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A guide to the functions of the Master of the High Court i.r.o. deceased estates & Guardians Fund

Hannes van Tonder, manager: Benchmark Client Service and Administration

Introduction

Although the Master of High Court was created to protect the inheritance rights (in so far as they are protected by law) of beneficiaries, minors and persons incapable of handling their own affairs, proper estate planning is usually underestimated.  This often results in the estate being distributed to beneficiaries that the deceased did not want to inherit or leaving minor children without a guardian.

Part 1: Deceased estates

As protector of the rights of beneficiaries, the Master ensures that the estate representative/executor distributes the estate in a professional and timely manner, as all deceased estates in Namibia fall under the jurisdiction of the Master. A beneficiary (or heir) being the person the deceased nominated in his/her will to benefit from the estate. It is important to use the correct names and that it is clear who the beneficiaries are e.g. “I appoint my sisters, Aletta Johanna Magrieta Visagie and Susanna Albertina Jacoba du Preez to be heirs of my estate”.

A deceased estate includes all property, assets & liabilities which will be distributed according to the provisions of the will or in terms of the rules of interstate succession (in the absence of a valid will). In estates with a value above a certain amount in terms of the Government Gazette (currently N$100,000) the Master will appoint an Executor to administer the estate.

Wills:

Persons 16 years or older, who are able to understand the nature and effect of their actions, may draft a will - in their own handwriting – and in any language preferred.

A will is a legal document that sets out the wishes as to how and whom the testator wishes to benefit and which should be kept in a safe place. Most important is to appoint a guardian to any minor children to make sure they are properly looked after by someone trusted. Without a valid will the estate will be distributed in terms of the rules of interstate succession. This could result in someone benefiting that the testator never wanted to benefit or that minor children might suffer because no guardian was appointed.

A will is valid if it meets the following requirements:

  • It must be in writing.
  • It must be signed in the presence of at least 2 competent witnesses (or confirm the testator’s signature in the presence of at least 2 competent witnesses).
  • Each page must be signed in full by the testator and the witnesses, the last page being signed directly underneath the last sentence. 
  • The testator may sign by making a mark (cross or thumbprint) but it must then be certified by  a notary, magistrate or commissioner of oaths, who needs to sign it and also needs to attach his/her certificate on the last page.

A will is a ‘living’ document, to be reviewed regularly to provide for changing circumstances, and can thus be changed at any time. However it is important that the previous will be revoked by inserting a revocation clause in the new will.

Estate planning:

To ensure that loved ones are financially and otherwise cared for, a testator needs to ensure that the will makes provision for:

  • The nomination of an executor.
  • Appointment of a guardian for minor children.
  • The establishment of a trust and appointment of a trustee for children under the age of 21 in order to safeguard the inheritance of such minors.
  • Provision for estate administration costs & debts.
  • Provision for the financial needs of dependants until the estate is finalised.

Administration process of a deceased estate:

The duties of the executor are threefold, being the collection of all the assets, paying all creditors and to distribute the balance to the heirs (in terms of the will or rules of interstate succession).

The basic process of administering an estate is a rather complicated and technical field of expertise. A sound knowledge of the underlying technical legal principals from the estate administrator. For the basic process of the administration of an estate, as received from the Master’s office, follow this link.

The Guardians Fund

Being a statutory trust (established in terms of Chapter V of the Administration of Estates Act 66 of 1965, as amended), the Guardians Fund is a trust account and entails all the requirements of a trust. Besides being a section of the Master’s office, the main aim of the Fund is to safeguard the interests of minors, mental patients, unknown & absent heirs and certain untraceable persons. Monies for such persons are received from pension funds, inheritances, insurance companies, insolvencies and curatorships, to name a few.

The purpose of the Fund is to protect the money of persons lacking legal competence and capacity, undeterrmined and absent heirs as well as untraceable persons. The functions of the Fund are as follows:

  • The receipt, bookkeeping & disbursement of money.
  • Investment of funds.
  • The safekeeping of and control over hypothecation and security deeds for money accruing to minors.
  • The compiling and publishing of annual lists of unclaimed sums exceeding N$500.
  • The calculation of interest.

Interest is calculated at a fixed rate determined annually, taking into consideration the interest earned for the book year. Interest is calculated monthly and capitalized every year on 31 March.

Payments (for the benefit of minors and persons incapable of handling their own affairs) in terms of Section 90 of the Administration of Estates Act, are paid out for the following purposes:

  • Maintenance & education for minors or dependants,
  • Preservation or safe custody of any property of minors,
  • Transfer of inheritance of minors to the relevant authorities in the country where the minor resides, with the Master’s consent.

In terms of proviso 90, the amount paid out (of the capital) for minors may not exceed N$50,000 without authority of the court.

Payment of a quarterly allowance, to the guardian, for minors are made in March, June, September and December upon completion of the relevant application form (GF5) and submission of the required certified copy of the ID of the guardian. Allowances are paid on application only (and are thus not automatically paid to the guardian quarterly).

Payment of ad-hoc expenses, like school fees, medical expenses etc. will be considered upon completion of the relevant application form (GF6) and submission of the required certified copy of the ID of the guardian and account(s). Prior approval of the payment of additional expenses is considered on merit taking into consideration the age of the minor and available capital. If approved, payment will be made on the first payment date determined by the Master and will be made in favour of the creditor only.

Payment of remaining inheritance will be made when a minor turns 21 or marries, unless the will provides otherwise e.g. that the minor may only receive his/her inheritance on attaining the age of 25. Payment will only be made upon completion of the relevant application form (GF7) and submission of the required certified copy of the ID of the child. 

Important notice and disclaimer
This article summarises the understanding, observation and notes of the author and lays no claim on accuracy, correctness or completeness. Retirement Fund Solutions Namibia (Pty) Ltd does not accept any liability for the content of this contribution and no decision should be taken on the basis of the information contained herein before having confirmed the detail with the relevant party. Any views expressed herein are those of the author and not necessarily those of Retirement Fund Solutions.   

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