Asked by the Customer on 09-02-2020 19:50:36
Question posted in the General Law category relating to Eastern Cape

Hello, my brother died in september 2018 in Balito. He took R90000 of my mothers money (she is now 88) and gave it to an estate agent to pay for 1 years rent a year before he died. The money is still with thte estate agent. I am the only living relative apart from my mother who is now in a frail care centre in Hillcrest. She has dementia. My brothers death certificate states he was divorced, which i recall happened after 3 months of marriage some 15 years ago. I do not know her name or ID, nor the date of the divorce or the court it was lodged in, no living person knows this including my mother. The masters office in Durban require my brothers divorce decree before issuing a letter of authority.

The money was never my brothers in the first place, as he never had a job and i am struggling to get my mothers money back from the estate agent.

What can be done?

Hope you can advice,

Thanks Carol

Further information relating to Question:

The above states Eastern Cape, i clicked kawazulu natal. Its the masters office in Durban. I currently do not live in SA. I would just like to get my mothers money back so it can pay for her frail care. Lord knows what will happen to the money if it remains with the estate agent, as it is not their money

Posted by Att. Patrick on 09-02-2020 20:14:00

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

If your brother gave the money to the rental agent to rent a place for himself, then I'm sure that the rental agent will only return the money to your brother's estate. How would the rental agent know that it was actually your mom's money that your brother took? They wouldn't, so, you would need to get an executor appointed for your brother's estate in order to claim the money back from the rental agent.

If the rental agent was given the money to rent a place for your mom, then the rental agent should return the money to your mom as she was the client. 

But let's proceed on the first assumption. 

If your brother left a Will, then the Master should appoint an executor in terms of the Will. If your brother was married, or divorced, or whatever, it would make no difference. So I'm going to assume that your brother didn't leave a Will. That means that the Master will need to appoint an executor himself, based on information given to him by your brother's family. 

This is obviously why the Master is asking about the divorce order - because if your brother wasn't divorced, there is a good chance that the Master would appoint the wife as the executor. 

What the Master should do is to listen to the information contained in the Next of Kin Affidavit which your brother's nearest family member is supposed to file. That affidavit sets out the family structure of your brother. In that affidavit you would say that he was divorced. 

But the Master is obviously being very caution - hence wanting to see the divorce order before he will appoint an executor. 

So, you really have two choices. The first is to go to the Durban High Court and ask the Registrar to search the archives for the divorce file and obtain a copy of the divorce court order. The second is to apply to the Durban High Court for an order forcing the Master to appoint an executor ... even though you can't find the divorce order!

Both are a long shot - to be quite honest, and could end up being costly because you'd definitely need an attorney to assist you in the search and in the court application. 

Even if you get an executor appointed, eventually, the executor will then need to recover the money from the rental agent, and hopefully the rental agent will still have it?  What happens if they've spent it?

What happens if the rental agent says that it was spent on rental already?

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Thank you Patrick, you were correct with your assumptions. My brother has no will, he died unexpectedly. the only money he has is R90k at the estate agent, which i can confirm they still have and R17k in a Discovery Life policy with my mother as the beneficiary.
i do have an Affidavit, which states the following, i am the sister of the deceased. The value of the estate is below R150k, his death certificate states he was divorced, i have no divorce decree but he was married +- 2002 for only 3 months. I also stated that i have no knowledge of the place and date of marriage (we were not close) and that i am the only sibling and he had no children, i am his only living relative except for my mother who has dementia.
i believe i just require a letter of authority due to the value of the estate. I have a lawyer who is hopeless and had been not at all helpful since he died, she has lodged the above Affidavit, all his documents, death certificate, ID etc which have all been notarised and is now sitting on it saying she needs the divorce decree.
May i ask why would the master require a divorce decree if his death certificate issued by home affairs states divorced. I would have thought, especially after 15 odd years that this would mean the divorce is final.

Posted by Att. Patrick on 10-02-2020 17:39:56

In that instance, the estate will be administered as a section 18(3) estate because it is less than the amount you quoted. This means that the estate is much easier to wind up! You're on the right track.

If the Master is of the view that he wants to see the divorce order, then there is no two ways about it. You'll unfortunately need to provide the Master with a certified copy of the divorce order! 

You'll need to get the lawyer to visit the court like I suggested to locate one. 

I'm sorry, but the Master has quite a wide discretion to request documents, and this seems to be one of them!