An agreement for the purchase of a property from a deceased estate cannot be concluded unless and until an estate representative has been appointed. The representative in this context is the executor who is usually nominated in the deceased’s will to act as such.
Once a deceased estate has been reported to the Master of the High Court (the Master), the executor is appointed by the Master by issuing to the nominated executor letters of executorship authorizing him to act in that capacity on behalf of the estate.
If an agreement for the sale of a property is signed by the person nominated to be the executor in the estate but before he has been formally appointed by the issue of letters of executorship, that agreement is void and of no legal effect.
Having sold the property, the executor cannot pass the transfer thereof to the purchaser without a certificate from the Master that there is no objection to that transfer. This is provided for in section 42(2)of the Administration of Estates Act 1965
The certificate is endorsed by the Master on the power of attorney to pass the transfer of the property(This power of attorney is submitted to the Registrar of Deeds along with the other documents required to pass the transfer)
Section 47 of the Act provides that the executor must sell the assets in the estate(with certain exceptions) on terms and conditions as approved by the heirs in the estate.
However if an heir is a minor or if the heirs cannot agree on the method and the terms of the sale, application must be made to the Master for his approval of the intended sale.
If the deceased’s will specifically provides how a property should be sold and the executor sells it as prescribed, neither the Master nor the heirs are required to approve that sale.
This also applies to the case if the will gives the executor complete discretion as to how the property should be sold.
Notwithstanding the situations where the master’s approval is not required as mentioned above, the section 42(2) certificate is still required by the Registrar of Deeds to pass the transfer of the property.