eSwatini
Administration of Estates Act, 1908
Act 28 of 1902
- Commenced on 1 June 1902
- [This is the version of this document at 1 December 1998.]
Part I – Estates of deceased persons
Death notices
1. Short title
This Act may be cited as the Administration of Estates Act, 1908.2. Death notices to Regional Administrator or Master
3. If death notice defective executor to furnish further information
In case the information in any death notice is defective or insufficient, the Master may call upon any executor after his appointment to furnish such further information as may be required, and every executor so called upon shall without delay return his written answers to such questions as the Master may put to him for that purpose.4. Penalty clause
Any person who fails to comply with sections 2 or 3 shall be guilty of an offence and liable on conviction, to a fine not exceeding forty emalangeni, or in default of payment thereof to imprisonment for a period not exceeding three months.Wills
5. Deposit of wills, etc., with Master
6. Persons in possession of wills, etc., on testator’s death bound to transmit them
7. Penalty for theft, destruction or concealment of wills, etc.
8. Warrants to search for stolen or concealed wills etc.
The Chief Justice and every other judge of the High Court, and every magistrate or justice of the peace, upon information taken on oath being transmitted to him by the Attorney-General or any public prosecutor, or the Master, or upon the information of any person made on oath before any such judge, magistrate, or justice of the peace, that there is reason to suspect that a will, codicil, or other testamentary instrument is concealed in any place within the jurisdiction of such judge, magistrate, or justice of the peace may by warrant under his hand cause such place to be searched.9. Applications by Master to the court where persons refuse to give up wills
If a person who is reasonably believed to be in possession of, or to have under his, control any will, codicil, or other testamentary instrument, after the death of the testator refuses or fails to deliver or transmit it as provided in section 4, the Master shall forthwith apply to the High Court for an order of such court directing such person forthwith to deliver such will, codicil, or other instrument.10. Enregisterment of wills, etc., at testator’s death
Every deed being or purporting to be the will, codicil, or other testamentary instrument of any person which has been deposited with, or transmitted to the Master as provided, in section 4 shall after the death of the maker thereof, be enregistered by the Master in the register of estates, for which purpose the Master shall open or cause to be opened, every such deed which is sealed.Provided that notwithstanding any such registration, all questions as to the validity and legal effect of every such deed shall be reserved for the decision of the High Court; andProvided further that where such deed has been deposited with the Master previous to the death of the maker, the Master shall cause the duplicate or copy deposited with the said deed to be examined and compared with the original, and if need be corrected, and shall authenticate such duplicate or copy with his signature and shall transmit it to the Regional Administrator of the region in which the deceased ordinarily resided at the time of his death, if such region is not the Hhohho region, and the said Regional Administrator shall cause it to be filed and registered.Inventories
11. Inventory of estate in community by surviving spouse
When one of two spouses who have been married in community of property dies, the survivor shall within thirty days after the death of the deceased, cause an inventory of all property, goods and effects, movable and immovable of whatever kind, which at the time of the death formed part of or belonged to, the estate possessed in community between the deceased and surviving spouse, to he made in the presence of two impartial witnesses of good credit and repute, and of such persons having an interest in the distribution of the joint estate as heirs or legatees of the deceased spouse present at the making of such inventory; and every such inventory shall be subscribed by the surviving spouse, the said witnesses, and such heirs and legatees as are so present.12. Penalties on omission of inventory
13. Inventory of the death of persons not married in community
14. Transmission of inventory to Master or Regional Administrator
Every person required or directed to make or cause to be made any inventory under this Act, shall as soon as it has been made, deliver or transmit it to—15. Inventory, by High Court, or Master
Notwithstanding anything in this Act contained, the High Court, or the Master may order that an inventory of any property belonging to a deceased person or to the joint estate of a deceased person, and the surviving spouse be taken by any person named in such order.16. Particulars required as to immovable property
Every person who is required by sections 11, and 13 and 15 to make any inventory, shall include therein a specified list of all immovable property in which to his knowledge the deceased had an interest at the date of his death, and if possible a reference to the title under which the deceased held such interest and the date of such title.17. Penalty
Every person who fails to comply with sections 11, 13 and 14 shall be guilty of an offence and on conviction liable in addition to any penalty provided by this Act or any other law, to a fine not exceeding forty emalangeni, or in default of payment thereof to imprisonment for any period not exceeding three months.18. Penalty for false inventory
If any person required by sections 11, 13 and 15 to make, or cause to be made, an inventory of any estate, goods, or effects wilfully makes a false inventory thereof, he shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding five years, or a fine not exceeding one thousand emalangeni, or to both.Custody of estate pending issue of letters of administration
19. Possession by survivor of estate in community of property
When one of two spouses who have been married in community of property dies; the joint estate shall remain under the charge of the survivor, until the executor of the deceased, or the tutor testamentary or dative of the minor children of the marriage, or the Master or curator bonis, lawfully appointed to such minor children, takes proceedings for the administration, distribution, and final settlement of the said joint estate:Provided that nothing in this section shall prevent any such joint estate from being placed under sequestration as insolvent.20. Custody of estate of persons not married in community
On the death of a person, not being one of two spouses, married in community of property, the husband or wife of the deceased, or in default or absence of the husband or wife a child of the deceased, or in default, absence or minority of a child the next of kin of the deceased, or in default, absence or minority of the next of kin, the person who at or immediately after the death has the chief charge of the house in, or of the place at which the death occurred shall secure and take charge of all goods and effects of whatever description belonging to the deceased, and in the house or upon the premises at the time of death, and shall retain them in his custody or possession until delivery thereof is demanded by the executor of the deceased or by any other person lawfully appointed by the High Court, or the Master to receive delivery thereof.21. Appointment of curator bonis until issue of letters of administration
