PART III
Estates of Deceased Persons (ss 12-64)

[Ch3101s12]12.     Death notices to the Master

            (1) Whenever any person dies within Botswana leaving therein any property or a will, the nearest relative or connection of the deceased at or near the place of death, or in default of any such near relative or connection, the person who at or immediately after the death has the control of the premises at which the death occurs, shall within 14 days thereafter cause a notice of death to be framed in Form A set out in the First Schedule, and shall cause that notice, signed by himself, to be delivered or transmitted to the Master and the notice shall be accompanied by a true copy thereof.

            (2) Whenever any person dies outside Botswana leaving any property or a will therein, any person within Botswana having possession or control of any such property or such will shall within 14 days after the death has come to his knowledge report the death to the Master.

            (3) The Master may by written notice require any person who may, in his opinion, be able to furnish the information required-

     (a)     if no death notice has been given or obtained, to submit to him within a period specified in the notice, a death notice substantially in the prescribed form; and

     (b)     if a death notice has been given or obtained or has been submitted under paragraph (a) and the Master desires any further information, to answer in writing to the best of his knowledge, within a period so specified, such questions as may be sent forth in the notice.

            (4) If the person signing any death notice was not present at the death, or did not identify the deceased after death, the Master may call upon any person having any interest in the estate for proof of the death.

[Ch3101s13]13.     Deposit of wills with Master

            (1) Any person may lodge with the Master, either open or enclosed, any will executed by such person; and the Master with whom that will is lodged shall cause to be kept a register of the name and address of every person so lodging a will and the date when it was lodged.

            (2) Every will so lodged shall be accompanied by a duplicate or fair and true copy thereof, which, together with the original, shall be kept in the custody of the Master until the death of the person executing the will unless re-delivery thereof is demanded by him, or in his lifetime by his agent specially authorized for that purpose, and when any such will is re-delivered the said person or his said agent (as the case may be) shall sign a receipt for the same.

[Ch3101s14]14.     Transmission or delivery of wills to Master and registration thereof

            (1) Any person who has any document being or purporting to be a will in his possession at the time of or at any time after the death of any person who executed such document, shall, as soon as the death comes to his knowledge, transmit or deliver such document to the Master.

            (2) Every person shall, at the expense of the estate and when required by the Master to do so, transmit the original minute of any notarial will passed before him or in his possession, to the Master, and shall at the same time file a certified copy thereof in his protocol and endorse thereon that the original has been transmitted to the Master.

            (3) Any such document which has been received by the Master, shall be registered by him in a register of estates, and he shall cause any such document which is closed to be opened for the purpose of such registration.

            (4) If it appears to the Master that any such document, being or purporting to be a will, is for any reason invalid, he may, notwithstanding registration thereof in terms of subsection (3), refuse to accept it for the purposes of this Act until the validity thereof has been determined by the court.

            (5) If the Master is satisfied that the person who executed any will transmitted or delivered to him in terms of subsection (1), has not left any property in Botswana, he may release such will to any person lawfully requiring it for the purpose of liquidating and distributing the estate of the deceased person outside Botswana.

[Ch3101s15]15.     Warrants to search for concealed wills

            Every judge of the High Court and every magistrate who upon information taken on oath is satisfied that there is reason to suspect that any will is concealed in any place within his jurisdiction may, by warrant under his hand, cause every such place to be searched.

[Ch3101s16]16.     Application by Master for order to deliver

            When any person on reasonable grounds is believed to be in possession of or to have under his control any will, and after the death of the testator fails to deliver or transmit the same as hereinbefore provided, the Master shall forthwith apply to any court having jurisdiction for an order that such person forthwith deliver that will to him.

[Ch3101s17]17.     Inventory of estate in community of property

            (1) When one of two spouses who have been married in community of property dies the survivor shall, within six weeks after the death, cause an inventory of all property which, at the time of the death, formed part of or belonged to the estate possessed in community between the pre-deceasing and surviving spouses, to be made in the presence of two impartial witnesses being persons of good credit and repute and in the presence of such persons having an interest in the distribution of the joint estate as heirs or legatees of the pre-deceased spouse as may attend.

            (2) If any such property not included in any such inventory has, after the death, been registered in the name of the suriving spouse, the surviving spouse shall, within 14 days after the date of any such registration, transmit to the Master a supplementary inventory of all such property.

            (3) Every such inventory shall be subscribed by the surviving spouse, the witnesses, and the heirs or legatees so attending.

[Ch3101s18]18.     Inventory on death of persons not married in community

            (1) On the death of any person, not being one of two spouses married in community of property-

     (a)     the wife or husband of the deceased; or in the default or absence of the wife or husband;

     (b)     the child or children of the deceased; or in the default, absence, or minority of the child or children;

     (c)     the next of kin of the deceased; or in default, absence, or minority of the next of kin;

     (d)     the person who, at or immediately after the death, has the control of the premises where the deceased was living or staying at the time of his death,

shall within 14 days after the death, cause to be made, in the presence of two impartial witnesses being persons of good credit and repute, an inventory of all property known by the person making the inventory to have belonged to the deceased or to have been in his possession upon the said premises at the time of his death.

            (2) Every such inventory shall be subscribed by the person causing the same to be made and by the said witnesses.

[Ch3101s19]19      Transmission of inventory to Master

            Every person hereinbefore required to cause any inventory to be made shall, as soon as the same has been made, forthwith deliver or transmit it to the Master.

[Ch3101s20]20.     Inventory by order of court or Master

            Notwithstanding anything to the contrary hereinbefore contained, the court or the Master may, on sufficient cause appearing, at any time order that an inventory of any property belonging to any deceased person or to the joint estate of any deceased person and the surviving spouse, be taken by any person named in the order.

[Ch3101s21]21.     Particulars of immovable property required

            Every person required by law to frame an inventory of the property of a deceased person shall include therein a specified list of all immovable property registered in the name of the deceased or in which he knew that the deceased had an interest at the date of his death, and shall insert, if possible, a reference to the title under which the deceased held such property, the date of the title, and full particulars concerning such interest.

