This Act deals with distribution of a deceased’s estate who left no will.

1. Interstate or testate succession in the Local Courts

If the deceased left a will the estate is testate. In that case the Local Court has no authority, and the case should be referred to the High Court (Wills and Administration of Testate Estates Act section 66).

If the deceased actually made a will, but the will does not live up to the requirements in the Will and Administration of Testate Estates Act, it is understood that the person died interstate. In that case the Local Courts are competent. The Local Courts also have power to decide whether a person died intestate.

Since the Local Courts are not competent to deal with matters related to Wills, this problem means that only if it is quite obvious that the paper in question does not fulfil the most basic requirements of a Will, the Local court can decide that the estate is intestate, and as such proceed on the matter.

2. Which court is competent - the hierarchical question?

The Intestate Succession Act mentions Local Courts, Subordinate Courts as well as the High Court. As for matters of the administrator of the estate, the main rule is that these questions are entertained by the Local Courts. This entails that the Local Courts, no matter the size of the estate shall do matters of appointing administrators and of revoking appointments.

This state of affairs has clearly been explained in a circular from the Chief Justice dated 27th February 1996.

When it comes to matters of succession, questions concerning part II of the interstate Act, this is dealt with by section 43. According to this provision Local Courts can only engage in succession question when the estate is more than K50,000.

Taken verbatim this entails that any question concerning the actual distribution of the estate shall be referred to a higher court, if the value of an estate is more than K50,000.

3. Which court is competent- the geographical question?

Not any Local Court has the authority to appoint an administrator in any intestate estate. Only the Local court in which area the deceased lived or where he or she had the major part of his /her property (Local Court Act section 8).

All other Local Courts shall abstain from dealing with the case, and refer the applicants to go to the proper Local Court.

(I) APPOINTMENT OF ADMINISTARTOR

1. Whom to appoint

* The administrator shall only be appointed on application. This means: do not appoint anyone that has not applied. The application can be written or oral (Intestate Succession Act, section 16).

* The interest of the beneficiaries shall be consideration. Thus the widow(er), a child- provided it is not a minor- the parents or the dependants should be preferred as administrators to brothers of the deceased, since they only have a more remote interest, according to the law.

* Note that it is always possible to appoint two, three or four administers.

Often two administrators will be good option: one from the family of the deceased and one from the family of the widow(er), preferably the widow(er) him/ herself.

* Note: when the beneficiaries include minors (children under 18 years of age) or "life interest", meaning a spouse with a right to live in the matrimonial home, one administrator is not enough.

2. Formalities

Many Local Courts require that the person, who applies for administratorship, brings two witnesses. This is not a requirement mentioned in the Act.

However, it is prudent to secure that the person is who he is claiming to be, and also to secure that the administrator does have some backing from the family.

Do not appoint an administrator who does not have some backing of the likely beneficiaries (widow(er), children, parents and dependants).

Note: it is not the family who has the power to appoint an administrator. The powers are vested in the Local Courts.

The Local Courts can of course listen to the wishes of the family, and if all stakeholders agree on an appointment it may be unproblematic to appoint him or her.

However, the court has to assess the situation. If there is any danger that the administrator will not fulfil his or her obligations or that he or she is likely to deprive the beneficiaries of their portion, the court shall not hesitate to appoint another administrator.

3. Disputes

The Local Court have power to solve disputes concerning the appointment of an administrator.

If the interested parties do not agree, the Local Court should grant the letter of administration to the one with the greater and more immediate interest in the deceased’s estate

The decision is of course subject to appeal, which has to be done to the High Court. The litigants shall be informed of their right to appeal, and of the dead line, 30 days.

It is also possible for the Local Court to direct such a dispute directly to the High Court, if this is in the best interest of justice.

DISTRIBUTION OF THE ESTATE.

1. What is an estate

Firstly, it must be established what constitutes the estate of the deceased.

An "estate" means all the assets and liabilities of a deceased, including those accrued to him/her by virtue of death or after death.

This means that whatever the deceased owned when he or she was alive forms part of the estate. Even amounts payable upon death (e.g. terminal benefits) make part of the estate.

Assets, that were not owned by the deceased, but by somebody else e.g. the spouse, obviously do not form part of the estate. Thus when a married person died, it is important to distinguish between the property of the deceased and the property of the surviving spouse.

If they had joint ownership, this property does not form part of the estate. The surviving co- owner will automatically be the owner, no matter whether he or she is a beneficiary according to the Intestate Succession Act.

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