ARRANGEMENT OF SECTIONS
1. Short title
3. Limits of application of Act
4. Appointment of Master
5. Assistant Master
6. Jurisdiction of Master
7. Master to keep registers of executors, etc.
8. Records of Master's office
9. Appointment of appraisers
10. Oath of appraisers, and restriction on action
11. Master's fees
Estates of Deceased Persons
12. Death notices to the Master
13. Deposit of wills with Master
14. Transmission or delivery of wills to Master and registration thereof
15. Warrants to search for concealed wills
16. Application by Master for order to deliver
17. Inventory of estate in community of property
18. Inventory on death of persons not married in community
19. Transmission of inventory to Master
20. Inventory by order of court or Master
21. Particulars of immovable property required
22. Master to furnish certain returns
23. Temporary custody of estates
24. Temporary custody of estates of persons married in community
25. Liability of persons disposing of property in estates without authority, etc.
26. Duty of person in possession of assets of estate of deceased person
27. Appointment of curator bonis until issue of letters of administration
28. Grant of letters of administration
29. Letters of administration to executors appointed by will
30. Assumption of executors under power contained in will
31. Proceedings on failure of nomination of executors or on death, incapacity or refusal to act, etc.
32. Competition for the office of executor dative
33. Preference of minor's tutor for the appointment of executor
34. Removal from office of executor
35. Security for due administration
36. Limits of application of sections 37 and 38 respecting external letters of administration
37. Signing and sealing of letters of administration granted in another country
38. Admissibility of copy certified by Master and certificate by Master
39. Inventories by executors
40. Master may appoint appraiser to value assets
41. Public notice to lodge claims
42. Suspension of execution of judgements
43. Payment of debts; insolvent estates
44. Liability of executor
45. Disputed claims
46. Rejected claims
47. Taking over by surviving spouse of estate or portion thereof
48. Sales by executor
49. Master may consent to subdivision of immovable property on behalf of minor, mental patient or unborn heir
50. Movable property to which minors and moneys to which absentees or persons under curatorship are entitled
51. Movable property to which minor or unborn heir is entitled subject to usufructuary or fiduciary rights or other like interests
52. Conditions under which survivor married in community of property may deal with such property
53. Duty of executor in case of bequests of immovable property
54. Duty of Registrar of Deeds
55. Penalty for refusing to deliver title deed to executor when required
56. Endorsement against title deeds of immovable property of the terms of trusts in a will
57. Transfer of immovables out of estate
58. Payment of portion accruing to minor or person under curatorship domiciled outside Botswana
59. Master may fix time for lodging claims and account
60. Estates of persons not resident and not owning property other than shares in Botswana
61. Liquidation and distribution accounts
62. Remuneration of executors
63. Continuance of pending legal proceedings by remaining or new executor
64. Discharge of executors, and proceedings against discharged executors
65. Property not to be administered in certain cases without certificate of authority
66. Orders by Master prohibiting administration without certificate of authority
67. Certificates of authority to administrators nominated by deceased persons, and endorsements in case of assumed administrators