[Ch3101s22]22.     Master to furnish certain returns

            (1) The Master shall forthwith after the receipt by him of the inventory and particulars mentioned in the last preceding section furnish to the Registrar of Deeds a return-

     (a)     giving the name of every deceased person who, being married in community of property, had at the date of death (as shown by the inventory filed as hereinbefore required) an interest in immovable property not registered in the name of such deceased person, the date of the death of such person and a reference to the will, if any;

     (b)     embodying all material information in respect of that immovable property, and the interest of the deceased therein, contained either in the inventory lodged with the Master, or in the will (if any) of the deceased.

            (2) The Registrar of Deeds after being furnished with such a return, shall not, unless directed by the court or the Master to do so, register any transaction or right in respect of such property in the estate at the instance of any person other than the executor of the estate.

[Ch3101s23]23.     Temporary custody of estates

            On the death of any person not being one of two spouses married in community of property-

     (a)     the husband or wife of the deceased or in the default or absence of the husband or wife;

     (b)     the child or children of the deceased, or in the default, absence, or minority of the child or children;

     (c)     the next of kin of the deceased, or in the default, absence, or minority of the next of kin;

     (d)     the person who at or immediately after the death has the control of the premises where the death occurred; and

     (e)     the person who at or immediately after the death has possession or control of any goods and effects of the deceased,

shall secure and take charge of all goods and effects of whatever description under his control which belonged to the deceased, and shall retain the same in his custody and possession until delivery thereof is demanded by the executor of the deceased or by any other person lawfully appointed by the court or the Master to receive delivery for the purpose of the administration of the estate.

[Ch3101s24]24.     Temporary custody of estates of persons married in community

            Whenever one of two spouses married in community of property dies, the assets of the joint estate shall remain under the charge of the survivor until the appointment of a curator bonis or executor to administer the assets of such estate.

[Ch3101s25]25.     Liability of persons disposing of property in estates without authority, etc.

            If any person-

     (a)     in any way disposes of any property of an estate of a deceased person except in so far as he may be authorized thereto by a competent court or by the Master, or as may be necessary for the safe custody or preservation of any part of the estate or for providing a suitable funeral for the deceased or for the subsistence of the family or household of the deceased; or

     (b)     after letters of administration have been granted to him, in any way disposes of any property of the estate which is not contained in an inventory of that estate lodged with the Master under this Act,

he shall thereupon become personally liable to pay to the creditors, legatees, and heirs of the deceased the full amount of their debts, legacies and inheritances, in so far as the estate is insufficient for the payment thereof:

            Provided that if he satisfies the court that the value of the property so disposed of by him did not exceed a certain sum and that the disposal of the property was made in good faith, his liability shall be limited (but without prejudice to the right of any creditor, legatee, or heir to be paid the taxed costs of suit incurred by him in respect of the recovery from the person so liable of the debt, legacy, or inheritance) to the said sum, after deduction therefrom of the amount (if any) which that person proves to have been the value of any part of the estate disposed of by him in a manner in which, and for a purpose for which, it ought by law to have been disposed of:

            Provided that nothing contained in this section shall be construed as modifying section 24 whereby the survivor of two spouses married in community of property, retains, as provided in that section, the charge of the joint estate.

[Ch3101s26]26.     Duty of person in possession of assets of estate of deceased person

            Every person, not being the executor or curator of the estate of a deceased person duly appointed by the Master, who has in his possession or custody any property belonging to that estate, shall forthwith either deliver that property to the executor or curator duly appointed and authorized to administer the estate, or report the particulars of the property to the Master; and if any such person fails to do so or parts with any such property to any person not authorized by the Master by letters of administration or other direction to receive the same, he shall, apart from any other liability he may incur thereby, be liable for all duties, taxes, or fees payable.

[Ch3101s27]27.     Appointment of curator bonis until issue of letters of administration

            (1) In all cases where the Master deems it expedient, he may appoint a curator bonis to take the custody and charge of any estate until letters of administration are granted for the due administration thereof.

            (2) Every such curator bonis may collect such debts and may sell or dispose of such perishable property belonging to the estate, wherever situate within Botswana, as the Master may specially authorize.

[Ch3101s28]28.     Grant of letters of administration

            (1) The estate of all persons dying either testate or intestate shall be administered and distributed according to law under letters of administration granted by the Master in Form B set out in the First Schedule.

            (2) Such letters of administration shall be granted to the executors testamentary duly appointed by persons so dying or to such persons as, in default of executors testamentary, are appointed as described in this Act, executors dative to the persons so dying.

            (3) Letters of administration shall authorize the executor to administer the estate wherever situate.

            (4) Whenever the estate or property of any person is being administered at the commencement of this Act under the supervision of the Master, the person administering that estate or property shall be entitled to have his authority recognized under this Act throughout Botswana, and the administration of the estate or property shall be carried out as if this Act had not been promulgated.

            (5) 11 of 2008, s. 5 (a). Letters of administration shall not be issued to a spouse married n community of property unless the other spouse consents in writing.

[Ch3101s29]29.     Letters of administration to executors appointed by will

            In all cases in which any deceased person has by will duly appointed any person to be executor the Master shall, upon the written application of the person so appointed, grant letters of administration to him as soon as the will has been registered in the office of the Master:

            Provided that-

      (i)     if it appears to the Master; or

      (ii)     if any person by writing lodged with the Master objects,

that any will by virtue whereof any person claims to be the executor testamentary of any person deceased is not in law sufficient to warrant and support the claim, letters of administration may be refused by the Master-

     (a)     until the validity and legal effect of that will has been determined by the judgment of the court;

     (b)     until the objection has been withdrawn by the person by whom the same was made; or

     (c)     until the person objecting has had sufficient time to apply to the court for an order restraining the issue of letters of administration:

            Provided further that if the executor appointed by the will is a corporation the Master shall grant letters of administration to any officer of the corporation thereto nominated by the corporation, for whose acts as executor the corporation accepts liability, and upon his death, resignation or dismissal, to his successor being thereto nominated and guaranteed by the corporation:

            Provided also that in case any such executor is or resides outside Botswana the Master may refuse to grant letters of administration to that executor until he finds sufficient security for his due and faithful administration of the estate and chooses domicilium citandi et executandi within Botswana:

            Provided lastly that if it is brought to the notice of the Master that any such executor testamentary is insolvent or has assigned his estate, notwithstanding anything in section 35(2) the Master may refuse to grant letters of administration to that executor until he finds security as aforesaid, and if the estate of any such executor be placed under sequestration or assigned after he has been granted letters of administration, the Master may by notice require him to find security as aforesaid within a period specified in such notice. The Master may allow reasonable costs of finding security to be charged out of the estate.

