.4
acceptance of will ........................................... 5.2.3 base costs ......................................................10.3.3
account (see executor's account) beneficiaries ............................................. 4.3.5; 4.9
account heading.............................................. 7.1.3 bequest price ...................................................7.3.3
accrual ............................................. 2.4.1; 2.5; 4.11 bequests .............................................................4.8
accrual calculation .......................................... 2.4.3 bequests in trust ..............................................4.8.8
accrual claims ............................ 7.1.2; 8.3.4; 8.5.12 bequests to institutions ...................................8.5.9
accrual system ................................................... 2.4 bequests subject to a usufruct.........................7.3.4
Acts (see contents) blood relations .................................................3.2.2
addition (executor’s accounts – example) ......... 9.3 bona fide maintenance payments .................11.6.3
adiation ........................................................... 4.9.2 books and works of art ..................................8.5.14
administration costs........................................... 7.5 C
Administration of Estates Act .................. 1.4; Sch 3 calculation of estate duty .................................8.12
administration process ..................... 1.6; 1.8; 5.2.2 capital gains tax ....................................... 10.3–10.4
adopted child ........................................ 3.3.8; 4.9.6 casual donations ............................................11.6.1
advances ....................................................... 6.4.18
certificate .........................................................7.2.8
advertising ...................................................... 7.5.3
cheque account ...............................................6.4.5
advice .............................................................. 5.2.4
Children’s Act ......................................................1.4
agent ............................................................... 6.2.4
Child’s share.....................................................3.2.8
agricultural land ....................................... 1.4; 8.4.4
Civil Union Act.....................................................1.4
allowable deductions ......................................... 8.5
claim for maintenance ...................................6.4.16
amendments (wills)......................................... 4.6.3
claims against estate...........................................7.6
annual exclusion ......................................... 10.3.10
codicil ...............................................................4.2.1
annual exemption ......................................... 11.6.2
annuity charged on property ........................ 8.4.10 collaterals ........................................................3.3.6
antenuptial contract ....................................... 2.4.4 collation ..............................................................3.4
apportionment of estate duty ........................ 8.8.2 commencement of estate...................................4.4
ascendents ......................................................... 3.1 community of property....................................7.1.2
attestation ...................................................... 4.3.4 competent beneficiary.....................................4.9.3
automatic lapsing ............................................ 4.7.5 competent heirs .................................... 3.2.1; 3.3.7
award of assets ............................................. 6.4.11 computer programs ............................................1.7
425
Par Par
condonation (wills) ..................... 4.2.3; 4.6.2; 4.7.6 example (estate duty) .......................................8.12
consumer price index ...................................... Sch 7 example (executor’s account)............... 7.2; 9.1–9.6
contributions to retirement funds .................. 8.2.4 example (valuation of limited interests) .............8.7
cost of administration ..................................... 8.5.4 exclusions ......................................................10.3.8
cost of liquidation ........................................... 8.5.4 exercising discretion ........................................5.2.6
cost of security ................................................ 7.5.2 executor ............................................. 4.3.3; 6.1–6.5
creditors .......................................................... 7.6.2 executor dative ................................................6.2.1
creditors (notice to) schedule ....................... Sch 15 executor testamentary ....................................6.2.1
custody of assets ............................................. 6.4.3 executor’s account ...................................... 7.1–7.6
D executor’s appointment .....................................6.2
damages .......................................................... 2.4.4 executor’s certificate .......................................7.2.8
death notice .......................................... 6.3.2; Sch 8 executor’s power of attorney schedule ........ Sch 13
deathbed expenses ......................................... 8.5.2 executor’s remuneration .......................... 6.5; 7.5.8
debt (foreign) .................................................. 8.5.7 exempt donations ............................................8.3.3
debts owed in the Republic ............................ 8.5.3 exempt organisations ....................................11.5.7
deceased estate ................................... 1.1; 10.3.12 execution of wills .............................................4.2.2
deductions ......................................................... 8.5 explicit revocation ...........................................4.7.2
Deeds Registries Act........................................... 1.4 extension of time ...........................................6.4.20
degree of relationship ..................................... 3.2.6 F
descendants as sole heirs ............................... 3.3.3 farming property .........................................11.5.10
descendants of parents................................... 3.3.6 fideicommissary substitution ...........................4.8.6
diagram (intestate estate) .............................. 3.1.5 fideicommissum ..................................................1.4
direct substitution (wills) ................................ 4.8.5 fiduciary assets account (example) ........... 7.2.6; 9.3
disqualifications (executor) ............................. 6.2.3 fiduciary interest.................................. 7.3.7; 11.7.2
distributable estate ......................................... 3.1.4 firearms ...........................................................7.4.3
distribution account ........................................ 7.2.4 foreign assets ...................................................1.5.3
dividends on shares ........................................ 7.4.5 foreign assets and rights ..................................8.5.6
divorce ............................................................ 4.7.5 foreign debt .....................................................8.5.7
donatio mortis causa .......................... 8.3.3; 11.5.2 foreign taxes ....................................................8.7.4
donations ........................................................ 2.4.4 formality requirements (wills) .........................4.6.1
donations between spouses ............... 2.4.4; 11.5.1 funeral expenses.................................... 7.5.6; 8.5.2
donations tax .......................................... 11.1–11.8 G
double taxation agreements ........................... 8.7.5 group companies .........................................11.5.13
draftsman (wills) ............................................. 4.3.2 H
E heading ............................................................7.1.3
estate .............................................................. 4.2.4 heirs .................................................................3.1.3
estate duty ...............................................8.1 – 8.12 I
Estate Duty Act ........................................ 1.4; Sch 5 illegitimate children .........................................4.9.6
estate duty addendum .................................... 7.2.7 immovable property ............................. 7.3; 11.5.12
estate duty return ............................. 6.4.22; Sch 22 implicity revocation .........................................4.7.4
example (capital gains tax)...................... 10.4–10.8 improvements made by beneficiary ..............8.5.10
example (donations tax) .................................. 11.8 inclusion rate ...............................................10.3.11
Word register 427
Par Par
income and expenditure account ................... 7.2.5 Matrimonial Property Act ......................... 1.4; 2.1.3
Income Tax Act.......................................... 1.4; 10.2 matrimonial property law ............... 2.1.3; 7.1.2; 8.9
