Administration Of Estates - Estates Of Deceased Persons (Ss 12-64)

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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.