[Ch3101s30]30.     Assumption of executors under power contained in will

            (1) Nothing in this Act shall prevent any executor testamentary from assuming any other person as executor of the testator under and by virtue of any power for that purpose to him committed by the testator by his will:

            Provided that no person shall be entitled or qualified to act as assumed executor unless letters of administration have, during the life-time of the executor testamentary, been granted to him as such by the Master.

            (2) Subject to the provisions of this Act as to security, the Master shall grant such letters of administration on production to him of the will by which the assumption of the executor is authorized and of the deed by which such executor testamentary has assumed that person as executor, and wherever possible, the original letters of administration granted to that executor.

            (3) Every provision of this Act and of every other law applicable or relating to or affecting executors shall be deemed and taken to, and shall, apply and relate to and affect every such executor so assumed.

[Ch3101s31]31.     Proceedings on failure of nomination of executors or on death, incapacity or refusal to act, etc.

            (1) The Master shall, subject to subsections (3), (4), (5) and (6)-

     (a)     if any person has died without having by will nominated any person to be his executor;

     (b)     if the whereabouts of any person so nominated to be sole executor or of all the persons so nominated to be executors are unknown, or if such person or all such persons are dead or refuse or are incapacitated to act as executors or when called upon by the Master by notice in writing to take out letters of administration within a period specified in the notice fail to take out such letters within that period or within such further period as the Master may allow;

     (c)     if, in the case of two or more persons being so nominated to be executors, the whereabouts of one or some of them are unknown, or one or some of them are dead or refuse or are incapacitated to act as executors or when so called upon by the Master fail so to take out letters of administration, and in the interests of the estate, one or more executors should be joined with the remaining executor or executors;

     (d)     if the executors in any estate are at any time less than the number required by the will of the testator to form a quorum;

     (e)     if any person who is the sole executor or all the persons who are executors of any estate, cease for any reason to be executors thereof; or

     (f)      if, in the case of two or more persons who are the executors of any estate, one or some of them cease to be executors thereof, and in the interests of the estate, one or more executors should be joined with the remaining executor or executors,

by notice published in the Gazette and in such other manner as in his opinion is best calculated to bring it to the attention of the persons concerned, call upon the surviving spouse (if any), the heirs of the deceased and all persons having claims against his estate, to attend before him or, if more expedient, before any magistrate at a time and place specified in the notice, for the purpose of recommending to the Master for appointment as executor or executors, a person or a specified number of persons.

            (2) On receipt of such recommendation or when it appears that the persons concerned have failed to make any recommendation, the Master shall, subject to subsection (3) and sections 32, 35, 36 and 39, unless it appears to him to be necessary or expedient to postpone the appointment and to publish another notice under subsection (1), appoint and grant letters of administration to such person or persons as he deems fit and proper to be executor or executors of the estate of the deceased.

            (3) If the value of any estate does not exceed P600, the Master may dispense with a notice under subsection (1) and with the appointment of an executor and give directions as to the manner in which any such estate shall be liquidated and distributed.

            (4) If the value of any estate does not exceed P2000, the Master may, in any case referred to in subsection (1), without any notice under that subsection, appoint and grant letters of administration to such person or persons as he deems fit and proper to be executor or executors of the estate of the deceased.

            (5) The Master may at any time, without any such notice-

     (a)     if, in the case of two or more persons-

           (i)       who have been nominated by will to be executors, the whereabouts of one or some of them are unknown, or one or some of them are dead or refuse or are incapacitated to act as executors, or when called upon by the Master by notice in writing to take out letters of administration within a period specified in the notice, fail to take out such letters within that period or within such further period as the Master may allow; or

          (ii)       who are the executors in any estate, one or some of them cease to be executors thereof,

              grant letters of administration to the remaining executor or executors, or authorize the remaining executor or executors to liquidate and distribute the estate, as the case may be; or

     (b)     if after the discharge of any executor it appears that there is property in the estate which has not been distributed by such executor, appoint and grant letters of administration to such person as he deems fit and proper to liquidate and distribute such property.

            (6) Nothing contained in this section shall authorize the Master to grant letters of administration to any person who is legally incapacitated to act as executor of the estate of the deceased.

            (7) The second proviso to section 29 shall mutatis mutandis apply with reference to the grant of letters of administration under this section.

[Ch3101s32]32.     Competition for the office of executor dative

            In every case in which there is competition for the office of executor dative, the surviving spouse, or, failing a surviving spouse, an heir or some of the heirs or, failing an heir, a creditor or creditors, or, failing a creditor, a legatee or legatees or the nominee of any such person or class of person, shall be preferred by the Master to the office of executor:

            Provided that nothing in this section shall prevent any one or more persons of the classes aforesaid from being conjoined in the said office with one or more of any other of those classes and if it appears to the Master, or to the court on reviewing the appointment of the Master, that any good reason exists against the appointment of all or any of those persons or classes of persons as executor or executors any such person or class of persons may be passed by and some other fit and proper person or persons may by the Master or by the court be appointed executor or executors.

[Ch3101s33]33.     Preference of minor's tutor for the appointment of executor

            If any heir, creditor, or legatee of a deceased person is a minor under the guardianship of a tutor duly appointed, that tutor shall be entitled to be preferred to the office of executor dative under section 32 in like manner in all respects as the minor, whose tutor he is, would, if of full age, have been entitled to be preferred to that office under that section.

