Asked by Claudia on 21-04-2023 11:33:32
Question posted in the Property Law category relating to Gauteng

I currently have the following case sitting with an attorney:

My mom died May 2021. She left her house to my sister in her will. All the preparatory paperwork was concluded for the transfer - transfer fees paid, levies sorted out, etc.

But the transfer could not proceed because the Masters Court (Johannesburg) lost the estate file. The Deeds Office needs an authorised/endorsed copy of the will from the Masters, and will not process the house transfer without it. The current attorney has been unable to secure this from the Masters. Even though copies of all the estate file documents were resubmitted to the Masters, they refused to create a new/dummy file. He has been to the Masters Court in person, emailed the Master of the High Court (Johannesburg) with a complaint and request for assistance, and escalated it to the Chief Master (Pretoria) by email.

He now says we have hit a brick wall. There is nothing else we can do except issue a court order against the Masters, which will cost me two to three hundred thousand rand. Which I don't have.

Last year he did mention we could try and sell the house to a third party, although this would also require permission from the Masters Court because it is a deceased estate property. So I presume this would just loop back to the Masters being a dead end because the estate file is lost.

My 2 questions are:

1) Is there any other option I can try to solve this, aside from a court order against the Master of the Court? 

2) Is it possible for me to move this whole case to a different attorney if necessary (one who perhaps has had success with lost files at the Masters?)

Posted by Att. Patrick on 21-04-2023 14:19:36

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. 

I'm really sorry to hear about the issues that you're going through with trying to transfer the house out of the estate. 

I don't know that a high court application will cost R200,000 to R300,000 to run, because it should proceed on an unopposed basis. I don't think that it could cost more than R20,000 because you'd just need a founding affidavit setting out the facts, and then a Notice of Motion asking the court for relief. Maybe R30,000, but the executor of the estate should be paying it, from the money in the estate. If your sister pays for it herself, she can ask the Court to order that the estate must re-imburse her. This is what I would do instead of waiting around for a dummy file. I don't know of any other option besides applying to court. 

Any other attorney can assist you in finding the lost file or getting a new file created. I assume that the attorney was appointed as the executor - so no, you won't be able to change attorneys. Also, if the attorney has already done work, he will expect to be paid. So he won't consent to being removed as the executor. 

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 to be 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 so much for your detailed answer Patrick. This is very helpful information!

Just one quick follow-up question: The attorney is NOT the executor, there is a separate executor. He is just the property transfer attorney. In this case, do you think another attorney would be able to take over the property transfer file from him? I know it's not good practice, and maybe not ethical, but if another attorney can process the court order for (a lot) cheaper than what he is asking, do I have a right to change attorneys?

Thanks

Posted by Att. Patrick on 21-04-2023 15:52:25

It isn't the property transferring attorney who should be speaking to the Masters Office in order to obtain the Master's consent to transfer or to obtain a copy of the Will ... it is the executor who should be doing that. 

Perhaps this is why the property transferring attorney isn't having much luck? The Masters Office might be giving him/her the runaround because he/she isn't the executor.

There is also no reason why you can't instruct another attorney to apply to Court for an order, instead of the executor or the property transferring attorney. In fact, I wouldn't necessarily trust a conveyancing attorney in court, and I also wouldn't necessarily trust an estates lawyer in court either.