Letters of administration
22. Letters of administration
The estates of all persons dying either testate or intestate shall be administered and distributed according to law under letters of administration to be granted in the form contained in Schedule “B”, by the Master to the testamentary executors duly appointed by such deceased persons, or to such persons who are in default of testamentary executors appointed executors dative in terms of this Act.23. Letters of administration to executor appointed by will
If a deceased person has by will or codicil duly appointed any person to be his executor, the Master shall, upon the written application of such executor, forthwith grant him letters of administration as soon as such will or codicil has been registered in the office of the Master:Provided that if it appears to the Master, or if any person by writing, lodged with the Master objects that any will or codicil by virtue whereof any person claims to be the testamentary executor to the estate of any deceased person is not in law sufficient to warrant and support such claim, letters of administration may be refused by the Master until the validity and legal effect of such will or codicil has been determined by some competent court, or until such objection, has been withdrawn by the person by whom it was made or until such person has had sufficient time to apply to such court, for an order restraining the issue of letters of administration:Provided further that letters of administration shall not be granted to any such executor who at the time of making such written application, avers or resides outside Swaziland, and that, if the Master has reason to believe that such executor, although he may at the time of making such application be within Swaziland, will not remain within Swaziland until he has finally liquidated and settled the estate to be administered by him, the Master may refuse to grant letters of administration to him until he finds sufficient security for the due and faithful administration by him of such estate.24. Proceedings on failure of appointment of executors, death, etc.
25. Competition for the office of executor dative
In every case in which a competition shall take place for the office of executor dative, the surviving spouse failing whom the next of kin and failing whom a creditor, and failing whom a legatee shall be referred by the Master for such office:Provided that nothing in this section contained shall prevent any one or more of the above-mentioned classes of persons from being conjoined in the said office with one or more of any of the other such classes and:Provided further that if it appears to the Master or the High Court on reviewing the appointment made by the Master that any good reason exists against the appointment of all or any of the above-mentioned persons or classes of persons as executor or executors, any such person or class of persons may be passed by, and some other fit and proper person or persons may be, appointed and by the Master, or such court:Provided further that every such appointment so made by the Master, shall, on the application of any person having an interest in such estate, be reviewed, and confirmed or set aside by the High Court, and such court by whom such appointment is set aside, may appoint some fit and proper person.26. Appointment of tutors of minors where minors would have been entitled to appointment
If any of the next of kin or creditors or legatees of a deceased person are minors, under the guardianship of a tutor duly appointed, such tutor shall be entitled to be preferred to the office of executor dative under section 23 in like manner as the minor whose tutor he is, would, if of full age, have been entitled to be preferred to that office under the said section.27. Assumption of executors under power contained in will
28. Proceedings in case of death, etc., of testamentary or assumed executors
If a testamentary or assumed executor to whom letters of administration have been granted has died or become incapacitated to act as such or has been removed from his office by the decree of any competent court and there does not remain for the administration of the estate any executor whatever, or so many executors, either testamentary or assumed as by the provisions of the will or codicil by which such executors were appointed or permitted to be assumed, shall be required to form a quorum of executors, and when it shall happen that any executor dative, shall, after letters of administration have been granted to him, die, or become incapacitated, or be removed in manner aforesaid, then, proceedings to appoint an executor in place of such executor so dying, or becoming incapacitated, or removed, shall be taken by the Master in like manner in all respects as provided by sections 24, 25 and 26.29. Revocation of letters of administration by decree of court, or Master
Letters of administration granted to a person as testamentary executor, may be revoked and annulled by the decree of the High Court, on proof to the satisfaction of such court, that the will or codicil, in respect of which such letters have been granted, is null; or has been revoked, either wholly or in so far as it relates to the nomination of such executor; and letters of administration granted to any person as executor dative, may be revoked and annulled by the Master, on production to him of any will or codicil by which any other person who then is legally capable and qualified and who consents to act as executor, has been legally nominated testamentary executor to the estate which such executor dative has been appointed to administer:Provided that if the non-production of such will or codicil, prior to the granting of letters of administration to the executor dative, was due to the fault or negligence of the person therein nominated testamentary executor, such person shall be personally liable for, and may be compelled at the instance of the Master, or any person interested, to make good to the estate all expenses which have been incurred in respect of, and with reference to, the appointment of the executor dative.30. Security for due administration
Every executor dative, assumed executor or curator bonis shall, before being permitted to enter up on the administration of an estate, find security to the satisfaction of the Master for the due and faithftil administration of the estate to which he has been appointed in such amount as in the circumstances are reasonable.31. Appointment by Master of executors to estates under E200
If a person die whose estate is unrepresented and in so far as it is situated within Swaziland, appears to the Master to be under the value of two hundred emalangeni, the Master may cause such estate to be administered and distributed in accordance with the provisions of sections 64 and 65 by an executor dative, to be summarily appointed by him for that purpose.Foreign letters of administration
32. Operation of this part with regard to letters granted in declared State