68. Proceedings on failure of nomination of administrators or on death, incapacity or refusal to act, etc.
69. Competition for office of administrator
70. Foreign certificates of authority
71. Security by administrators
72. Transfer and mortgage of immovable property by or in favour of administrators
73. Accounts by administrators
74. Movable property to which minors and moneys to which absentees or persons under curatorship are entitled
75. Payment of moneys to minors or persons under curatorship domiciled outside Botswana
76. Administrator making wrong distribution
77. Remuneration of administrators
78. Application of certain sections to administrators
Estates of Minors and Absent Persons
79. Persons who may appoint tutors to minors
80. Tutors testamentary
81. Mode of granting letters of confirmation
82. Letters of confirmation to curators nominate
83. Security rem pupilli salvam fore by curators nominate and tutors testamentary
84. Appointment of tutors dative by Master
85. Assumption by tutors testamentary and curators nominate
86. Proceedings in case of death, incapacity or removal of tutors or curators
87. Revocation of letters of confirmation
88. Appointment of curator dative of property belonging to absent person
89. Appointment of curator ad litem by the court and of curator bonis by Master
90. Security for due administration by tutors and curators
91. Circumstances under which women may be tutors or curators
92. Removal of insolvent tutors and curators
93. Inventories by tutors and curators
94. Duties and liabilities of curators
95. Restriction on alienation or mortgage of immovable property by natural guardian, tutor or curator
96. Restriction on purchase by tutor or curator of property administered
97. Payment to Master of moneys not immediately required
98. Accounts of administration by tutors and curators
99. Remuneration of tutors and curators
100. Application of certain sections to tutors and curators
The Guardian's Fund
101. Guardian's Fund continued
102. Statements of unclaimed moneys to be published, and amounts to be paid into Guardian's Fund
103. Interest on certain moneys in Guardian's Fund
104. Guardian's Fund to be available for investment
105. Ordinary payments from Guardian's Fund
106. Extraordinary payments from Guardian's Fund
107. List of unclaimed moneys to be published annually
108. Lapse to the State of moneys unclaimed for 30 years
109. Failure to lodge administration account
110. Failure to pay over moneys
111. Master's costs when not otherwise recoverable payable out of Guardian's Fund
112. Form of court proceedings taken by Master
113. Report by Master to the court otherwise than upon formal application
114. Statement of case by Master to the court in certain events
115. Review of Master's appointments, etc.
117. Forfeiture on omission by surviving spouse to make inventory, or true inventory
118. No substitution or surrogation
119. Master not to act as executor, etc.
120. Reduction of security tendered by executors, administrators, tutors and curators in certain cases
121. Effect of massing of joint estate
122. Estate account
123. Meetings before District Commissioner or other officer
124. Exemption from liability for acts or omissions in Master's office or Deeds Registry
First Schedule - Forms
Second Schedule - Fees
Act 20, 1972,
Act 41, 1972,
Act 23, 1979.
Act 11, 2008.
An Act to make provision for the administration of estates of deceased persons, minors, persons under curatorship, absent persons and all property given in trust by deceased persons and to provide for incidental matters.
[Date of Commencement: 1st July, 1974]
Preliminary (ss 1-3)
(1) This Act may be cited as the Administration of Estates Act.
In this Act, unless the context otherwise requires-
"absentee" means any person of whom the Master, after enquiry, believes that his whereabouts are unknown and that he has no legal representative in Botswana;
"appraiser" means a person appointed or deemed to have been appointed under section 9;
"commissioner of oaths" means any person who is a commissioner of oaths under the Commissioner of Oaths Act;
"court" means the High Court of Botswana;
"letters of administration" includes any document issued or a copy of such document duly certified by any competent authority in any country, from which it appears that any person named or designated therein has the authority to administer for the benefit, in whole or in part, of any other person, any property given under the control of such first mentioned person by a deceased person to be so administered;
"Master" means the Master of the High Court;
"mental patient" means a person who is the subject of a reception order made under the Mental Disorders Act, or who is confined under the provisions of Part XII of the Criminal Procedure and Evidence Act, or any other person who, by reason of mental disorder or defect, is incapable of managing his own affairs;
"person under curatorship" includes any person whose property has been placed under the care of a curator;
"property" means all property whether movable or immovable and includes rights and any contingent interest in property;
"Registrar of Deeds" means the person appointed as Registrar of Deeds under the Deeds Registry Act;
"tribesman" means a member of a tribe or tribal community of Botswana or a member of a tribe or similar group of any other country in Africa prescribed for the purposes of this Act;
"tribal community" means any community which is living outside a tribal territory but is organized in a tribal manner;
"will" includes a codicil and every kind of testamentary writing.