[Ch3101s34]34.     Removal from office of executor

            (1) An executor may at any time be removed from his office-

     (a)     by the court-

           (i)       if he fails to comply with a notice under section 35(1) within the period specified in the notice, or within such further period as the Master may allow, and was not, prior to the issue of such notice, under an obligation to find security for the proper performance of his functions;

          (ii)       if he has at any time been a party to an agreement or arrangement whereby he has undertaken that he will, in his capacity as executor, grant or endeavour to grant to, or obtain or endeavour to obtain for any heir, debtor or creditor of the estate, any benefit to which he is not entitled;

          (iii)       if he has by means of any misrepresentation or any reward or offer of any reward, whether direct or indirect, induced or attempted to induce any person to vote for his recommendation to the Master as executor or to effect or to assist in effecting such recommendation;

         (iv)       if he has accepted or expressed his willingness to accept from any person any benefit whatsoever in consideration of such person being engaged to perform any work on behalf of the estate; or

          (v)       if for any other reason the court is satisfied that it is undesirable that he should act as executor of the estate concerned; and

     (b)     by the Master-

           (i)       if he has been nominated by will and that will has been declared to be void by the court or has been revoked, either wholly or in so far as it relates to his nomination;

          (ii)       if he fails to comply with a notice under section 8(3)(c) or the fourth proviso to section 29 within the period specified in the notice or within such further period as the Master may allow and was, prior to the issue of such notice, under an obligation to find security for the proper performance of his functions;

          (iii)       if he is convicted, in Botswana or elsewhere, of theft, fraud, forgery, uttering a forged instrument or perjury, and is sentenced therefor to serve a term of imprisonment without the option of a fine, or to a fine exceeding P20;

         (iv)       if at the time of his appointment he was incapacitated, or if he becomes incapacitated to act as executor of the estate of the deceased;

          (v)       if he fails to perform satisfactorily any duty imposed upon him by or under this Act or to comply with any lawful request of the Master; or

         (vi)       if he applies in writing to the Master to be released from his office.

            (2) Before removing an executor from his office under subparagraph (i), (ii), (iii), (iv) or (v) of subsection (1)(b), the Master shall forward to him by registered post a notice setting forth the reasons for such removal, and informing him that he may apply to the court within 30 days from the date of such notice for an order restraining the Master from removing him from his office.

            (3) An executor who has not been nominated by will may at any time be removed from his office by the Master if it appears that there is a will by which any other person who is capable of acting and consents to act as executor has been nominated as executor to the estate which he has been appointed to liquidate and distribute:

            Provided that if the non-production or non-disclosure of the will prior to the appointment of such first-mentioned executor has been due to the fault or negligence of the person therein nominated executor, the person so nominated shall be personally liable, at the instance of the Master or any person interested, to make good all expenses which have been incurred in respect of the appointment of such first-mentioned executor.

            (4) The court removing any executor from his office may declare him incapable during the period of his life or such other period as it may determine, of holding office as an executor.

            (5) Any person who ceases to be an executor shall forthwith return his letters of administration to the Master.

[Ch3101s35]35.     Security for due administration

            (1) Every executor dative or assumed executor shall, before he is permitted to enter upon the administration of the estate, and thereafter as the Master may by notice require, find security to the satisfaction of the Master for the due and faithful administration of the estate to which he has been appointed:

            Provided that if such executor dative or assumed executor is a parent, surviving spouse or child of the deceased, he shall not be required to furnish security unless the Master specially directs that he shall do so.

            (2) Every executor testamentary shall be under the like obligation of finding security, unless-

     (a)     he is the parent, child or surviving spouse of the deceased testator;

     (b)     he has been nominated by will executed before the 7th July, 1933, and has not been directed by the will to find security;

     (c)     he has been nominated by will executed on or after the said date, and the testator has in such will directed the Master to dispense with such security; or

     (d)     the court otherwise directs.

            (3) The Master shall allow the reasonable costs of finding security to be charged out of the estate.

            (4) The security shall be for such amount as in the circumstances of each particular case appears to the Master reasonable.

            (5) If any default is made in the faithful administration of the estate, the Master may proceed to enforce the security and recover from the person in default or from the sureties the actual loss to the estate.

            (6) A certificate under the hand of the Master shall be prima facie evidence of the amount of any such loss.

[Ch3101s36]36.     Limits of application of sections 37 and 38 respecting external letters of administration

            (1) The provisions of sections 37 and 38 shall apply to all letters of administration at any time granted in any country as and from the date and during the period (if any) fixed by the Minister by order published in the Gazette declaring the said sections applicable to letters of administration granted in that country, and thereupon those provisions shall continue in force as regards letters of administration granted in that country either until any period so fixed as aforesaid or any extension thereof by like order has expired, or until a further like order has been similarly published declaring that the said provisions shall no longer apply to letters of administration granted in that country.

            (2) The provisions of the said sections applying to letters of administration granted in any country shall apply also to letters of administration granted by any consular court of that country.

[Ch3101s37]37.     Signing and sealing of letters of administration granted in another country

            Whenever letters of administration of the estate of a deceased person granted in any country are, or a notarially certified copy thereof is, produced to and a copy thereof deposited with the Master by the person in whose favour those letters of administration have been granted or his duly authorized agent, those letters or that certified copy may be signed by the Master and sealed with his seal of office, and shall thereupon be of like force and effect and have as full operation in Botswana with respect to the whole estate therein situate, and the Master shall have the same control over the administration of the same, as if the said letters had been letters of administration granted by the Master:

            Provided that-

      (i)     the Master shall not sign and seal letters of administration or a certified copy thereof in any estate in regard to which letters have already been granted or signed and sealed within Botswana;

      (ii)     before any such letters are, or any such certified copy is, signed and sealed a certificate of death and a duly certified copy of the will (if any) of the deceased and an inventory of all property known to belong to him within Botswana, together with any information required by the Master for the due supervision of the administration of the estate in Botswana, shall be lodged with the Master, and the same stamps, fees of office, duties and security shall be paid and given which would be required if the said letters or copy had been letters dative granted by the Master and such executor shall choose domicilium citandi et executandi within Botswana;

     (iii)     if the Master refuses to sign and seal any such letters of administration or notarially certified copy thereof so produced the person thereby authorized and empowered to act may, after notice to the Master, apply to the court for relief and thereupon the court shall make such order as it may think fit.

[Ch3101s38]38.     Admissibility of copy certified by Master and certificate by Master

            (1) A copy certified by the Master of the copy of any letters of administration deposited with him under section 37 shall be admitted in evidence in all proceedings within Botswana as if that certified copy were the original letters.