Sections 33, 34 and 35 shall come into force with regard to all letters of administration at any time granted in any country or territory, as and from the date of, and during the period (if any) limited by a notice, which it shall be lawful for the Prime Minister to publish in the Gazette, declaring such country or territory to fall under the provisions of the said sections, and thereupon the said provisions shall continue in force, either until any period so limited, or any extension thereof by notice in the Gazette has expired, or until a further notice shall be similarly published by the Prime Minister declaring that the said provisions no longer apply to letters of administration granted in such country or territory.33. Letters granted in other country or territory may be sealed and signed for use in Swaziland
Whenever letters of administration, granted in any country or territory, are produced to, and a copy thereof deposited with, the Master by the person in whose favour such letters of administration have been granted, or his duly authorised attorney, such letters may be signed by the Master, and sealed with his seal of office, and shall thereupon be of like force and effect and have as full operation in Swaziland with respect to, and the Master shall have the same control over the administration of the entire estate of the deceased here situate, as though the said letters had been letters of administration granted by the Master:Provided however that34. Letters granted by British Consular Courts recognised
Letters of administration lawfully granted by any British Consular Court shall be deemed and taken to be granted in a country or territory to which the provisions of section 31 apply.35. Evidence by copy of letters certified by Master, etc.
36. Definition of terms
In sections 32, 33, 34 and 35 unless the context otherwise requires—“letters of administration” includes every document issued, or a copy of every such document, duly certified by any lawful and competent judicial or other public authority in any country or territory, under and by which any person is authorised and empowered to act as the personal representative of any deceased person, or as executor or administrator, either testamentary or dative, either of the whole estate of any deceased person which is legally situate in such country or territory, or so much of such estate so situate as consists of immovable, movable, real orpersonal property as the case may be;“British Consular Court” means any British Court having jurisdiction under an Order in Council, made in pursuance of the Foreign Jurisdiction Acts, 1843 to 1878, or any of them, or any amendment thereof.Duties of executors
37. Inventory by executors
38. Penalty for false inventory
If any person required by section 37 to make, or cause to be made an inventory of any estate, goods, or effects wilfully makes a false inventory thereof, he shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding five years, or to a fine not exceeding one thousand emalangeni, or to both.39. Master may appoint appraiser to value assets
If an executor fails to place any value upon the assets or any portion thereof, or places a value thereon which does not meet with the approval of the Master, the Master may cause the value of such assets to be appraised by any impartial person, and the value so ascertained shall be taken to be the true value of such assets for the purposes of this Act.40. Liability for debts and legacies by persons who, have inter-meddled with estates, etc.
41. Duty of person in possession of assets of deceased estate
Every person who is not the executor of the estate of a deceased person duly appointed in Swaziland who at the promulgation of this Act or thereafter has or comes into possession or custody of any property or asset belonging to such estate, shall forthwith either deliver such property or asset to the duly appointed executor (if any) then being in Swaziland, or report the particulars thereof to the Master; and if such first mentioned person shall fail to do so or shall part with any such property or asset to any person not authorised by the Master by letters of administration or other direction to receive it he shall, apart from any other liability he may incur thereby, be liable for all dues payable to the Government in respect of such property or asset.42. Notice by executors to creditors, etc., to lodge claims
43. Suspension of execution of judgments against deceased until expiry of notice
No person who has obtained the judgment of any court against any deceased person in his lifetime, or against his executor, shall in any suit or action commenced against such executor, or which was pending against the deceased at the time of his death, and thereafter as continued against such executor, to sue out or obtain any process in execution of any such judgment before the expiration of the period notified in the Gazette in manner provided in section 42; and no such person shall sue out or obtain any process in execution of any such judgment within six months from the time when letters of administration were granted to the executor against whom execution of such judgment is sought, without first obtaining an order from the High Court, for the issue of such process.44. Insolvent deceased estates
[Replaced by K.O.I-C. 24/1976]45. Preference on estate for funeral expenses
Every person by whom the funeral of any deceased person is performed, or caused to be performed, shall, for the amount of the expenses of such funeral, in so far as the same were suitable to the condition of the deceased, have a preference on the property and assets of the estate of the deceased, before any other debt or claim which may have been owing by the deceased at the time of his death, or which may arise against his estate after his death.46. Executor may require affidavit in support of claim
47. If estate insolvent
If an executor, after enquiry, finds that the estate is insolvent, he shall immediately take the necessary proceedings for having such estate placed under sequestration as insolvent, unless the creditors consent to receive a dividend in full satisfaction of their claims, and proof of such consent is produced to the Master.48. Master may permit surviving spouse to take over estate at appraisement
If one of two spouses married in community of property dies intestate, or dies testate and has made no provision to the contrary in the will, the Master may, if it appears to him that it will be for the benefit of the minor children, if any, of the deceased spouse to do so, permit the share of the joint estate belonging to such deceased spouse to be taken over by the survivor, at a valuation to be made by a sworn appraiser instead of being realised according to law:Provided that no person having any lawful claim against the estate of such deceased spouse shall be delayed or defeated in obtaining payment of such claim by virtue of anything contained in this section.49. Executor to transmit claims of minors, etc., to Master
If any executor in administering and distributing any estate finds that any minor not having a lawful guardian, or tutor, or any person of unsound mind not having a lawful curator, or any person absent from Swaziland and not having a lawful representive within Swaziland, has any valid right or claim to such estate, or any part thereof, he shall forthwith transmit to the Master a statement in writing, containing the name of such minor, person of unsound mind or absent person, and specifying the nature and value of the property to which such minor, person of unsound mind or absent person has such right or claim.50. Executors to pay to Master money devolving upon minors, etc.
