Britz NO v Strydom and Another (2849/2018) [2019] ZAECPEHC 17 (29 March 2019).

/ / 2019, Estates and Trusts, News


The Applicant in this matter, as the nominated executrix of her deceased husband’s estate, sought an order of ejectment, by the High Court of the Eastern Cape Local Division, against the First Respondent in respect of premises previously owned by the deceased.

The First Respondent is the deceased’s nephew and heir of the only asset in the deceased’s estate, being an immovable property (“the immovable property”). Prior to the date of death of the deceased, the First Respondent and the Applicant resided with the deceased at the said property. Subsequent to the death of the deceased, the Applicant vacated the immovable property and the First Respondent continued to reside there.

The Applicant was appointed as executrix of the estate in May 2017. Prior to this, an attorney, Teresa Heasley, was the appointed executrix of the estate, but due to the acrimonious disagreements between the Applicant and the First Respondent, Teresa Heasley resigned as executrix. During Teresa’s term, a claim was submitted against the estate by the Applicant for maintenance in terms of Maintenance of Surviving Spouses Act 27 of 1990. This claim was approved by Teresa Heasley and the Applicant and First Respondent were notified accordingly. The First Respondent and the Applicant were however further advised that the maintenance claim was in excess of the value of assets in the estate. As a result, the immovable property, being the only asset in the estate, had to be sold so as to satisfy such a maintenance claim. The aforesaid was communicated to the Master of the High Court (The Second Respondent) in terms of section 34(2) of the Administration of Estates Act 66 of 1951, as amended.

The First Respondent was to vacate the immovable property by 01 March 2018 but failed to do so on the contention that he had ownership rights over the property as a result of being the only heir in the deceased’s estate.

The question to be determined by the Court was whether or not the First Respondent was entitled to continue occupying the immovable property.


The Court held that one of the obligations which devolves on an appointed executrix is that control and possession of all the property in the deceased’s estate vests with the executrix, subject to the distribution of such property in accordance with the testamentary dispositions of the deceased. Essentially, the executor/executrix becomes the owner in his/her official capacity of all assets in the deceased’s estate during its administration.

Accordingly, the First Respondent has no entitlement to the property in the estate whilst the Applicant, as the executrix, is legally responsible for the administration and liquidation of the estate. The First Respondent will only have an entitlement to the property in the deceased’s estate after the debts against the estate have been satisfied, and the free residue (where applicable) has been distributed to the beneficiaries of the estate.

Due to the fact that the immovable property was the only asset in the estate, such property would have to be sold in order to satisfy the maintenance claim. The Court found that the First Respondent does however hold the right to object to the liquidation and distribution account on the quantum of the maintenance claimed by the Applicant.

The court ordered that the First Respondent vacate the premises within 2 (Two) months of the order.


A beneficiary does not acquire ownership rights of bequeathed assets upon the death of the deceased. Rather, such assets fall within the control and ownership of the executor/executrix in his/her official capacity to do with what is deemed necessary in the administration and satisfaction of all claims of the estate.

Written by Tayla Bruce and supervised by Jeannique Booysen

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