be, in pursuance of a valid claim against the estate.” Section 31(b) Late claimants have no claim directly against paid creditors during the administration process but claimants still have claims against the Executor in the Executor’s official capacity.
2. The position of the executor AFTER administration The administration of a deceased estate is concluded when: (1) The deceased estate has been wound up/finalized; And (2) The Executor has received his a letter of release from the Master of the High Court that he is relieved of Executorship. Late claimants/creditors who lodged late claims (Sec 31 claimants) may now use the CI to recover the benefit directly from other creditors that were paid during the administration. This is known as the automatic subrogation principle , the creditor steps into the shoes of the Executor to recover the benefit he was entitled to. If the Executor has acted fraudulently , the Executor will be held personally liable (personal capacity) in terms of Sec 56(2) of the Act [Criminal law].
Should late claimants be allowed to use the CI to recover benefits? 1. Van der Walt: criticises the granting of CI to late creditors who lodged late claims - The legislature/statute should have limited the application of the CI in these circumstances. Late creditors do not comply with “sine causa” requirement, the creditor is impoverished and beneficiary is enriched, but transfer was not sine causa/unjustified because the executor acted according to the Act (legal obligation) and the late creditor was negligent in not adhering to the specified notice period.
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- Fall '18
- Van Zyl, van der Walt, Administration of Estates Act, Roy Evans