Western Cape judge removes executrix in bitter R5.6m estate battle over twins’ inheritance

A Western Cape high court judge has removed a practising attorney as executrix of her late sister’s estate following a bitter legal battle involving a R5.6m Road Accident Fund payout, millions of rands in legal fees and the inheritance of the deceased’s twin children.

The attorney, who is the deceased’s identical twin sister and godmother to the twins, stood to inherit R500,000 from the estate. She had additionally been nominated as a trustee of a testamentary trust established for the children.

The twins’ father, acting on behalf of the minor children, brought an application seeking her removal as executrix and asking the court to prevent her from serving as a trustee.

The application followed years of litigation over R5.6m in RAF proceeds that had been paid into the sister’s trust account before the deceased’s death.

According to court papers, the deceased had received the money from a RAF claim arising from injuries she sustained in a motor vehicle accident. The money was paid into her sister’s trust account in November 2014 and later transferred into an Absa investment account held in the sister’s name.

After the deceased’s death in September 2018, her sister was appointed executrix of the estate.

The father subsequently launched proceedings seeking an account of the R5.6m, citing the sister in both her personal capacity and as executrix of the estate.

The legal battle produced several different outcomes.

In February 2021, the high court dismissed the accounting application, finding that although the sister owed fiduciary duties to the deceased, there was no evidence that she had breached those duties.

A full court overturned that decision in October 2022 and ordered the sister, in her personal capacity, to render a full and proper account and pay the father’s costs.

However, in October 2024, the Supreme Court of Appeal upheld the sister’s appeal and dismissed the father’s accounting application. The SCA found that she was not obliged to account to the estate for the R5.6m paid into her trust account before the deceased’s death.

The father subsequently sought leave to appeal to the Constitutional Court, but that application was dismissed, bringing the accounting litigation to an end.

The present application arose from a different dispute, concerning the sister’s conduct while acting as executrix.

The court heard that during the litigation over the R5.6m, the sister had used estate funds to pay legal expenses she incurred in opposing the accounting application, including payments to Spamer Triebel Attorneys.

The father argued that she had used more than R3m of estate funds, representing about 80% of the money under her control as executrix, to finance litigation in which she was personally involved.

He argued that the payments amounted to an improper appropriation, alternatively an unauthorised loan, of estate funds and breached the fiduciary duties she owed to the estate.

The sister opposed the application, arguing that she had acted not only in her personal capacity but also as executrix, and was therefore entitled to use estate funds to defend the accounting application.

The judge set out the lengthy history of the dispute.

The deceased and her identical twin sister were involved in a motor vehicle accident on August 14 1995, in which the deceased suffered serious injuries.

The deceased married the twins’ father in September 2006 and executed her first will the following month. Their twin children were born in July 2012.

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The deceased’s sister began practising as an attorney in her own account in April 2005, after previously working at her father’s firm.

In November 2014, R5.6m from the deceased’s RAF claim was paid into the sister’s trust account. The money was transferred several days later into an investment account at Absa held in the sister’s name.

The father was unaware of the RAF claim, its settlement or the payment of the R5.6m into the sister’s trust account, the court heard.

Just weeks later, in January 2015, the deceased signed a second will.

Under the will, the deceased made specific bequests to her parents, including two vehicles and a stand in Mossel Bay, and left a R500,000 cash legacy to her sister.

The father was largely disinherited. Apart from most of the household furniture, certain items left to the twins and the remission of a R200,000 loan he owed the deceased, he received no further benefit.

The residue of the estate was left to the twins, making them the principal beneficiaries.

The will also provided for a testamentary trust for the children, with their aunt nominated as a trustee. The twins were to receive their respective inheritances when they turned 21.

The deceased died on September 26 2018, a day after undergoing surgery linked to the long-term consequences of her injuries from the 1995 accident.

Her second will was discovered in April 2019 and accepted and registered by the Master later that month. Her sister accepted her appointment as executrix while in Switzerland and appointed MHI Attorneys as local agents to assist with the estate.

Letters of executorship were issued in July 2019.

MHI Attorneys opened an estate bank account at Nedbank in August 2019. Between August 2019 and July 2021, approximately R4.25m was recovered and paid into the account for the benefit of the estate.

However, substantial payments were also made to Spamer Triebel Attorneys from February 2020 onwards. The father had repeatedly sought information about the whereabouts of the R5.6m from MHI Attorneys, his former sister-in-law and the Master between August 2019 and March 2020.

After failing to obtain the information he sought, he lodged a complaint against his former sister-in-law with the Legal Practice Council in March 2020 and instituted the accounting proceedings in June that year.

The LPC complaint was subsequently held in abeyance pending the outcome of the litigation.

The judge also expressed “considerable unease” about the manner in which the estate had been administered.

The court noted that estate funds had been transferred numerous times between different bank and trust accounts before ultimately reaching what appeared to be the estate account, raising questions about whether the beneficiaries may have lost interest that could otherwise have accrued.

The judge also questioned the number of attorneys and agents appointed by the executrix, noting that she was herself a practising attorney and that it was unclear from the papers what work she had personally performed.

This was particularly concerning given the significant legal costs incurred by the estate.

The executrix had received R296,924.58 in remuneration, calculated at 3.5% of the estate’s gross value of approximately R8.48m. She had also received her own inheritance under the will and distributed the specific bequests to the deceased’s parents.

Taken together, the judge said these circumstances created an “unfortunate impression” that the interests of the executrix and the deceased’s parents had been prioritised over those of the twins, whose interests she was obliged to protect.

However, the judge stressed that these issues were not directly before the court for determination and that no definitive findings of wrongdoing were made.

The court said the concerns warranted consideration by the Master, which supervises the administration of deceased estates, and potentially the Legal Practice Council insofar as the attorney’s professional conduct was concerned.

The newly appointed executor will also have to investigate the administration of the estate, account fully to the beneficiaries and consider whether any portion of the executrix’s remuneration should be repaid.

The court ultimately removed the deceased’s sister as executrix and ordered her to return her letters of executorship.

The Master was directed to appoint a replacement executor with at least 15 years’ experience within 15 days of being served with the order.

The former executrix must account for all money, assets and records taken into her possession while administering the estate and hand them over to the new executor within five days of the appointment.

The court also ruled that it would be in the interests of the testamentary trust and its beneficiaries for her not to serve as a trustee.

She was ordered to pay the costs of the application on an attorney-and-client scale, including the costs of two counsel. The court specifically ordered that those costs may not be paid from or recovered from the deceased estate.