51. Administration and distrbution accounts
51bis. Advertising accounts and objections thereto, etc.
[Added K.O-I-C. 24/1976]52. Summons if account has not been lodged within six months
When any executor fails to lodge with the Master the account mentioned in the last section (51(2)) the Master or any person having an interest in such estate, may, at any time after the expiry of six months, from the day on which the letters of administration were granted to such executor, summon him to show cause before the High Court why such account has not been so lodged:Provided that the Master or such other person shall, not later than one month before suing out any such summons, apply by letter to the executor in default, requiring him to lodge his account on pain of being summoned to do so under this section; and,Provided further, that any executor receiving any such application from the Master or such other person, may lay before the Master such grounds and reasons as he may be able to advance why he has not lodged his account and the Master, should such grounds and reasons seem to him sufficient, may grant to such executor such an extension of time for the lodging of such account as he shall in the circumstances deem reasonable; reserving always the right of any person having an interest in such estate to bring in review before the High Court by motion, the decision of the Master under which any such extension is granted and:Provided also, that any such executor so in default, if he fails to satisfy the Master that he ought to receive an extension of time may apply to the High Court, by motion of which the Master and such other person receives notice, for an order granting to such executor an extension of time within which to lodge his account.53. Master entitled to costs in certain cases
54. Remuneration of executors
Every executor shall, in respect of his administration, distribution and final settlement of any estate, be entitled to claim, receive or retain out of the assets of such estate, or from any person who as heir, legates or creditor is entitled to the whole or any part of such estate, such remuneration as may have been fixed by the deceased, by will or deed, or otherwise a fair and reasonable compensation, to be assessed and taxed by the Master, subject to the review of the High Court, upon the petition of such executor or of afly person having an interest in such estate:Provided, that if any executor fails to lodge the account of his administration and distribution of the estate within six months from the date on which letters of administration were granted to him, and has no lawful and sufficient excuse for such failure, the Master may disallow the whole or any portion of the fees which such executor might otherwise have been entitled to receive in respect of his administration of such estate.55. Surviving spouse married in community may transfer etc., land registered in his name
The survivor of two spouses who were married in community of property, shall not transfer any land belonging to the joint estate and enregistered in the name of such survivor, unless and until an account of the administration of such estate has been lodged with and accepted by the Master; nor shall the survivor, unless and until such account has been so filed and accepted, mortgage any such land, except for the purpose of—56. Registration of immovable property from deceased estate
57. Penalty for refusing to deliver title deed to executor
58. ***
[Repealed by A.6/1973]59. Duties of surviving spouse appointed executor testamentary
Every surviving spouse who has been appointed executor testamentary of the estate of the deceased spouse shall, so soon as such estate has been administered and an account thereof framed according to law—60. Requisites of bond and how paid off
61. Executor’s account not to be accepted until sections 56 and 59 complied with
The Master shall not accept any administration and distribution account tendered, by any executor if the provisions of section 59 have not been duly complied with nor shall the transmission of any account to the Master by any executor before such compliance be taken to be such lodging of the said account (Amended A.6/1973.)62. Master to furnish Registrar of Deeds with certain returns
63. Government, the Master and Registrar exempt from liability in certain cases
No omission to render any such return as is required by section 61 or the rendering of an incomplete return, or a transfer or mortgage bond bona fide passed by the Registrar of Deeds against section 55 or any error or omission in or bond accepted by the Master to secure the inheritances of minor children, or any release from or cancellation of any such bond bona fide made by the Master shall subject the Government, the Master, or the Registrar to any liability in respect of damage sustained by any person in consequence of such omission, return, transfer, mortgage, acceptance, release or cancellation.Estates under four hundred emalangeni
64. When Master may summarily appoint executor dative
In all cases in which it appears from the death notice or inventory, filed in respect of the estate of any deceased person, and from such other information as the Master may call for, that the value of the assets of such estate does not exceed our hundred emalangeni, the Master may, in the case of an intestate estate (or in the case of a testate estate, in which the executor testamentary may be unable or unwilling to act), summarily, and without observance of the usual and customary forms, appoint an executor dative to administer the estate of such deceased person.65. Master may fix time for filing claims and account
Any executor appointed in terms of section 64 shall administer such estate in terms of this Act:Provided that the Master may direct—66. Master may authorise sale out of hand
If the Master, after due enquiry, is of opinion that it would be to the advantage of persons interested in an estate to sell any property belonging to such estate out of hand instead of by public auction, he may grant the necessary authority to the executor to do so if no provision has been made in the deceased’s will to the contrary.67. Sub-division of immovable property
