Justice ministry reviewing confusing and discriminating law on succession … moves in to deal with legal practitioners robbing property beneficiaries

26 Apr 2018 14:40pm

The Justice ministry is in the process of reviewing all legislation relating to succession matters which Sacky Shanghala has described as outdated and not providing proper protection of inheritance rights in modern Namibia.

These include but not limited to the Administration of Estates Act, 1965 (Act No.66 of 1965), the Wills Act (Act No.7 of 1953), Estates and Succession Amendment Act, 2005 (Act No. 15 of 2005).

This also includes the rules of interstate succession such as the remaining sections of the Native Administration Proclamation, 1928 (Proclamation No. 15 of 1928), Schedule 2 of the Administration of Estates (Rehoboth Gebiet) Proclamation, 1941 (Proclamation No. 36 of 1941) and the Common Law. 

Shangala has noted with concern that the country’s inheritance laws come all the way from the time of independence but have failed to address the real challenges and discriminatory provisions.

“The administration process of deceased estates provided for in the Administration of Estates Act, 1965 causes more hardship to beneficiaries. Houses must sometimes be sold from the deceased estate to pay for executor’s fees and other administration costs.”

“The review process aims to include all inheritance matters under one law and will include a new legal framework, administration process, estate and intestate succession, Wills, Guardian’s Fund and Curatorship,” said the minister.

Although amendments have been made to certain parts of the Administration of Estates Act, 1965, these have not addressed issues relating to the administration of the Guardian’s Fund, safe custody and record keeping of the Offices of the Master,” he said.

These are outdated provisions and not in line with current best practices, he pointed out. 

“The Guardian’s Fund is a fund created to administer funds which are paid to the Master on behalf of various persons known or unknown, such is minors, persons incapable of managing their own affairs, unborn heirs, missing or absent persons or persons having an interest in the money of a Usufructuary (the right to enjoy the use and advantages of another’s property short of the destruction or waste of its substance).”

“The monies consist mainly of inheritances and death benefits that are due to a beneficiary from a deceased estate or pension fund.,” he added.

At the moment, the fund administers an estimated N$1.4 billion for more than 40 000 beneficiaries while payments of N$65 million have been made to beneficiaries in the previous financial year.

Shanghala pointed out that although the fund is subject to auditing by the Auditor General, these are not compulsory while the Administration of Estates Act, 1965 does not provide for the proper protection of monies due to minors.

Currently proceeds of policies due to minors are paid by insurance companies to either the guardian or held in a fund administered by the same company.

Due to this, many complaints are being lodged with the Master by minors that never receive such monies from their guardians, the minister disclosed.

“Section 28 of the Administration of Estates Act, 1965 provide that executors shall pay monies due to a deceased estate into a bank account opened in the name of the estate unless the Master direct otherwise,” said Shangala.

However, there are several cases where executors, which includes admitted Legal practitioners transferred monies into their own accounts for their own use, he revealed.  

Shangala also said it has come to light that many Legal practitioners do not pay interest earned on estate monies to the beneficiaries. 

“It is unfortunate to see an increase in these matters and these amendments are measures necessary to safeguard estate monies. Fund need to be paid directly into the account of beneficiaries and creditors with interest earned thereon from the Guardian’s Fund,” he noted. 

While Rehoboth had their own Estates Office under the jurisdiction of the Rehoboth Magistrate, Shangala said many complaints are coming in daily regarding the poor administration of estates.

He said properties in Rehoboth are either not transferred to beneficiaries or to other persons not entitled to them.

This, he said, needs urgent intervention.