65.     Property not to be administered in certain cases without certificate of authority

            No person shall-

     (a)     administer any property which has, by the will of any person who dies after the commencement of this Act, been given under his control to be administered for the benefit, whether in whole or in part, of any other person; or

     (b)     after the death of any donor who dies after the commencement of this Act, administer any property which has by any written instrument operating inter vivos been given under his control by such donor for the said purpose,

except under a certificate of authority granted or signed and sealed under this Part, or under an endorsement made under section 67.

66.     Orders by Master prohibiting administration without certificate of authority

            (1) The Master may, subject to subsections (3) and (4)-

     (a)     if written application is made therefor by any interested beneficiary under any will or written instrument operating inter vivos whereby a testator or donor who has died before the commencement of this Act has given any property under the control of any person to be administered for the benefit, whether in whole, or in part, of any other person;

     (b)     if a report by an accountant on the administration of the property by the person under whose control it has been so given is submitted with the application; and

     (c)     if there are reasonable grounds for believing that the interests of such beneficiary will be prejudiced if the said person is not restrained from administering that property otherwise than under a certificate of authority granted or signed and sealed under this Part or under an endorsement made under section 67, as the case may be,

by written order under his hand, prohibit that person from so administering that property.

            (2) Any person under whose control any property has been given as aforesaid shall allow any accountant nominated in writing by any beneficiary referred to in subsection (1)(a) to examine, for the purposes of compiling the report referred to in paragraph (b) of the said subsection, any books of account and any document kept by him or in his custody or under his control and relating to his administration of such property.

            (3) The Master shall, before exercising his powers under subsection (1), give the person under whose control the property has been so given, not less than 30 days' notice of the grounds upon which the exercise of those powers is contemplated, and shall consider any representations made or information or evidence submitted to him by such person within that period.

            (4) The said notice shall be accompanied by a summary of all the relevant facts relating to the application which have come to the knowledge of the Master.

67.     Certificates of authority to administrators nominated by deceased persons, and endorsements in case of assumed administrators

            (1) The Master shall, subject to subsection (3), on the written application of any person-

     (a)     under whose control a testator or donor who has died before or after the commencement of this Act, has by will or written instrument operating inter vivos, given any property to be administered for the benefit, in whole or in part, of any other person; and

     (b)     who is not incapacitated from being an administrator of such property and has complied with the provisions of this Act,

grant a certificate of authority to such person.

            (2) The Master shall, subject to subsection (3)-

     (a)     on the written application of any person who has been duly nominated as an assumed administrator by any administrator nominated by a testator or donor referred to in subsection (1)(a), is not incapacitated from being an administrator of the property concerned, and has complied with the provisions of this Act; and

     (b)     on production of the deed of assumption duly signed by the person so assumed and the administrator so assuming him,

endorse the appointment of such person as assumed administrator on the certificate of authority granted to the administrator so assuming him.

            (3) Section 29 shall mutatis mutandis apply with reference to a certificate of authority to be granted under subsection (1) and any endorsement to be made under subsection (2).

            (4) If written application for any certificate of authority granted under subsection (1) was made within 14 days after the death of the testator or donor, or the date of any order made under section 66, as the case may be, such certificate of authority shall, for the purposes of section 65, or of the prohibition contained in such order, as the case may be, be deemed to have been granted immediately after the death of the testator or donor, or on the date of such order.

68.     Proceedings on failure of nomination of administrators or on death, incapacity or refusal to act, etc.

            (1) The Master shall, subject to subsection (2)-

     (a)     if any person who dies after the commencement of this Act, has, without nominating any person as administrator, by will or by written instrument operating inter vivos provided for the administration of any property for the benefit, in whole or in part, of any person; or

     (b)     if any eventuality referred to in paragraph (b), (c), (d), (e) or (f) of section 31(1), occurs with reference to any person or persons-

           (i)       who have by will or written instrument operating inter vivos been nominated by a person who dies after the commencement of this Act to be administrator or administrators;

          (ii)       against whom an order under section 66 has been made; or

          (iii)       to whom a certificate of authority has been granted under this Act,

by notice in writing or by a notice published in such manner as in his opinion is best calculated to bring it to the attention of the persons concerned, call upon the persons for whose benefit the property is or is to be administered, 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 administrator or administrators, a person or a specified number of persons.