If it should become necessary to sub-divide any immovable property in which any minor is interested, and the Master after due enquiry, and after inspection of the property, if necessary, by himself or by some suitable person appointed by him, is satisfied that the proposed division is a fair one, he may consent to such division on behalf of the minor or minors interested.Estates of Africans
68. African law and custom to govern certain estates
Part II – Estates of minors and absent persons
Tutors and curators
69. Appointment by father or mother only of tutors to minors
No person, other than—70. Tutors testamentary
71. Mode of granting letters of confirmation
72. Letters of confirmation to curators nominate
73. Security rem pupilli salvam fore
The High Court, may, on the application of the Master, or of any relation, or of any person having an interest in the due administration of the estate or property of any minor make an order in every case in which prior to the commencement of this Act, any tutor testamentary might by law have been required to give security rem pupilli salvani fore, that letters of confirmation shall not be granted to any tutor testamentary or curator nominate as aforesaid, until he has found security to the satisfaction of the Master to such an amount as in the circumstances of each particular case is reasonable for the due and faithful administration and management of such estate or property.74. Appointment of tutors dative by Master
75. Review of Master’s appointment
Every such appointment made by the Master, shall, on the application of any of the relations of, or of the curator nominate of any estate or property belonging to, such minor, be subject to review and may be confirmed, or set aside by the High Court, and if it sets any such appointment aside, it may appoint some other fit and proper person to be the tutor dative of such minor.76. Assumption under power in will or deed of other persons
77. Proceedings in case of death, etc., of tutors or curators
If the tutor of any minor, either testamentary or assumed, or the curator of any estate, either nominate or assumed, to whom letters of confirmation have been granted, has died or become incapacitated to act as such, or has been removed from his office by any competent court, and there does not remain for the guardianship of such minor, or for the administration or management of such estate as the case may be, any tutor or curator whatever, or so many tutors, either testamentary or assumed, or curators nominate or assumed, as by the provisions of the will or deed, by which such tutors or curators were respectively appointed, or permitted to be assumed, necessary to form a quorum of tutors, or curators, for the guardianship of such minor, or for the administration and management of such estate as the case may be, and if it happens that any tutor dative, after letters of confirmation have been granted to him, dies, or becomes incapacitated, or is removed as aforesaid, then, and in every such case, proceedings for the appointment of a tutor dative, in place of the person so dying, or becoming incapacitated, or removed, shall be taken by the Master, in the manner, provided by section 74.78. Revocation of letters of confirmation by High Court; and Master
Letters of confirmation granted to any person as tutor testamentary, or as curator nominate of the estate of any minor, may at any time be revoked and annulled by the High Court, on proof to the satisfaction of the Court, that the will or deed in respect of which such letters have been granted to such person is null, or has been revoked either wholly, or in so far as relates to the appointment of such tutor or curator; and letters of confirmation granted to any person as tutor dative, may at any time be revoked and annulled by the Master, on production to him of any valid will or deed, by which any other person who shall then be legally capable and qualified, and who shall consent to act as tutor, has been legally appointed tutor testamentary of the minor, to whom such tutor dative had been appointed:Provided, that if the non-production of such will or deed, prior to letters of confirmation having been granted to the tutor dative, has been owing to the fault or negligence of the person therein appointed tutor testamentary, such person shall be personally liable for, and may be compelled by the Master, or any person related to the minor, to pay to the minor’s estate, and account for all expenses, which have been incurred in respect of, and with reference to, the appointment of the tutor dative.79. Appointment of curator dative of property belonging to absent persons
If it comes to the knowledge of the Master, that in consequence of the death of any person, any estate or property has devolved on, or come to belong to any person absent from Swaziland, and not having a legal representative within Swaziland, the Master shall cause to be published in the Gazette, and in such other manner as to him shall seem fit, a notice calling on all whom it may concern to attend before him at the time therein specified, to see letters of confirmation granted to such person, who will be appointed by him curator dative of the estate or property of such absent person; and the Master shall at the meeting held before him appoint some fit and proper person to be such curator dative:Provided that when the only property known by the Master to belong to any such absent person, consists of a sum of money due and payable to him by the executor of any deceased person, or by the trustee of any insolvent estate, it shall not be necessary for the Master to take any such proceedings as aforesaid; but the Master may, pursuant to section 50, demand, recover, and receive payment of all such sums of money, to be disposed of in manner provided in this Act.80. Appointment of curator ad litem by Nigh Court and curator bonis by Master
81. Security for due administration by tutors and curators
