Du Toit and Another v Kruger N.O and Others

The late J.D. Kruger (testator) executed a will on 28 July 2014 appointing Barnito Charles Klassen as executor, granting him extensive powers to sell or rent immovable property. In terms of clause 4.1.1, the executor had absolute discretion to sell or lease property and determine the price, with his decision being final and unreviewable. On 24 January 2018, the erstwhile executor sold two immovable properties (Bella Vista Liquor Store and an erf in Ceres) to the applicants (husband and wife married in community of property) for R900,000. The applicants paid an advance of R295,000 and took possession of the properties, paying rent until transfer. On 9 September 2021, the erstwhile executor was removed as executor under section 54(1)(b)(v) of the Administration of Estates Act. The respondents were subsequently appointed as executors on 20 April 2022. The first respondent is a son of the testator and an heir. The respondents and other heirs were opposed to the sale, wanting to continue the testator's legacy. The respondents refused to take steps to pass transfer to the applicants, challenging the validity of the sale agreement.

• Whether the provisions of section 47 of the Administration of Estates Act 66 of 1965 override clause 4.1.1 of the testator's will, which granted the executor unfettered discretion to sell immovable property.
• Whether the sale agreement concluded by the erstwhile executor without the consent of the heirs or approval of the Master is valid and enforceable.
• Whether the wording of clause 4.1.1 constitutes 'a contrary intention' as contemplated by section 47, thereby excluding the application of the section.

The court ordered the first and second respondents, within 45 days, to take all necessary steps (including signing documentation) to pass transfer of the two immovable properties to the applicants, to seek a certificate from the Master confirming no objection to transfer, and authorized the applicants' attorney and Sheriff to act on the respondents' behalf if they failed to comply. The respondents were ordered to pay costs on scale B.

Where a testator's will contains clear and express language granting an executor absolute and unfettered discretion to sell immovable property and determine the price, such language constitutes 'a contrary intention' as contemplated by section 47 of the Administration of Estates Act 66 of 1965. Consequently, the provisions of section 47—which otherwise require heirs' consent or Master's approval for the sale of estate property—do not apply, and the terms of the will must prevail.

The court observed that the legislature deliberately used 'unless it is contrary to the will of the deceased' rather than 'notwithstanding anything to the contrary in the will,' indicating the legislature did not want to interfere with freedom of testation. The court also remarked that to determine whether there is 'a contrary intention' under section 47 must be assessed on a case-by-case basis.

This case affirms the paramount importance of freedom of testation in South African succession law. It clarifies that the opening phrase 'Unless it is contrary to the will of the deceased' in section 47 of the Administration of Estates Act operates as a built-in qualifier that allows testators to exclude the section's application by expressing a contrary intention in their wills. The decision reinforces and applies the Full Bench authority of Bagnall NO v Acker NO regarding the interface between testamentary freedom and statutory controls on executors' sale of estate property.