Freedom of testation is distinct from the right of a testator to nominate the executor of his choosing.
Regulation 910 allows for the administration of deceased estates by the surviving spouse, person related by consanguinity to the deceased, or persons nominated as executor in a will. It will be purely incidental if such person has any idea how to administer an estate. Chief Master’s Directive 20 of 2015 further provides that the Master may not insist on the appointment of an agent to assist the executor where a person was nominated as such in a will, consequently leaving the estate to be administered by a layperson.
The Courts have hinted towards the need for a figure such as the independent executor. An independent executor is a person who has no conflict between his own interests and his interests as an executor. Although a testator has the freedom to nominate an executor in terms of the Administration of Estates Act, such a nomination is distinct from the right to freedom of testation. If the legislator were to intervene by amending the law to only permit for independent outsiders to administer deceased estates, this will not be a limitation on the right to freedom of testation.
Furthermore, an independent outsider as trustee in family trusts is a requirement. It is argued that the same should be implemented with appointing executors. The Master has enacted forms that must be lodged by trustees to determine whether a trustee is an independent outsider. Similar forms do not exist for the appointment of executors, but should be required.
This dissertation works toward the recommendation that the legislator needs to intervene to permit only independent outsiders as executors. The Master must be put in a position whereby he can proactively determine whether a person is an independent outsider, rather than having to remove an executor after receiving a complaint by an aggrieved party. Such an independent executor must then be assisted by a professional person with the necessary skills and knowledge to administer an estate, thereby protecting the interests of the estate.
Mini Dissertation (LLM)--University of Pretoria, 2019.