            (2) A certificate under the hand of the Master that he has, in accordance with the said section, signed and sealed any letters of administration authorizing and empowering any person to act thereunder shall be admitted in all legal proceedings within Botswana as prima facie proof of the legal rights and title of that person to administer the estate within Botswana of the deceased person named in the certificate.

[Ch3101s39]39.     Inventories by executors

            Every executor shall, within 30 days after letters of administration have been granted to him, or within such further period as the Master may allow, make, subscribe, and transmit to the Master an inventory showing the value of all property belonging to the estate; and if he comes to know thereafter of any such property which is not contained in any inventory lodged by him with the Master he shall make, subscribe, and transmit to the Master an additional inventory showing the value thereof, and the Master may direct him to find further security under section 35.

[Ch3101s40]40.     Master may appoint appraiser to value assets

            If an executor fails, within such reasonable time as the Master may prescribe, to place a value upon the assets or any portion thereof or if he places such a value thereon as does not meet with the approval of the Master, the Master may cause the value of those assets to be appraised by an appraiser and the value so ascertained shall be taken to be the true value of those assets for the purposes of this Act.

[Ch3101s41]41.     Public notice to lodge claims

            (1) Every executor shall, so soon as he has entered on the administration of the estate, cause a notice to be published in the Gazette and in a newspaper circulating in the district in which the deceased ordinarily resided or if not resident in Botswana at the time of his death in a newspaper circulating in a district where the deceased owned property, calling upon all persons having claims against the deceased or his estate to lodge the same with that executor within such period from the date of the latest publication of the notice as is therein specified, not being less (except as provided in section 59 of this Act) than 30 days or more than three months, as is deemed by the executor proper in the particular circumstances of each case.

            (2) All claims which would be capable of proof in case of the insolvency of the estate shall be deemed to be claims of creditors for the purposes of this Act.

[Ch3101s42]42.     Suspension of execution of judgments

            No person who has obtained judgment of any court against any deceased person in his lifetime or against his executor shall sue out or obtain any process in execution of that judgment before the expiration of the period notified in the Gazette in the manner provided in section 41, and no person shall thereafter within six months after the grant of letters of administration obtain any process in execution of any such judgment without first obtaining an order of the court.

[Ch3101s43]43.     Payment of debts; insolvent estates

            (1) On the expiry of the period notified in the Gazette under section 41 the executor, before paying any debts of the deceased other than the reasonable expenses of the funeral and last illness shall satisfy himself as to the solvency of the estate.

            (2) If the estate is solvent, the executor shall pay the creditors so soon as funds sufficient for that purpose have been realised out of the estate, but subject always to section 61.

            (3) If the estate is insolvent and the Master is satisfied that the value of the assets does not exceed P2000, the executor shall administer and distribute the same in such manner as the Master may direct, due regard being had to the rights of creditors.

            (4) If the Master is not satisfied as to the value of the assets the executor shall immediately report in writing the position of the estate to the creditors, informing them that unless a majority in number and value of all the creditors instruct him in writing to surrender the estate, he will proceed to realize the estate and will distribute the same as if he were a trustee distributing an insolvent estate.

            (5) Unless creditors to the number and value stated in the preceding provisions, of this section, instruct the executor within a reasonable time to surrender the estate he shall proceed so to realize and distribute the same, but nothing in this section shall prevent a creditor from applying to the court for the sequestration of the estate as insolvent, and the court may order the sequestration of the estate if satisfied that the sequestration will be for the benefit of the creditors generally.

            (6) For the purposes of subsections (3), (4) and (5) no creditor whose claim does not amount to P60 shall be reckoned in number and a creditor holding a specific security shall, in the same manner as is provided in the law relating to insolvency, place a value upon such security and shall only be reckoned in respect of the unsecured balance of his claim.

            (7) An executor distributing an estate in pursuance of subsections (4) and (5) shall advertise his account and the same shall be confirmed in like manner, and with like effect, as if it were an account framed by a trustee of an insolvent estate:

            Provided that every such account shall be confirmed by the Master and not by the court.

[Ch3101s44]44.     Liability of executor

            (1) Any executor who makes a distribution except in accordance with sections 43 and 61 shall be personally liable to make good to every creditor whose claim was lodged with the executor within the period mentioned in the Gazette or was known to him when he made the distribution, any loss sustained by that creditor in respect of his claim through the failure of the executor to make a lawful distribution, but the executor shall be entitled at his own cost to recover from any person any amount paid to him in the course of the distribution which would not have been paid to him if a lawful distribution had been made.

            (2) No creditor, whose claim was not lodged with the executor before the expiry of the period notified in the Gazette or before a distribution of the funds of the estate, shall be entitled in respect of his claim to demand restitution from any other creditor of any moneys paid to such other creditor after the expiry of the said period and in the course of such distribution on account of a valid claim against the estate.

[Ch3101s45]45.     Disputed claims

            (1) If an executor disputes any claim against the estate, he may, by notice in writing-

     (a)     require the claimant to lodge, in support of his claim, within a period specified in the notice, an affidavit setting forth such details of the claim as the executor may indicate in the notice; and

     (b)     with the consent of the Master, require the claimant or any other person who may in the opinion of the Master be able to give material information in connection with the claim, to appear before the Master or any magistrate nominated by the Master, at a place and time stated in the notice, to be examined under oath in connection with the claim.

            (2) At an examination under subsection (1)(b), the person concerned may be questioned by the magistrate or Master before whom the examination takes place, and by the executor and any heir or the attorney or advocate acting on behalf of the executor or any heir.

            (3) If any claimant fails without reasonable excuse to comply with any notice under subsection (1), or having appeared in answer to any such notice, refuses to take the oath or to submit to examination or to answer fully and satisfactorily any lawful question put to him, his claim may be rejected by the executor.

            (4) Any magistrate or Master before whom any such examination takes place shall take or cause to be taken a record thereof and shall, at the request of the executor or of the claimant and at the expense of the estate, or of the claimant, as the case may be, furnish the executor or claimant with a copy of such record.

[Ch3101s46]46.     Rejected claims

            (1) If any executor rejects any claim against the estate, he shall forthwith notify the claimant in writing by registered post and shall state in the notice his reasons for rejecting the claim.