This Act shall not apply-
(a) to the estates of deceased tribesmen, which as heretofore, shall be administered according to the customary law:
Provided that whenever a tribesman dies after the commencement of this Act leaving a will valid in accordance with the Wills Act, this Act shall, notwithstanding any partial intestacy, apply as far as may be to the administration of the whole of his estate; and for the purpose of such application informal testamentary instructions in accordance with any written law relating to customary succession, given by the deceased shall be deemed, in so far as they are not inconsistent with the will, to be part of the will;
(b) to the property of any person belonging to and serving with any visiting forces who dies within Botswana while on service with those forces, unless it is shown to the satisfaction of the court or the Master that for the preservation or due administration of that property it is expedient that it should be dealt with under this Act.
Administration (ss 4-11)
The President shall appoint an officer to be styled the Master of the High Court.
The President may appoint one or more Assistant Masters to exercise such of the functions of the Master under this Act or any other law as the Master may from time to time direct.
All the property and estate of every deceased person, minor, person under curatorship, or person permanently absent from Botswana without a lawful representative therein and whose whereabouts are unknown, shall be administered under the exclusive supervision of the Master.
The Master shall cause to be kept-
(a) a register containing the names of every executor to whom letters of administration have been granted, and every surety for any executor;
(b) a register containing the names of every administrator to whom a certificate of authority has been granted, and every surety for any administrator; and
(c) a register containing the names of every tutor and curator to whom letters of confirmation have been granted, and every surety for any such tutor or curator.
(1) The Master shall preserve a record in his office of all original wills, death notices, inventories, and liquidation, administration and distribution accounts lodged at his office under this Act or any prior law under which any such documents were customarily lodged or were required to be lodged at the office of the Master:
Provided that when the Master is satisfied that the administration of any estate or assets subject to his supervision in accordance with this Act has been finally completed according to law and that 10 years have elapsed since such completion, he may cause to be lodged with the National Archives and Record Services any file relating to such estate or assets which has been kept in his office, together with its contents.
(2) Any person may at any time during office hours inspect any such documents and make or obtain a copy thereof or an extract therefrom on payment of the fees prescribed in respect thereof by the Second Schedule:
Provided that any person holding office under the Government may, in the course of his official duties, take a copy of or an extract from any such documents without payment of any fee.
(3) Whenever an order for sequestration has, under any law in force in Botswana for the time being relating to insolvent estates, been lodged with the Master or the estate of any debtor has been placed under assignment, in accordance with any law so in force, the Master shall cause the said registers to be examined and-
(a) if an insolvent or such a debtor is the executor of an estate not previously administered, distributed, and finally settled, the Master shall notify the fact in the Gazette;
(b) if an insolvent or such a debtor is either a tutor or curator, the Master may take steps for the appointment of a tutor or curator dative in the place of that insolvent or debtor;
(c) if an insolvent or such a debtor is a surety for an executor, tutor or curator, the Master may by notice require that executor, tutor or curator to find additional security to his satisfaction within a period specified in such notice.
(1) The Master may from time to time appoint such persons as he thinks fit to be appraisers for the valuation of property, and revoke any appointment so made.
(2) Every appraiser shall, in respect of every appraisement by him, be entitled to demand and receive a reasonable compensation, which shall be assessed according to a tariff of fees fixed by regulation, and shall be taxed by the Master.
(1) Every person who is appointed an appraiser under section 9(1) shall take an oath before the Master or a commissioner of oaths designated by him 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 and to the best of his skill and knowledge.
(2) Any commissioner of oaths before whom any such oath has been taken shall forthwith transmit the same to the Master.
(3) No appraiser shall act in connection with any property in which or in the valuation of which-
(a) he or his spouse or partner has any pecuniary interest other than his remuneration as appraiser; or
(b) his principal or employer or any person related to him within the third degree has any pecuniary interest.