income tax return ............................... 6.4.7; Sch 23 matrimonial property regime ..........................7.1.2
indexing........................................................... 2.4.5 modal clauses ..................................................4.8.4
inheritance ............................................ 2.4.4; 4.8.2 motor vehicles .................................................7.4.2
insurance policies........................ 7.4.6; 7.4.7; 8.3.2 movable property ...............................................7.4
interpretation of will ........................................ 4.12
N
intestate heirs ................................................. 3.3.9
newspaper (notice) ....................................... Sch 15
intestate succession .................................... 3.1–3.4
next-of-kin affidavit ...................................... Sch 20
Intestate Succession Act .......................... 1.4; 3.1.2
notices (executor) ................................ 6.4.4; 6.4.23
inventory ......................................................... 6.3.2
O
L
objections ......................................................6.4.24
lapsing (wills) .................................................. 4.7.5
objections (accounts).......................................5.2.3
law of succession ............................................ 4.1.1
opening of files ................................................6.3.3
legacy .................................................... 2.4.4; 4.8.2
ordinary place of residence .............................8.2.5
legal entities (donations tax)......................... 11.3.3
original will ......................................................6.3.2
legatee .......................................................... 4.13.1
other property .................................................8.7.5
legislation ........................................................... 1.4
other rights ......................................................8.2.3
letter to financial institution schedule .......... Sch 11
letters of executorship .................................. Sch 12 P
liable for donations tax .................................... 11.3 parental ...........................................................3.2.3
limited interests ......................... 8.2.2; 8.4.6; 8.5.8; parents and their descendants ........................3.3.5
8.5.13
partial disposal...............................................6.4.12
liquidation account ......................................... 7.2.2
parties involved ..................................................4.3
liquidation methods ...................................... 6.4.10
payment of estate liabilities ..........................6.4.19
ius accrescendi ................................................. 4.11
payment of tax on behalf of estate .............10.3.13
M per capita succession .......................................3.2.7
maintenance ................................................. 6.4.17 period of payment ............................................11.4
Maintenance of Surviving Spouses Act .............. 1.4 persons liable for estate duty .............................8.8
marital power .................................................. 2.14 power of attorney ............................... 6.4.2; Sch 13
market value ................................................. 10.3.4 preliminary tasks ................................................6.3
marriage contract ........................................... 2.1.2 present value tables ....................................... Sch 6
marriages in community of proceeds ........................................................10.3.3
property .............................2.3; 7.1.2; 8.9; 11.3.2 property ..............................................................8.2
marriages out of community of property deemed to the property ......................8.3
property ............................................... 2.2; 7.1.2
property located outside the Republic ..........11.5.6
massing ............................................................ 4.10
payment other than limited rights.................11.7.1
master ......................................................... 5.1–5.2
public companies .........................................11.5.11
master’s fees ....................................... 6.4.25; 7.5.7
master’s functions.............................................. 5.2 Q
master’s memorandum ................................ Sch 16 quasi-judicial functions ....................................5.2.3
Par Par
R supplementary account ...................................7.1.3
rapid succession rebate .................................. 8.7.2 surviving spouse ............................................8.5.16
rebate for rapid succession ............................. 8.7.2
rebate of R3,5 million ........................................ 8.6 T
rebates ............................................................... 8.7 table A and B................................................... Sch 6
recapitulation statement ................................ 7.2.3 Tax Administration Act .......................................1.4
Recognition of Customary Marriages Act .......... 1.4 testate succession...................................... 4.1–4.13
redistribution agreement .............................. 6.4.15 testator ............................................................4.3.1
redistribution agreement (executor’s account time-apportionment base cost ......................10.3.5
example) ................................................... Sch 21 time of payment ...............................................11.4
regulations ............................................ 7.1.3; Sch 4 tombstone expenses........................................8.5.2
relationship ........................................... 3.1.5; 3.2.6 total disposal .................................................6.4.13
reporting estate .................................... 6.3.2; 7.1.1 traditional councils, communities..................11.5.5
representation ................................................ 3.2.5 transfer costs ...................................................7.5.4
repudiation ..................................................... 4.9.2 transfer duty ....................................................8.7.3
repudiation (executor’s account, example) ....... 9.4 Trust Property Control Act ..................................1.4
repudiation (intestate estate) ............... 3.2.4; 4.9.2 trusts ..............................................................11.5.9
requirement of the master ............................. 8.5.5
revocation (wills)................................................ 4.7 U
roll-overs ....................................................... 10.3.9 unlisted shares .................................................8.4.3
unworthy persons ............................................4.9.4
S usufruct............................ 4.8.7; 7.3.4; 7.3.5; 11.7.2
section 4A rebate ............................................... 8.6
section 18(3) appointment ................... 6.2.2; 6.3.2 V
section 18(3) undertaking ............................. Sch 19 valuations .............................................. 6.3.4; 6.4.8
section–27 inventory ...................................... 6.4.6 valuation of annuities ............ 8.4.10–8.4.11; 11.7.3
section 38-takeover ...................................... 6.4.14 valuation of assets and liabilities .....................6.3.4
section 38-takeover (executor’s account - valuation date value ......................................10.3.8
example) ........................................................ 9.6 valuation of bare dominium ............................8.4.9
security (executor) .......................................... 6.2.5 valuation of fiduciary right...............................8.4.7
shares .............................................................. 7.4.4 valuation of property ..........................................8.4
solvency of estate ........................................... 6.4.9 valuation of shares ........................................8.5.15
South African Revenue Service ....................... 7.6.3 valuation of usufruct........................................8.4.8
specific exemptions ......................................... 11.5 value of donation ..............................................11.7
spouse and descendants ................................. 3.3.4 voluntary awards ...........................................11.5.8
spouse as sole heir .......................................... 3.3.2
statement by next-of-kin .............................. Sch 20 W
stirpes.............................................................. 3.2.4 will ................................................... 4.2.1; 4.5; 4.13
subdivision of agricultural land .............. 1.4; 6.4.12 Wills Act ..............................................................1.4
substitution ..................................................... 4.8.6 witnesses .........................................................4.3.4
succession per capita ...................................... 3.2.7 works of art....................................................8.5.14
sundry creditors .............................................. 7.6.2

