Administrator- Estate of the Late David Harry Muir
Late Martin Robert Muir
Plaintiff Mr. Shilubane
Defendant Mr. Flynn
plaintiff has sued the defendants claiming damages as compensation
for loss of estate property by fire. This is an exception to the
summons. The point raised is that the allegations in the summons do
not support the plaintiff's locus standi in judicio. The merits of
the matter are not material.
property was owned by the Late David Harry Muir. The plaintiff
alleges in the summons that he, Patrick Norman Muir, is "in his
capacity aforesaid" the registered owner of the property. He
claims to be the Administrator of the estate by virtue of letters of
administration issued to him by the Master of the High Court.
terms of the will of the late D H Muir, a copy of which is attached
to the summons Barclays Bank D C O is the executor and administrator
of the estate.
Master of the High Court has no statutory or other power to appoint
an administrator (as opposed to an executor) of an estate, let alone
an individual other than the person nominated in the will. It is the
will which creates the trust of which the administrator is the
point is well taken . But for the allegation that the plaintiff is
the registered owner of the property, albeit in a representative
capacity, I would have no difficulty in upholding the exception.
both sides have made reference to facts not alleged in the
particulars of claim, no account is to be taken of them in deciding
on the exception. On the other hand the deed of transfer in terms of
which the Plaintiff claims to be the owner of the property, a copy of
which is attached to the particulars of claim, makes no mention of
his name or the name of any other individual or person, and refers
only to the office of administrator of the estate. In terms of the
will it is Barclays Bank is appointed to that office. There is
nothing to show that Patrick Norman Muir has been validly appointed
to act as administrator and trustee. Instead of the bank
uphold the exception with costs of both defendants. The Plaintiff
may, amend the summons within seven days if there are facts which can
be stated to demonstrate the validity of his appointment.
this the case is dismissed.