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Power to act

7 August 2014

The question examiners are often confronted with is whether it is the duty of the registrar of deeds to determine whether the date of transaction entered into by the executor is subsequent to the date on which the executor was appointed by the Master of the High Court.

When comparing the date of sale with the date of appointment of the executor it often occurs that the date of the transaction occurred prior to the date of appointment. Conveyancers and executors alike are of the opinion that, in some instances, an urgent sale can be concluded prior to the executor being appointed, and that the executor has the power to ratify the transaction subsequent to the appointment of the executor.

Another school of thought is of the opinion that this is not the responsibility of the registrar as the preparer of the power of attorney assumes responsibility that the executor has been appointed and is acting within the powers conferred upon him by law (see regulation 44A).

Section 13(1) of the Administration of Estates Act 66 of 1965, however, has a peremptory provision in this regard and provides that no person shall liquidate or distribute the estate of any deceased person, except under letters of executorship granted or signed and sealed under Act 66 of 1965, or under an endorsement made under section fifteen, or in pursuance of a direction by a Master. It is thus clear that no person can act as an executor before being granted letters of executorship by the Master (see Ex parte Ganga 1979 (1) SA 586 (N))

Given the provisions of section 13(1) and the fact that a registrar of deeds must register an indisputable title deed, it is abundantly clear that any transaction entered into by an executor or representative prior to his or her appointment is ab initio null and void and must be rejected by the deeds examiners concerned. The mere fact that the preparer has assumed responsibility for the fact that the executor is acting within the powers conferred him/her by law does not detract from the fact that a registrar of deeds must examine deeds and should it not comply with any law, he/she may reject same (see section 3(1)(b) of Act 47 of 1937).

Allen West
Deeds Training
Pretoria

Reader Comments: 6
Pauline 07/08/2014:

On the topic of deceased estates, does an executor have the power to distribute and transfer immovable property to a partner/surviving spouse in lieu of a maintenance claim against the deceased estate?

Allen West 08/08/2014:

Yes . Please see RCR 55 of 2008.

MARGARETHE DE BEER 08/08/2014:

I have had two matters where the Master made errors when he issued the Letters of Executorship (L&E). In the one matter the Master gave a new estate number as it said the matter should have a 2008 number (year wherein deceased died) and it has a 2009 number (year wherein estate was reported).  This was picked up when we wanted our power of attorney to pass transfer to be endorsed.

In the second instance the Master made a typing error and left out one of the digits form the deceased identity number. When the Master corrects an error on the L&E he issues a new L&E with a new date. This correction of the error and issuing of the new Letters of Executorship does not render all acts prior null and void and I do not think it is correct to state that if the date of my L&E is after the date of the sale that matter must be rejected out of hand as there may be a legitimate reason as to why the date of sale is prior to the date on the Letters of Executorship.

Jacques Steyl 14/08/2014:

Re the comments by M de Beer - in her instance the appointments were valid but errors occurred in the issuing of the Letters of Executorship. This can surely be explained by means of Conveyancer certificates on lodgement. I think the question that begs to be answered is if an examiner needs to carefully scrutinize the date of appointment in relation to the date of the transaction, and in this regard I concur with Mr West.

Any act by a person before the date of appointment by the Master will be invalid as that person had no locus standi to act on behalf of the estate .

Susanne Rall-Willemse 19/08/2014:

I do not think that it would really get to the point where the examiner has to check this, because in my view it would already be checked by the Master when he endorses the Power of Attorney, so the Master would reject the Section 42(2) application if the date of sale is later than the date of appointment.

Allen West 21/08/2014:

I cannot concur that it is not the responsibility of the examiner to check whether the date of appointment was subsequent to the date of sale. One must take cognizance of the provisions of section 3 (1) (b) of the DRA which places a duty on the Registrar to examine all deeds and documents and reject same where it is incorrect. It is also the duty of the Registrar to procure an indisputable title deed. These duties are not incumbent on the Master and he does not examine the PA before procuring the endorsement thereon.

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