The Master is hereby authorized and required to charge and to demand, receive and retain, or recover in respect of the acts, matters or things done or caused to be done by him or in his office, the fees specified in the tariff contained in the Second Schedule, and every such fee shall be paid by the means prescribed.
Estates of Deceased Persons (ss 12-64)
(1) Whenever any person dies within Botswana leaving therein any property or a will, the nearest relative or connection of the deceased at or near the place of death, or in default of any such near relative or connection, the person who at or immediately after the death has the control of the premises at which the death occurs, shall within 14 days thereafter cause a notice of death to be framed in Form A set out in the First Schedule, and shall cause that notice, signed by himself, to be delivered or transmitted to the Master and the notice shall be accompanied by a true copy thereof.
(2) Whenever any person dies outside Botswana leaving any property or a will therein, any person within Botswana having possession or control of any such property or such will shall within 14 days after the death has come to his knowledge report the death to the Master.
(3) The Master may by written notice require any person who may, in his opinion, be able to furnish the information required-
(a) if no death notice has been given or obtained, to submit to him within a period specified in the notice, a death notice substantially in the prescribed form; and
(b) if a death notice has been given or obtained or has been submitted under paragraph (a) and the Master desires any further information, to answer in writing to the best of his knowledge, within a period so specified, such questions as may be sent forth in the notice.
(4) If the person signing any death notice was not present at the death, or did not identify the deceased after death, the Master may call upon any person having any interest in the estate for proof of the death.
(1) Any person may lodge with the Master, either open or enclosed, any will executed by such person; and the Master with whom that will is lodged shall cause to be kept a register of the name and address of every person so lodging a will and the date when it was lodged.
(2) Every will so lodged shall be accompanied by a duplicate or fair and true copy thereof, which, together with the original, shall be kept in the custody of the Master until the death of the person executing the will unless re-delivery thereof is demanded by him, or in his lifetime by his agent specially authorized for that purpose, and when any such will is re-delivered the said person or his said agent (as the case may be) shall sign a receipt for the same.
(1) Any person who has any document being or purporting to be a will in his possession at the time of or at any time after the death of any person who executed such document, shall, as soon as the death comes to his knowledge, transmit or deliver such document to the Master.
(2) Every person shall, at the expense of the estate and when required by the Master to do so, transmit the original minute of any notarial will passed before him or in his possession, to the Master, and shall at the same time file a certified copy thereof in his protocol and endorse thereon that the original has been transmitted to the Master.
(3) Any such document which has been received by the Master, shall be registered by him in a register of estates, and he shall cause any such document which is closed to be opened for the purpose of such registration.
(4) If it appears to the Master that any such document, being or purporting to be a will, is for any reason invalid, he may, notwithstanding registration thereof in terms of subsection (3), refuse to accept it for the purposes of this Act until the validity thereof has been determined by the court.
(5) If the Master is satisfied that the person who executed any will transmitted or delivered to him in terms of subsection (1), has not left any property in Botswana, he may release such will to any person lawfully requiring it for the purpose of liquidating and distributing the estate of the deceased person outside Botswana.
Every judge of the High Court and every magistrate who upon information taken on oath is satisfied that there is reason to suspect that any will is concealed in any place within his jurisdiction may, by warrant under his hand, cause every such place to be searched.
When any person on reasonable grounds is believed to be in possession of or to have under his control any will, and after the death of the testator fails to deliver or transmit the same as hereinbefore provided, the Master shall forthwith apply to any court having jurisdiction for an order that such person forthwith deliver that will to him.
(1) When one of two spouses who have been married in community of property dies the survivor shall, within six weeks after the death, cause an inventory of all property which, at the time of the death, formed part of or belonged to the estate possessed in community between the pre-deceasing and surviving spouses, to be made in the presence of two impartial witnesses being persons of good credit and repute and in the presence of such persons having an interest in the distribution of the joint estate as heirs or legatees of the pre-deceased spouse as may attend.