Every tutor dative or assumed, and every curator dative, and curator bonis, who is appointed by the Master or the court to administer the estate or property of any minor or absent person, shall, before he enters upon the administration of such estate or property, find security to the satisfaction of the Master in such amount as in the circumstances of each particular case is reasonable for the due and faithful administration and management of such estate and property.82. Disqualifications of persons as tutors or curators
Every person shall be deemed incapacitated and disqualified to hold, and incapable of holding, the office of tutor, whether testamentary or dative, or of curator whether nominate or dative, where any person appointed tutor testamentary, would previous to the Commencement of this Act have been incapable of holding the office of tutor testamentary.83. Removal of insolvent tutors and curators
Every tutor, whether testamentary or dative, and every curator, whether nominate or dative, whose estate has been sequestrated as insolvent, shall cease to exercise or hold, and shall, ipso facto, be removed from his said office as soon as the final order of sequestration has been made, but the removal of such tutor or curator shall not relieve him from any liability or responsibility attaching to him at the time of his removal.84. Removal and suspension of executors, tutors and curators
Every executor, tutor or curator shall be liable to be suspended or removed from his office by order of the High Court, if such court is satisfied on motion, that by reason of absence from Swaziland, other avocations, failing health, or other sufficient cause, the interests of the estate under his care would be furthered by such suspension or removal:Provided that in every case of suspension the court may substitute some fit and proper person to act during such suspension, in his place subject to such conditions as to the giving of security and the conduct and administration of the estate as the said court may deem just.Duties of tutors and curators
85. Inventory by tutors and curators
86. Penalties for failure of tutors and curators to make and transmit inventory
Every tutor or curator who fails to make and transmit any such inventory as required by section 85, and who has no lawful and sufficient excuse for such failure, shall, in addition to any other liability, consequence, and penalty, which he is by law subject to, be guilty of an offence and on conviction liable to a fine not exceeding fifty emalangeni.87. Penalty on conviction of tutor or curator for making false inventory
If any tutor or curator, required and directed under and by virtue of section 85 to make or cause to be made an inventory of any estate, goods, or effects wilfully makes a false inventory thereof, he shall be guilty of an offence and on conviction liable to imprisonment for a period not exceeding five years, or a fine not exceeding one thousand emalangeni or both.88. Duties and liabilities of tutors and curators after confirmation
89. Prohibition of remarriage of surviving parent until minors’ shares have been secured
90. Prohibition of alienation of immovable property by tutor or curator
No tutor, whether testamentary or dative, and no curator whether nominate or dative, or curator bonis, shall sell, alienate or mortgage any immovable property belonging to any minor or forming part of any estate under the guardianship of such tutor or curator, unless the High Court has authorised such sale, alienation or mortgage, or unless the person by whom any such tutor testamentary or curator nominate has been appointed has directed such sale, alienation or mortgage to be made.91. Payment to Master by certain tutors and curators
92. Certain tutors and curators may pay moneys in their possession to Master
Any tutor testamentary or curator nominate if it seems to him expedient to do so (except where the person by whom such tutor or curator has been appointed has directed that it shall not be done), may pay over to the Master any money belonging to the person or estate under his guardianship which by law might lend out at interest.93. Accounts of administration by tutors and curators
94. Master may sue tutors and curators who fail to lodge account in time
The Master may summon any tutor, whether testamentary or dative, and any curator, whether nominate or dative, and any curator bonis, to show why any account which ought to have been lodged with him under section 93 has not been lodged, and the provisions of sections 52, 53 and 54 shall mutatis mutandis apply to all proceedings taken by him in pursuance of this section.95. Remuneration of tutors and curators
Every tutor, either testamentary or dative, and every curator, whether nominate or dative, shall in respect of his administration and management of any estate be entitled to claim, receive, or retain out of the assets of such estate a reasonable remuneration for his care and diligence in the said administration, to be assessed and taxed by the Master, subject to the review of the High Court, upon the petition of any such tutor or curator, or of any person having an interest in the said estate.The Guardian’s Fund
96. The Guardian’s Fund
97. Interest
Interest shall be allowed on every sum of money so received by the Master for account of any minor or person of unsound mind, from the first day of the second month after such money has been received and until the date on which such minor or person of unsound mind shall become entitled by law to draw the capital and no longer:Provided that on the 31st day of March in each year the interest that has become due on any such moneys shall be added to the capital in the books of the Guardian’s Fund, and in case such interest is not drawn by the person entitled thereto previous to the 31st day of March following, interest shall be allowed on the accumulated sum.[Amended A.6/1973]98. Rate of interest
The rate of interest for the purpose of section 97 shall be not less than six and one half per cent per annum, but may be increased by the Minister for Finance by notice in the Gazette from time to time.[Amended A.6/1973]99. Guardian’s Fund deposit account
All moneys paid to the Master under the provisions of any law for the purpose of being placed to the credit of the Guardian’s Fund shall be paid into the Consolidated Fund to the credit of the Guardian’s Fund “Special Fund”, and the Master may from time to time withdraw any part of such moneys through the Accountant-General, in accordance with such financial regulations as the Minister for Finance may approve.[Amended A.6/1973]100. Payments out of Guardian’s Fund
