Practical challenges relating to the supervision of small estates

Abstract

Previously, the supervision of the administration of deceased estates was divided along racial lines. Law reform has, however, seen the establishment of a single system that is fair to all South Africans – or is it? Following a brief contextualisation of the legal position on the supervision of deceased estates prior to, and following the definitive Moseneke judgement of 6 December 2000, this article sets out to examine whether the equality envisaged by that judgement and recent legislation pertaining to the supervision of small estates is actually being achieved. The research reveals some practical challenges, including poor service delivery at service points; banks renouncing their nomination as executor of small estates for a lack of sufficient financial benefit; the non-registration of customary marriages; the poor protection currently afforded to vulnerable minor beneficiaries of deceased estates, and the lack of a more affordable, accessible way than lengthy and costly court procedures to challenge a decision of the Master of the High Court. To address these challenges, it is recommended that service point infrastructure be strengthened; that banks be required to communicate more openly with their clients; that extensive awareness campaigns be launched on the urgent need for all customary marriages to be registered; that the agreement between government and Legal Aid South Africa, which is supposed to serve minor beneficiaries of deceased estates, be revisited, and that the possibility of an estate ombudsman be explored.