109.   Failure to lodge administration account

            (1) If any executor, administrator, tutor or curator fails to lodge any account with the Master as and when required by this Act, or to lodge any vouchers in support of such account or to perform any other duty imposed upon him by this Act, or to comply with any reasonable demand of the Master for information or proof required by him in connection with the administration of the executor, administrator, tutor or curator, the Master or any person having an interest in the matter may, after giving the executor, administrator, tutor or curator not less than one month's notice, apply to the court for an order directing the executor, administrator, tutor or curator to lodge such account or vouchers in support thereof or to perform such duty or to comply with such demand.

            (2) An executor, administrator, tutor or curator who receives such a notice may apply to the Master for an extension of time wherein to lodge such account or vouchers in support thereof, or to perform such duty, or comply with such demand, and the Master may grant such extension as in the circumstances of the case he may think reasonable.

            (3) If the Master refuses any such extension of time and an application under subsection (1) is made to the court, and if upon that application the court is of opinion that an extension of time ought to have been granted by the Master, the Master or other person by whom the application was made shall nevertheless be entitled to his costs if there was sufficient time before the notice of the application for the executor, administrator, tutor or curator in default to bring in review by the court the refusal of the Master to extend the time.

            (4) The costs adjudged to the Master or such other person shall, unless otherwise ordered by the court, be payable by the executor, administrator, tutor or curator de bonis propriis.

110.   Failure to pay over moneys

            Any executor, administrator, tutor or curator who, without sufficient excuse, retains, and fails as and when required by this Act to pay over, any moneys to the Master or for the benefit of a minor to any other person, shall be liable to forfeit at the instance of the Master or such other person for the benefit of the estate, or (as the case may be) for the person to whom the money belongs, interest upon the amount of the default at the rate of 12 per cent per annum as from the commencement of the default.

111.   Master's costs when not otherwise recoverable payable out of Guardian's Fund

            (1) Whenever any executor, administrator, tutor or curator is ordered to pay de bonis propriis the costs of any proceedings instituted by the Master, the Master may, if he finds it impossible to recover the same from the executor, administrator, tutor or curator, pay or order payment of such costs from any property subject to the administration of the executor, administrator, tutor or curator in regard to which the proceedings were taken, or if there is no such property available, from the Guardian's Fund.

            (2) All costs incurred by the Master in the ordinary course of his duties under this Act or otherwise and not recoverable by him from any other source, may be drawn by him and paid out of the credit balance of the Guardian's Fund unless the court in any case order that the costs be paid by the Master de bonis propriis:

            Provided that the Minister may specially authorize that any costs ordered to be paid by the Master de bonis propriis be refunded to him or met out of the Guardian's Fund.

112    Form of court proceedings taken by Master

            Whenever by this Act the Master is required or authorized to take civil proceedings against any executor, administrator, tutor or curator, he may proceed by way of application or motion and may when so proceeding report to the court in writing the facts upon which he relies instead of stating them in an affidavit, notwithstanding anything to the contrary in any law or rule of court.

113.   Report by Master to the court otherwise than upon formal application

            Whenever in the course of his duties the Master finds it necessary to lay any facts before the court otherwise than upon formal application or motion, the Master may lay those facts before the court having jurisdiction by a report in writing transmitted through the Registrar of the court. The court may thereupon make such order as it thinks fit:

            Provided that the court may in every case, if it thinks fit, refer the report back to the Master and require the same to be presented upon formal application in court.

114.   Statement of case by Master to the court in certain events

            Whenever any difference of opinion upon a question of law arises between the executor or administrator and the Master in the distribution of an estate or property subject to administration and a minor is interested in the decision of that question, the Master and the executor or administrator may state a case in writing for determination by a judge of the court and his determination shall be binding upon the Master and the executor or administrator, without prejudice to the rights of other persons interested in the distribution:

            Provided that the judge may refer the matter to the court for argument.

115.   Review of Master's appointments, etc.

            Every appointment by the Master of an executor, administrator, tutor or curator, and every order or decision of or taxation by the Master under this Act shall be subject to appeal to or review by the court upon motion at the instance of any person aggrieved thereby, and thereupon the court may confirm, set aside or vary the appointment, order, decision or taxation, as the case may be.

