dealing with the approach to be followed by a court in exercising its discretion under this section, held as follows:[1]
“Hoe dit ook al sy onder die gemenereg en ingevolge die gewysdes onder die ou Boedelwet, 24 van 1913, is die Hof nou gemagtig kragtens art. 54(1)(a)(v) van die huidige Boedelwet om ’n eksekuteur te verwyder indien dit onwenslik is dat hy as eksekuteur van die betrokke boedel optree. Die Hof het hier ’n diskresie en myns insiens bly die oorheersende oorweging die belange van die boedel en van die begunstigdes.”[2]
[57] It seems clear that there has been a complete breakdown of trust between Mr Gory and Mr Kolver and that the former has lost all faith in the latter as executor. On the other hand, as will be discussed in greater detail below, it cannot in my view be said that Mr Kolver has been guilty of any maladministration or any other form of misconduct in respect of Mr Brooks’ deceased estate.[3] The question whether it is just and equitable that Mr Kolver be removed from his office as executor is thus a difficult one. The discretion vested in the High Court by section 54(1)(a)(v) is a discretion in the strict sense and an appellate court will ordinarily only interfere with the exercise of that discretion in limited circumstances; for example if it is shown that the High Court did not act judicially in exercising its discretion, or based the exercise of that
- ↑ Id at 17E–F.
- ↑ “[Whatever the position may be] [u]nder the common law and according to the authorities under the old Administration of Estates Act, 24 of 1913, the Court is now empowered in terms of section 54(1)(a)(v) of the present Administration of Estates Act, 66 of 1965, to remove an executor from office if it is undesirable that he should act as executor of the estate concerned. The Court has a discretion and the predominating consideration remains the interests of the estate and of the beneficiaries.” (Translation taken from the headnote to the reported judgment at 2E–F.)
- ↑ On the removal by the court of an executor in terms of section 54(1)(a)(v), see generally Meyerowitz The Law and Practice of Administration of Estates and Estate Duty 2004 ed (The Taxpayer CC, Cape Town) at 11-1–11-5 and the authorities there cited.
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