Power of Executor/Representative to Act Prior to Appointment by Master
The question one is often confronted with is whether it is the duty of the registrar of deeds to conclude whether the date of transaction entered into by the executor/ representative is subsequent to the date on which the executor/representative was appointed by the Master of the High Court.
When comparing the date of sale with the date of appointment of the executor/representative it often occurs that the date of the transaction occurred prior to the date of appointment. Conveyancers and executors alike are of the opinion that, in some instances, an urgent sale can be concluded prior to the executor being appointed, and that the executor/representative has the authority to ratify the transaction subsequent to the said appointment.
Another school of thought is of the opinion that this is not the responsibility of the registrar, as the preparer of the power of attorney assumes responsibility that the executor/representative has been duly appointed and is acting within the powers conferred upon him/her by law (see regulation 44A of the Deeds Registries Act 47 of 1937).
Section 13(1) of the Administration of Estates Act 66 of 1965, however, has a peremptory provision in this regard and provides that no person shall liquidate or distribute the estate of any deceased person, except under letters of executorship granted or signed and sealed under Act 66 of 1965, or under an endorsement made under section fifteen, or in pursuance of a direction by a Master. It is thus abundantly clear that no person can act as an executor/representative before being granted letters of executorship or appointment by the Master (see Ex parte Ganga 1979 (1) SA 586 (N))
Given the provisions of section 13(1) of Act 66 of 1965, the said referred to decided case, as well as the fact that a registrar of deeds must register an indisputable title deed, it is profusely clear that any transaction entered into by an executor or representative prior to his or her appointment is ab initio null and void and not registerable. The mere fact that the preparer has assumed responsibility for the fact that the executor/representative is acting within the powers conferred him/her by law does not detract from the fact that a registrar of deeds must examine deeds, and should it not comply with any law, he/she may refuse to register same (see section 3(1)(b) of Act 47 of 1937)
Tonkin Clacey Pretoria
Tel 012 346 1278