Page:Gory v Kolver (HC).djvu/14

Rh Before his appointment by the Master he wrote a letter to the applicant informing him of his nomination. At that stage his main object was to get as many of the assets away from the applicant and in the hands of the second- and third respondents. There was obviously liaison between him and the second- and third respondents with his effort to get all the movables into the hands of the second- and third respondents. I agree with the applicant that if he was the surviving spouse of a hetero-sexual marriage the assets would not have been carted away in loads and that there would have been an investigation whether the surviving spouse could not possibly keep the house. The fact that the first respondent's firm will do the transfer of the house makes it more attractive for him to have the house sold. His failure to give the applicant's attorneys a copy of the purchase agreement does not speak of objectivity or goodwill.

What I find very disturbing, however, is that he failed to consider the applicant's claim that he is the heir. He was aware of the claim since 23 May 2005. He was invited to have a discussion and settle the matter. He bluntly refused to consider the applicant's claim. I am not impressed by his reliance on counsel's opinion. One does not know what his instructions to counsel were when he asked the opinion. One does not know what was said in the opinion. One thing is clear and that is that if counsel had been asked if there was a prospect that section 1 (1) of the Act may be declared unconstitutional, in the light of the then existing jurisprudence, it is highly unlikely that counsel would have brushed all the cases, referred to herein, aside. It is unthinkable that counsel would have come to the conclusion that there is no prospect that the section may be declared inconsistent with the Constitution. That was the aspect that had to be investigated by counsel, because that was the attitude of the applicant all along.

The applicant has the perception that the first respondent does not want to administer the estate to achieve his best interests. As must be clear he has reason to think so. If the applicant was the heir from the outset he would have nominated an executor. Section 54 of the Administration of Estates Act deals with circumstances under which an executor may be removed from office. In terms of subsection 2(b)(i) the Master may remove an executor who has been nominated by will after the will has been declared