            (2) Any court by which any claim against a deceased estate is adjudged in favour of a claimant may decline to grant the claimant his costs against the estate if the court is satisfied that the information given by the claimant to the executor was insufficient or that the executor was justified in rejecting the claim under section 45(3).

[Ch3101s47]47.     Taking over by surviving spouse of estate or portion thereof

            (1) The Master may, if-

     (a)     one of two spouses, whether they were married in or out of community of property, has died;

     (b)     the deceased has made no provision to the contrary in any will;

     (c)     the major heirs and any claimants against the estate consent; and

     (d)     it appears to him that no person interested would be prejudiced thereby,

authorize the executor, subject to security being given mutatis mutandis as provided under section 50(2) for the payment of any minor's share, and to such conditions as the Master may determine, to make over any property or all the property of the deceased, or the whole or any part of that portion of his property in respect of which he has made no testamentary provision to the contrary to the surviving spouse at a valuation to be made by an appraiser or any other person approved by the Master, and to frame his distribution account on the basis of such valuation.

            (2) Subsections (3), (4) and (5) of section 50 shall mutatis mutandis apply in respect of any security given under subsection (1).

[Ch3101s48]48.     Sales by executor

            An executor shall not, unless authorized thereto by the will of the deceased, sell any property (other than property of a class ordinarily sold through a stockbroker, or a bill of exchange) otherwise than by public auction after such notice and upon such conditions (if any) as the Master may direct:

            Provided that-

      (i)     the preceding provisions of this section shall not apply in respect of property sold in the ordinary course of any business or undertaking of the deceased carried on by the executor; and

      (ii)     the Master may, if it would be to the advantage of the persons interested or if they all consent thereto and it would not be contrary to the terms of the will (if any) of the deceased, authorize the executor to sell any such property on such conditions as the Master may determine, by public tender or out of hand.

[Ch3101s49]49.     Master may consent to subdivision of immovable property on behalf of minor, mental patient or unborn heir

            (1) If, in the opinion of the Master, it is expedient to subdivide, or to make a division of, any immovable property which is registered in the name of a minor or mental patient or in which a minor or mental patient is interested, or any unborn heir may acquire any interest, the Master, on being satisfied after due enquiry and after inspection of the property (if necessary), by him or by some suitable person appointed by him that the proposed subdivision or division is fair and equitable, may upon such terms as to costs as he thinks fit consent thereto on behalf of the minor, mental patient or unborn heir concerned.

            (2) Such consent shall be subject to the requirements of any other law relating to subdivision of property.

[Ch3101s50]50.     Movable property to which minors and moneys to which absentees or persons under curatorship are entitled

            (1) The natural guardian of a minor shall, subject to subsections (2) and (3) and to the terms of the will (if any) of the deceased, be entitled to receive from the executor for and on behalf of the minor, any movable property to which the minor is, according to any distribution account in any deceased estate, entitled as an heir.

            (2) No sum of money shall be paid, and if in the case of any other movable property, the Master so directs, no such movable property shall be delivered to any such guardian under subsection (1) unless payment of such sum of money or payment, in default of delivery, of the value of such movable property according to a valuation by an appraiser or any other person approved by the Master, as the case may be, to the minor, at the time when he is to become entitled to the payment of such sum of money or delivery of such property, has been secured to the satisfaction of the Master.

            (3) Any such guardian shall, if called upon to do so by the Master by notice in writing, lodge with the Master, within a period specified in the notice or within such further period as the Master may allow, a statement in writing, signed by him in person and verified by an affidavit made by him, giving such particulars in respect of any such property or sum of money as may be indicated in the notice.

            (4) If the estate of any such guardian or of his surety is sequestrated, or if such guardian or surety commits an act of insolvency, or is about to go or has gone to reside outside Botswana, or if in the opinion of the Master the security given under subsection (2) has become inadequate, the Master may, by notice in writing, require such guardian to provide within the period stated in the notice, such additional security as the Master may specify, and if the guardian fails to comply with the notice within the said period or within such     further period as the Master may allow, the amount in question shall, unless the notice has been withdrawn by the Master, forthwith become payable into the hands of the Master.

            (5) The Master may-

     (a)     if any payment or delivery referred to in subsection (2) has been made to any minor entitled thereto; or

     (b)     if any minor entitled to any such payment or delivery at any time after his majority, consents thereto in writing after he has attained majority,

reduce the amount of the security to an amount which would, in his opinion, be sufficient to secure any other such payment or delivery still to be made by the guardian.

            (6) Subject to subsection (1) and to the terms of the will (if any) of the deceased, an executor shall pay into the hands of the Master any money to which any minor, absentee, unknown heir or person under curatorship is entitled according to any liquidation or distribution account in the estate of the deceased:

            Provided that the court may, upon consideration of a report by the Master and of the terms of the will (if any) of the deceased, make such order exempting the executor from compliance with the provisions of this subsection as it may deem fit.

[Ch3101s51]51.     Movable property to which minor or unborn heir is entitled subject to usufructuary or fiduciary rights or other like interests

            (1) If according to any distribution account a minor is, or an unborn heir will when born be, entitled to any movable property out of a deceased estate, subject to usufructuary or fiduciary rights or any other like interest in favour of any other person including the natural guardian, tutor or curator of the minor or unborn heir, then, subject to subsection (3) and any express provision to the contrary in the will-

     (a)     the executor shall, in the case of a sum of money, pay such sum of money into the hands of the Master, and, in the case of any other movable property, deal with such property in such manner as the Master may direct; and

     (b)     such sum of money and, unless the Master otherwise directs, such other movable property shall not, during the minority of the minor or before the birth and during the minority of the heir, as the case may be, be paid or delivered to such person unless such person has given security mutatis mutandis as provided in section 50(2), for the payment of such sum or the delivery of such property to the minor or heir at the time when the minor or heir is to become entitled to such payment or delivery.

            (2) Subsections (3), (4) and (5) of section 50 shall mutatis mutandis apply in respect of any security given under subsection (1).

            (3) Subsection (1) shall not apply in relation to any disposition in a will executed prior to a date 12 months after the date of commencement of this Act.

