An executor can be removed on application by the Master of the High Court or by an interested party. The amended section 117 of the Administration of Estates Act provides as follows;
“117 Removal of executor, tutor or curator from office
- This section does not deprive any interested party of the right under the common law to initiate action for the removal of an executor, tutor or curator on the ground that his or her continuance in office is prejudicial to the interests of the estate in respect of which the executor, tutor or curator was appointed.”
What this means is that the Master of the High Court can proceed in terms of the Act and the grounds upon which the Master may base the application are listed in section 117(2) of the Act being;
- that he or she was not qualified for appointment to such office or that his or her appointment was for any other reason illegal; or
- that he or she had failed to perform satisfactorily any duty or requirement imposed upon him or her by or in terms of any law; or
- that he or she is mentally or physically incapable of performing satisfactorily his duties; or
- that such person is no longer suitable to hold such office;
(see Van Niekerk NO v Master Of The High Court 1996 (2) ZLR 105 (S))
An interested party cannot proceed in terms of section 117 of the Act but in terms of the common law. The term ‘interested party’ is not defined in the Act but in various case law an interested party has been defined as a beneficiary to the estate. The court in Katirawu v Katirawu HH58/2007 stated that the grounds upon which an executor may be removed from office in terms of the common law are inexhaustive as they are based on broad principle. What is central however, is the welfare of the beneficiaries and once it is shown that the continuance of the executor in office does not augur well for the future welfare of the estate and the beneficiaries, then an executor can be removed from office. Examples include where the executor acts partially, has conflict of interest, fails to account for estate property or deliberately delays the finalisation of the estate.
It is submitted that the Master rarely utilises section 117 of the Act and is usually a spectator where allegations of misconduct are levelled against the executor. This leaves the beneficiary at the mercy of the errant executor with some simple estates taking years to be finalised when the law prescribes that an estate account should be lodged within six months of the issue of letters of administration. This is unfortunate given that most beneficiaries are financially incapacitated to take on the executor.
Once the Master makes an application in terms of section 117 of the Act and the executor is served with the same, he (the executor) must vacate office and stop performing any duties as the executor until the application is decided. It is submitted that there is no reason why this should also not apply where the application is in terms of the common law.
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