In terms of section 13(1) of the Administration of Estates Act 66 of 1965 (“the Act”) no person may deal with South African assets unless authorized thereto by the Master of the High Court in South Africa. From the said provision it is clear that a person who has received letters of executorship in some country other than the Republic of South Africa will not be entitled to deal with assets of such estate in South Africa, before being authorized by the Master in the Republic to do so. The said authorization is either given by issuing new letters of appointment or, in certain circumstances, by signing and sealing letters of appointment previously issued by some other country.
Types of appointments in Foreign Estates
The following types of appointments can inter alia be made in foreign estates:
- Signing and sealing of foreign letters of appointment issued in a proclaimed state (see section 21 of the Act). Section 20(1) of the Act provides that the Minister may by Government Gazette declare which country is regarded as a proclaimed State for purposes of signing and sealing foreign letters of appointment.
- Ordinary letters of executorship, issued in terms of section 14 of the Act.
- Ordinary section 18(3) appointments.
Foreign Letters of Appointment
Where foreign letters of appointment are signed and sealed by the Master, such appointee is deemed to be an executor to whom letters of executorship have been granted by the Master for purposes of administering the immovable property of the deceased resorting in South Africa.
Winding up of a Foreign Estate
Subsequent to the signing and sealing of the letters of appointment or the issuing of new letters of executorship the same procedures for the administration of the assets in the Republic apply. This will mean that the estate must be advertized in terms of section 29 of the Act, a liquidation and distribution account lodged, as per section 35 of the Act, and estate finalized in terms of the Act.
Validity of Foreign Wills
Section 3 bis of the Wills Act 7 of 1953 provides that a will executed in other countries shall not be invalid merely by the form thereof, if such form complies with the internal law of the country in which such instrument was executed.
From a conveyancing perspective the will lodged with the Master must be a duly certified and authenticated copy of the will. Section 21 of the Act provides that documents must be authenticated as provided for in the rules made under section 6(1) of the Rules Board for Courts of Law Act, No. 107 of 1985. In terms of these rules:
“any document executed outside the Republic for use in South Africa must be authenticated by the signature and seal of office of the head of the South African diplomatic or consular mission or a person in the administrative or professional division of the public service serving at a South African diplomatic, consular or trade office abroad or a South African foreign service officer grade VI or an honorary South African consulgeneral, consul, viceconsul or trade commissioner; or of a consulgeneral, consul, viceconsul or consular agent of the United Kingdom, or any person acting in any of the aforementioned capacities or a proconsul of the United Kingdom; or of any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or of any notary public or other person in such foreign place who shall be shown by a certificate of any person referred to in para (a), (b) or (c) or of any diplomatic or consular officer of such foreign country in the Republic to be duly authorized to authenticate such document under the law of that country; or of a notary public in the United Kingdom of Great Britain and Northern Ireland or in Zimbabwe, Lesotho, Botswana or Swaziland.”
Will in Foreign Language
Where a will or testament was drafted in a foreign language, the Master will require a sworn translation thereof by a sworn translator appointed by the courts in South Africa.
From a conveyancing perspective the will lodged with the transfer of immovable property must be a certified copy by the Master of the authenticated will, inclusive of the sworn translation thereof, should same be required.
When deeds and documents are lodged at a deeds registry for the transfer of immovable property emanating from the devolution of a foreign estate the following practice must be followed:
- A certified copy from the Master in South Africa of the authenticated will and, if necessary, the translation thereof, must be lodged.
- The preamble of the Power of Attorney must refer to the letters of executorship, etc. However, where letters of appointment are sealed and signed by the Master, the Power of Attorney must be drafted along the following lines:
in my capacity as representative
in the Estate of the late Margaret Tulogh
duly appointed by letter of appointment issued by
the Master in Dublin and duly signed and sealed
by the Master of the High Court in Pretoria
on 12 July 2014.”
It is trusted that the above now provides more clarity on this thorny issue.
Head of Deeds Training