[Ch3101s52]52.     Conditions under which survivor married in community of property may deal with such property

            It shall not be lawful for the survivor of two spouses who were married in community of property, not being an executor to whom letters of administration have been duly granted by the Master, to transfer or mortgage any land belonging to the joint estate and registered in the name of such survivor, unless he has obtained a certificate from the Master authorizing him to deal with that property, whether unconditionally or in the manner detailed in such certificate.

[Ch3101s53]53.     Duty of executor in case of bequests of immovable property

            (1) Except as hereinafter provided, it shall be the duty of every executor, subject to the terms of the will, to transfer immovable property to the person to whom it is bequeathed:

            Provided that if a usufructuary interest or other like limited interest in such property has been bequeathed to any person with a direction that after the expiry of such interest the property shall devolve upon some person uncertain, the executor shall, instead of transferring the property, transmit the title deeds to the Registrar of Deeds, in order that the terms of the will or a reference thereto, may, subject to the payment of transfer duty, if any, be endorsed against the said title deeds.

            (2) Whenever the Master is satisfied that it is impossible to transfer property as aforesaid without causing undue hardship, he may authorize the executor to transmit the titles to the Registrar of Deeds in order that a note may be endorsed on the said titles that the property has been bequeathed.

            (3) Every executor who fails to use due diligence in complying with this section, shall forfeit all claims to fees in respect of his administration of the estate.

[Ch3101s54]54.     Duty of Registrar of Deeds

            It shall be the duty of the Registrar of Deeds to whom the titles have been transmitted under section 53 to make all endorsements and to do all things necessary to give effect to the provisions of that section.

[Ch3101s55]55.     Penalty for refusing to deliver title deed to executor when required

            (1) Any person in possession of a title deed required by an executor in order to comply with section 53, who refuses to deliver or unreasonably delays the delivery of such title deed to such executor, shall be liable to pay all reasonable costs to which the executor may be put in obtaining the order of a competent court declaring him entitled to the possession of the said deed, and shall be liable in addition to such penalty, not exceeding P1000, as such court may impose; but the legal rights or position of such person shall not be affected by his delivery of such deed in terms of this section.

            (2) Every executor shall, so soon as the said deed is no longer required for the purposes of complying with the provisions of that section, return it to the person from whom it was received, if, but for this section, such person would be entitled to possession thereof.

            (3) The provisions of this section respecting imposition of a penalty shall be deemed to be in addition to and not in derogation from the power of any court to punish for contempt of court.

[Ch3101s56]56.     Endorsement against title deeds of immovable property of the terms of trusts in a will

            (1) Whenever a deceased person by his will directs that any of his property instead of being distributed amongst beneficiaries shall be administered by some person (hereinafter called the administrator) on their behalf, the executor shall, after payment of debts, deliver such of the property as is movable to the administrator and lodge the administrator's acquittance for the same with the Master; the executor shall further cause the terms of the will, or a reference thereto, in so far as those terms relate to the administration, to be endorsed by the Registrar of Deeds concerned against the title deeds of such of the property as is immovable and shall lodge with the Master the receipt of the administrator for the titles and a certificate from the Registrar of Deeds that the title deeds have been endorsed as aforesaid, and thereupon the administrator shall have full power to deal, in terms of the said will, with any of the deceased person's property.

            (2) The Registrar of Deeds shall do all things necessary to enable an executor to comply with this section.

[Ch3101s57]57.     Transfer of immovables out of estate

            (1) Every executor who desires to effect transfer of any immovable property out of an estate in pursuance of the terms of a will, shall lodge with the Registrar of Deeds a copy of the will of the deceased duly certified by the Master.

            (2) If a copy of the will has already been lodged, a reference thereto will be deemed a sufficient compliance with this section.

            (3) Every executor who desires to effect transfer of any immovable property in pursuance of a sale whether by public auction or private treaty shall lodge with such transfer a certificate under the hand of the Master to the effect that no objection to such transfer exists.

[Ch3101s58]58.     Payment of portion accruing to minor or person under curatorship domiciled outside Botswana

             (1) If upon the distribution under this Act of an estate in due course it appears that any person who is a minor or under curatorship is entitled to an amount not exceeding P1000, the executor with the concurrence of the Master, or the Master if this amount has been paid into his hands, may, if the executor or the Master (as the case may be) is satisfied that it will be to the benefit of the minor or person under curatorship to do so, and, if such minor or person be domiciled in a country outside Botswana, remit the amount due to such minor or person to the Government of that country or to the lawful guardian or curator of such minor or person within that country.

            (2) The executor shall produce proof in due course to the satisfaction of the Master that he has remitted any amount in accordance with this section.

            (3) No action shall lie against the Master at the instance of any such minor or person under curatorship in respect of any amount remitted under subsection (1).

[Ch3101s59]59.     Master may fix time for lodging claims and account

            In any case in which it appears that an estate does not exceed P2000 in value the Master may with due regard to the terms of the will, direct-

     (a)     that the estate be administered within a less time than six months;

     (b)     that the advertisement calling upon creditors to lodge their claims be inserted once only in the Gazette and in a newspaper circulating in the district in which the deceased was ordinarily resident at the time of his death or, if not resident, circulating in a district where the deceased owned property and that all claims be lodged within a period (not being less than 14 days or more than three months) fixed by the Master and notified in the advertisement;

     (c)     that the administration and distribution account in the estate be lodged within a period (not being less than 14 days) after the last date fixed for the sending in of claims.

[Ch3101s60]60.     Estates of persons not resident and not owning property other than shares in Botswana

            Upon the death of any person who is neither ordinarily resident within Botswana nor the owner of any property therein, other than shares in a company, the Master may summarily and without observance of the usual customary forms and without requiring security or an account of the administration and distribution of the estate, sign and seal letters of administration or certified copies thereof produced to him under section 37, or if no such letters be produced, the Master may appoint an executor dative to administer the estate of the deceased or dispense with such an appointment and direct the manner in which the estate shall be administered:

            Provided that before the signing and sealing or appointment or direction-

     (a)     evidence to the satisfaction of the Master is produced, that no person in Botswana will be prejudiced;

     (b)     any duty payable in respect of the shares has been paid or secured to the satisfaction of the proper authority.