116.   Penalties

            (1) Any person who-

     (a)     steals or wilfully destroys, conceals, falsifies or damages any document purporting to be a will;

     (b)     wilfully makes any false inventory under this Act;

     (c)     wilfully submits to or lodges with the Master any false account under this Act;

     (d)     wilfully makes any false valuation for the purposes of this Act;

     (e)     when being interrogated under oath under section 45, makes, with reference to the subject in connection with which he is interrogated any statement which he knows to be false or which he does not know or believe to be true;

     (f)      being an executor or administrator, wilfully distributes any estate or property otherwise than in accordance with section 61(12) or of the relevant will or written instrument operating inter vivos;

     (g)     contravenes or fails to comply with section 17, 18, 19, 21, 39 or that section as applied by section 78, section 61(13), 65, section 73(1), 80(2), 82(1), the proviso to section 85(1), section 93, 98, or any order made by the Master under section 20 or any order under section 66(1), or hinders or obstructs any accountant nominated by the Master in terms of section 73(1)(a) in the execution of his duty;

     (h)     contravenes or fails to comply with section 10(3), subsection (1) or (2) of section 14, section 23, 25, 26, 42, 61(1), or any direction under section 61(2), any provision of or notice under subsection (2) or (3) of section 50, or that section as applied by subsection (2) or section 74; or

     (i)      contravenes or fails to comply with subsection (1) or (2) of section 12, 61(8), 34(5) or that section as applied by section 78(1) or section 100, or with any notice under section 12(3), or fails without reasonable excuse to comply with a notice under section 45(1)(b), or, having appeared in answer to such notice, refuses to take the oath or to submit to examination or to answer fully and satisfactorily any lawful question put to him,

shall be guilty of an offence and liable-

      (i)     in the case of an offence referred to in paragraph (a), to a fine not exceeding P2000 or to imprisonment for a term not exceeding seven years, or to both;

      (ii)     in the case of an offence referred to in paragraph (b), (c), (d) or (e), to a fine not exceeding P1000 or to imprisonment for a term not exceeding five years, or to both;

     (iii)     in the case of an offence referred to in paragraph (f) or (g), to a fine not exceeding P200 or to imprisonment for a term not exceeding 12 months, or to both;

     (iv)     in the case of an offence referred to in paragraph (h), to a fine not exceeding P100 or to imprisonment for a term not exceeding six months, or to both; and

     (v)     in the case of an offence referred to in paragraph (i), to a fine not exceeding P50 or to imprisonment for a term not exceeding three months, or to both.

            (2) The court convicting any person for failure to perform any act required to be performed by him by or under this Act may, in addition to any penalty which it imposes, order such person to perform such act within such period as the court may fix.

117.   Forfeiture on omission by surviving spouse to make inventory, or true inventory

            (1) Every surviving spouse of a marriage in community of property who wilfully neglects to cause an inventory of the joint estate to be made in a manner and within the period provided in this Act, or knowingly omits to enter in that inventory any article of property whatsoever, shall in the distribution of that estate forfeit all right to and share in the property so omitted in the inventory.

            (2) Every loss which has been caused by the destruction or deterioration of any such property so omitted in the inventory shall in the distribution of the estate fall upon and be borne by the surviving spouse solely and exclusively:

            Provided that nothing in this section shall exempt any person who wilfully or for any fraudulent purpose makes or causes to be made any false inventory of any such joint estate, from any penalty or punishment otherwise provided by this Act or any other law for the offence of making false inventories.

118.   No substitution or surrogation

            It shall not be competent for any executor or tutor to substitute or surrogate any other person to act in his place.

119.   Master not to act as executor, etc.

            The Master in his official capacity shall be incapable of acting as executor, administrator, tutor or curator.

120.   Reduction of security tendered by executors, administrators, tutors and curators in certain cases

            When an executor, administrator, tutor or curator, having given security to the Master, has accounted to the Master by means of an account supported by vouchers, as required by this Act, for any assets the value of which was taken into consideration by the Master when the security was assessed, the Master, upon his accepting and filing that account, may, if he is satisfied that the security thereafter remaining will be sufficient to cover the value of the assets remaining to be accounted for, reduce the amount of the security by any sum not exceeding the value as it appeared to him when the security was assessed of the assets so brought to account.