            (2) Subsections (2), (4), (5) and (6) of section 31 shall mutatis mutandis apply with reference to administrators:

            Provided that for the purposes of the application under this subsection of the said subsection (2), the reference to section 31(3) and to section 32, shall be deemed to be omitted.

69.     Competition for office of administrator

            If at any meeting in pursuance of a notice under section 68(1) more than one person is nominated for recommendation to the Master, the Master shall, in making any appointment, prefer the nominee of a more immediate beneficiary to the nominee of a more remote beneficiary:

            Provided that the Master may-

      (i)     join the nominee of a more immediate beneficiary with the nominee of a more remote beneficiary; or

      (ii)     if there is any good reason therefor, pass by any or all of such nominees.

70.     Foreign certificates of authority

            Whenever the provisions of section 37 apply, in terms of section 36, to letters of administration granted in any country, the said provisions shall mutatis mutandis also apply to a certificate of authority so granted.

71.     Security by administrators

            (1) Every person to be appointed administrator dative or assumed administrator or against whom an order has been made under section 66 shall, before a certificate of authority is granted or signed and sealed, or any endorsement is made under section 67, as the case may be, find security to the satisfaction of the Master, in an amount determined by the Master, for the proper performance of his functions.

            (2) Every person to be appointed administrator in pursuance of any will or written instrument operating inter vivos, shall be under the like obligation of finding security, unless-

     (a)     he has been nominated by any will or by any such instrument executed before the commencement of this Act, and has not been directed by such will or instrument to find security;

     (b)     he has been nominated by any will or by any such instrument executed after the commencement of this Act, and the Master has by such will or instrument been directed to dispense with such security; or

     (c)     the court otherwise directs:

            Provided that if the estate of any such person has been sequestrated, or if he has committed an act of insolvency, or if he is or resides or is about to reside outside Botswana, or if there is any good reason therefor, the Master may, notwithstanding the provisions of paragraph (a) or (b), refuse to grant or sign and seal a certificate of authority or to make any endorsement under section 67, until he finds such security.

            (3) The costs of finding such security shall be paid out of the income derived from the property concerned or out of the property itself:

            Provided that such costs shall, subject to the terms of the will or written instrument operating inter vivos, for the purposes of adjustment between the beneficiaries concerned, be brought into account against the said income and against the property in such proportions as the Master may determine.

            (4) Subsections (1), (5) and (6) of section 35 shall mutatis mutandis apply with reference to administrators.

            (5) Unless the Master otherwise directs, an administrator shall be required to find security in terms of this section if all the beneficiaries concerned are permanently resident outside Botswana.

72.     Transfer and mortgage of immovable property by or in favour of administrators

            (1) An administrator who desires to have immovable property registered in the name of any beneficiary or to have any endorsement made under section 53, as applied by section 78, shall, in addition to lodging any deed or document which he may by law be required to lodge with the Registrar of Deeds, satisfy the said Registrar that the proposed transfer or endorsement is in accordance with the will or written instrument operating inter vivos.

            (2) An administrator who desires to effect transfer of any immovable property in pursuance of sale, or to effect the registration of a mortgage over immovable property and any person who desires to effect transfer of any immovable property to an administrator or to effect the registration of a mortgage over immovable property in favour of an administrator, shall satisfy the Registrar of Deeds that it is within the powers of the administrator to effect such transfer or registration, or to acquire such property or accept such mortgage, as the case may be.

73.     Accounts by administrators

            (1) An administrator shall at least once in every year not later than a date to be determined by the Master-

     (a)     lodge with the Master a statement of account in the prescribed form and an audit certificate in the prescribed form, signed by an accountant appointed in terms of the will or written instrument operating inter vivos, or, if no accountant has been so appointed, by an accountant nominated by the Master after consultation with the beneficiaries;

     (b)     forward to each beneficiary, or in the case of a minor or a person under curatorship, to the natural guardian, tutor or curator of such minor or person, as the case may be, a copy of such statement and certificate; and

     (c)     lodge with the Master a certificate that he has complied with the requirements of paragraph (b).