101. Payments for maintenance
When the total amount standing to the credit of any minor or person of unsound mind in the Guardian’s Fund does not exceed two hundred emalangeni, the Master may, if after careful enquiry it appears to him to be for the interest of such minor or person of unsound mind to do to, authorise the payment and application of the whole, or any part, of such amount, for the maintenance or other benefit of such minor or person of unsound mind:Provided that nothing in this section or section 97 shall authorise the Master to disregard or act contrary to the terms of any will or other deed under the provisions of which such amount has been received.102. List of unclaimed moneys to be published annually
The Master shall, in the month of April in each year, cause tq be drawn up a list of all amounts standing in the books of the Guardian’s Fund to the credit of any person unknown or not residing, and not having any known legal representative in Swaziland, and shall cause it to be inserted in the Gazette, and shall forthwith transmit two or more copies thereof to the Attorney-General, who may cause the said list, or any portion thereof, to be published in such manner as may be deemed most expedient, in any country to which any person interested may be supposed to belong; and in the said advertisements all persons shall be invited to submit their claims to the Master:Provided that no amount of less than twenty emalangeni need be advertised more than twice.103. Unclaimed moneys
When any money which has been placed to the credit of any person or estate in the Guardian’s Fund remains unclaimed by any person having a just and lawful right thereto for a period of forty years from the date when it was paid into the Guardians’ Fund, such money shall lapse and be forfeited to the Government, and shall be transferred from the Guardian’s Fund Special Fund to the Consolidated Fund.[Amended A.6/1973]104. Investment of moneys in Guardian’s Fund
[Repealed A.6/1973]105. Bonds to be payable to the Guardian’s Fund
All bonds for money invested on mortgage shall be made payable to the Master of the High Court administering the Guardian’s Fund, and the Master may cede and assign, and demand, enforce and receive, payment of any such bond and of the interest due thereon.106. Valuation of securities
[Repealed A.6/1973]107. Payment of interest from public funds
The interest allowed on moneys of minors and persons of unsound mind, paid into the Guardian’s Fund Special Fund, shall be charged to the Consolidated Fund.(Amended A.6/1973.)108. Interest on investments
[Repealed A.6/1973]109. Procedure in case of irrevocable investments
[Repealed A.6/1973]Part III – General
110. Invalidity of appointment of Master as executor, tutor or curator
If any person by will, or other deed, has appointed the Master in his official capacity to be the executor of his estate, or tutor testamentary of any minor, or curator nominate of any estate or property given or bequeathed by him to any minor or person of unsound mind, such appointment shall be null and void; and proceedings shall be taken for the appointment of an executor dative, tutor dative, or curator dative, as the case may be, as if no such appointment had been made.111. Registers of executors, etc., and sureties
The Master shall cause a register to be kept containing the names of every executor to whom letters of administration have been granted and of every surety for any executor dative, and also a register containing the names of every tutor and curator to whom any letters of confirmation have been granted, and of every surety for any such tutor or curator.112. Proceedings on insolvency of executors, etc.
When any order for sequestration, under the Insolvency Act, No. 81 of 1955, is lodged with the Master he shall cause the said registers to be examined, and—113. Records of Master’s office, etc.
The Master shall preserve of record in his office all original wills, codicils, testamenary instruments, death notices, inventories, and liquidation, administration and distribution accounts lodged with him under the provisions of this Act, and any person may, at any time during office hours, inspect any such document and obtain a copy thereof, or an extract therefrom, on payment of the fees specified in the Schedule “E”:Provided that any person holding office under the Government shall be entitled, without the payment of any fee, to inspect any such deed or document, and to take a copy thereof or extract therefrom whenever it is necessary or expedient to do so in the discharge of the duties of his office.114. Master to forward duplicates to Regional Administrators
The Master shall, as soon as may be after the expiration of each month, forward the duplicates or copies certified by him, of all accounts lodged with and accepted and filed by him, to the Regional Administrators of the respective regions in which the persons to whose estates such accounts relate ordinarily resided at the time of their decease, or in any case in which any such person resided abroad to the Regional Administrator of Hhohho; and every such Regional Administrator shall file such duplicates or copies in his office, and any person may at any time during office hours inspect or obtain a copy of or extract from any such duplicate or copy or any other document filed by the Regional Administrator under the provisions of this Act on payment of the fee which would be payable to the Master for such inspection, copy or extract.115. Liability of Master for costs of actions by or against him