121.   Effect of massing of joint estate

            Where two spouses, married in community of property, have by their mutual will massed the whole or any specific portion of their joint estate, and disposed of it after the death of the survivor, conferring upon the latter a fiduciary, usufructuary or other limited interest therein, then upon the death of either of such spouses after 7th July, 1933, adiation and the acceptance by the survivor of benefits under the will shall have the effect of conferring upon the heirs entitled to the said property after the expiry of the said limited interest the same rights in respect of the survivor's half share of such property as they may by law possess in respect of the half share which belonged to the spouse who has first died.

122.   Estate account

            (1) Unless exempted by the Master every executor, administrator, tutor and curator shall, so soon as he has funds of the estate over and above an amount of P40 in hand, open an account with a bank in Botswana, in the name of the estate and shall pay those funds and all other funds of the estate thereafter received by him into the said account not later than one week after the first day upon which it was reasonably possible for him to pay in the amount.

            (2) Every person who fails to comply with this section shall, at the instance of the Master or any person having an interest in the estate, pay to the estate interest at the rate of 12 per cent per annum on the amount so retained by him as from the commencement of the default.

            (3) All cheques or orders for the payment of moneys out of such accounts shall truly express the cause of payment and the names of the persons in whose favour they are drawn.

            (4) The Master may at all times require an executor, administrator, tutor or curator to furnish him with a bank statement or other sufficient evidence of the position of the said account.

            (5) Pending the distribution of an estate being administered by an executor, he may, and at the direction of the Master shall, invest at interest with an institution, and upon terms approved by the Master, any moneys belonging to the estate and not immediately required for other purposes.

            (6) Any person who fails to comply with the provisions of subsections (1), (2) and (3) or any requirement or direction of the Master under subsection (4) or (5) shall be guilty of an offence and liable to a fine not exceeding P100 or to imprisonment for a term not exceeding six months, or to both.

            (7) If upon the prosecution of an executor, administrator, tutor or curator for the theft or conversion of any property subject to his administration, it is proved that such property was in the possession of such executor, administrator, tutor or curator after his appointment as such, the onus shall lie upon him to prove, if the said property was a sum of money, that the money was duly deposited in an account as hereinbefore required and, if he fails to do so, he shall be liable, if he is not convicted on the charge of theft or conversion, to a fine of double the amount of such sum and to imprisonment for a term not exceeding six months, but such fine or imprisonment shall not relieve him of the liability to pay interest in terms of subsection (2).

123.   Meetings before District Commissioner or other officer

            Any meeting to be held in pursuance of this Act before any District Commissioner may in his absence be held before any public officer authorized by the Master.

124.   Exemption from liability for acts or omissions in Master's office or Deeds Registry

            No act or omission of the Master or of any officer employed in the Master's office, and no act or omission, in relation to any property transaction within the purview of this Act, of the Registrar of Deeds or of any officer employed in the Deeds Registry shall subject the Government, the Master, the Registrar of Deeds or any such officer as aforementioned to any liability for any damage sustained by any person in consequence of such act or omission:

            Provided that if such act or omission is mala fide or if the Master, the Registrar of Deeds or any such officer as aforementioned has, in connection with such act or omission in the course of his duties or functions, not exercised reasonable care and diligence, the Government shall be liable for the damage aforesaid.

125.   Regulations

            The Minister may make regulations for the better carrying out of the objects and purposes of this Act and for giving effect to its principles and provisions, and without prejudice to the generality of the foregoing may make regulations-

     (a)     for the custody and preservation of the records, securities and valuable effects in the office of the Master;

     (b)     as to the payment of money out of the working balances of the Guardian's Fund;

     (c)     for the management and good conduct of the business of and the practice and procedure to be observed in the office of the Master;

     (d)     regulating the application for and issue of copies of wills required for the purposes of section 57 or other purposes and the fees to be paid in respect thereof;

     (e)     as to the remuneration to be paid to executors, administrators, tutors, curators and sworn appraisers;

     (f)      prescribing means whereby fees payable under this Act shall be paid;

     (g)     prescribing anything which is to or may be prescribed.

FIRST SCHEDULE
FORMS

Form A
DETAILS OF THE DECEASED

1.

Name of deceased

2.

Birthplace and nationality of the deceased

3.

Names and addresses of the parents of the deceased

Father

Mother

4.