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Deceased Estates 11th Edition

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Deceased

Editor: Lisa Sandford

More about the

Schoeman-Malan, Magdalena Carolina

Van der Spuy, Pieter de Wet

Acts, regulations and tables

Bibliography and selected reading.................................................................................... 423

1.1 Concepts ................................................................................................................. 1

1.2 Applicable law

1.3 Uniform system of administration of estates

1.4 Legislation concerning the administration of estates

Administration of Estates Act 66 of 1965

Wills Act 7 of 1953

Intestate Succession Act 81 of 1987

Trust Property Control Act 57 of 1988

Estate Duty Act 45 of 1955

Legislation concerning types of marriages

Maintenance of Surviving Spouses Act 27 of 1990

Children’s Act 38 of 2005

Restrictions of fideicommissa over immovable property

The Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 is applicable

Subdivision of Agricultural Land Act 70 of 1970

Deeds Registries Act 47 of 1937

Income Tax Act 58 of 1962

The Tax Administration Act 28 of 2011

1.5 Assets excluded from the usual administration process

1.5.2 Administration in terms of section 18(3)

1.5.3 Foreign assets

1.6 Summary of the administration process

1.7 Use of computer programs

1.8 Effective administration of estates

2.1 Introduction ............................................................................................................ 9

2.1.1 Choice of type of marriage

2.1.2 The marriage contract

2.1.3 Matrimonial Property Act

2.1.4 Marital power

2.2 Marriages in community of property

2.3 Marriages out of community of property

2.3.1 Marriages before 1 November 1984

2.3.2 Marriages after 1 November 1984

2.4 The Accrual System

2.4.1 What is accrual?

2.4.2 Commencement value of an estate

2.4.3 Calculation of accrual

Comments on the Example

2.4.4 Assets excluded from accrual

Assets excluded in terms of the antenuptial contract

Inheritances, legacies and donations

Donations between spouses

Section 18 excludes non-patrimonial (or non-pecuniary) damages (satisfaction), such as dam-

2.5 Example of an accrual claim

1. Commencement values in the marriage contract:

4. Donation to Daniel by Frieda on 20 March 2008: R200 000.

End values after exclusions 1 896 569 664 379

Comments on the Example

3.1 General ................................................................................................................... 20

3.1.2 Applicability of the Act

3.1.4 Distributable estate

3.1.5 Relationships and diagrams

Eben is the deceased.

3.2.2 Blood relations

3.2.6 Degree of relationship

3.2.7 Succession per capita

3.2.8 Child’s share