(2) If any such property not included in any such inventory has, after the death, been registered in the name of the suriving spouse, the surviving spouse shall, within 14 days after the date of any such registration, transmit to the Master a supplementary inventory of all such property.
(3) Every such inventory shall be subscribed by the surviving spouse, the witnesses, and the heirs or legatees so attending.
(1) On the death of any person, not being one of two spouses married in community of property-
(a) the wife or husband of the deceased; or in the default or absence of the wife or husband;
(b) the child or children of the deceased; or in the default, absence, or minority of the child or children;
(c) the next of kin of the deceased; or in default, absence, or minority of the next of kin;
(d) the person who, at or immediately after the death, has the control of the premises where the deceased was living or staying at the time of his death,
shall within 14 days after the death, cause to be made, in the presence of two impartial witnesses being persons of good credit and repute, an inventory of all property known by the person making the inventory to have belonged to the deceased or to have been in his possession upon the said premises at the time of his death.
(2) Every such inventory shall be subscribed by the person causing the same to be made and by the said witnesses.
Every person hereinbefore required to cause any inventory to be made shall, as soon as the same has been made, forthwith deliver or transmit it to the Master.
Notwithstanding anything to the contrary hereinbefore contained, the court or the Master may, on sufficient cause appearing, at any time order that an inventory of any property belonging to any deceased person or to the joint estate of any deceased person and the surviving spouse, be taken by any person named in the order.
Every person required by law to frame an inventory of the property of a deceased person shall include therein a specified list of all immovable property registered in the name of the deceased or in which he knew that the deceased had an interest at the date of his death, and shall insert, if possible, a reference to the title under which the deceased held such property, the date of the title, and full particulars concerning such interest.
(1) The Master shall forthwith after the receipt by him of the inventory and particulars mentioned in the last preceding section furnish to the Registrar of Deeds a return-
(a) giving the name of every deceased person who, being married in community of property, had at the date of death (as shown by the inventory filed as hereinbefore required) an interest in immovable property not registered in the name of such deceased person, the date of the death of such person and a reference to the will, if any;
(b) embodying all material information in respect of that immovable property, and the interest of the deceased therein, contained either in the inventory lodged with the Master, or in the will (if any) of the deceased.
(2) The Registrar of Deeds after being furnished with such a return, shall not, unless directed by the court or the Master to do so, register any transaction or right in respect of such property in the estate at the instance of any person other than the executor of the estate.
On the death of any person not being one of two spouses married in community of property-
(a) the husband or wife of the deceased or in the default or absence of the husband or wife;
(b) the child or children of the deceased, or in the default, absence, or minority of the child or children;
(c) the next of kin of the deceased, or in the default, absence, or minority of the next of kin;
(d) the person who at or immediately after the death has the control of the premises where the death occurred; and
(e) the person who at or immediately after the death has possession or control of any goods and effects of the deceased,
shall secure and take charge of all goods and effects of whatever description under his control which belonged to the deceased, and shall retain the same in his custody and possession until delivery thereof is demanded by the executor of the deceased or by any other person lawfully appointed by the court or the Master to receive delivery for the purpose of the administration of the estate.
Whenever one of two spouses married in community of property dies, the assets of the joint estate shall remain under the charge of the survivor until the appointment of a curator bonis or executor to administer the assets of such estate.