            (2) The Master shall issue to every accountant nominated by him in terms of subsection (1)(a) a certificate of nomination and advise the administrator of the name and address of such accountant.

            (3) Subject to the terms of the will or written instrument operating inter vivos, any expense incurred in terms of subsection (1) shall be paid out of the income derived from the property concerned or out of the property itself and shall, for the purposes of adjustment between the beneficiaries concerned, be brought into account against the said income and against the property in such proportions as the Master may determine.

74.     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 subsection (2) and to the terms of the will or written instrument operating inter vivos, be entitled to receive from an administrator for and on behalf of the minor-

     (a)     any income accruing to the minor from the property concerned; and

     (b)     any money or other movable property to which the minor is entitled under the will or written instrument.

            (2) Subsections (2), (3), (4) and (5) of section 50 shall mutatis mutandis apply with reference to any money or other movable property referred to in subsection (1)(b).

            (3) Subject to subsection (1) and to the terms of the will or written instrument operating inter vivos, an administrator shall pay into the hands of the Master any money to which any minor, absentee, unknown beneficiary or person under curatorship becomes entitled by way of income from the property concerned or otherwise under the will or written instrument.

75.     Payment of moneys to minors or persons under curatorship domiciled outside Botswana

            (1) If any minor or any person under curatorship domiciled outside Botswana becomes entitled to any sum of money by way of income from any property administered by an administrator or otherwise in terms of the will or written instrument operating inter vivos under which any property is administered by an administrator, the administrator, with the concurrence of the Master, or the Master, if the said sum has been paid into his hands, may remit the said sum to the government of the country in which such minor or person is domiciled or to the guardian, tutor or curator of such minor or person in that country.

            (2) Subsections (2) and (3) of section 58 shall mutatis mutandis apply with reference to any sum remitted under subsection (1).

76.     Administrator making wrong distribution

            Any administrator who makes a distribution otherwise than in accordance with the provisions of the relevant will or written instrument operating inter vivos-

     (a)     shall be personally liable to make good to any beneficiary or creditor any loss sustained by such beneficiary in respect of the benefit to which he is entitled, or by such creditor in respect of his claim, as a result of his failure to make a distribution in accordance with the said provisions, unless the court otherwise directs; and

     (b)     shall be entitled to recover from any person any amount paid or any property delivered or transferred to him in the course of the distribution, which would not have been paid, delivered or transferred to him if a distribution had been made in accordance with the said provisions:

                      Provided that no costs incurred under this paragraph shall be paid out of the property in respect of which such administrator has been appointed or out of any income therefrom.

77.     Remuneration of administrators

            (1) Every administrator shall, subject to subsection (2), in respect of his administration and distribution of the property concerned, be entitled to receive out of the income derived from the property concerned or out of the property itself-

     (a)     such remuneration as may have been fixed by the will or written instrument operating inter vivos; or

     (b)     if no such remuneration has been fixed, a remuneration which shall be assessed according to a prescribed tariff and shall be taxed by the Master.

            (2) The Master may-

     (a)     if there are in any particular case special reasons for doing so, reduce or increase any such remuneration;

     (b)     if the administrator has failed to discharge his duties or has discharged them in an unsatisfactory manner, disallow any such remuneration, either wholly or in part.

            (3) Any such remuneration shall, subject to the terms of the will or written instrument operating inter vivos, for the purposes of adjustment between the beneficiaries concerned, be brought into account against the said income and against the property in such proportions as the Master may determine.

78.     Application of certain sections to administrators

            (1) Sections 28(5), 34, 48, 51(1) and (3), 53, 55, 63 and 64 shall mutatis mutandis apply with reference to administrators:

            Provided that any reference in any of the said sections to a will shall, for the purposes of its application under this subsection include a reference to any written instrument operating inter vivos and executed by a person who had died.

            (2) Section 29 shall mutatis mutandis apply with reference to administrators appointed to administer any property under a written instrument operating inter vivos.