[Ch3101s61]61.     Liquidation and distribution accounts

            (1) An executor shall, as soon as may be after the last day of the period specified in the notice referred to in section 41, but within-

     (a)     six months after letters of administration have been granted to him, if the gross value of the estate exceeds P2000;

     (b)     three months after letters of administration have been granted to him, if the gross value of the estate does not exceed P2000; or

     (c)     such further period as the Master may in any case allow,

submit to the Master an account in the prescribed form, supported by vouchers, of the liquidation and distribution of the estate.

            (2) The Master may at any time in any case in which he has exercised his powers under subsection (1)(c) or in which an executor has funds in hand which ought, in the opinion of the Master, to be distributed or applied towards the payment of debts, direct the executor in writing to submit to him an interim account in the prescribed form, supported by vouchers, within a specified period.

            (3) The executor shall set forth in any interim account all debts due to the estate and still outstanding and all property still unrealized, and the reasons why such debts or property, as the case may be, have not been collected or realized.

            (4) Every executor's account shall, after the Master has examined it, lie open at the office of the Master and at such other places as the Master may specify for not less than 21 days, for inspection by any person interested in the estate.

            (5) The executor shall give notice that the account will be so open for inspection by advertisement in the Gazette and in one or more newspapers circulating in the district in which the deceased was ordinarily resident at the time of his death and, if at any time within the period of 12 months immediately preceding the date of his death he was so resident in any other district, also in one or more newspapers circulating in that other district, and shall state in the notice the period during which and the place at which the account will lie open for inspection.

            (6) Every person at whose office an account lies open for inspection shall cause to be affixed in some public place in or about his office, a list of all such accounts lodged in his office, showing the date on which each such account will be transmitted to the Master, and, upon the expiry of the period allowed for inspection, shall endorse on each account his certificate that the account has lain open in his office for inspection in accordance with this section and transmit the account to the Master.

            (7) Any person interested in the estate may at any time before the expiry of the period allowed for inspection lodge with the Master in duplicate any objection, with the reasons therefor, to any such account and the Master shall deliver or transmit by registered post to the executor a copy of any such objection together with copies of any documents which such person may have submitted to the Master in support thereof.

            (8) The executor shall, within 14 days after receipt by him of the copy of the objection, transmit two copies of his comments thereon to the Master.

            (9) If, after consideration of such objection, the comments of the executor and such further particulars as the Master may require, the Master is of opinion that such objection is well-founded or if, apart from any objection, he is of opinion that the account is in any respect incorrect and should be amended, he may direct the executor to amend the account or may give such other direction in connection therewith as he may think fit.

            (10) Any person aggrieved by any such direction of the Master or by a refusal of the Master to sustain an objection so lodged, may apply by motion to the court within 30 days after the date of such direction or refusal or within such further period as the court may allow, for an order to set aside the Master's decision and the court may make such order as it may think fit.

            (11) If any such direction affects the interests of a person who has not lodged an objection and the account is amended, the account as so amended shall, unless the said person consents in writing to the account being acted upon, again lie open for inspection in the manner and with the notice and subject to the remedies hereinbefore provided.

            (12) When an account has lain open for inspection as hereinbefore provided and-

     (a)     no objection has been lodged;

     (b)     an objection has been lodged and the account has been amended in accordance with the Master's direction and has again lain open for inspection, if necessary, as provided in subsection (11), and no application has been made to the court within the period referred to in subsection (10) to set aside the Master's decision; or

     (c)     an objection has been lodged but withdrawn, or has not been sustained and no such application has been made to the court within the said period,

the executor shall forthwith pay the creditors and distribute the estate among the heirs in accordance with the account, lodge with the Master the receipts and acquittances of such creditors and heirs and produce to the Master the deeds of registration relating to such distribution, or lodge with the Master a certificate by the Registrar of Deeds or a conveyancer specifying the registrations which have been effected by the executor:

            Provided that a cheque purporting to be drawn payable to a creditor or heir in respect of any claim or share due to him and paid by the banker on whom it is drawn, may be accepted by the Master in lieu of any such receipt or acquittance.

            (13) The executor shall not later than two months after the estate has become distributable in terms of subsection (12), pay to the Master for deposit in the Guardian's Fund on behalf of the persons entitled thereto, all moneys which he has for any reason been unable to distribute in accordance with the account.

[Ch3101s62]62.     Remuneration of executors

            (1) Every executor shall, in respect of his administration, distribution, and final settlement of any estate, be entitled to receive out of the assets of the estate, or from any person who, as heir, legatee, or creditor is entitled to the whole or any part of the estate, such remuneration as may have been fixed by the deceased by will or deed.

            (2) If no such remuneration has been fixed, the executor shall receive a fair and reasonable compensation which shall be assessed according to a tariff fixed by regulation and shall be taxed by the Master.

            (3) If any executor fails to lodge the account of his administration and distribution of the estate as and when required by this Act to do so and can give no lawful and sufficient excuse for such failure, the Master may disallow the whole or any portion of the remuneration which the executor might otherwise have been entitled to receive in respect of his administration of the estate.

[Ch3101s63]63.     Continuance of pending legal proceedings by remaining or new executor

            (1) No civil legal proceedings instituted by or against any executor shall lapse merely because he has ceased to be an executor.

            (2) The court in which any such proceedings are pending may, upon receiving notice that such executor has ceased to be an executor, allow the name of any remaining or new executor to be substituted for the former, and the proceedings shall thereupon be continued as if they had originally been instituted by or against such remaining or new executor.

[Ch3101s64]64.     Discharge of executors, and proceedings against discharged executors

            (1) Upon the completion to the satisfaction of the Master of the liquidation and distribution of a deceased estate, the executor shall be entitled to obtain his discharge from the Master.

            (2) No person shall institute any legal proceedings against any person who has been discharged as executor under subsection (1) in respect of any claim against the deceased estate or any benefit out of that estate:

            Provided that this subsection shall not exempt any such person from liability in respect of any fraudulent dealing in connection with the estate or the liquidation or distribution thereof.

            (3) After two years have elapsed as from the date upon which any person has been discharged as an executor, he may, with the consent in writing of the Master, destroy all books and documents in his possession relating to the estate of which he was the executor.

            (4) Subsection (3) shall apply also in relation to any deceased estate liquidated and distributed prior to the date of commencement of this Act.