If any person-
(a) in any way disposes of any property of an estate of a deceased person except in so far as he may be authorized thereto by a competent court or by the Master, or as may be necessary for the safe custody or preservation of any part of the estate or for providing a suitable funeral for the deceased or for the subsistence of the family or household of the deceased; or
(b) after letters of administration have been granted to him, in any way disposes of any property of the estate which is not contained in an inventory of that estate lodged with the Master under this Act,
he shall thereupon become personally liable to pay to the creditors, legatees, and heirs of the deceased the full amount of their debts, legacies and inheritances, in so far as the estate is insufficient for the payment thereof:
Provided that if he satisfies the court that the value of the property so disposed of by him did not exceed a certain sum and that the disposal of the property was made in good faith, his liability shall be limited (but without prejudice to the right of any creditor, legatee, or heir to be paid the taxed costs of suit incurred by him in respect of the recovery from the person so liable of the debt, legacy, or inheritance) to the said sum, after deduction therefrom of the amount (if any) which that person proves to have been the value of any part of the estate disposed of by him in a manner in which, and for a purpose for which, it ought by law to have been disposed of:
Provided that nothing contained in this section shall be construed as modifying section 24 whereby the survivor of two spouses married in community of property, retains, as provided in that section, the charge of the joint estate.
Every person, not being the executor or curator of the estate of a deceased person duly appointed by the Master, who has in his possession or custody any property belonging to that estate, shall forthwith either deliver that property to the executor or curator duly appointed and authorized to administer the estate, or report the particulars of the property to the Master; and if any such person fails to do so or parts with any such property to any person not authorized by the Master by letters of administration or other direction to receive the same, he shall, apart from any other liability he may incur thereby, be liable for all duties, taxes, or fees payable.
(1) In all cases where the Master deems it expedient, he may appoint a curator bonis to take the custody and charge of any estate until letters of administration are granted for the due administration thereof.
(2) Every such curator bonis may collect such debts and may sell or dispose of such perishable property belonging to the estate, wherever situate within Botswana, as the Master may specially authorize.
(1) The estate of all persons dying either testate or intestate shall be administered and distributed according to law under letters of administration granted by the Master in Form B set out in the First Schedule.
(2) Such letters of administration shall be granted to the executors testamentary duly appointed by persons so dying or to such persons as, in default of executors testamentary, are appointed as described in this Act, executors dative to the persons so dying.
(3) Letters of administration shall authorize the executor to administer the estate wherever situate.
(4) Whenever the estate or property of any person is being administered at the commencement of this Act under the supervision of the Master, the person administering that estate or property shall be entitled to have his authority recognized under this Act throughout Botswana, and the administration of the estate or property shall be carried out as if this Act had not been promulgated.
(5) Letters of administration shall not be issued to a spouse married n community of property unless the other spouse consents in writing.
In all cases in which any deceased person has by will duly appointed any person to be executor the Master shall, upon the written application of the person so appointed, grant letters of administration to him as soon as the will has been registered in the office of the Master:
(i) if it appears to the Master; or
(ii) if any person by writing lodged with the Master objects,
that any will by virtue whereof any person claims to be the executor testamentary of any person deceased is not in law sufficient to warrant and support the claim, letters of administration may be refused by the Master-
(a) until the validity and legal effect of that will has been determined by the judgment of the court;
(b) until the objection has been withdrawn by the person by whom the same was made; or
(c) until the person objecting has had sufficient time to apply to the court for an order restraining the issue of letters of administration:
Provided further that if the executor appointed by the will is a corporation the Master shall grant letters of administration to any officer of the corporation thereto nominated by the corporation, for whose acts as executor the corporation accepts liability, and upon his death, resignation or dismissal, to his successor being thereto nominated and guaranteed by the corporation:
Provided also that in case any such executor is or resides outside Botswana the Master may refuse to grant letters of administration to that executor until he finds sufficient security for his due and faithful administration of the estate and chooses domicilium citandi et executandi within Botswana:
Provided lastly that if it is brought to the notice of the Master that any such executor testamentary is insolvent or has assigned his estate, notwithstanding anything in section 35(2) the Master may refuse to grant letters of administration to that executor until he finds security as aforesaid, and if the estate of any such executor be placed under sequestration or assigned after he has been granted letters of administration, the Master may by notice require him to find security as aforesaid within a period specified in such notice. The Master may allow reasonable costs of finding security to be charged out of the estate.
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