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Slyvia Chirawu
Since Daiton Somanje passed on, issues on his estate have made the news but for the wrong reasons. The Herald of July 14, 2015 reported that Faheem, the late Daiton’s son, was appointed executor of the estate.
Apparently during the “court” session, relatives were asked to “vote” for the person whom they wanted and Faheem “won”.
It was further reported that the family was happy with the “judgement”. Josphat Somanje was reported to have expressed happiness over the appointment because the Somanje family had reclaimed what belongs to them.
If the newspaper report is true, it raises fundamental issues in relation to the issue of executorship and the registration of estates. By law all estates should be registered. Legally an estate consists of what a deceased person owned and owed.
The appointment of an executor is done in two ways. A deceased person may have written a will appointing an executor. This person is called an executor testamentary. Where there is no will appointing an executor, one can also be appointed through a meeting which is known as an edict meeting.
It is not a court sitting to pass judgement and there is no notion of a “winner” and it is not legal to actually ask parties present to “vote”.
This meeting is attended by the surviving spouse (or spouses), children (if any), parents, sisters and brothers of the deceased person. As a matter of practice, at least four drawn from the above must attend.
The surviving spouse (or spouses) must attend for the reasons discussed below.
Section 26 of the Administration of Estates Act sets out the issue of the appointment of an executor. If there is competition for appointment, in other words, if among the family of the deceased present, more than one of them want to be appointed, the law sets out the rank of persons who can be appointed as executor.
The first preference is given to the surviving spouse, so in the case of the late Daiton’s estate, his surviving spouse, Esther, should have been the first choice. It is not clear from the newspaper report whether Esther was even offered the right of first refusal as per the provisions of the law.
Failing the surviving spouse, for instance they may refuse to take up the executorship or may be deceased, the second preference goes to a next of kin. This could be a child, brother, sister or parent of the deceased.
Failing them, a creditor or creditors, that means persons owed money by the deceased can also be appointed executor. If they fail, the last preference is given to what is known legally as a legatee.
In many cases, there are stories that the family members of the deceased “refused” that a surviving spouse should be appointed as executor. A strict reading of the law shows that it is not up to relatives to make that decision.
The law allows also the appointment of more than one person to be executor. This means for instance, a surviving spouse can be appointed joint executor with the deceased’s daughter or son, for instance.
If there any good grounds that exist in the eyes of the Master of the High Court or a Judge of the High Court on reviewing an appointment of an executor for all or any of the persons mentioned above not to be appointed, a fit and proper person (or persons ) who is not a surviving spouse, next of kin, creditor or legatee can be appointed as executor.
This is what is called a neutral executor. Any person who has an interest in the estate and who is not happy with the appointment of an executor by the Master of the High Court may make an application to the High Court for the review of the appointment.
The High Court may either confirm the appointment or set it aside and appoint some other fit and proper person or persons to be the executor or executors as the case maybe.
The reason why some families fight over the appointment of an executor is due to a misunderstanding of who an executor is and what their legal role is. Most people wrongly believe that an executor inherits property left by the deceased person simply by being appointed as executor. The legal position is that an executor is a person who literally steps into the shoes of the deceased person.
They are expected to take control of the assets of the estate not for their own use but for eventual passing on to the beneficiaries. Among other duties, they are expected to advertise an estate in the Government Gazette and any newspaper circulating within the province where the deceased person was residing.
This is so as to give notice to people or entities who owe money to the deceased or are owed money to come forward.
The duties are found in both common law and statute law and the master supervises the executor’s work.
What is important to stress is that an executor even though they may also be a beneficiary do not inherit property through the executorship. The law lays down how property of a deceased person should be distributed depending mostly on the type of marriage that they had and whether they had children or not.
Therefore, family members should not interfere with the appointment of a surviving spouse as an executor as this does not mean that she or he will inherit everything. A lot of energy is wasted when families fight over who should be appointed executor.
In the case of the late Daiton’s estate, the appointment of Faheem as executor should not be viewed as a blank cheque for him to inherit.
He is expected to perform the expected legal duties of an executor. An executor can also legally be removed from that position either through an application to court by the master or through an application by a beneficiary to the court.
Depending on the particular circumstances of the case, the late Daitons’s wife, Esther Musango will inherit from the estate together with the children including Faheem. In other words his inheriting is not on the basis of him being an executor but through operation of the law.
Faheem’s appointment as executor does not take away Esther’s rights to inherit.
She was presumably married to Daiton at the time of his death and that makes her a surviving spouse even though she was a second wife. The belief that her family would “benefit” simply because she is appointed executor has no legal basis.
Even if she had been appointed executor, this would not mean that the children of the late Daiton would not inherit.
Similarly the belief that the Somanje family will benefit simply because Faheem has been appointed executor also has no legal basis. The appointment of an executor and who benefits in the end are two different processes.
Who inherits does not ultimately depend on who an executor is but is an issue governed by operation of clearly laid down legal criteria. Even if a neutral executor had been appointed, Esther and the children of the late Daiton will still inherit.
The duties of the executor will end once she or he has performed all the expected legal duties. This includes ensuring that property, both movable and immovable, has gone to the rightful beneficiaries.
In the final analysis, an executor must act not the benefit of self but for the beneficiaries.
Slyvia Chirawu is a lawyer. She is a Hubert Humprey alumnus and teaches Family Law and the Law of Succession. She is a gender and women’s rights expert and activist and writes in her personal capacity.
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