Age of the deceased

Years      Months

5.

Occupation in the life of the deceased, or, if a married woman, of her husband

6.

Ordinary place of residence of the deceased, or, if a married woman, of her husband

7.

Married or unmarried, widower or widow

     (a) Name of surviving spouse (if any), and whether married in community of property or not

     (b)      Name or names, and approximate date of death of pre-deceased spouse or spouses

     (c)      Place of last marriage

8.

The day of the decease ............................... on........................... 20 ......

9.

10.

Names of children of deceased, and whether majors or minors

     State separately the children born of different marriages and give the date of birth of each minor. Names must be written out in full. If there are no children, and either or both parents are dead, then give the names and addresses of the brothers and sisters of deceased

11.

Has the deceased left any movable property?

12.

Has the deceased left any immovable property?

13.

Is it estimated that the estate exceeds P600 in value?

14.

Has the deceased left a will?

Dated at ........................................ the ...................... day of ................................................... 20 .....

................................................
Signature

(State in what capacity and whether at the time at or near the place of death.)

     This notice must be filled up and signed by the nearest relative or connection of the deceased who shall at the time be at or near the place of death-or in the absence of such near relative or connection, by the person who at or immediately after the death has the chief charge of the house in or the place at which the death occurred and must be sent to the Master, within 14 days of the death.

Form B
LETTERS OF ADMINISTRATION

These are to certify that A.B. of .................................................................... has been duly appointed the executor testamentary (or dative, as the case may be) and is hereby authorized as such to administer the estate of the late C.D. who died at ................................................ on the ...............................................................

..................................................
Master of the High Court

this ................... day of ...................................... 20 ............

Form C
LETTERS OF CONFIRMATION OF TUTORS

These are to certify that A.B. of .................................................................... has been duly appointed and is hereby authorized as such to act as the tutor testamentary (or dative, as the case may be) of C.D., minor child of the late E.F.

..................................................
Master of the High Court

this ................... day of ...................................... 20 ............

Form D
LETTERS OF CONFIRMATION OF CURATORS

These are to certify that A.B. of .................................................................... has been duly appointed and is hereby authorized to act as the nominate of the estate given (or bequeathed, as the case may be) to C.D. by G.H. (Here describe the deed of gift or by its date or otherwise) or, as the case may be, as the curator dative of the estate of C.D.

..................................................
Master of the High Court

this ................... day of ...................................... 20 ............

Form E
FORM OF OATH

I, ................................................................ of .................................................. (state capacity of deponent) make oath and say that the return of unclaimed moneys in the hand of                                                      subscribed by me and published under the provisions of section 102 of the Administration of Estates Act, in the Gazette dated the .............. day of ....................................... 20 ........... is to the best of my knowledge and belief a true and complete return as required by the said Act; and that during the year ended 31st December now last past no unclaimed moneys have been transferred by or on behalf of the said .................................................. out of Botswana or placed to any suspense or other account with a view to evading the provisions of this Act and that all amounts which ought to be included in the said return are duly included therein.

Sworn at ..............................................., this ........... day of .................................. 20 ......

......................................
Justice of the Peace

SECOND SCHEDULE
FEES

1.

On all estates of deceased persons or estates under tutorship administration (except estates under the charge of a curator bonis pending the appointment of an executor) the gross value of which-

P   t

(a) exceeds P200, but does not exceed P800

2 00

(b) exceeds P800, for every P200 or part thereof ..................

50

subject to a maximum fee to be fixed to the liquidation account ...........................................................................

20 00

(c) does not exceed P200 where administration takes place, a fee, in the discretion of the Master, to be fixed to the inventory, not exceeding .................................................

2 00

          Where the deceased is one of two spouses married in community of property, the above fees shall be assessed upon one-half of the gross assets of such community.

2.

For extracts or copies of documents made or certified in the office of the Master, for each 100 words or part thereof ...........

20

3.

For custody of any will during the testator's lifetime, per annum ........................................................................................

2 00

4.

Upon all unclaimed moneys paid into the hands of the Master pursuant to section 102 of this Act, or for account of absent or unknown creditors or contributors of any company, a commission upon the amount paid in of five per cent payable in cash, which shall be deducted from the unclaimed moneys so paid into the hands of the Master.