When the Master is the plaintiff or defendant in any action instituted by him or against him in his official capacity, and with reference to any matter or thing placed under his guardianship, control or superintendence, or which he is required to do or cause to be done, by virtue of the provisions of this Act, and the party against whom such action has been instituted by the Master, or by whom it has been instituted against him, shall have his costs of and relating to such action awarded to him by the court before which such action was heard, the Master may draw the amount of such costs from and pay them out of the credit balance of the Guardian’s Fund, unless the said. court shall order that the said costs be paid by the Master out of his private funds:Provided that nothing herein contained shall be deemed to limit the power of the Minister for Finance to specially authorise that any costs incurred or paid by the Master shall be defrayed out of the Guardian’s Fund.116. Property exempt from operation of this Act
This Act shall not extend or apply to the estate or effects (except immovable property) of any person belonging to any regular regiment of Her Brittanic Majesty’s army who shall die within Swaziland, unless it is shown to the High Court or to the Master that for the preservation or due administration and distribution of such property it is necessary or expedient that it should be dealt with under this Act.117. All executors, etc., appointed here after to observe Act
Every person to whom letters of administration or letters of confirmation are granted after the date of commencement of this Act for the administration of the estate of any person who has died prior to that date, shall be subject to and conform with the provisions of this Act, and shall administer the estate in accordance therewith.118. Appointment of appraisers
The Master may appoint such and so many persons as to him shall seem fit to act as appraisers for the valuation of all estates and property, the appraisement of which shall become necessary for his official purposes, and revoke any appointment so made; and every such appraiser, shall in respect of every such appraisement by him, be entitled to receive a reasonable remuneration to be assessed and taxed by the Master:Provided that any person who acts as such appraiser in any case in which he or any person whom he represents as agent, or any person to whom he is married or related within the third degree of consanguinity or affinity and who has an interest in the estate to be appraised, shall be liable to forfeit the said remuneration in addition shall be guilty of an offence, and on conviction liable to pay a fine not exceeding two hundred emalangeni.119. Oath of appraisers
Every person appointed by the Master to act generally as an appraiser of estates or properties, or to appraise any particular property or estate, shall take an oath before any judge of the High Court, magistrate or justice of the peace, that he will appraise all such estates or properties as may be submitted to his valuation, according to the just, proper and true valuation thereof to the best of his skill and knowledge, and shall transmit the said oath so taken by him and certified by the person before whom it was taken, to the Master.120. Master’s fees
The Master shall change, and may recover in respect of the acts, matters and things done or caused to be done by him or in his office all such fees as are specified in the tariff contained in Schedule “E”, and shall collect these fees by means of revenue stamps to be affixed to the relevant documents:Provided that the fees for searches shall be affixed opposite to entries in a book kept for the purpose: andProvided further that nothing herein contained shall affect any law requiring any stamp to be used for any purpose, or any stamp duty to be paid in respect of any proceeding, except in so far as any provision shall be expressly made in Schedule “E”.121. Meetings before authorised official
Any meeting advertised to be held before any Regional Administrator under sections 24 and 74 may, in the absence of such Regional Administrator on leave or duty, or through indisposition, be held before an official authorised by the Master.122. Minister for Finance may make regulations
The Minister for Finance may, by notice in the Gazette, from time to time make and revoke rules and regulations for the better carrying into effect of the provisions of this Act, the custody and preservation of the records, securities and valuable effects of the Master’s office, the payment of money into and out of the Guardian’s Fund, and generally for the management and good conduct of the business of the Master’s office.123. Repeal of Falcidian and Trebellianic laws
In no case shall any heir of anyone dying after the commencement of this Act be entitled to claim out of the estate of the person so dying, any portion under or by virtue of the laws known respectively as the Falcidian and the Trebellianic laws which, but for such laws he would not be entitled to claim.124. “Lex Hac Edictali” repealed
The law known as the “Lex Hac Edictali” is hereby repealed.125. No legitimate portion claimable as of right
No legitimate portion shall be claimable as of right by anyone out of the estate of any person who dies after the commencement of this Act.126. Testators may disinherit without assigning reasons
Every person competent to make a will who dies after the commencement of this Act may disinherit or omit to mention in his will any child, parent, relative or descendant without assigning any reason for such disinheritance or omission not in the standing any law, usage or custom now or heretofore in force; and no such will shall be liable to be set aside as invalid, either wholly or in part, by reason of such disinheritance or omission.127. Certain tacit hypothecations abolished
128. Power of substitution and surrogation abolished
After the commencement of this Act no person appointed executor in any estate, or tutor to any minor, may substitute or surrogate any other person to act in his place.129. Statement of unclaimed moneys to be published by banks, etc.
130. Penalty on failure to publish statement
History of this document
01 December 1998 this version
Consolidation
01 June 1902
Commenced
Cited documents 3
Legislation 2
| 1. | Deeds Registry Act, 1968 | 137 citations |
| 2. | Leprosy Act, 1904 | 2 citations |
Documents citing this one 685
Gazette 646
Judgment 34
Legislation 5
| 1. | Companies Act, 1912 | 362 citations |
| 2. | Marriage Act, 1964 | 57 citations |
| 3. | Intestate Succession Act, 1953 | 4 citations |
| 4. | Income Tax Order, 1975 | |
| 5. | Land and Agricultural Loan Fund Act, 1929 |