EDITORIAL COMMENT : Judges’ early involvement in estate rows way to go

SEVERAL factors have triggered the need for change in the Office of the Master of the High Court, including the significant growth in the number of people who die while owning assets, the legal changes introduced by Parliament since independence to protect spouses and orphans, and the continuing reluctance by many to write a will.

The growth of quality permanent housing and motor vehicle ownership has meant that far more people now leave assets of value when they die and these need to be passed on to their heirs, according to law.

The present programme to issue thousands of title deeds will certainly at some stage in decades to come mean a lot more work for the Master, and this is just one of the programmes cementing the fruits of prosperity.

So we are reaching a stage where a lot more people, regardless of whether they or their parents were married under civil law or customary law or involved in a less formal relationship, now need to have the estate of a dead relative sorted out before the will and applicable laws sort out the subsequent inheritance.

The Master’s Office clearly needs to be decentralised beyond Harare and Bulawayo as a result and the Administration of Estates Amendment Bill now going through Parliament does lay that obligation on the Master. The shift to electronic data storage and documents will help, since all offices will eventually have immediate access to all files.

It is fairly obvious that the most critical person when the estate of a dead person is being wrapped up, debts paid out and money owed collected, is the executor. This person has a range of laid down functions, which the Master has to make sure are done properly, both in accordance with any will and even where there is a will in accordance with the modern law, which can override parts of a will.

While a person can decide while they are alive how they want their assets and money to be distributed after they die, Parliament has intervened to ensure that surviving spouses and dependent children have at least the use of certain property, even if not the ownership. It is now impossible to have a widow and orphans just thrown into the street.

Where a will names the executor then the Master will normally accept that person, if they are willing or if the law firm or other business that had the nomination right still exists, but in the absence of a will someone has to take on the job. Up to now the Master, after consulting the family, has usually made a choice.

One particular problem that arises in many families after the death of someone with assets concerns the squabbles and fights that can erupt as people argue about who gets what, and even how inheritance laws should be applied and which inheritance laws should be applied. This can lead to allegations, fallacious but still there, against the Master as well as the executor.

We find accusations of collusion, favouritism and the like bandied around, and in this age of social media, frequently made public. Generally the allegations are nonsense, but the Master still has to defend against them rather than do the job laid down for the office.

Parliament now wants, in these circumstances, to have a High Court judge make the final decision over who will be the executor. The Master will be expected to produce the normal report and recommendation, but members of the family who object can have their day in court, and then abide by the judge’s decision. This will take a lot of unfair and unpleasant heat off the Master, so presumably will win acceptance from that office.

The other source of family fighting revolves around just who gets what when there are multiple heirs, and when property is sold to be distributed, how that is done. Allegations of collusion again have been made, and will be made, involving executors, the Master’s office, estate agents and the like.

Generally an auction is considered the fairest way of established best value but there can be many exceptions, such as informal agreements within a family over who will get what and who can buy someone else’s share.

In these cases, so long as everyone agrees, the Master has generally gone along with the family. But rows can extend over generations, so the proposal now that a judge needs to check that everyone is in agreement, that the Master has ticked all the boxes, and that the proposed arrangement is fair to all makes a lot of sense and kills the chance that some other judge, in a decade or two, will be faced with a family fight.

There are a couple of other points that could have been in the Bill. The Master charges a standard 4 percent fee for processing every estate, regardless of size, and this can be a serious burden on small estates. Treasury has seen this point and the first equivalent of US$100 000 does not count for death duties.

That means that the vast majority of housing, just about everything in a high density suburb or rural area and most owner-occupied flats, can be inherited without death duties, but there can be problems finding the 4 percent if there are no other assets. It might be an idea to have a sliding scale of lower fees for the first US$100 000 as well. Otherwise we can still have a widow having her home sold under her feet because she did not have the 4 percent.

Generally, what the amendment proposes though is necessary. While investigations have found almost all claims of collusion and worse involving the Master are totally unfounded, the changes will mean that allegations are made early on, when all the evidence is on the table. And a second opinion on who is the best executor where one has to be appointed means that fewer executor errors are likely. In both cases this will end matters early and bring finality.

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